Fernandez, James ( 2015 )

PD-0123-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 3/2/2015 11:47:52 AM
Accepted 3/2/2015 2:26:18 PM
ABEL ACOSTA
! CLERK
No. PD-0123-15
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IN THE TEXAS COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
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JAMES FERNANDEZ,
Appellant/Petitioner
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v.
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THE STATE OF TEXAS,
Appellee/Respondent
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From the Fourth Court of Appeals in San Antonio, Texas
Cause 04-14-00039-CR
and
the 83rd Judicial District Court
of Val Verde County, Texas
Cause No. 12716CR
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PETITION FOR DISCRETIONARY REVIEW
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James Gerard McDermott, II
Thompson Salinas
Rickers & McDermott, LLP
8140 N. Mopac
March 2, 2015 Westpark 4, Suite 250
Austin TX 78759
512.201.4099
512.298.1129 (facsimile)
james@centraltexaslawyers.com
Attorney for Appellant
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ORAL ARGUMENT REQUESTED
LIST OF PARTIES
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TRIAL COURT JUDGE
Hon. Stephen Ables
Kerr County Courthouse
700 Main Street, Second Floor
Kerrville, Texas 78028
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APPELLANT/PETITIONER
James Fernandez
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APPELLANT’S ATTORNEYS AT TRIAL
Daniel A. Sanchez Robert Garza
State Bar No. 24004064 State Bar No. 07742800
Law Offices of Daniel A. Sanchez Law Offices of Robert Garza
501 E. Tyler Avenue 2116 Avenue F, Suite 5
Harlingen TX 78550 Del Rio TX 78840
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APPELLANT’S ATTORNEY ON APPEAL
James Gerard McDermott, II
State Bar No. 24041438
Thompson Salinas Rickers & McDermott, LLP
8140 N. Mopac
Westpark 4, Suite 250
Austin TX 78759
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APPELLEE/RESPONDENT
The State of Texas
APPELLEE’S ATTORNEY AT TRIAL & ON APPEAL
Lance Kutnick
State Bar No. 00791058
Assistant Attorney General
District Attorney Pro Tem
Office of the Attorney General
PO Box 12548
Austin TX 78711
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TABLE OF CONTENTS
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LIST OF PARTIES i
TABLE OF CONTENTS ii
TABLE OF AUTHORITIES iii
STATEMENT REGARDING ORAL ARGUMENT 1
STATEMENT OF THE CASE 1
STATEMENT OF PROCEDURAL HISTORY 1
QUESTIONS PRESENTED FOR REVIEW 2
STATEMENT OF FACTS 2
REASONS FOR GRANTING REVIEW 5
ARGUMENT 5
QUESTION I 5
QUESTION II 9
PRAYER 11
CERTIFICATE OF COMPLIANCE 12
CERTIFICATE OF SERVICE 12
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TABLE OF AUTHORITIES
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CASES
Bozeman v. State, 2012 Tex. App. LEXIS 223
(Tex. App.—Texarkana Jan. 12, 2012, no pet.) 6, 8-9
Celis v. State, 416 S.W.3d 419 (Tex. Crim. App.
2013) 10
Cruz v. State, Tex. App. LEXIS 9002 (Tex. App.
—El Paso Nov. 15, 2007, pet. ref’d) 10
Daugherty v. State, 387 S.W.3d 654 (Tex. Crim.
App. 2013) 10
Ehrhardt v. State, 334 S.W.3d 849 (Tex. App.—
Texarkana 2011, pet. ref’d) 7
Geick v. State, 349 S.W.3d 542 (Tex. Crim. App.
2011) 6
Griffin v. State, 614 S.W.2d 155 (Tex. Crim.
App. 1981) 9
King v. State, 174 S.W.3d 796 (Tex. App.—
Corpus Christi 2005, pet. ref’d) 9
Merryman v. State, 391 S.W.3d 261(Tex. App.—
San Antonio 2012, no pet.) 6
Rowland v. State, 744 S.W.2d 610 (Tex. Crim.
App. 1988) 10
Smith, Ex Parte, 645 S.W.2d 310 (Tex. Crim.
App. 1983) 10
CODES AND RULES
TEX. PEN. CODE § 12.21 1
TEX. PEN. CODE § 31.01(1) 1, 5, 6-7
TEX. PEN. CODE § 31.01(3)(A) 1, 5, 6
TEX. PEN. CODE § 31.03(a) 1, 5, 9
TEX. PEN. CODE § 31.03(b)(1) 1, 5
TEX. PEN. CODE § 31.03(e)(2) 1
TEX. PEN. CODE § 31.03(f)(1) 1
TEX. R. APP. P. 66.3 5
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TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW Appellant, James Fernandez, and submits this petition for
discretionary review from an opinion and judgment from the Fourth Court of
Appeals that affirmed a judgment of conviction in the 83rd Judicial District Court
of Val Verde County, Stephen B. Ables, presiding.
STATEMENT REGARDING ORAL ARGUMENT
Oral argument will helpful because this case involves issues of statutory
construction and the opinion of the Court of Appeals conflicts with opinions of
other courts and this Court.
STATEMENT OF THE CASE
At the conclusion of a jury trial, Appellant was convicted of the offense of
theft by deception. CR 6-7, 156, 166; RR5: 72; see TEX. PEN. CODE §§ 31.01(1),
(3)(A); 31.03(a), (b)(1), (f)(1). The trial court sentenced Appellant to 90 days’
confinement in the county jail, suspended the sentence, placed him on community
supervision for 90 days, and ordered payment of restitution. CR 166; RR5: 112.
See TEX. PEN. CODE §§ 12.21, 31.03(e)(2), (f)(1). On appeal, the Fourth Court of
Appeals affirmed the conviction. This petition followed.
STATEMENT OF PROCEDURAL HISTORY
This petition arises from Cause 04-14-00039-CR from the Fourth Court of
Appeals in San Antonio, Texas. The Court of Appeals issued its opinion on De-
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cember 31, 2014, and affirmed the conviction. Appellant filed no motion for re-
hearing. On February 4, 2015, Appellant filed a motion for extension of time to file
a petition for discretionary review, which this Court granted. This petition is due
March 2, 2015, and is timely filed.
QUESTIONS PRESENTED FOR REVIEW
QUESTION I
In affirming a conviction for theft by deception, did the Court of
Appeals err in finding evidence of deception when the record
shows only lack of actual consent? In other words, and consistent
with the language of the statute, may deception only be proven
when the record shows actual consent that was induced by
deception but not when the record shows lack of actual consent?
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QUESTION II
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Did the Court of Appeals err when it translated the mens rea of
“intent to deprive” to mean instead “intent to appropriate” or
“intent to commit theft?”
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STATEMENT OF FACTS
The Statement of Facts contained in the opinion of the Court of Appeals
omitted some important details. Thus, Appellant presents a more complete
recitation here.
Appellant was Justice of the Peace for Precinct 4 in Val Verde County. RR4:
25, 65. Appellant and another Val Verde justice of the peace, Joey Gonzalez,
planned to attend a conference in Orlando, Florida from June 20 to June 24, 2012.
RR4: 26; SX 1, 2. On February 6, 2012, Veronica Mojica, Appellant’s chief deputy
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clerk, bought tickets on Southwest Airlines for Appellant to travel to the
conference. RR4: 24-27, 159; SX 2. She used a county credit card issued to
Appellant to pay the $381.60 cost. RR4: 29-30, 49; SX 2.
In June, Appellant and Judge Gonzalez both fell ill. RR4: 30-31, 42-43, 161.
Appellant instructed Mojica to cancel the trip. RR4: 30-31. She cancelled the flight
on June 11 and the conference registration on June 12. RR4: 31, 46, 159. The
conference registration fee was refunded. RR4: 31. The Southwest Airlines ticket
and the funds used to purchase it were nonrefundable and nontransferable,
purchased in accordance with County procedure to purchase such lower-cost
tickets to save County money. RR4: 42-43, 61, 62, 107, 159, 309; SX 2. Southwest
Airlines did not refund the ticket but issued a credit to Appellant for use in a future
purchase, which could not be redeemed by anyone except Appellant. RR4: 42-43,
160, 311-19; SX 2. That credit was set to expire on February 4, 2013, if left unused
by Appellant. RR4: 62, 160; SX 2. Mojica informed the County Auditor’s office of
the cancellation and credit. RR4: 161.
About two months later, in August 2012, Appellant asked Mojica for the
reservation number for the Southwest Airlines flight. RR4: 32. He requested that
she call his son to give him the number, which she did. RR4: 33. On August 8,
Appellant booked a ticket to Phoenix on Southwest Airlines using the previous
reservation number. RR4: 91; SX 2. He also traveled on that ticket on the same
day. RR4: 47, 91; SX 2. The new itinerary cost $129.00 more than the Orlando
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ticket, and Appellant paid the difference from his own credit card. RR4: 47-48; SX
2. No county business was scheduled in Phoenix for August 2012, and Appellant
did not claim he was conducting any County business in Phoenix through a new
purchase order to the County. RR4: 47-48, 51. He did not request or receive
approval from any other County official to use the voucher. RR4: 148.
Frank Lowe, the county auditor, knew in June 2012 that (1) Appellant and
Judge Gonzalez bought airplane tickets to go to Orlando, (2) both cancelled the trip
when Judge Gonzalez had gotten ill, and (3) the tickets were nontransferable and
nonrefundable. RR4: 42-43, 87, 95-96, 161, 309; SX 2. Two months later, in
August, Lowe was reviewing each county office’s past fiscal-year expenses in
preparation for the County budget process. RR4: 35, 41. He noticed that travel
expenses were reaching the budget limit, and so he reviewed expenditures more
closely. RR4: 42. He directed a member of his staff to contact Southwest Airlines
to ask that, because Val Verde County is a local government entity, they make an
exception to the nonrefundable-ticket policy. RR4: 44, 92, 95, 96. He then found
out that the credit had been used. RR4: 96.
Lowe did not inform Appellant about his concerns in June or in August and
did not ask Appellant about his findings from Southwest after August 12. RR4: 83,
98, 162. Rather, he spoke to the Val Verde County Attorney, RR4: 51-52, 91, 98,
151, 184, 202, 280, 321, 322-23. He requested that she contact the Office of the
Attorney General to investigate, which she did immediately. RR4: 52, 54, 103-04.
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On August 27, he informed the Val Verde County Commissioners Court of
his investigation. RR4: 54, 99, 176, 324-26. Appellant’s lawyer wrote a letter to
Lowe, offering reimbursement, which Appellant delivered with a money order
around August 27. RR4: 64-65, 74, 276-77; DX1. Lowe had informed his
employees on August 20 to refuse any attempt to reimburse the County for the
credit, which they followed. RR4: 51-52, 75-76, 89. Appellant also attempted make
reimbursement through the County Attorney. RR4: 75, 280-88, 329; DX4.
REASONS FOR GRANTING REVIEW
In affirming the conviction in this case, the Court of Appeals has
misconstrued Penal Code sections 31.01(1), 31.01(3)(A), 31.03(a), and 31.03(b). In
doing so, the opinion of Court of Appeals conflicts with opinions of this Court and
with other Courts of Appeals. The opinion of the Court of Appeals has therefore so
departed from the accepted and usual course of judicial proceedings so as to call
for an exercise of this Court’s power of supervision. See TEX. R. APP. P. 66.3.
ARGUMENT
QUESTION I
In affirming a conviction for theft by deception, did the Court of
Appeals err in finding evidence of deception when the record
shows only lack of actual consent? In other words, and consistent
with the language of the statute, may deception only be proven
when the record shows actual consent that was induced by
deception but not when the record shows lack of actual consent?
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The Court of Appeals improperly found deception by Appellant because he
bought the original Southwest ticket to attend a conference and cancelled the ticket
due to illness. Slip op. at 9. At that time, the Court of Appeals believes, Appellant
“created an [false] impression of fact that the tickets would be used to go to
Orlando on approved county business.” Slip op. at 9. According to the Court of
Appeals, Appellant failed to correct this false impression when he used the credit
for a personal trip in August. Slip op. at 9. The Court of Appeals misinterpreted the
statute and misapplied the caselaw to find deception in this otherwise silent record.
Here, the indictment alleged theft by deception.1 CR 6.“The distinguishing
feature between lawful acquisitive conduct from theft is the intent to acquire
without effective consent at the time of the deprivation.” Merryman v. State, 391
S.W.3d 261, 271 (Tex. App.—San Antonio 2012, no pet.). When “a defendant is
charged with theft by deception, consent must be induced by deception.” Bozeman
v. State, 2012 Tex. App. LEXIS 223, at *15 (Tex. App.—Texarkana Jan. 12, 2012,
no pet.); see TEX. PENAL CODE § 31.01(3)(A). By statute, deception consists of
actively misleading, passively misleading, by failing to correct, or misleading by
preventing another from understanding the transaction. See TEX. PENAL CODE §
1Because the State alleged deception in the indictment, deception is an essential element of the
offense. See Geick v. State, 349 S.W.3d 542, 548 (Tex. Crim. App. 2011).
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31.01(1).2 To “induce” means “to bring about, produce, or cause.” Ehrhardt v.
State, 334 S.W.3d 849, 853 (Tex. App.—Texarkana 2011, pet. ref’d).
Notably, the Court of Appeals never used the word “induce” in its opinion.
The error in the analysis of the Court of Appeals comes from this simple skip in the
statutory analysis: at what point did Appellant use deception to induce the County
to consent to the use of the Southwest credit?
The Court of Appeals believes that Appellant induced consent by informing
the County in February that the ticket would be used for County business. Yet, the
record supports that fact and contains no evidence of deception in February. On
February 6, 2012, Appellant’s chief deputy clerk, bought the plane tickets on
Southwest Airlines for Appellant to travel to the conference. RR4: 24-27, 159; SX
2. She used a county credit card issued to Appellant to pay the fare. RR4: 29-30,
49; SX 2. Appellant was registered for the conference, and the registration fee was
paid with County funds. RR4: 31, 46, 159.
Perhaps the Court of Appeals believes that the deception occurred in June:
“Fernandez later caused those tickets to be cancelled.” The record shows
otherwise. In June, Appellant and the other Justice of the Peace planning to attend
the conference fell ill. RR4: 30-31, 42-43, 161. Appellant instructed Mojica to
2 The code provides two additional definitions that do not apply here, because they involve the
transfer of encumbered property or deception in the promise of performance. See TEX. PEN.
CODE § 31.01(1)(D), (E).
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cancel the trip. RR4: 30-31. She cancelled the flight on June 11 and the conference
registration on June 12.
Southwest Airlines issued the credit to Appellant when Mojica, his clerk,
cancelled the reservation for the Florida conference. RR4: 42-43, 160, 311-19; SX
2. Mojica then informed the County Auditor’s office of the cancellation and the
credit. RR4: 161. The County Auditor, Lowe, personally knew in June in his
official capacity as county auditor that Appellant and Judge Gonzalez had bought
tickets to go to Orlando, that both had cancelled the trip when Judge Gonzalez had
gotten ill, and that the tickets were nontransferable and nonrefundable. RR4:
42-44, 87, 92, 95-96, 161, 309; SX 2. In addition, the County was not collecting,
attempting to collect, or to control in any manner, other similarly issued Southwest
credits. See RR4: 62-63, 70, 72, 89, 97 (Judge Joey Gonzalez); RR4: 62, 72, 89
(sitting County Judge and her assistant); see also RR4: 251 (comment of trial court
about continuing lack of County policy). The County was not deceived in June.
Appellant did not seek and did not receive actual permission from the
County to use the credit. However the appropriation happened, though, no one was
deceived. The Court of Appeals believes that a crime occurred because Appellant
failed to gain consent of the County to use the credit when he had earlier created
“the false impression . . . that the tickets would be used for county business.” Slip
op. at 9. This conclusion misapplies statutory language of theft-by-deception:
deception only occurs when consent has been induced. See Bozeman, 2012 Tex.
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App. LEXIS 223, at *15. Alternatively, when there is no consent there can be no
deception. A theft conviction may still be found, but not on an indictment charging
theft by deception.
Although Appellant did not attempt to gain the County’s consent to use the
Southwest credit, he did not deceive the County either. The Court should reverse
Court of Appeals, reverse the judgment of conviction, and order an acquittal.
QUESTION II
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Did the Court of Appeals err when it translated the mens rea of
“intent to deprive” to mean instead “intent to appropriate” or
“intent to commit theft?”
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The Court of Appeals made its mistake when considering the culpable
mental state of the theft statute. See TEX. PEN. CODE § 31.03(a). The Court of
Appeals defined the problem as “whether the accused had the requisite intent to
commit theft.” Slip op. at 7. This frame is legally incorrect and misinterprets the
statute.
An appropriation of property constitutes theft only if the person acted “with
intent to deprive” the owner of the property. TEX. PEN. CODE § 31.03(a). The intent
to deprive is determined from the accused’s words and acts. King v. State, 174 S.W.
3d 796, 810 (Tex. App.—Corpus Christi 2005, pet. ref’d) (citing Griffin v. State,
614 S.W.2d 155, 159 (Tex. Crim. App. 1981)). The fact-finder may infer intent
from any facts that tend to prove its existence, including the method of committing
the crime. Id. at 811.
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Intent, the mens rea of theft, concerns whether the accused intended to
deprive the owner of the property. Celis v. State, 416 S.W.3d 419, 424 (Tex. Crim.
App. 2013); Ex parte Smith 645 S.W.2d 310, 311-12 (Tex. Crim. App. 1983). The
accused’s intent with the taking or the appropriation is immaterial to the analysis.
See id. In other words, appropriation of property does not alone prove intent to
deprive the owner of the property. See Rowland v. State, 744 S.W.2d 610, 613 (Tex.
Crim. App. 1988).
Finally, criminal liability “depends upon a person’s culpable mental state at
the time the person performs some criminal act.” Daugherty v. State, 387 S.W.3d
654, 658-659 (Tex. Crim. App. 2013). “What is relevant is the defendant’s intent at
the time of the taking.” Cruz v. State, No. 08-03-00313-CR 2007, Tex. App. LEXIS
9002, at *35 (Tex. App.—El Paso Nov. 15, 2007, pet. ref’d) (citing Rowland, 744
S.W.2d at 612); see also Griffin, 614 S.W.2d at 159.
The Court of Appeals, on the other hand, analyzed this case as if intent
concerns the accused’s decision to appropriate, or take, the property. See Slip op. at
7. The Court focused only on the facts that “the County was permanently deprived
of the ability to have Fernandez use the credit for county business,” that Appellant
“experienced a personal gain from the use of the credit,” that he “did not seek
permission to use the credit or notify the County of his use of the credit,” and that
he offered to reimburse the County only when he “learned of the investigation.”
See Slip op. at 7-8. These facts are relevant to issues of appropriation: that
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Appellant used the credit, that the County could not, that Appellant did not tell the
County (or get its “effective consent”) or reimburse the County.
But what of Appellant’s intent when he used the credit? This record contains
evidence only (1) that Appellant used a credit that only he could use; (2) that the
County knew about the credit and its limitations; and (3) that the County did not
communicate any policy or restrictions about the credit to Appellant. The record
says nothing about an intent to deprive, only that Appellant used a credit he
thought was only his to use.
The Court of Appeals improperly applied the intent culpable mental state to
the appropriation. A correct analysis of the theft conviction, focused on evidence of
an intent to deprive, reveals no evidence on this vital element. Therefore, this Court
should reverse the judgment of the Court of Appeals, reverse the judgment of
conviction, and order an acquittal.
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PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays that the Court
grant this Petition for Discretionary Review and grant oral argument. Appellant
further prays that, after submission, the Court reverse the judgment and opinion of
the Court of Appeals, and render a judgment of acquittal.
Appellant prays for any such further relief to which he may be entitled.
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Respectfully submitted,
/s/ James Gerard McDermott, II
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James Gerard McDermott, II
Thompson Salinas Rickers & McDermott, LLP
8140 N. Mopac
Westpark 4, Suite 250
Austin TX 78759
512.201.4099
512.298.1129 (facsimile)
james@centraltexaslawyers.com
Attorney for Appellant
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CERTIFICATE OF COMPLIANCE
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I hereby certify that this brief complies with Texas Rule of Appellate
Procedure 9.4. The computer-generated word count for this document is 2485
words, including headers and footnotes.
/s/ James Gerard McDermott, II
James Gerard McDermott
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CERTIFICATE OF SERVICE
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I hereby certify that a true copy of the foregoing document was served by
electronic service on March 2, 2015 to:
Lance Kutnick Lisa C. McMinn
Assistant Attorney General State Prosecuting Attorney
District Attorney Pro Tem 209 W. 14th Street
Office of the Attorney General Austin, Texas 78701
PO Box 12548 information@spa.texas.gov
Austin TX 78711
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/s/ James Gerard McDermott, II
James Gerard McDermott
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Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00039-CR
James FERNANDEZ,
Appellant
v.
The
The STATE of Texas,
Appellee
From the 83rd Judicial District Court, Val Verde County, Texas
Trial Court No. 12716-CR
Honorable Stephen B. Ables, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: December 31, 2014
AFFIRMED
A jury convicted James Fernandez of the offense of theft by a public servant in the amount
of $50 or more but less than $500. On appeal, Fernandez argues the evidence was insufficient to
support his conviction. We affirm.
BACKGROUND
Fernandez was the Justice of the Peace for Precinct 4 in Val Verde County, Texas.
Fernandez planned to attend a conference for elected officials in Orlando, Florida from June 20 to
June 24, 2012. Fernandez’s attendance at the conference was approved county business.
04-14-00039-CR
In February 2012, Fernandez asked the chief deputy clerk of the court, Veronica Mojica,
to make travel arrangements for him to attend the conference. Mojica bought tickets on Southwest
Airlines for Fernandez to travel to and from the conference. To pay for the tickets, which cost
$381.60, Mojica used a county credit card issued to Fernandez. County policy prefers the purchase
of nonrefundable/nontransferable airline tickets because they generally cost less than refundable
tickets. Therefore, the tickets purchased by Mojica were nonrefundable/nontransferable.
Documentation was submitted to the county auditor in support of this purchase.
Months later, Fernandez decided he would not attend the conference due in part to illness.
He instructed Mojica to cancel his flight reservations. Mojica cancelled the reservations on June
11, 2012. In accordance with its policy, Southwest Airlines did not refund the tickets, but did issue
a credit for use in a future purchase. The credit could not be redeemed by anyone except Fernandez.
If not used, the credit would expire on February 5, 2013. However, if the county paid a nominal
fee, the credit could have been extended for an additional year.
On August 8, 2012, Fernandez called Mojica to ask her for the reservation number for the
cancelled San Antonio-Orlando airline tickets. Mojica located the reservation number and, at
Fernandez’s direction, provided it to Fernandez’s adult son. Fernandez’s son booked flights for his
father from San Antonio to Phoenix and back using the $381.60 credit from the cancelled San
Antonio-Orlando flights. The new tickets cost more than the San Antonio-Orlando flights, and the
additional amount was paid with Fernandez’s personal credit card. On August 8, 2012, Fernandez
traveled on the flight from San Antonio to Phoenix. The trip was for personal reasons, not for
county business. Fernandez did not seek approval from any county official to use the credit.
Shortly thereafter, the county auditor, Frank Lowe, noticed that the County’s travel
expenses were approaching its budget limit. Lowe was aware that Fernandez had cancelled his
airline tickets for the Orlando trip. Lowe directed a member of his staff to contact Southwest
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04-14-00039-CR
Airlines and ask if it would make an exception and refund the cancelled tickets. The staff member
contacted Southwest Airlines and learned that the credit from Fernandez’s cancellation had been
used. Lowe then obtained from Southwest Airlines documentation showing Fernandez’s
reservation history and the use of the credit for flights from San Antonio to Phoenix and back. The
county auditor’s office had received supporting documentation for Fernandez’s San Antonio-
Orlando trip but had not received such documentation for Fernandez’s San Antonio-Phoenix trip.
On August 20, 2012, Lowe informed the county attorney of his findings. The county
attorney contacted the attorney general’s office, which began an investigation. After the
investigation was underway, Fernandez tendered a money order to the County to reimburse the
County for his use of the credit. The County, however, did not accept the reimbursement.
Fernandez was indicted on three counts: theft by a public servant, abuse of official capacity,
and misapplication of fiduciary property. Fernandez pleaded not guilty to all counts. At trial, the
State’s theory was that Fernandez committed an offense when he used the credit from the cancelled
San Antonio-Orlando tickets to purchase the San Antonio-Phoenix tickets. The parties entered into
a written stipulation of evidence that provided, among other things, that the original tickets were
nonrefundable and nontransferable, that the original tickets were issued in Fernandez’s name and
any credit remaining on the tickets could not in any way be refunded to the County or used by the
County, and that the credit had an expiration date of February 5, 2013. The written stipulation was
admitted into evidence. Various witnesses also testified at trial, including Mojica, Lowe, and
Fernandez’s son.
The jury found Fernandez guilty of theft by a public servant, a Class B misdemeanor. The
trial court sentenced Fernandez to ninety days confinement in the county jail. The sentence was
suspended and Fernandez was placed on community supervision for ninety days. Fernandez was
also ordered to pay restitution in the amount of $381.60. Fernandez appealed.
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04-14-00039-CR
STANDARD OF REVIEW
In reviewing the sufficiency of the evidence to support a conviction, we review all of the
evidence in the light most favorable to the verdict to determine whether any rational trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. Geick v. State,
349 S.W.3d 542, 545 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)). “This familiar standard gives full play to the responsibility of the trier of fact fairly 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. We also defer to the trier of fact’s
credibility and weight determinations because the jury is the sole judge of the witnesses’ credibility
and the weight to be given their testimony. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App.
2010). Each fact need not point directly and independently to the guilt of the appellant, as long as
the cumulative force of all the incriminating circumstances is sufficient to support the conviction.
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
DISCUSSION
Fernandez challenges the sufficiency of the evidence to support three elements of the
offense of theft by a public servant: (1) that the County was the owner of the credit; (2) that
Fernandez intended to deprive the county of property; and (3) that Fernandez acted with deception
when he used the credit.
As a threshold matter, Fernandez contends that it was unclear from the indictment what
property was unlawfully appropriated. 1 For this reason, Fernandez explains that the first four issues
1
The relevant portion of the indictment states:
On or about the 8th day of August, 2012, and before the presentment of this indictment, James
Fernandez, in Val [V]erde County, Texas, did then and there unlawfully appropriate, by acquiring
or otherwise exercising control over property, to-wit: a plane ticket, of the value of $50 or more but
less than $500, from Frank Lowe, on behalf of Val Verde County, Texas, the owner thereof, without
the effective consent of the owner, namely by deception, and with the intent to deprive the owner of
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04-14-00039-CR
presented in his brief assume that the unlawfully appropriated property was the credit issued by
Southwest Airlines for the cancelled Orlando trip, and the last three issues assume that the
appropriated property was the tickets issued for travel to and from Orlando. The State counters
that Fernandez’s briefing “needlessly confuses the property at issue” in this case. According to the
State, its theory was that “[o]n or about August 8, 2012, Fernandez unlawfully appropriated the
credit for a ticket [] in his name (that can only be used for county business) into a plane ticket to
go to Arizona for personal reasons.” The State further argues that the evidence was sufficient to
support the jury’s verdict.
Owner of the Credit/Unlawful Appropriation
In his first and second issues, Fernandez argues the County had abandoned its interest in
the Southwest-issued credit and therefore the evidence was insufficient to show that the County
was the owner of the credit and that he unlawfully appropriated the credit. The Texas Penal Code
provides that a person commits the offense of theft if he unlawfully appropriates property with
intent to deprive the owner of the property. TEX. PENAL CODE ANN. § 31.03(a) (West 2014).
Appropriation of property is unlawful if it is without the owner’s effective consent. Id. § 31.03(b).
“Appropriate” is defined as “to acquire or otherwise exercise control over property other than real
property.” Id. 31.01(4)(B).
The Texas Penal Code defines “owner” as a person who “has title to the property,
possession of the property, whether lawful or not, or a greater right to possession of the property
than the actor.” TEX. PEN. CODE ANN. § 1.07(a)(35)(A) (West Supp. 2014). It further defines
“possession” as “actual care, custody, control, or management.” TEX. PENAL CODE ANN.
the property, and the defendant was then and there a public servant, namely, a Justice of the Peace
of Val Verde County, Texas, and such property appropriated by the defendant had therefore come
into his custody, possession or control by virtue of his status as a public servant[.]
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§ 1.07(a)(39). In defining the word “owner” as it did, the Legislature clearly gave the word an
expansive meaning. Freeman v. State, 707 S.W.2d 597, 603 (Tex. Crim. App. 1986). “The issue
of ‘ownership’ goes to the scope of the property interest protected by the law and is intended to
protect all ownership interests in property from criminal behavior.” Id.
An individual may abandon his personal property. Ingram v. State, 261 S.W.3d 749, 753
(Tex. App.—Tyler 2008, no pet.) (citing Worsham v. State, 120 S.W. 439, 443 (1909)). “Abandon”
means “a giving up,” “a total desertion,” or “an absolute relinquishment.” Id. “Abandonment
includes both the intention to forsake and the act by which such intention is carried into effect.”
Id. Thus, it is possible to take possession of abandoned property without committing a theft or
intending to commit a theft. Id.
Fernandez asserts that the County was not the owner of the credit because it had abandoned
its interest in the credit. In support of his argument, Fernandez emphasizes that the credit was in
his name and could not be used by anyone else; County policy favored the purchase of
nontransferable/nonrefundable tickets; when nontransferable/nonrefundable tickets went unused,
the funds used to purchase those tickets were lost by the County; and the County had no specific
policy asserting its ownership over credits for unused tickets. The State argues these facts are not
determinative, pointing out that the credit had a value of $381.60 until February 5, 2013, and that
at the time Fernandez used the credit, there were about six months remaining before the credit
expired. The State also points out that Fernandez could have used the credit for county-approved
business travel prior to February 5, 2013.
Viewed in the light most favorable to the verdict, the evidence showed that the source of
the credit was the purchase of airline tickets with county funds for the purpose of county business.
The County’s personnel manual provided: “Personal use of county vehicles, equipment, supplies,
tools, and any other [c]ounty property shall not be permitted.” Thus, the personnel manual
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prohibited the personal use of county property. The law provides that anyone who had a greater
right to possess, control, or manage the credit than Fernandez could be the “owner” of the credit.
See TEX. PEN. CODE ANN. § 1.07(a)(35)(A), (39). We conclude a rational trier of fact could have
found that the County had not abandoned its interest in the credit, and that the County had a greater
right to possess, control, or manage the credit than Fernandez. We further conclude a rational trier
of fact could have found that the County was the owner of the credit and that Fernandez unlawfully
appropriated the credit.
Intent to Deprive
In his third issue, Fernandez argues the evidence was insufficient because the State failed
to produce any evidence that he intended to deprive the County of its property when he used the
credit. “A person commits theft if he unlawfully appropriates property with the intent to deprive
the owner of the property.” Byrd v. State, 336 S.W.3d 242, 250 (Tex. Crim. App. 2011); see TEX.
PENAL CODE ANN. § 31.03(a). “Deprive” means “to withhold 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” or “to dispose of property in a manner that makes recovery of the property by
the owner unlikely.” TEX. PENAL CODE ANN. § 31.01(2)(A,)(C) (West 2014). Intent to deprive is
determined from the words and acts of the accused. King v. State, 174 S.W.3d 796, 810 (Tex.
App.—Corpus Christi 2005, pet. ref’d) (citing Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim.
App. 1981)). In determining whether the accused had the requisite intent to commit theft, the fact
finder may consider whether the accused experienced personal gain from the property obtained.
Christensen v. State, 240 S.W.3d 25, 32 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).
Viewed in the light most favorable to the verdict, the evidence showed that Fernandez used
the credit to purchase tickets to take a trip for personal reasons. When Fernandez used the credit
to purchase the San Antonio-Phoenix tickets, the County was permanently deprived of the ability
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to have Fernandez use the credit for county business. Fernandez experienced a personal gain from
the use of the credit because he did not have to pay for a portion of the tickets with his own funds.
The evidence also showed that Fernandez did not seek permission to use the credit or notify the
County of his use of the credit. Nor did Fernandez reimburse the County for his use of the credit
upon his return. It was not until Fernandez learned of the investigation into the matter that he
attempted to reimburse the County. We conclude a rational trier of fact could have found that
Fernandez intended to deprive the County of its property when he used the credit.
Deception
In his fourth issue, Fernandez argues that the evidence was insufficient because the State
failed to produce any evidence that, when he used the credit, he acted with deception, as alleged
in the indictment and defined by section 31.01(1). If an indictment uses a statutory definition to
specify how a theft was committed, the State must prove the offense as charged in the indictment.
Geick, 349 S.W.3d at 543; Leal v. State, 975 S.W.2d 636, 640 (Tex. App.—San Antonio 1998,
pet. ref’d). Here, the indictment alleged that Fernandez unlawfully appropriated the property
“without the effective consent of the owner, namely by deception, and with the intent to deprive
the owner of the property . . .” Thus, the State was required to prove deception. See Geick, 349
S.W.3d at 548 (holding that when the State unnecessarily pled that the theft was by deception but
provided no proof of deception, the evidence was insufficient to support a conviction); Leal, 975
S.W.3d at 640 (holding that when the indictment alleged theft was committed by acquiring
property without the effective consent of the owner “by deception,” the State was required to prove
this allegation).
The Texas Penal Code contains multiple definitions of the word “deception.” TEX. PENAL
CODE ANN. § 31.01(1) (West 2014). The definition of “deception” applicable to this case is “failing
to correct a false impression of law or fact that is likely to affect the judgment of another in the
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transaction, that the actor previously created or confirmed by words or conduct, and that the actor
does not now believe to be true.” TEX. PENAL CODE ANN. § 31.01(1)(B).
Viewed in the light most favorable to the verdict, the evidence showed that Fernandez
purchased nontransferable/nonrefundable airline tickets for travel to Orlando on county business.
Documentation was submitted to the county auditor’s office in support of this purchase. Thus,
Fernandez created an impression of fact that the tickets would be used to go to Orlando on
approved county business. Fernandez later caused those tickets to be cancelled, resulting in a
credit. Fernandez subsequently used that credit to obtain tickets for a trip to Phoenix. Fernandez
did not believe that the San Antonio-Phoenix tickets would be used for county business; rather,
Fernandez knew that these tickets were for personal use. Fernandez did not inform the county
auditor’s office that he used the credit to obtain these tickets for his personal use, nor did he
reimburse the County for the credit when he returned. In fact, Fernandez did not attempt to
reimburse the County for the credit until after he learned of the investigation into the matter. Thus,
Fernandez failed to correct the false impression that he previously created that the tickets would
be used for county business. We conclude a rational trier of fact could have found that he acted
with deception, as alleged in the indictment and defined by section 31.01(1)(B) of the Texas Penal
Code.
CONCLUSION
We have determined that the evidence was sufficient to support Fernandez’s conviction
based on the theory that the appropriated property was the credit issued by the airline for the San
Antonio-Orlando tickets. We, therefore, we need not address Fernandez’s remaining issues which
are based on an alternative theory. The judgment of the trial court is AFFIRMED.
Karen Angelini, Justice
Do not publish
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