McClure v. State

648 S.W.2d 667, 1982 Tex. Crim. App. LEXIS 986

• Court: Court of Criminal Appeals of Texas
• Decided: July 14, 1982
• Docket: No. 62125
• Status: Published

Opinions

OPINION

CLINTON, Judge.

This case became a cause celebre in the Dallas-Fort Worth area long before it reached this Court — a notoriety of which we were unaware during oral argument on original submission,¹ but which is now revealed in matters dehors the record that are rife with improprieties.² Our decision, however, is based upon the review circumscribed by Article 40.09, § 13,³ V.A.C.C.P., and no more; see cases annotated in notes 704, 705.

The appeal is from a conviction for the offense of theft over two hundred dollars, a jury having found appellant guilty, and punishment assessed at confinement for life, pursuant to V.T.C.A. Penal Code, § 12.42(d), the trial court having found that two enhancement paragraphs were true.⁴ Such punishment has been held to be neither cruel or unusual in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).

The theft at issue is alleged to have been committed “on or about the 11th day of August 1977,” and the proof presented by the State to support the allegation shows two orders placed with appellant on August 11 and 15, 1977. Omitting its formal parts and enhancement paragraphs, the indictment avers that appellant did:

“... knowingly and intentionally appropriate property, other than real property ... from the owner ... without the effective consent of the owner and with intent to deprive the owner of the property.”

In its charge to the jury the trial court abstractly instructed, inter alia;

“Our law provides that a person commits the offense of theft if he unlawfully appropriates property with intent to deprive ⁵ the owner of property. Appropriation of property is unlawful if it is without the owner’s effective consent.”⁶

and in applying the law to facts the charge substantially tracks the language of the indictment. Appellant expressly had no objection to the charge. The verdict of the jury finds appellant guilty “as charged in the Indictment.”

The indictment, the charge of the court and the verdict that relates back to the indictment are derived from the following portions of V.T.C.A. Penal Code, § 31.03:

“(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property,

(b) Appropriation of property is unlawful if:

(1) it is without the owner’s effective consent; ...”

As applicable here, § 31.01(5) provides:

“(5) ‘Appropriate’ means:

(A) * * *

(B) to acquire or otherwise exercise control over property other than real property.”

And § 31.01(6) provides:

“(6) ‘Property’ means:

(A) * * *

(B) * * *

(C) a document, including money, that represents or embodies anything of value.”

According to § 31.01(2), there are five manners of perpetrating “deception.” While the indictment did not allege one or another means of deception, we take it from, e.g., Hughes v. State, 561 S.W.2d 8 (Tex.Cr.App.1978), that it need not, and any defect of notice in that respect must be raised by timely motion or exception, Trevino v. State, 519 S.W.2d 864, 866 (Tex.Cr.App.1975) and Hughes v. State, supra. Similarly, it is necessary to charge the jury on all essential elements of the offense alleged, Bradley v. State, 560 S.W.2d 650, 652 (Tex.Cr.App.1978), but if the accused desires and is entitled to findings beyond those elements he must object and except to their omission or request a special charge incorporating them, Articles 36.14 and 36.-15, V.A.C.C.P., to call the trial court’s attention to them, e.g., Crawford v. State, 148 Tex.Cr.R. 634, 190 S.W.2d 359, 361 (1945) and see Martinez v. State, 576 S.W.2d 854, 855 (Tex.Cr.App.1979) and Hanner v. State, 572 S.W.2d 702, 707 (Tex.Cr.App.1978).

As already indicated, appellant voiced no objection to the charge. Thus, we are without a specific allegation or a particularized finding of the manner of deception thought to have perpetrated on the complaining party by appellant.

Moreover, as we read the briefs of the competing parties they seem to mix indiscriminately concepts of specific intent to deprive of property and of consent induced by deception which renders appropriation of property unlawful under § 31.03(a) and (b)(1), respectively, so that we are not appreciably aided in discerning the precise legal theory on which this case was tried. The challenge appellant makes to sufficiency of the evidence to prove the element of specific intent to deprive of property and to show any ingredient of deception to induce consent does give us much pause, but there are in the record unassigned errors that must be considered in the interest of justice. For this we first sketch a background from evidence that, unlike inferences to be drawn, is not sharply disputed.

The publisher of the “Federal Round-up,” a monthly inhouse publication for federal employees in and around the Fort Worth area, first met appellant in February 1977. He placed and paid for an advertisement in the name of American International Ombudsman and Associates (American International). It was one of several enterprises in whose name appellant was then doing business.⁷ American International sold at discount prices a variety of merchandise from calculators to coffee. Thereafter ads were run and paid for monthly. Mrs. Black, the publisher, purchased different items from time to time, and she professed to know hundreds of other persons to whom he sold and delivered goods. Beginning in 1976, one who dealt with appellant is Otis Hatfield, the complaining party. He had purchased a calculator and “it worked.”

In July or August 1977 appellant advertised guns for sale, as well as his regular line of products. Hatfield saw the ad and responded by telephone, ordering coffee and a shooters’ bible, evidently an annually published trade journal of weapons manufacturers, which appellant delivered in person. They fell into a conversation about buying guns shown in the shooters’ bible; since the State says that Hatfield was induced by deception to part with his purchase money for guns, Hatfield’s version of the critical portions of that conversation are reproduced verbatim:

“A. Well, I asked him if I could buy guns out of this shooters’ bible and he told me he could get the guns for dealer’s cost plus the — I had to pay the cost and the associated fees, state tax, federal tax, I believe, and what have you.

I asked Mr. McClure if he had a federal firearms license number and he said he did not but that his company did which was—

Q. What is the name of his company?

A. I believe he said he was American International Associates, Inc.

Q. Did he say who he dealt with in order to obtain the guns?

A. Yes, he said that he would be dealing with various manufacturers representatives or at least a jobber with the factory themselves.

Q. So, he indicated to you that he did deal directly with the factory or manufacturers?

A. He could, yes.”

Hatfield did not order a firearm that day, but he took the shooters’ bible home to “shop more or less;” though he liked to read the “bible” he had not yet read the 1977 edition.

In early August Hatfield called appellant and told of his interest in purchasing a specified Smith & Wesson .22 caliber target pistol, and appellant quoted him a price. August 11, 1977 at Hatfield’s office appellant presented an invoice for the pistol and received Hatfield’s personal check in the amount of $168.50, telling him delivery would probably be in about three weeks. They also discussed what Hatfield, himself a gun aficionado, already knew: that the price of guns was going up and if, one is successful in selecting them, guns are a good investment.⁸ Later, musing over this proposition, Hatfield decided to purchase still more weapons; he contacted appellant, ordered four Smith & Wesson revolvers, a Marlin bolt action rifle and a Galef 12 gauge shotgun, and on August 15, 1977 received invoices for them and delivered to appellant a personal check in the amount of $749.05 — the total orders thus aggregating $917.55. The retail price for the lot was $1,085.20, according to copies of invoices left with Hatfield.

In about three weeks, having not received the weapons, Hatfield contacted appellant by phone to find out “if there had been any progress made in getting the guns or .. . what the status was on the order.” Appellant reported:

“That he had not been able to get the guns yet.... [He] said that he had tried out with — he was trying to meet with Jess Stockstill out of Grapevine and they wouldn’t — he didn’t buy from Jess Stockstill because they wanted to sell him a case of ammunition with each of the guns he wanted to purchase from them.”⁹

Appellant also mentioned that the domestic delivery schedule of Smith & Wesson guns was running late because a minimum amount of them were available to the American public since the OPEC nations were buying a bunch of them — to Hatfield it was “a fairly standard rumor-type thing.”¹⁰ As well as Stockstill, appellant said he had tried some other source, but Hatfield did not recall if appellant named the second source.

In our record is a copy of a completed order form describing each weapon invoiced to Hatfield and bearing the purported signature of appellant. The date does not appear because it is obvious that the copy paper and the original form were not aligned, resulting in the top of the form being lopped off. The order is addressed to:

“Metro Gun Distributors Assn.

New York, N.Y.”

and refers to “attached invoices,” presumably a copy of each one left with Hatfield since descriptions of the seven guns ordered match those invoiced.¹¹ At some point in time that Hatfield did not make clear, he received a confirmation letter from appellant with enclosed ATF forms (Department of Treasury Form 4473, required of every intrastate retail buyer of a firearm) for him to fill out and return. (At hearing on his motion for new trial appellant introduced one purportedly bearing Hatfield’s signature, dated August 30, 1977.)

Hatfield continued to expect delivery and called appellant again, only to be put off. Finally around October 15, 1977 he talked with appellant, asked about the guns and received what he regarded as an unsatisfactory response. Accordingly, Hatfield told appellant he wanted to cancel the order and demanded “an immediate and early return” of his purchase money; he characterized appellant as “very congenial,” expressing regret of inability to make delivery and declaring the money would be refunded, but it would take time and come in small amounts. Over the next five or six weeks appellant refunded $40.55 for the sales taxes in October, then thirty dollars and on November 7 a seventy dollar refund on the Galef 12 gauge shotgun. About the same time Hatfield posted a certified letter to appellant, demanding payment in full of the balance due and owing him, or Hatfield proposed to write some letter to various federal agencies and inform them of the less than satisfactory transactions with appellant. Hatfield denied receiving one hundred dollars from appellant on November 16, 1977,¹² but it undisputed that appellant made no more payments to Hatfield, giving one excuse or another when Hatfield was able to contact him.

Hatfield complained to the Tarrant County District Attorney, and on March 17,1978 appellant was arrested by his investigators as soon as he walked into the newsroom of “The Fort Worth Star-Telegram.” (Our understanding of the record is that appellant has remained confined since that day in lieu of bail.) Hatfield testified, over stoutly asserted objection, that he did not give his effective consent for appellant to deprive him of his money “under the circumstances that it was done” and that had he known he was not going to get the guns or, failing that, a refund in full he would not have delivered his checks to appellant.

In our best judgment, the evidence relating to the Hatfield transactions suggest a false pretext theory. In arguing about viability of the former offense of theft by false pretext denounced by the prior statutes, especially Article 1413, P.C. 1925 and see, e.g., Maxwell v. State, 134 Tex.Cr.R. 314, 115 S.W.2d 939 (1938)¹³ and Hesbrook v. State, 149 Tex.Cr.R. 310, 194 S.W.2d 260, 261¹⁴ (1946); contra: Wagner v. State, 544 S.W.2d 143, 145¹⁵ (Tex.Cr.App.1976), both appellant and State have overlooked Draper v. State, 539 S.W.2d 61, 67 (Tex.Cr.App. 1976), which holds that the essence of theft by false pretext remains:

“... the offense consisted of essentially the same elements of the theft charged here. It included the element of knowledge on the part of the actor that the pretext was false, [citation omitted] Thus the cases involving theft by false pretext may be relied upon for guidance in reviewing the sufficiency of the evidence to show that the actor knew the statement of facts made by him were false, or that he did not intend to perform the promises made by him or knew that they would not be performed.”

And, it must be further noted, the Legislature has retained the specific “intent to deprive the owner of property” as an essential element of the offense. Thus, V.T.C.A. Penal Code, § 31.03, “Theft,” with its accompanying definitions in id. § 31.01, embraces a modified version of former offense of theft by false pretext just as the Legislature indicated in id. § 31.02.¹⁶ So, it is as a “false pretext” case that we consider that the facts present an extremely close question as to sufficiency of the evidence under its “ab initio” doctrine. Bearden v. State, 487 S.W.2d 739, 742 (Tex.Cr.App.1972); Howell v. State, 478 S.W.2d 468 (Tex.Cr.App.1972); Kinder v. State, 477 S.W.2d 584, 586 (Tex.Cr.App.1971).

However, we do not rule on grounds of error one and three for all of what has been said is to put in perspective the unassigned errors that we review in the interest of justice pursuant to Article 40.09, § 13, supra.

Though the offense of theft from Hatfield is alleged to have been committed on or about August 11 and the proof showed a transaction on that date and another on August 15, the State was permitted over objection to adduce testimony of extraneous offenses committed some four months thereafter. Charles Franklin Rutledge, a federally licensed firearm retailer, testified in substance that on December 8, 1977 he made an intrastate over-the-counter sale of a Weatherby 20 gauge shotgun to appellant. To consummate the transaction appellant was required to and, according to Rutledge, did complete and execute an ATF Form 4473, answering negatively certain questions and certifying correctness of his answers subject to prosecution for a felony offense for falsifying them, viz:

“a. Are you under indictment in any court for a crime punishable by imprisonment for a term exceeding one year? NO

b. Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year? NO

c. Are you a fugitive from justice? NO

d. Are you an unlawful user of, or addicted to, marihuana or a depressant, stimulant, or narcotic drug? NO ”

and others we find unnecessary to set forth here. Rutledge testified that had appellant made an affirmative answer to questions a or b, he would not have sold the shotgun for fear of losing his FFL.¹⁷ This ATF Form 4473 became State’s Exhibit 3.

Then, through ATF Agent John Slover, the State introduced an ATF certification dated May 23, 1978 to the effect that neither appellant nor any of his several companies “has been issued or denied a firearms ... license ... under federal laws.”¹⁸ It was developed that Agent Slover had known appellant for some time — some fifteen years in Texarkana where Slover had been a policeman and appellant a resident citizen — and he testified that appellant “may not purchase a firearm on that form,” referring to the December 8, 1977 ATF Form 4473.

Next, the State called ATF Agent Charles E. Warnett who, over a “running” objection, testified to a visit to and conversation with appellant at his apartment October 11, 1977.¹⁹ He asked appellant if he were “in the gun business,” and appellant said “at that time” he was not, that “he had sold or taken orders for some guns and had sold at that time one gun” to a dentist named Dr. Stubblefield.²⁰ Warnett advised appellant that he could not deal in guns and could not own or possess a firearm, explaining the reason which, he indicated, appellant acknowledged and understood. He was shown the December 8,1977 completed ATF Form 4473 and testified that some of the questions had been answered truthfully and some with deception, without specifying which; that it is a felony offense to make an incorrect answer; that on various dates appellant could not legally obtain or own a gun nor have a federal firearms license; that he told appellant during the October 11, 1977 conversation that appellant could not get, obtain or own guns legally, and gave him “a warning about continuing in that line of work.”

While at the residence of appellant the agents were shown his records and “a lot of papers,” including ATF Forms 4473 with the name, address and federal firearms license number of Best Products, and records indicating telephone calls to at least one sporting goods distributorship.

When State’s Exhibit 3 was identified and the prosecutor began asking Rutledge questions about it, appellant objected “until the admissibility shall have been ruled on by the Court.” The jury was excused and a colloquy ensued during which appellant objected, first, “for the reason that there is no issue before this Jury about this particular 20-gauge shotgun” and then, with a preliminary explanation, further objected, “For this to get before the Jury, it’s going to indicate ... that this Defendant ... is guilty of other violations.” The trial court stated, “Well, I’ll charge the jury on extraneous offenses,” and overruled the objection.²¹ Appellant began to examine the witness on voir dire, but the trial court interrupted his questioning to remark, “I don’t understand.” The State then explained its theory,²² and the trial court again overruled appellant’s objection. After the jury returned and when the State actually offered its Exhibit 3, appellant again objected. As it indicated, the trial court charged the jury on extraneous offenses in considering intent.²³

Thus not only did the State effectively convict appellant of federal firearms offenses on December 8, 1977, but it also managed to depict him as having a propensity to commit criminal acts, and to invite the jury to speculate which affirmative answer to the ATF Form 4473 questions precluded appellant from lawfully buying the Weatherby shotgun. That is, whether he was under indictment, had been convicted, was a fugitive from justice, was an unlawful user of or addicted to drugs, had been adjudicated mentally defective,²⁴ was discharged from military service under dishonorable conditions, was an illegal alien or one who had renounced his United States citizenship.

It is an established proposition of evidence that proof of similar happenings, extraneous offenses or prior specific acts of misconduct committed by a party is irrelevant to the contested material issues in the case on trial and, therefore, inadmissible. Murphy v. State, 587 S.W.2d 718, 721, and authorities cited in note 5 (Tex.Cr.App.1979).

In a criminal proceeding, when the extraneous or similar transaction committed by an accused, sought to be admitted by the State, constitutes a criminal offense, introduction of that “extraneous offense” transaction is inherently prejudicial because the accused is entitled to be tried on the accusation made in the State’s charging instrument and therefore cannot be tried for some collateral crime of which he has no notice. Murphy, supra; Jones v. State, 568 S.W.2d 847 (Tex.Cr.App.1978); Walls v. State, 548 S.W.2d 38 (Tex.Cr.App.1977); Young v. State, 159 Tex.Cr.R. 164, 261 S.W.2d 836 (Tex.Cr.App.1953); Couch v. State, 155 Tex.Cr.R. 585, 238 S.W.2d 198 (Tex.Cr.App.1951). Additionally, such introduction is inherently prejudicial because an accused’s “propensity to commit crimes” is not an issue which is material to whether he is guilty of the specified conduct charged by the State; it follows therefore, that introduction of evidence establishing such a propensity constitutes a trial of the accused as a “criminal generally” which is prohibited. E.g., Murphy, supra; Young, supra; Couch, supra; Clements v. State, 147 Tex. Cr.R. 531, 182 S.W.2d 915 (Tex.Cr.App.1944); see Spivey v. State, 146 Tex.Cr.R. 11, 171 S.W.2d 140 (Tex.Cr.App.1943). See also Jones, supra; Etchiesen v. State, 574 S.W.2d 753 (Tex.Cr.App.1978); Cameron v. State, 530 S.W.2d 841 (Tex.Cr.App.1975); Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972).

But these evidentiary principles, as most, must in some circumstances give way. For extraneous transactions constituting offenses shown to have been committed by the accused²⁵ may become admissible upon a showing by the prosecution both that the transaction is relevant to a material issue in the case²⁶ and the relevancy value of the evidence outweighs its inflammatory or prejudicial potential. Holley v. State, 582 S.W.2d 115 (Tex.Cr.App.1979); Ruiz v. State, 579 S.W.2d 206 (Tex.Cr.App.1979); Jones, supra.

In determining this balance of evidentia-ry relevancy against exclusionary policies in a direct evidence case presenting a contested issue, the court must look to the attributes of the extraneous offense shown by the State and decide whether such “a relationship between such evidence and the evidence necessary to prove that the accused committed the crime for which he stands charged” has been shown, Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Cr.App.1972), so that admitting it would be of assistance to the jury in resolving the contested issue. See Rubio v. State, 607 S.W.2d 498 (Tex.Cr.App.1980) (Concurring Opinion). When the contested issue is “intent” of the accused, generally discerned commonalities of the primary and extraneous offense suggest probative value to the jury on that issue. Thus, in Rubio v. State, supra, the Court upheld admission of testimony of an extraneous attempted sexual offense, having discussed and cited many other cases where extraneous offenses were properly admitted on the issue of intent upon a showing of some common features; the Court noted that attempted offense occurred “in the same manner, geographical location and within the approximate time frame as the offense charged.” Still, there is and can be no set standard for, as observed in Albrecht v. State, supra, “The circumstances which justify the admission of evidence of extraneous offenses are as varied as the factual contexts ... in which the question ... arises,” and every case “must be determined on its own merits.” That is what we do here, and find that the December 8, 1977 federal firearms offenses were inadmissible on the issue of intent of appellant on or about August 11, 1977.

The federal firearms offense regarding ATF Form 4473 is denounced by 18 U.S.C., § 922(a)(6),²⁷ and it has been uniformly held by the federal circuit courts that specific intent is not an element of the offense, e.g., United States v. Cornett, 484 F.2d 1365 (CA 6, 1973); United States v. Graves, 394 F.Supp. 429, 433, n. 10 (D.C.Pa.1975) 554 F.2d 65 (CA 3,1977); the gist of the offense is knowingly to make a false statement, Cody v. United States, 460 F.2d 34, 38 (CA 8, 1972); United States v. Beebe, 467 F.2d 222 (CA 10, 1972), certiorari denied 416 U.S. 904, 94 S.Ct. 1607, 40 L.Ed.2d 108 (1974), and it has been held that the culpable mental state of knowingly is proven when the evidence shows and the district court finds that the accused recklessly disregarded the truth of a declaration on ATF Form 4473, United States v. Wright, 537 F.2d 1144 (CA 1, 1976), certiorari denied 429 U.S. 924, 97 S.Ct. 325, 50 L.Ed.2d 292 (1976). Thus, the culpable mental state of appellant on December 8, 1977, whether knowing or reckless, bears no discernable relationship to evidence of intent to deprive Hatfield of his property on or about August 11, 1977; see Thrush v. State, 515 S.W.2d 122, 125-126 (Tex.Cr.App.1974) and Powell v. State, 478 S.W.2d 95, 98 (Tex.Cr.App.1972). Nor are we able to perceive any common features among unlawfully buying from a retail dealer and possessing a shotgun, and acquiring two checks as payment for weapons to be ordered with intent to deprive the owner of the proceeds of the checks. Compare Cage v. State, 167 Tex.Cr.R. 355, 320 S.W.2d 364, 367 (1958); Converse v. State, 386 S.W.2d 283, 285 (Tex.Cr.App.1965); and other cases cited in Albrecht v. State, supra, at n. 3.

Our conclusion is that the admission of State’s Exhibit 3 and the testimony concerning it are of a “disconnected substantive offense” and merely “tended to show that appellant was a criminal generally,” Ball v. State, 118 Tex.Cr.R. 579, 39 S.W.2d 619, 620 (1931). Given the close question of sufficiency of the evidence to show a false pretext in the Hatfield transactions, their admissions were harmful to appellant and constitute reversible error.

For these reasons, the judgment of conviction is reversed and the cause remanded.

DALLY, J., dissented.

1 . There was, though, a hint when the appellate attorney for the State acknowledged that this prosecution, arising out of an underlying dispute over a sales agreement, was based on the desire “to get this guy off the streets.”

2 . Some of these or similar materials did find their way into the transcript prepared by the clerk of the trial court. Suffice it to say they reflect determined, if eccentric and unorthodox, efforts by appellant and his sympathizers.

3 .In pertinent part, Section 13 provides that “the clerk shall thereupon promptly transmit the record and briefs to the Court of Criminal Appeals, in which court all grounds of error and argument in support thereof urged in defendant’s brief in the trial court shall be reviewed, as well as any unassigned error which in the opinion of the Court of Criminal Appeals should be reviewed in the interest of justice.” (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

4 . In 1957 appellant was convicted of the federal offense of having uttered and published as true two forged U.S. Treasury checks, each in the sum of $110. In 1972 a district court in Colorado convicted him of forging a check in an amount not reflected in the papers.

5 . The meaning of “deprive,” set out in V.T.C.A. Penal Code, § 31.01(3), was defined for the jury as “to withhold property from the owner permanently or to dispose of property in a manner that makes recovery of the property by the owner unlikely or to withhold property from the owner for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner.”

6 .Abstractly also the charge defined “effective consent” to mean “assent in fact, whether expressed or apparent ...” and added that consent is not effective “if induced by deception or coercion.” Though fully defined by V.T.C.A. Penal Code, § 31.01(2), neither one of the five modes was included in the charge; thus, we do not know just what the jury had in mind was the deception at work here.

7 . In the assumed name register in the office of the Tarrant County clerk, see former Articles 5924 and 5926, V.A.C.S., and V.T.C.A. Business and Commerce Code, Ch. 36, appellant was shown as doing business as American International and as Metroplex Gun Distributors; he also operated a business under the name “World Marketing.” In this connection, over proper objections, the trial court admitted a certificate from the Secretary of State that there was no record to indicate existence of a corporation named American International & Associates and permitted the prosecutor to argue that “it’s not registered with the Secretary of State.” Yet a sole proprietorship is not a corporation, and, as such, need not be on file with the Secretary of State — only the* county clerk, as was done here by appellant. To imply, as the State was permitted to do, that appellant was conducting his enterprises without complying with some legal requirement was manifestly erroneous and clearly calculated to harm him.

8 . Hatfield conceded he is “quite knowledgeable about guns,” that on three occasions he had bought guns and later exhibited and sold some at gun shows — without being licensed — and that because he knew the price of guns was moving upward he and appellant agreed that any increase in cost to Hatfield was not to exceed ten percent of the quoted price.

9 . Jess Stockstill, apparently known to Hatfield, is not otherwise identified in our record.

10 . Two Federal Alcohol, Tobacco and Firearms agents testified that in the course of their work they would have known of inordinate buying of weapons in this country by OPEC nations and were unaware that was being done. (For whatever it is worth, the historical facts are that in July 1977 Egypt and Libya were engaged in border clashes and in September 1977 there was fighting in southern Lebanon between Palestinian guerillas and Lebanese Christian militiamen and during this period diplomats were striving to reconvene the Geneva peace talks on the Middle East; see The World Almanac (1978), 940, 945.)

11 . Each of the invoices given Hatfield also indicate “Subject to Mfr’s approval,” and the F.O.B. boxes in Hatfield’s had typed in “Mass/N.Y.”

12 . This denial was made several times during his examination, and from it arises appellant’s second ground of error, contending the trial court should have granted a new trial on newly discovered evidence because after trial appellant came up with the cancelled check showing that payment had been made. At one point the following warm exchange occurred:

“Q: Then, on November the 16th, he paid

you another hundred dollars?

A: No, sir.

Q: Yes, sir.

A: No, sir.

THE DEFENDANT: Yes, sir.

THE WITNESS: No, sir.

MR. YOUNG: We object to the Defendant making his little comments.

THE COURT: Sustained. Don’t make any comments.

THE WITNESS: No, sir.”

13 .Quoting approvingly from Barnett v. State, 119 Tex.Cr.R. 594, 43 S.W.2d 449, 452 (1931):

“The gravamen of the offense of theft by false pretext is that accused came into possession of the property by a willing surrender of it to him by the owner, he, however, being induced to so deliver possession by a false pretext or device, and with the fraudulent intent on the part of accused at the very time he came into possession of it to appropriate it to his own use, followed by such appropriation. See Porter v. State, 23 Tex.App. 295, 4 S.W. 889.”

14 . “It is now the settled law of the State that a false pretext is necessary to constitute the crime of theft by false pretext. The intent to deprive the owner of the property and subsequent appropriation of it, alone, is not sufficient. Segal v. State, (98 Tex.Cr.R. 485, 265 S.W. 911, 35 A.L.R. 1331); Roe v. State, 140 Tex.Cr.R. 387, 144 S.W.2d 1104 (1940)”.

15 . “Two modes of committing the offense are embraced in the provision as to lawful taking: namely, obtaining the property by false pretext, and obtaining it with an intent to deprive the owner of the value of property in question. 55 Tex.Jur.2d, Section 17, page 293.”

16 .The legislative intent in constituting theft a single offense as defined in § 31.03 was to eradicate prosecution of the prior separate offenses in order to, inter alia, avoid “em-broilfing] the courts in nice questions about the appropriateness of conviction under one offense label as opposed to another,” Practice Commentary following § 31.02. Still, without labels, by statutorily defining that “deception” which induces consent and renders it other than effective, the earlier judicially developed concepts have been incorporated into statutory law; see Practice Commentary following § 31.-03, supra.

17 . What is sometimes called in our record a “permit” we understand to be a Federal Firearms License, bearing a number for the particular licensee for identification purposes, issued by the federal Bureau of Alcohol, Tobacco and Firearms. But it appears that his license was not at risk in dealing with appellant under every circumstance, for Rutledge testified also that in about October 1977 they had an agreement whereby appellant would solicit prospective purchasers of guns, note the description of the firearm desired, collect the purchase price in advance, turn the data and money over to Rutledge who would order the gun under his FFL, arrange for the customer to come in, complete and execute ATF Form 4473 and thus acquire the firearm. We are not informed whether any transactions as contemplated by the agreement were in fact consummated.

18 . Appellant’s objection that the certification did not purport to resolve any issue in the case was overruled.

19 . Special Agent Jack Barnett accompanied Agent Warnett but did not testify.

20 . Dr. Stubblefield later confirmed the transaction, as a witness for appellant. Agent War-nett testified the shotgun had been bought from Best Products, a licensed firearm dealer with stores in and around Tarrant County.

21 . Appellant further protested that the State was “forcing the Defendant not to testify when he wants to testify in this trial perhaps and he can’t do it if this firearms transaction record or evidence from it is before this Jury.” The prosecutor commented that appellant would not waive his right to testify by the exhibit’s being before the jury. Appellant pointed out that if he did the State would be allowed to ask about prior convictions and they would indicate that appellant “also then violated the law on December the 8th.” To this the trial court again remarked that it would charge on extraneous offenses, and overruled that objection.

22 . In pertinent part the prosecutor said that the State was “trying to demonstrate to this jury that at the time he took money for guns, he could not lawfully sell guns, obtain guns because in order to do that, he has to fill out a form ... and he’s in the business of selling guns when he can’t even lawfully obtain them. And he has been telling these people that he can lawfully obtain them and sell them and that goes to the heart of this case which is intent.”

23 . The jury was instructed that any testimony regarding commission of other offenses cannot be considered for any purpose “unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed, and even then, you may consider the same in determining the intent of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment, and for no other purpose.”

24 . In his final argument when the prosecutor came to this question he commented, “Well, there is no insanity defense here, certainly.”

25 . It is always required that the commission of the extraneous offense is clearly proved and the accused is shown to have been its perpetrator. Carrillo v. State, 591 S.W.2d 876 (Tex.Cr. App.1979); Ransom v. State, 503 S.W.2d 810 (Tex.Cr.App.1974); see also 23 T.J.2d Evidence § 195 (1961).

26 . Coleman v. State, 577 S.W.2d 695 (Tex.Cr. App.1978); Buckner v. State, 571 S.W.2d 519 (Tex.Cr.App. 1978); Finley v. State, 573 S.W.2d 238 (Tex.Cr.App.1978); Walls v. State, 548 S.W.2d 38 (Tex.Cr.App.1977); Halliburton v. State, 528 S.W.2d 216 (Tex.Cr.App.1975).

27 . The separate offense of possessing the Weatherby shotgun is proscribed by U.S.C. App., § 1202(a), characterized as “essentially regulatory in nature” by the Third Circuit in United States v. Graves, supra, at 69.