Gibson v. State

623 S.W.2d 324, 1981 Tex. Crim. App. LEXIS 1243

• Court: Court of Criminal Appeals of Texas
• Decided: November 10, 1981
• Docket: 60129
• Status: Published

Opinions

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for theft by check of services of a value of over $200 (V.T.C.A. Penal Code §§ 31.04 and 31.06). Appellant was indicted under the habitual offender statute. Punishment was assessed at life imprisonment.

The conviction in this case must be set aside because the evidence is insufficient to support the allegations in the indictment. The indictment alleged, in pertinent part, that appellant:

... with intent to avoid payment for services, namely: food, lodging and beverage, services of the Holiday Inn — DFW Airport South, that he knew were provided by the said Holiday Inn only for compensation, did knowingly and intentionally secure performance of said services of the value of more than $200 but less than $10,000 by deception, to-wit: did then and there present in payment for said services to Karen Miles, the owner thereof, a check for which the said defendant had no account at the bank on which the check was drawn, ...

In Cortez v. State, 582 S.W.2d 119 (Tex.Cr.App.1979), the Court stated as follows:

The indictment in this case alleged that the deception by which appellant secured performance of the service allegedly stolen was accomplished by means of a certain check (see Sec. 31.06, supra). An examination of the definitions of “deception” in Sec. 31.01(2) . . . reveals that in all but one instance (which is not pertinent here) the deception must be such as is likely to affect the judgment of another in the transaction. Obviously any deception that occurs after the other person has completed performance of the service allegedly stolen would not meet this requirement: once the other person has completed the performance of his obligations in the transaction, any later deception would be incapable of affecting retrospectively his judgment in what he has already completed.

The facts of this case measured against the definition of deception reveal that appellant’s conduct of issuing and passing the check could not have affected the judgment of the complaining witness in the delivery of the services allegedly stolen, because the check was not issued and passed until after performance of the services had been completed. Although the contract for performance of those services included a promise by appellant to pay for them on completion, and this promise in the contract could have constituted deception under Sec. 31.01(2)(E), supra, the indictment did not allege deception by a promise to pay that appellant did not intend to perform or knew would not be performed. The indictment alleged deception by issuing and passing a certain check. As shown above, the evidence reveals that this alleged conduct could not be deception that secured performance of the allegedly stolen services in this case. Therefore the evidence is insufficient.

The conviction is set aside and the judgment is reformed to show an acquittal.

The facts in the present case are indistinguishable from those in Cortez, supra; accordingly, Cortez must control the disposition of the instant case. At appellant’s trial the evidence showed that he presented a check to a hotel for services previously rendered. As in Cortez, appellant’s conduct in presenting this check “could not have affected the judgment of the complaining witness in the delivery of the services allegedly stolen” because the check was presented after the services had been rendered. The indictment in the present case alleged deception by presenting a certain check. The conduct that the State proved at trial could not be the deception that secured performance of the allegedly stolen services. Therefore the evidence is insufficient.¹

The conviction is set aside and the judgment is reformed to show an acquittal.

1 . The dissent incorrectly contends that the indictment fails to allege an offense. Suppose the evidence had shown that appellant secured performance of the services by presenting a check before the services were rendered. Such proof would establish the allegations in the indictment and would satisfy the requirements for “deception” as that term is construed in Cortez. It follows that the conduct alleged in the indictment is sufficient to state an offense. The present case involves not a fundamentally defective indictment, but a failure of proof.