COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-09-300-CR
JAMES DEAN GRAYSON APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
Appellant James Dean Grayson appeals his conviction for theft, contending
in six points that the evidence is legally and factually insufficient to show that he
intended to deprive anyone of property, that he unlawfully appropriated property,
1 See Tex. R. App. P. 47.4.
1 and that the complaining witness was the owner of the property. See Tex. Penal
Code Ann. ' 31.03(a) (Vernon Supp. 2009). We affirm.
Background Facts
In 2008, the First Baptist Church of Euless (FBCE) needed a new digital
mixing board and other equipment for its music department. Under FBCE=s
policy, Alton LaGrappe, a church employee, collected three bids for the price of the
equipment. The church eventually chose a bid for $15,510.59 from All A-Round
Video and Sound (AAVS). AAVS submitted an invoice to the church.
In February 2008, Gary Phillips, the church‘s administrative pastor who was
responsible for its financial matters, authorized the church to purchase the
equipment from AAVS through an internal purchase order. Phillips signed a
check made out to AAVS from the church‘s Chase Bank account for the amount in
AAVS=s invoice, and LaGrappe delivered the check to AAVS.
Appellant, who had previously been employed and fired by the church, is the
sole proprietor of AAVS. The church=s employees had been instructed to not do
business with appellant.2 AAVS‘s $15,510.59 bid to the church for the equipment
that the church was looking for was based on a deal that appellant had brokered
2 Appellant‘s counsel said during his opening statement that appellant had worked for the church‘s music department but was fired because he allowed someone to repossess property from the church after being instructed not to. The trial court excluded evidence about appellant‘s employment with the church.
2 with Nomad Productions, which is operated by Paul Glasgow. Glasgow told
appellant that appellant would need to pay cash for the equipment.
Appellant went to a Chase Bank branch and attempted to cash the check
that LaGrappe had given him; the bank refused to do so. But then, appellant
opened a checking account for AAVS at that same bank and deposited the check.
Once appellant made the deposit, he immediately withdrew $3,510.59 and left the
bank.3
In the meantime, an employee of the bank called FBCE to verify the
legitimacy of the check and find out who had authorized it. Through the bank=s
contacting the church, Phillips eventually became aware that appellant is the sole
proprietor of AAVS. The church asked the bank to stop payment on the check,
but that request came too late because the funds had already been deposited in
AAVS‘s account. The bank also never placed a hold on AAVS‘s account.
In the latter part of February 2008, seven days after his first withdrawal from
his sole proprietor account, appellant withdrew $11,900, which was $100 less than
the balance of the purchase price, from the account. He still did not purchase the
3 Appellant=s counsel theorized during his opening argument at trial that the initial withdrawal represented appellant=s commission for brokering the deal between the church and Nomad Productions. The invoice that was submitted by AAVS to the church does not reference appellant=s commission.
3 equipment for the church. On March 4, appellant sent Phillips an e-mail that
stated the following:
Gary,
Through the grapevine I have heard that YOU intend on pressing charges against my company for fraud. I assure you that this is not the case. I had ordered parts and supplies to be delivered to the [FBCE] campus from Nomad Productions which is the company you told your staff to deal with after You had recognition that I was involved. . . .[4] There are issues that popped up after my departure from FBCE. . . . Please, as I have told ALTON to tell you, AAVS will have the church‘s funds back to the FBC CAMPUS. By March 18.
Phillips responded to appellant=s e-mail on March 10 and informed appellant that if
the funds were not returned to FBCE by March 18, Phillips would turn the matter
over to legal counsel. March 18 came and went but no equipment or money
arrived.
On March 20, appellant e-mailed Phillips to inform him that he could not
refund the church=s money because the money was not in his possession and that
he could not deliver the promised equipment because it was Ano longer available at
the price that was quoted.@ The next day, appellant e-mailed Phillips again and
promised to refund the church=s money.
4 Glasgow testified that no one from FBCE ever contacted him about the equipment.
4 Appellant e-mailed Phillips yet again on March 26. He told Phillips that the
original mixing board he had quoted was Aliquidated to another buyer before [he]
could get the funds because of the fraud [allegations].@ Appellant went on to state
that he had located similar equipment (although at a higher price) and promised to
credit FBCE on its next purchase.
In the end, FBCE did not receive the equipment or a refund of its money.
Phillips contacted the police to allege that appellant had committed theft, and he
learned at that time that appellant had withdrawn all of the church‘s money from
AAVS‘s bank account.
A grand jury indicted appellant for theft.5 Appellant waived his right to a jury
and pled not guilty. The trial court found appellant guilty and pronounced a
sentence of two years= confinement, but the court suspended that sentence,
placed appellant on community supervision for five years, and ordered appellant to
pay restitution of $15,510.59. Appellant filed notice of this appeal.
Evidentiary Sufficiency
Appellant claims that the evidence is legally and factually insufficient to
support his conviction. In a theft case, the State must prove that (1) a person (2)
with intent to deprive the owner (3) unlawfully appropriated (4) property. See Tex.
5 Theft of property valued between $1,500 and $20,000 is a state jail felony that carries punishment of up to two years= confinement. Tex. Penal Code Ann. '' 12.35(a), 31.03(e)(4) (Vernon Supp. 2009).
5 Penal Code Ann. ' 31.03(a); Ex parte Luna, 784 S.W.2d 369, 371 (Tex. Crim. App.
1990) (op. on reh‘g); Bokor v. State, 114 S.W.3d 558, 560 (Tex. App.CFort Worth
2002, no pet.). Elements of theft may be proved by direct or circumstantial
evidence. See Bryant v. State, 627 S.W.2d 180, 182 (Tex. Crim. App. [Panel Op.]
1982); Christensen v. State, 240 S.W.3d 25, 32 (Tex. App.CHouston [1st Dist.]
2007, pet. ref=d) (op on reh‘g).
Standards of review
In reviewing the legal sufficiency of the evidence to support a conviction, we
view all of the evidence in the light most favorable to the prosecution in order to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007). This standard gives full play to the responsibility of the
trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.
The trier of fact is the sole judge of the weight and credibility of the evidence.
See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270
S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009).
Thus, when performing a legal sufficiency review, we may not re-evaluate the
6 weight and credibility of the evidence and substitute our judgment for that of the
factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert.
denied, 529 U.S. 1131 (2000). Instead, we Adetermine whether the necessary
inferences are reasonable based upon the combined and cumulative force of all
the evidence when viewed in the light most favorable to the verdict.@ Hooper v.
State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume that the
factfinder resolved any conflicting inferences in favor of the prosecution and defer
to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235
S.W.3d at 778. The standard of review is the same for direct and circumstantial
evidence cases; circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor. Clayton, 235 S.W.3d at 778; Hooper, 214
S.W.3d at 13.
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v. State,
204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether the evidence
supporting the conviction, although legally sufficient, is nevertheless so weak that
the factfinder=s determination is clearly wrong and manifestly unjust or whether
conflicting evidence so greatly outweighs the evidence supporting the conviction
that the factfinder=s determination is manifestly unjust. Steadman, 280 S.W.3d at
7 246; Watson, 204 S.W.3d at 414B15, 417. To reverse under the second ground,
we must determine, with some objective basis in the record, that the great weight
and preponderance of all the evidence, although legally sufficient, contradicts the
judgment. Watson, 204 S.W.3d at 417.
8 Unless we conclude that it is necessary to correct manifest injustice, we
must give due deference to the factfinder=s determinations, Aparticularly those
determinations concerning the weight and credibility of the evidence.@ Johnson v.
State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W.3d at 246.
Evidence is always factually sufficient when it preponderates in favor of the
conviction. Steadman, 280 S.W.3d at 247; see Watson, 204 S.W.3d at 417.
Intent to deprive and unlawful appropriation
In his first four points, appellant contends that the evidence is legally and
factually insufficient to prove that he intended to deprive anyone of property or that
he unlawfully appropriated property. Appellant briefed his contentions regarding
intent to deprive and unlawful appropriation together. Because, under the facts of
this case, the intent to deprive and unlawful appropriation elements both require
the State to show that appellant had no intent to perform AAVS‘s agreement with
the church at the time that he took the church‘s check, we will examine the
elements together.6
A defendant ―deprives‖ someone of property by ―withhold[ing] property from
the owner permanently or for so extended a period of time that a major portion of
the value or enjoyment of the property is lost to the owner.‖ Tex. Penal Code Ann.
6 Appellant concedes in his brief that ―evidence of deception would generally tend to show an intent to deprive.‖
9 ' 31.01(2)(A) (Vernon Supp. 2009). ―Relevant intent to deprive the owner of
property is the accused‘s intent at the time of the taking.‖ Peterson v. State, 645
S.W.2d 807, 811 (Tex. Crim. App. 1983) (op. on reh‘g). ―It is well settled that
intent to commit theft can be inferred from the surrounding circumstances.‖
Roper v. State, 917 S.W.2d 128, 132 (Tex. App.CFort Worth 1996, pet. ref=d)
(citing Coronado v. State, 508 S.W.2d 373, 374 (Tex. Crim. App. 1974)).
A person acts intentionally ―with respect to the nature of his conduct . . . when it is
his conscious objective or desire to engage in the conduct.‖ Tex. Penal Code
Ann. ' 6.03(a) (Vernon 2003). In determining whether the evidence is sufficient to
establish that appellant had criminal intent to commit theft, we may consider
whether he personally gained from what was taken, whether he partially performed
on any of the representations that were made, and whether any inferences can
properly be drawn from the combined force of the circumstantial evidence.
Christensen, 240 S.W.3d at 32.
Under the facts of this case, for appellant=s appropriation of property to have
been unlawful, he must have taken the property without its owner‘s effective
consent. See Tex. Penal Code Ann. ' 31.03(b)(1); 7 Schmitz v. State, 952
S.W.2d 922, 924 (Tex. App.CFort Worth 1997, pet. ref=d). Consent is not
7 Appropriation includes acquiring or exercising control over property. Tex. Penal Code Ann. ' 31.01(4)(B).
10 effective when it is Ainduced by deception or coercion.@ Tex. Penal Code Ann.
§ 31.01(3)(A). Thus, to show unlawful appropriation, the State must prove that at
the time that appellant got the church=s check, he did so by deception or coercion.
See Wilson v. State, 663 S.W.2d 834, 836B37 (Tex. Crim. App. 1984). Deception
means the following:
(A) creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true;
(B) failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true; [or]
....
(E) promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed, except that failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed.
Tex. Penal Code Ann. ' 31.01(1). Therefore, when an owner gives property or
money voluntarily and in pursuit of a contractual agreement and there is
insufficient evidence to show deception, the owner has given its effective consent
and there is therefore no unlawful appropriation. See Peterson, 645 S.W.2d at
812; Phillips v. State, 640 S.W.2d 293, 294 (Tex. Crim. App. [Panel Op.] 1982);
Roper, 917 S.W.2d at 131B32; see also Jacobs v. State, 230 S.W.3d 225, 229B30
11 (Tex. App.CHouston [14th Dist.] 2006, no pet.) (explaining that the Amere fact that
one fails to return funds paid in advance after failing to perform a contract does not
constitute theft‖ and that A[i]n sum, the State must show a rational factfinder could
have found appellant had no intention of fulfilling his obligation under the
agreement@).
Here, Phillips voluntarily authorized the check=s delivery to AAVS under the
parties= agreement. Thus, appellant=s nonperformance of AAVS‘s part of the
bargain does not by itself show his unlawful appropriation. See Tex. Penal Code
Ann. '' 31.01(1)(E), (3)(A), 31.03(b)(1). Instead, the State is required to prove
that appellant did not intend to purchase the equipment for the church at the time
that he received the check and therefore acquired Phillips=s consent by deception.
Appellant‘s intent to steal the money and unlawfully appropriate it by deception
may be inferred from the following facts:
appellant did not disclose to Phillips that he was the proprietor of AAVS when he submitted the bid to the church through AAVS‘s invoice even though the church had previously fired him;
appellant tried to cash the church‘s entire check upon receiving it;
despite withdrawing $3,510.59 from the account on the day that he deposited the check, appellant did not buy any of the church‘s equipment that day or use the withdrawn money as a deposit for the equipment;
despite withdrawing almost the entire remaining amount of money that was given to him by the church approximately one week later, appellant still did not buy the equipment even though Glasgow still had it;
12 after depositing the check in AAVS‘s account, appellant did not answer calls from one of the church‘s employees to the telephone number that appellant had listed on his AAVS invoice;
appellant told Glasgow in an e-mail that the church had stopped payment on its check although, in fact, the church did not stop payment and the bank never placed a hold on AAVS‘s account;
appellant promised to refund the church‘s money on several occasions and was given time by the church to do so, but he never returned the money; and
appellant deceived the church by telling Phillips that the ―console that was in question [was] no longer available‖ and that it had been ―liquidated to another buyer before [he] could get the funds‖ when, in fact, Glasgow still had the console and never told appellant that the console had been sold.
We recognize that some of the evidence in the record weighs against the trial
court‘s decision to convict appellant. For example, Glasgow testified that he and
appellant had multiple conversations in which they talked about the specific
equipment that the church needed, including a mixing console, preamps, and a
digital input/output card. Glasgow also said that after appellant received the
church‘s check, appellant called Glasgow to tell him that appellant would meet him
to pick up the equipment but that appellant never actually did so.
While Glasgow‘s testimony about his communication with appellant before and
after appellant received the church‘s check could imply that appellant intended to
complete AAVS‘s transaction with the church at the time that he received the
check, we conclude that because of appellant‘s misrepresentations regarding
returning the church‘s money and regarding the equipment‘s alleged unavailability,
13 the trial court could have reasonably inferred that the communication was a ruse to
cover up appellant‘s theft.
Also, appellant‘s attempt to cash the church‘s check could imply that he was
trying to complete AAVS‘s agreement with the church at that time since Glasgow
required cash before transferring the equipment. However, the trial court could
have also reasonably inferred appellant‘s intent to steal from his attempt to cash
the check. Finally, witnesses testified that appellant has a good, dependable
business reputation. But some of those witnesses conceded that they did not
have any knowledge about the facts related to AAVS‘s agreement with the church.
Appellant relies on Peterson and Roper to contend that the evidence is
insufficient to convict him. In Peterson, the court of criminal appeals held that the
evidence was legally insufficient to show that the defendant appropriated $58,000
by deception from a warehouse owner under a construction contract because, in
part, the defendant completed between 75% and 95% of the construction work,
there was a dispute between the defendant and the owner about terms of their
agreement, and there were disputes between the defendant and construction
material suppliers about how much he owed them or whether the suppliers had
given him the correct materials for the job. 645 S.W.2d at 807–12. Unlike the
defendant in Peterson, appellant did not partially perform his agreement with the
church even though he had the funds to do so and the equipment was available to
14 be purchased. Also, unlike the construction agreement in Peterson, the record in
this case does not show a dispute about the terms of AAVS‘s agreement with the
church that contributed to appellant‘s failure to perform the agreement.
In Roper, we held that the evidence was legally insufficient to prove theft
because the defendant had consent to sell a farmer‘s hay and the defendant
testified that he believed he was entitled to keep the money he made while selling
the hay since the farmer owed him money for a commission and wages.
917 S.W.2d at 130–33. Here, appellant did not have any basis to believe that he
was entitled to keep the church‘s money without providing any of the promised
equipment. Rather, he deceived the church about whether he would return the
money and whether he could have purchased the equipment from Nomad
Productions with the money that the church had given him. Appellant‘s deception
provided the trial court with circumstantial evidence that he intended to steal the
church‘s money rather than perform the agreement. See Ellis v. State, 877
S.W.2d 380, 383 (Tex. App.—Houston [1st Dist.] 1994, pet. ref‘d); Webb v. State,
752 S.W.2d 208, 210 (Tex. App.—Houston [1st Dist.] 1988, pet. ref‘d); Henke v.
State, 730 S.W.2d 117, 118 (Tex. App.—Corpus Christi 1987, pet. ref‘d).
In our legal sufficiency review, we must defer to the trial court‘s resolution of
conflicting inferences that may be drawn from the evidence. See Jackson, 443
U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. We conclude that, in
15 giving such deference in this case, the trial court could have rationally found that
appellant did not intend to perform his agreement with the church at the time that
he took its check, and the court therefore could have justifiably found the intent to
deprive and unlawful appropriation elements beyond a reasonable doubt.
Thus, we overrule appellant‘s first and third points.
Similarly, while we have recognized that some inferences that could be drawn
from the evidence conflict with the trial court‘s decision to convict appellant, we
cannot conclude that the weight of those inferences is so great to make the trial
court‘s judgment manifestly unjust. See Steadman, 280 S.W.3d at 246; Watson,
204 S.W.3d at 414B15, 417. We may not hold that the evidence is factually
insufficient merely because we ―harbor a subjective level of reasonable doubt to
overturn [the] conviction.‖ Watson, 204 S.W.3d at 417. Thus, we hold that the
evidence is factually sufficient to prove the elements of intent to deprive and
unlawful appropriation, and we overrule appellant‘s second and fourth points.
Phillips’s ownership of the money
In his fifth and six points, appellant contends that the evidence is legally and
factually insufficient to prove that Phillips was the owner of the money that he took.
An owner is someone who has a ―greater right to possession of the property than
the actor.‖ Tex. Penal Code Ann. ' 1.07(a)(35)(A).
16 Appellant‘s argument that Phillips was not the owner of the money seems to
be dependent on a positive resolution of his first four points; appellant succinctly
contends in his brief that the ―trial record establishes only the existence of a civil
contract dispute. Consequently, the evidence is legally and factually insufficient
to prove beyond a reasonable doubt that the complaining witness had a greater
right to possession‖ of the money. We have upheld the trial court‘s implicit
findings that appellant intended to deprive Phillips of the money and unlawfully
appropriated it; the evidence shows more than a civil contract dispute.
Furthermore, the evidence shows that Phillips has authority to spend money
on the church‘s behalf. Phillips testified that he is responsible for overseeing all of
the church‘s fiduciary matters and keeping records of business purchases.
Also, Phillips signed the purchase order that authorized the delivery of the
church‘s check to appellant. We hold that this evidence, coupled with appellant‘s
unlawful appropriation of the money, shows that Phillips had a greater right to
possession of the $15,510.59 than appellant. See Jordan v. State, 707 S.W.2d
641, 644 (Tex. Crim. App. 1986) (holding that a store manager who had ―control
and managerial authority over the store and its money‖ qualified as an owner
under the statutory definition). In other words, the evidence is sufficient to show
that Phillips qualifies as the church‘s ―special owner.‖ Liggens v. State, 50
S.W.3d 657, 660 (Tex. App.—Fort Worth 2001, pet. ref‘d) (holding that a store
17 manager had a greater right to possession than the defendant and explaining that
a ―‗special owner‘ is an individual, such as an employee, who is in care, custody, or
control of the property belonging to another person or a corporation‖); see also
Jackson v. State, 270 S.W.3d 649, 657 (Tex. App.—Fort Worth 2008, pet. ref‘d)
(holding that a car dealership‘s employee qualified as the owner of a car because
he had a greater right of possession than the defendant).
For these reasons, viewing the evidence in the light most favorable to the
verdict, we hold that the trial court could have rationally found beyond a
reasonable doubt that Phillips was the owner of the money; thus, the evidence is
legally sufficient as to that element. See Clayton, 235 S.W.3d at 778. We have
not found any evidence in the record that weighs against Phillips‘s ownership of
the money. Viewing the evidence in a neutral light, we cannot conclude that it is
so weak concerning Phillips‘s ownership of the money that the trial court‘s verdict
is clearly wrong or manifestly unjust. Therefore, the evidence is also factually
sufficient as to that element. See Steadman, 280 S.W.3d at 246. We overrule
appellant‘s fifth and sixth points.
Conclusion
Having overruled each of appellant‘s six points, we affirm the trial court‘s
judgment.
TERRIE LIVINGSTON 18 CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: August 5, 2010