Stoner v. State

585 S.W.2d 750, 1979 Tex. Crim. App. LEXIS 1565
CourtCourt of Criminal Appeals of Texas
DecidedJuly 18, 1979
Docket56406
StatusPublished
Cited by15 cases

This text of 585 S.W.2d 750 (Stoner v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stoner v. State, 585 S.W.2d 750, 1979 Tex. Crim. App. LEXIS 1565 (Tex. 1979).

Opinions

OPINION

DALLY, Judge.

Appellants were jointly indicted, tried, and convicted for theft of property having a value of $200 or more but less than $10,-000. Punishment for each appellant was assessed at imprisonment for two years, probated.

Appellants contend that the indictment is fundamentally defective, that there is a fatal variance between the indictment and the proof, that the evidence is insufficient to sustain their convictions, and that the prosecutor engaged in improper jury argument.

The indictment alleges that appellants, on or about June 11, 1975,

“. . . with the intent to deprive the owner, The State of Texas, of property, namely, 60 pound blue NeKoosa offset Vellum paper, did knowingly and intentionally, without the owner’s effective consent, unlawfully obtain and exercise control over (control over and obtain) such property which had a value of more than two hundred dollars ($200.00) and less than ten thousand dollars ($10,000.00)

Appellants filed no motion to quash the indictment. However, they contend that the indictment is fundamentally defective because it does not allege the quantity of paper stolen, citing Art. 21.09, V.A.C.C.P.

In Rhodes v. State, 560 S.W.2d 665 (Tex. Cr.App. 1978), after a thorough discussion of the cases, this Court held that:

“. . .a defect in the description of property under Art. 21.09, supra, must be raised by a motion to quash, and may not be raised for the first time on appeal, unless the description is so deficient as to be no description at all and to constitute a jurisdictional defect, as was the case in Willis [v. State, 544 S.W.2d 150 (Tex.Cr. App. 1976)].” (Emphasis in original.)

In Willis, a theft indictment was held to be fundamentally defective because it described the property allegedly stolen only as [752]*752“merchandise.” In Rhodes, on the other hand, it was held that a description of the property as “wall paneling” was sufficient to invoke the jurisdiction of the trial court, and that the indictment was not fundamentally defective. The indictment in the instant case describes the property allegedly stolen with more specificity than did the indictment in Rhodes. This ground of error is overruled.

Appellant Martinez was at the time of the alleged offense the supervisor of the reproduction room, or print shop, of the Texas Senate. The print shop prepares copies of all Senate bills, publishes the Senate Journal, and generally handles the printing needs of the Lieutenant Governor, Senators, and Senate administrative officers. Although the print shop ordinarily handles all of the Senate’s printing, it occasionally contracts out printing jobs during peak periods such as the end of a legislative session. Such contracts are awarded on a lowest bid basis.

In February, 1975, Martinez met appellant Stoner at an Austin nightclub, and they became friends. Stoner was at that time employed by the telephone company, but feared that she was going to lose her job.’ Martinez agreed to help Stoner, who had no experience with regard to paper or printing, establish herself as a printing jobber. This help included instruction in the preparation and submission of bids for Senate print shop contracts. In June, 1975, Stoner began business under the name A.M.P. Graphic Arts (A.M.P.).

In essence, appellants were accused of stealing paper from the State, and then selling it back to the State in the form of completed printing jobs. The following recitation of the facts is based on the testimony of the State’s witnesses, and has been simplified as much as this complicated case allows.

On May 30, 1975, Martinez ordered, and the State subsequently paid for, a large quantity of paper for the Senate print shop from the Lone Star Paper Co. of Austin (Lone Star). Included in this order was approximately $1,200.00 worth of blue sixty pound NeKoosa offset vellum. This paper was not delivered to the print shop, but remained in Lone Star’s warehouse.

On June 9 or 10, 1975, the Senate print shop solicited bids for the printing of 101,-000 newsletters for Senator Betty Andujar. Among other things, the job specifications stated that the newsletters were to be printed on light blue sixty pound offset paper to be supplied by the printer. On June 10, this contract was awarded to A.M.P. on the basis of the low bid of $2,234.00, and a state treasury warrant was subsequently issued to A.M.P. in this amount.

On June 10 or 11, 1975, Roland Castruita, an estimator for the Whitley Co. of Austin (Whitley) and one of the losing bidders for the Andujar newsletter contract, received a telephone call from Martinez. Martinez explained to Castruita that it had been decided that the Andujar newsletters would be printed on paper already owned by the State, and asked how much,Whitley would charge to do the job in that case. Castruita told Martinez that Whitley would print the newsletters on the Senate’s paper for $1,165.00, and Martinez replied that Whitley had the job. Martinez then called Earnest Cook, a salesman at Lone Star, and instructed him to deliver to Whitley a portion of the blue sixty pound NeKoosa offset vellum which had been previously purchased.

At no time during his discussions with Castruita did Martinez tell him that anyone other than the State would be paying for the Andujar newsletters, nor did Martinez ever instruct Cook to bill A.M.P. or Stoner for the paper delivered to Whitley. Moreover, both Castruita and Cook testified that they had never heard of Stoner or A.M.P., that A.M.P. did not have a credit arrangement with their respective employers, and that they would not have cooperated with Martinez had they known that A.M.P., not the State, was to be financially responsible. After the newsletters had been printed and delivered, Martinez called Castruita and told him to bill A.M.P., not the State, for the printing. On July 10, 1975, Whitley [753]*753received a check for $1,165.00 in payment for the Andujar newsletters. The check was signed by “Penni J. Stoner, A.M.P. Graphic Arts.”

Martinez testified that he had had nothing to do with the solicitation of bids for the Andujar newsletters or in awarding the job to A.M.P., and offered evidence that he was in Dallas on the days in question. He also testified that he did not subsequently give Whitley the job of printing the newsletters, and that he did not instruct Cook to deliver to Whitley paper owned by the State. Martinez testified that he had had an arrangement with Cook whereby paper owned by the State and stored in Lone Star’s warehouse could be sold by Lone Star and the payment credited to the Senate print shop’s account.

In her testimony, Stoner also stated that Martinez had had nothing to do with A.M.P. getting the contract for the Andujar newsletters. Moreover, she testified that she, not Martinez, had called Castruita and arranged for Whitley to print the newsletters as a subcontractor, and that she, not Martinez, had called Cook and ordered that paper be delivered to Whitley. She stated that she did not know that the paper delivered to Whitley belonged to the State, and that she had fully expected to be billed for the paper by Lone Star.

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Stoner v. State
585 S.W.2d 750 (Court of Criminal Appeals of Texas, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
585 S.W.2d 750, 1979 Tex. Crim. App. LEXIS 1565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stoner-v-state-texcrimapp-1979.