IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0197-17
DONDRE JOHNSON, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND COURT OF APPEALS TARRANT COUNTY
W ALKER, J., filed a concurring opinion in which K ELLER, P.J., joined.
CONCURRING OPINION
In discussing whether there was sufficient evidence to support the jury’s guilty verdict on
Count I,1 the majority and Judge Yeary’s concurring opinions consider whether the evidence was
sufficient to show that Appellant was guilty as a party either under section 7(a)(2) as charged, or
under a section 7(a)(1) theory, respectively. However, the indictment did not charge Appellant as a
party. The indictment alleged that Appellant committed the offense as a primary actor, and the jury’s
1 W ith regard to Count II, I agree with the majority opinion that the evidence shows Appellant intended to deprive the victims named in that count of their money intended to pay for cremation services, even if the evidence shows he performed other paid-for services. See Majority Op. at 6–8. 2
instructions authorized his conviction not just as a party but also as a primary actor. “[W]hen the trial
court’s charge authorizes the jury to convict on several different theories . . . the verdict of guilty will
be upheld if the evidence is sufficient on any one of the theories.” Swearingen v. State, 101 S.W.3d
89, 95 (Tex. Crim. App. 2003). The evidence is sufficient on the theory that Appellant was guilty
as a primary actor, and for that reason I concur in the Court’s decision to reverse the judgment of the
court of appeals.
Sufficient Evidence Shows Appropriation as a Primary Actor
A person commits the offense of theft if he unlawfully appropriates property with the intent
to deprive the owner of that property. TEX . PENAL CODE Ann. § 31.03(a). Appellant’s argument on
appeal, and again before this Court, is that the evidence is insufficient to support the guilty verdict
because one of the elements of theft, appropriation, is not shown. “Appropriate” means:
(A) to bring about a transfer or purported transfer of title to or other nonpossessory interest in property, whether to the actor or another; or (B) to acquire or otherwise exercise control over property other than real property.
TEX . PENAL CODE Ann. § 31.01(4) (emphasis added). Appellant argues that he did not exercise
control over Francois’s money because he was not the named payee on the check. Therefore, the
argument goes, he could not have appropriated Francois’s property.
In his brief to this Court and in his brief to the court of appeals, Appellant’s argument relies
upon Newman v. State, 115 S.W.3d 118 (Tex. App.—Texarkana 2003, no pet.). In Newman, the
defendant was charged with theft of “United States currency in the form of a check,” and he was
convicted. Id. at 119–20, 121. On appeal, Newman argued that the evidence was insufficient because
there was no proof that he actually controlled the money represented by the check. Id. at 121. 3
Appellant, in his brief, quotes the following passage in Newman:
This argument, however, is without merit. First, the State indicted [Newman] for the theft of the check itself, not the funds represented by the check. This is an important distinction. Under the indictment, the State was required to prove [Newman] unlawfully appropriated a check worth $79,218.38, not to show that the funds represented by the check were ever actually controlled by [Newman].
Appellant’s Reply Br. 9 (quoting Newman, 115 S.W.3d at 122). Appellant seizes upon this language
and points out that he was indicted for theft of money, not a check. “In other words, Appellant may
have exercised control over the check, but not the currency it represented.” Id.
In essence, Appellant argues there is a fatal variance between the indictment alleging theft
of money and the evidence showing theft of a check. But it is well-settled that there is no fatal
variance between an indictment alleging theft of money and evidence showing theft of a check. See
Jackson v. State, 646 S.W.2d 225, 226 (Tex. Crim. App. 1983); Kirkpatrick v. State, 515 S.W.2d
289, 293 (Tex. Crim. App. 1974); Rick v. State, 207 S.W.2d 629, 630 (Tex. Crim. App. 1947). A
check is an instrumentality by which one receives money. Jackson, 646 S.W.2d at 226.
The court of appeals, however, found significant to the “control” issue the fact that Appellant
did not negotiate Francois’s check:
Appellant argues that the evidence is insufficient to support the guilty verdict in Count One because he was charged with appropriation of the cash and not the check. The evidence shows that he possessed the check from Francois, not cash. The check was made out to and deposited in the account of Johnson Family Mortuary. Had the check been made out to Appellant, and had he negotiated the check, he obviously would have exercised control over the money. But the evidence shows that Appellant was not a signatory on the funeral home account. He was not an owner of Johnson Family Mortuary. He argues that the check represented to him just that—a check over which only his wife could have exercised control. Proof of appropriation of a check is not proof of appropriation of money unless there is also proof that the accused negotiated the check.
Johnson v. State, 513 S.W.3d 190, 196 (Tex. App.—Fort Worth 2016, pet. granted). To support that 4
last statement, the court of appeals cited Orr v. State, 836 S.W.2d 315, 319 (Tex. App.—Austin
1992, no pet.). The State argues that the court of appeals’s reliance on Orr was mistaken. I agree.
In Orr, the evidence showed that the victim, McCann, purchased several oil and gas wells
from Pitco Energy Company. Id. at 315–16. After the purchase, McCann realized that Orr and
Pitchford, who was Pitco’s president, provided false information about the wells’ production. Id. at
317. Mechanisms on the wells had been manipulated, and consequently they reported greater
production than what the wells were actually producing. Id. Orr and Pitchford were both charged
with theft, and the State’s theory at trial was that Orr and Pitchford knew the reports were false and
used those false reports to deceive McCann into paying more for the wells than they were worth. Id.
On appeal, Orr argued that the evidence was insufficient to show appropriation of “cash money,” as
alleged in the indictment, because McCann paid Pitco with money orders. Id. at 318. The Austin
Court of Appeals agreed and held that there was a fatal variance. Id. Because there was no proof that
the money orders were ever negotiated by anyone, the evidence was insufficient to show that “cash
money” was appropriated from the victim. Id. at 319.
Assuming, for the sake of argument, that Orr was correctly decided, it was misapplied by the
court of appeals in this case. Unlike Orr, in this case there was proof that Francois’s cashier’s check
was negotiated. It was deposited by Appellant’s wife. This simple fact makes Orr distinguishable,
and other courts have distinguished Orr for the same reason. For example, in Mueshler v. State, the
defendant was her workplace’s office manager and bookkeeper and was responsible for receiving
and paying the company’s bills. Mueshler v. State, 178 S.W.3d 151, 152 (Tex. App.—Houston [1st
Dist.] 2005, pet. ref’d). The firm’s owner frequently signed blank checks for Mueshler to use to pay
the company’s bills while he was away from the office. Id. Mueshler instead wrote several checks 5
from the business to herself and to her creditors. Id. Mueshler was convicted of theft, and on appeal
she argued that there was insufficient evidence to support the verdict because the indictment alleged
theft of cash money, and the proof showed theft by writing checks. Id. at 152, 153. In support of her
argument, Mueshler cited to Orr. Id. at 155. The court of appeals in Mueshler, however,
distinguished Orr because the “State introduced evidence that the unauthorized checks written by
Mueshler were negotiated—such that the bank used cash from the firm’s checking account to pay
for them.” Id. The court of appeals thus held that the evidence was sufficient to sustain Mueshler’s
conviction of theft of cash money. Id.
Similarly, the Austin Court of Appeals—the very same court that issued the opinion in
Orr—distinguished Orr in Denton v. State, No. 03-96-00006-CR, 1998 WL 476459 (Tex.
App.—Austin Aug. 13, 1998, pet. ref’d) (mem. op., not designated for publication). Denton was the
executive director of the Texas Department of Public Safety Officers Association (DPSOA), and the
evidence showed that he wrote a number of checks from DPSOA, payable to South Coast, a
corporation organized and run by some of Denton’s close friends. Id. at *1–2. Denton was convicted
of theft, and on appeal he argued that there was a fatal variance between the indictment, which
alleged theft of “lawful United States currency,” and the evidence at trial, which showed checks. Id.
at *1, 5. The Austin Court of Appeals found its Orr opinion distinguishable because the evidence
showed that the DPSOA checks Denton wrote to South Coast were actually negotiated by South
Coast. Id. at *5. Additionally, the court of appeals dismissed Denton’s argument that the State had
to prove that he personally negotiated the checks in order for the checks to be considered the same
as lawful United States currency. Id. at *6.
Just as in Mueshler and Denton, in this case there was evidence that the check was 6
negotiated. Appellant’s wife, Hardy, deposited Francois’s cashier’s check into the business’s
account. Orr is distinguishable.2
Chief Justice Livingston, dissenting to the court of appeals’s majority below, argued that
additional factors showed that Appellant controlled Francois’s property. Appellant was heavily
involved with the day-to-day aspects of the business:
The State proved that appellant held himself out as a co-owner of the mortuary, that he did everything “but the paperwork” there, that he negotiated contracts, that he signed documents that the mortuary submitted to the medical examiner’s office, that he alone represented the mortuary in negotiating a lease, that he accepted cash from clients on behalf of the business and gave them receipts (including signing Francois’s receipt), that he alone was the point person in conversations about paying rent and about eviction for failure to pay the rent (including making a “gentleman’s handshake” agreement on rent matters), and that he assisted the police in identifying decomposing bodies (while his wife believed “there was only one body there”). Francois testified that she spoke only with appellant about services the mortuary agreed to provide for a decedent.
Johnson, 513 S.W.3d at 203 (Livingston, C.J., dissenting). Chief Justice Livington’s point is well-
taken, and the jury would have been reasonable in inferring that Appellant actually controlled
Francois’s money through the business, which he exercised a great deal of control over.
Additionally, the dissent argued that, at the time Appellant exercised control over Francois’s
cashier’s check, he also exercised control over the money it represented. Id. The court of appeals’s
majority disagreed with this assertion and concluded “[w]hen Appellant possessed the check, he did
not possess the $1,500. He ‘was in possession of a piece of paper worth, at the most, pennies.’” Id.
at 199 (quoting Heimlich v. State, 988 S.W.2d 382, 385 (Tex. App.—Houston [14th Dist.] 1999, pet.
ref’d)).
2 My discussion of Orr and how that case is distinguishable from the case before the Court today should not be taken as tacit or implicit approval of the decision in that case. The court of appeals relied upon it, however, and the point is that the court of appeals misapplied the case it relied upon. 7
The property at issue in this case—Francois’s cashier’s check—was worth far more than
mere pennies. Because Francois’s cashier’s check was not made payable to Appellant, the court of
appeals declared that “[t]he cashier’s check was payable only to the funeral home and of no
significant value except to the funeral home.” Id. In Simmons v. State, we similarly recognized that
“[a]n unendorsed check made out to a specific person does not have a readily ascertainable market
value because there is not much of a commercial market for unendorsed checks.” Simmons v. State,
109 S.W.3d 469, 473 (Tex. Crim. App. 2003). “Thus, although a check that is made out to ‘Ricci
Charles Simmons’ may have great value to both its maker and its intended recipient, Mr. Simmons,
it has very little legal commercial market value unless and until it is endorsed.” Id. Nevertheless, we
noted that “the vast majority of American jurisdictions hold that ‘the value of a check, in the absence
of proof to show a lesser value, is measured by what the owner of the check could expect to receive
for the check at the time of the theft, i.e., the check’s face value.’” Id. at 474 (quoting State v. Harris,
708 So.2d 387, 389 (La. 1998)). Rejecting the notion that Texas is a “minority view” state, we
clarified that Texas:
has followed and does follow the majority rule absent special circumstances. Thus, a check is a “document that represents or embodies value” and checks embody, in . . . all but the exceptional cases, a value equivalent to what is written on their faces. Accordingly, we hold that the face amount of the instrument is presumptive evidence of its value. Assuming that no evidence is produced to rebut the logical inference that the payee was entitled to receive the face amount of the check, it is sufficient evidence of value to show the face amount of the check.
Id. at 477–78.
It is true that the checks at issue in Simmons were made payable to the defendant in that case,
and Francois’s check in this case was made payable, not to Appellant, but to the Johnson Family
Mortuary. But the fact that Appellant was not the named payee on the cashier’s check does not make 8
Simmons distinguishable. In Cooper v. State, the defendant stole a number of bills and an unendorsed
check from a cash drawer. Cooper v. State, 509 S.W.2d 865, 866 (Tex. Crim. App. 1974). The check
was made by Frito-Lay, Inc., and was payable to the Rhodes Auto Service in the amount of $51.86.
Id. After Cooper was arrested, payment on the check was stopped. Id. at 867. On appeal, Cooper
argued that the unendorsed check had no value. Id. We disagreed:
the evidence was that the check had the value of $51.86 and, upon endorsement, could have been sold for that amount or would have been paid in the sum of $51.86 upon presentation. A check may be the subject of theft, and the fact that the check was not endorsed when it was stolen will not protect appellant.
Id. Such is the case here. Francois’s cashier’s check, upon endorsement, could have been sold for
$1,500. It also would have been paid in the sum of $1,500 upon presentation.
In Simmons, we recognized that there are exceptions and unusual cases where the evidence
can rebut the presumption, such as proof that the maker of the check lacked sufficient funds or that
the bank was insolvent. Simmons, 109 S.W.3d at 475. In this case, there was no such evidence that
rebutted the presumption.
It is also highly doubtful that any such proof which could rebut the Simmons presumption,
that the face amount of a check is its value, could have been presented in this case. The check in this
case was a cashier’s check. Unlike a regular check, a cashier’s check is drawn by the bank on itself
and accepted in advance by the act of its issuance, and it is therefore not subject to countermand by
either its purchaser or the issuing bank. Wertz v. Richardson Heights Bank and Tr., 495 S.W.2d 572,
574 (Tex. 1973). A cashier’s check is accepted when issued, and section 4.303 of the Business and
Commerce Code prevents a bank from making a stop payment order after the cashier’s check has 9
been issued.3 Id.
As we said in Simmons, “[c]hecks are negotiable instruments and they play an important role
in Texas, American, and international commercial transactions, serving, to a considerable degree,
as a cash equivalent.” Simmons, 109 S.W.3d at 475. To the extent that is true for regular checks,
cashier’s checks are even closer to cash, and our courts have treated cashier’s checks as equivalent
to cash. See Dilling v. Nationsbank, N.A., 897 S.W.2d 451, 457 (Tex. App.—Waco 1995), rev’d on
other grounds, 922 S.W.2d 950, 952 (Tex. 1996) (rejecting bank’s argument “because of the ease
with which cashier’s checks are passed, virtually as a cash equivalent, in the business community”);
Arline v. Omnibank, N.A., 894 S.W.2d 76, 82 (Tex. App.—Houston [14th Dist.] 1995, no writ)
(“Having accepted the check upon issuance, Omnibank’s cashier’s check was the functional
equivalent of cash.”); Angelo v. Chem. Bank and Tr. Co., 529 S.W.2d 783, 786 (Tex. App.—Dallas
1975, writ dism’d) (“We hold that where the evidence, as in this case, discloses that plaintiffs
tendered a cashier’s check, as opposed to a check drawn on plaintiffs’ personal account, for the total
purchase price, plaintiffs have complied with the requirement of the contract stating that payment
was to be made in cash.”); Cmty. Nat’l Bank v. Channelview Bank, 814 S.W.2d 424, 427 (Tex.
App—Houston [1st Dist.] 1991, no writ) (“A cashier’s check circulates through commerce as the
equivalent of cash.”); see also Tarrant Wholesale Drug Co. v. Kendall, 223 S.W.2d 964, 967 (Tex.
App.—San Antonio 1949, no writ) (in a pre-UCC case, “Cashier’s checks are regarded substantially
as the money which they represent.”).4
3 However, in certain narrowly defined circumstances, a bank obligated to pay a cashier’s check may have defenses against the person asserting the right to enforce the check. T EX . B U S . & C O M . C O D E Ann. § 3.411(c).
4 This “cash equivalent” view of cashier’s checks is shared by a majority of jurisdictions. See generally Stringfellow v. First Am. Nat’l Bank, 878 S.W .2d 940, 943–44, 943 nn.3–4 (Tenn. 1994) (discussing the “cash equivalent” approach versus the “ordinary negotiable instrument” approach; collecting cases on both sides, including 10
Thus, contrary to the court of appeals’s characterization of Francois’s cashier’s check as
worth “mere pennies,” it was worth its face value: $1,500. Regardless of whether Appellant could
personally negotiate the cashier’s check or not, Francois was deprived of property worth that amount.
On that score, I return to section 31.01(4), defining “appropriate”:
(4) “Appropriate” means: (A) to bring about a transfer or purported transfer of title to or other nonpossessory interest in property, whether to the actor or another; or (B) to acquire or otherwise exercise control over property other than real property.
TEX . PENAL CODE Ann. § 31.01(4) (emphasis added). As written, section 31.01(4)(B) provides two
ways of appropriation, either acquiring property or otherwise exercising control over property. The
indictment alleged that Appellant appropriated Francois’s money “by acquiring or otherwise
exercising control over property,” and thus the State needed to prove that Appellant either acquired
Francois’s property or otherwise exercised control over the property. While the court of appeals
devoted time and attention to whether Appellant controlled Francois’s money through the
instrumentality of the check, it did not consider whether he acquired it.
Acquire is not defined in the penal code. When interpreting statutes, we necessarily focus on
the literal text of the statute in question and attempt to discern the fair, objective meaning of that text
at the time of its enactment. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). If the
meaning of the statutory text, when read using the established canons of construction relating to such
text, should have been plain to the legislators who voted on it, we ordinarily give effect to that plain
meaning. Id. Where application of the statute’s plain language would lead to absurd consequences
that the Legislature could not possibly have intended, we should not apply the language literally. Id.
Wertz; and adopting the “cash equivalent” approach in Tennessee). 11
What is the plain meaning of “acquire”? To “acquire” something is: “to get or gain by one’s
own efforts or actions . . . to come to have as one’s own; get possession of.” Houghton Mifflin
Harcourt, Webster’s New World College Dictionary (5th ed. 2016); see also Acquire, Black’s Law
Dictionary (10th ed. 2014) (“To gain possession or control of; to get or obtain.”). This definition of
“acquire” fits the theft statute without causing any absurd consequence: a person who unlawfully
possesses, gets, or obtains the property of another, with the intent to deprive that other person of the
property, is a thief. Plainly, Appellant came into possession of Francois’s check when she handed
it to him. Appellant got the check. Appellant obtained the check. He acquired the check when
Francois gave it to him, and, consequently, he appropriated the check.
For all of these reasons: (1) allegation of theft of money and proof of theft of a check is not
a fatal variance; (2) Orr does not apply because the check was deposited into the business account,
which was owned by Appellant’s wife; (3) even if the “controller” of the check was the business,
Appellant had a significant hand in running the business; (4) the business was an LLC owned by
Appellant’s wife and Texas is a community property state; and (5) Appellant acquired Francois’s
money in the form of the check, I believe the evidence is sufficient to show that Appellant
appropriated Francois’s money. Therefore, the guilty verdict on Count I—theft of Francois’s
money—is supported by sufficient evidence. The court of appeals erred in finding otherwise.
Conclusion
In conclusion, the jury found Appellant guilty on a charge that authorized conviction as a
primary actor, and the evidence is sufficient to support that verdict. Appellant appropriated
Francois’s money when he acquired her cashier’s check. As for the other elements of theft, I agree
with the analysis and conclusion of both the majority opinion and Judge Yeary’s concurring opinion 12
that Appellant’s appropriation was unlawful, and, at the time he unlawfully appropriated Francois’s
property, Appellant had the requisite intent to deprive. Because there is sufficient evidence to show
that Appellant was guilty as a primary actor, we need not delve into whether the evidence is also
sufficient to show he was guilty as a party. Vasquez v. State, 665 S.W.2d 484, 487 (Tex. Crim. App.
1984), disapproved on other grounds by Gonzales v. State, 723 S.W.2d 746, 751 (Tex. Crim. App.
1987) (“If there is sufficient evidence to prove one of the two ways of committing the offense, this
Court need not consider whether the evidence is also sufficient to prove the alternative theory.”).5
The majority and concurring opinions’ discussion of whether Appellant is guilty on Count I as a
party is unnecessary. I concur in the Court’s decision to reverse as to Count I, and I join the majority
opinion as to Count II.
Filed: Nov. 7, 2018 Publish
5 See also Pinkerton v. State, 660 S.W .2d 58, 62 (Tex. Crim. App. 1983) (“Since the State proved murder during the course of burglary, we need not consider whether the evidence is sufficient to show murder during the course of robbery.”); Wright v. State, 364 S.W .2d 384, 387 (Tex. Crim. App. 1963) (“There being sufficient evidence to support a finding by the jury that appellant obtained carnal knowledge of the prosecutrix without her consent by threats to kill her, while holding a knife at her side, we need not pass upon the question of whether the prosecutrix offered the resistance required where the state relies upon rape by force or by a combination of force and threats.”).