John William Mitchell v. State ( 2020 )

Opinion issued April 30, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00176-CR
———————————
JOHN WILLIAM MITCHELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Case No. 80226-CR
MEMORANDUM OPINION
John William Mitchell was indicted for aggregate theft of property,
specifically, “money,” based on his unauthorized use of a company charge card for
personal expenses. See TEX. PENAL CODE §§ 31.03, 31.09. Mitchell was tried,
convicted, and sentenced to 12 months’ confinement. In two issues, Mitchell
contends there is legally insufficient evidence that he (1) unlawfully appropriated
“money” as alleged in the indictment and (2) intended to deprive the company of
“money” when he made the unauthorized charges.
We affirm.
Background
This is a case of employment-related theft. In February 2016, Mitchell was
hired as a driver by Century Concrete Partners, Inc. (“the Company”). The
Company issued Mitchell a charge card to purchase diesel fuel for his company
vehicle. To receive the charge card, Mitchell had to sign an Employee Fuel Card
Agreement.
Under the agreement, Mitchell was permitted to use the charge card for
nonfuel business expenses. But such expenses had to be pre-approved and
supported by a receipt. If Mitchell failed to obtain approval or submit a receipt for
a nonfuel business expense, the expense would be charged back to Mitchell “in full
by payroll deduction.” The agreement further provided that “under no
circumstances” could Mitchell use the charge card “to make personal purchases.”
The agreement warned that “[w]illful intent” to use the charge card for “personal
gain” would “result in disciplinary action up to and including termination of
employment and criminal prosecution.”
2
In September 2016, the Company reviewed Mitchell’s charge card account
and discovered a large number of non-diesel and nonfuel purchases that were made
when Mitchell was not on duty and at locations where the Company was not doing
work. The charges had occurred over the course of Mitchell’s seven-month
employment. (A representative of the Company admitted that during this time the
Company did a poor job of reconciling its drivers’ charge card accounts.) Mitchell
had not obtained pre-approval for these charges, and he had not submitted any
receipts for them either. Most of the unauthorized charges were made at a
particular service station located in Channelview, Texas, near Mitchell’s residence.
Many of them were made in round $50 increments with no sales tax.
When confronted with the unauthorized charges, Mitchell admitted to
making personal purchases on his charge card, including filling up his personal
vehicle with unleaded gasoline on a few occasions. But Mitchell disagreed with the
total amount of unauthorized purchases claimed by the Company.
The Company terminated Mitchell’s employment and reported the matter to
law enforcement, resulting in Mitchell’s indictment for aggregate theft. Mitchell
pleaded not guilty, and the case went to trial, where the State presented evidence
showing a total loss to the Company in the amount of $15,814.89.
At the end of trial, the jury found Mitchell guilty, and the trial court
sentenced him to 12 months’ confinement. Mitchell appeals.
3
Legal Sufficiency
In two issues, Mitchell contends there is legally insufficient evidence that he
(1) unlawfully appropriated “money” as alleged in the indictment and (2) intended
to deprive the Company of “money” when he made the unauthorized charges.
A. Applicable law and standard of review
A person commits the offense of theft if he unlawfully appropriates property
with intent to deprive the owner of it. TEX. PENAL CODE § 31.03(a). Appropriation
is unlawful if it is without the owner’s effective consent. Id. § 31.03(b)(1).
In the employer-employee context, an unlawful appropriation occurs when
an employee exercises unauthorized control over property belonging to the
employer with intent to deprive the employer of that property. See
Freeman v. State, 707 S.W.2d 597, 605 (Tex. Crim. App. 1986); Newman v. State,
115 S.W.3d 118, 121 (Tex. App.—Texarkana 2003, no pet.). The line between
lawful and unlawful activity by an employee is therefore a question of the scope of
the employee’s authority. Freeman, 707 S.W.2d at 606.
In a legal sufficiency review, we review the evidence in the light most
favorable to the verdict and ask whether any rational factfinder could have found
the elements of the charged offense beyond a reasonable doubt. Fernandez v. State,
479 S.W.3d 835, 837–38 (Tex. Crim. App. 2016). If a rational factfinder could
have so found, we will not disturb the verdict on appeal. Id. at 838.
4
B. Appropriation of “money”
In his first issue, Mitchell contends that there is legally insufficient evidence
that he committed theft of “money” as alleged in the indictment. By presenting
evidence of his unauthorized use of the Company charge card, Mitchell contends,
the State showed that he unlawfully appropriated credit, not money, resulting in a
material variance between the allegations in the indictment and the proof at trial.
See Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001) (“A ‘variance’
occurs when there is a discrepancy between the allegations in the charging
instrument and the proof at trial.”). Because of this variance, Mitchell argues that
the evidence is insufficient to support his conviction. See id. at 247 (variance
claims are treated as legal sufficiency challenges). We disagree.
We considered and rejected a nearly identical argument in Beatty v. State,
No. 01-08-00335-CR, 2010 WL 2133870 (Tex. App.—Houston [1st Dist.] May
27, 2010, pet. ref’d) (mem. op., not designated for publication). There, the director
of a small charity was convicted of aggregate theft based on his unauthorized use
of the charity’s credit cards for personal expenses. Id. at *1–5. On appeal, the
director argued that there was a material variance between the indictment, which
alleged that he stole “money,” and the evidence offered at trial, which showed that
he charged a large amount of personal expenses on the charity’s credit cards
without authorization and never paid the balance. Id. at *8. We rejected this
5
argument, reasoning that the director’s use of the charity’s credit cards was simply
the instrument by which he stole the charity’s money to pay for his personal
expenses. Id.
Beatty is directly on point. Like the director of the charity, Mitchell used the
Company’s charge card to pay for personal expenses without authorization. He
never paid, or attempted to pay, the balance. Mitchell’s use of the Company’s
charge card was the instrument by which he stole the Company’s money.
Mitchell contends that the unauthorized purchases he made with the
Company charge card constitutes credit card abuse under Penal Code section
32.21(b)(1)(A). See TEX. PENAL CODE § 32.21(b)(1)(A) (“A person commits an
offense if . . . with intent to obtain a benefit fraudulently, he presents or uses a
credit card or debit card with knowledge that . . . the card, whether or not expired,
has not been issued to him and is not used with the effective consent of the
cardholder.”). Because his conduct constitutes credit card abuse, and because credit
card abuse is not theft, Mitchell argues that the evidence is insufficient to show he
also committed theft under Penal Code section 31.03. See id. § 31.03(a). We
disagree.
As courts have recognized, conduct that violates section 32.21(b)(1)(A) and
thus constitutes credit card abuse also violates section 31.03 and thus constitutes
theft. See Rabb v. State, 681 S.W.2d 152, 154–55 (Tex. App.—Houston [14th
6
Dist.] 1984, pet. ref’d) (“[T]he conduct specified in [the predecessor of section
32.21(b)(1)(A)] is clearly theft under Section 31.03.”); Garcia v. State, 669 S.W.2d
169, 171 (Tex. App.—Dallas 1984, pet. ref’d) (same). Thus, assuming without
deciding Mitchell is right that the evidence is sufficient to show he committed
credit card abuse under section 32.21(b)(1)(A), it follows that the evidence is
sufficient to show he also committed theft under section 31.03. Mitchell’s
argument is therefore self-defeating.
Mitchell cites three cases to show that credit card abuse is not theft. See
Watson v. State, 923 S.W.2d 829, 834 (Tex. App.—Austin 1996, pet. ref’d);
Meshell v. State, 841 S.W.2d 895, 896 (Tex. App.—Corpus Christi 1992, no pet.);
Colquitt v. State, 650 S.W.2d 128, 128 (Tex. App.—Houston [14th Dist.] 1983, no
pet.). But these cases do not address whether evidence establishing credit card
abuse can (or cannot) also establish theft. Instead, they address whether a prior
conviction under the credit card abuse statute is the equivalent of a prior conviction
under the theft statute when determining whether a subsequent conviction is
subject to enhanced punishment. Watson, 923 S.W.2d at 834; Meshell, 841 S.W.2d
at 896; Colquitt, 650 S.W.2d at 128–29. They hold that it is not, since enhancement
under the circumstances of those cases depends on whether the defendant has been
previously convicted under a specific statute, not whether the defendant has
previously engaged in specific conduct. Watson, 923 S.W.2d at 834; Meshell, 841
7
S.W.2d at 896; Colquitt, 650 S.W.2d at 129. The cases cited by Mitchell are
therefore inapposite. They do not support his argument that the evidence of his
unauthorized use of the Company charge card is insufficient to show he committed
the offense of theft.
Regardless whether Mitchell’s conduct violated the more specific statute for
credit card abuse, the State had discretion to charge and prosecute him under the
more general statute for theft in this case. See Alejos v. State, 555 S.W.2d 444, 451
(Tex. Crim. App. 1977) (even though State could have prosecuted defendant for
either “evading arrest” or “fleeing or attempting to elude a police office,” State
“properly exercised its option” to prosecute defendant under former statute);
Garcia, 669 S.W.2d at 172 (“[T]he special statute of credit card abuse does not
control over the general theft statute in this case”).
As a Company driver, Mitchell had a right to possess and, to a limited
extent, use the Company charge card for certain work-related purchases. But once
Mitchell decided to use the charge card for his own benefit, rather than the benefit
of the Company, his control over the charge card (and the money it represented)
was no longer consensual and he committed theft.
Viewing all the evidence in the light most favorable to the verdict, a rational
trier of fact could have found Mitchell committed theft of “money” from the
8
Company by means of a company issued charge card. We overrule Mitchell’s first
issue.
C. Intent to deprive
In his second issue, Mitchell contends that there is legally insufficient
evidence that he had the requisite “intent to deprive” the Company of money. TEX.
PENAL CODE § 31.03(a). The requisite specific intent to commit theft is a fact issue
for the jury, which can be inferred from the defendant’s conduct, his remarks, and
from the surrounding circumstances. See Robertson v. State, 871 S.W.2d 701, 705
(Tex. Crim. App. 1993); Ford v. State, 152 S.W.3d 752, 756 (Tex. App.—Houston
[1st Dist.] 2004, pet. ref’d); McCurdy v. State, 550 S.W.3d 331, 337 (Tex. App.—
Houston [14th Dist.] 2018, no pet.).
In determining whether there is legally sufficient evidence of Mitchell’s
intent, the following facts are undisputed:
• When he was hired, and as a condition to receiving his charge card, Mitchell
signed and agreed to abide by the Employee Fuel Card Agreement. Under
the agreement, Mitchell agreed to obtain pre-approval and submit receipts
for all nonfuel business expenses charged to his Company charge card; he
agreed that “under no circumstances” would he use his charge card to “make
personal purchases”; and he acknowledged that using his Company charge
card for “personal gain” could result in the “termination of [his] employment
and criminal prosecution.”
• Nevertheless, over the eight-month term of his employment, Mitchell
charged over $15,000 in personal expenses to his Company charge card.
Mitchell did not obtain pre-approval or submit a single receipt for any of
these charges. Most of the charges were made when Mitchell was off duty at
a service station near his residence but far from the locations to which he
9
made deliveries. Many of the charges were made in round $50 increments
with no sales tax.
• During Mitchell’s term of employment, the Company did an admittedly poor
job of reconciling its drivers’ charge card accounts. The Company did not
reconcile Mitchell’s charge card account until his eighth (and final) month of
employment. By then, the amount of unauthorized personal charges was too
large to deduct from Mitchell’s pay.
From these undisputed facts, a rational factfinder could have found that
Mitchell knew he had no authority to charge personal expenses to his Company
charge card, but did so anyway, charging over $15,000 in personal expenses,
perhaps believing (mistakenly) that the Company would never reconcile his
account.
Mitchell nevertheless argues that the evidence is insufficient to prove intent
because the Company never deducted (or attempted to deduct) the charges from his
pay as permitted by the Employee Fuel Card Agreement. Because the Company
had the right to deduct unauthorized charges from his pay, Mitchell argues that the
State could not prove intent without showing that Mitchell “did not intend to allow
for a deduction from his paycheck” for his unauthorized, nonfuel personal charges.
And the only way to show he did not intend to allow the Company to deduct the
unauthorized charges, Mitchell contends, was with evidence that the Company
tried to make the deductions but Mitchell somehow preventing it from doing so.
Because the State presented no such evidence, Mitchell concludes, there is legally
insufficient evidence that Mitchell had the requisite intent.
10
The Company’s failure to regularly reconcile driver charge card accounts
during Mitchell’s term of employment and decision not to deduct the unauthorized
charges after they were discovered is not as probative as Mitchell claims. This
evidence cuts both ways, and, viewed in the light most favorable to the verdict,
actually supports a finding of intent. This is because it would permit a reasonable
jury to find that Mitchell came to believe that the Company had not been reviewing
his charges and would not do so in the future—giving him carte blanche to use the
charge card for personal expenses.
Moreover, by the time the Company discovered that Mitchell had been
making unauthorized charges for personal expenses, the amount was too large to
deduct from Mitchell’s pay. This supports a finding of intent because it shows that
Mitchell could not have reasonably expected that all his unauthorized charges
could be deducted from his pay. See, e.g., Beatty, 2010 WL 2133870 at *7
(evidence showed defendant knew he was ultimately responsible for personal
charges and that he charged large amount of personal expenses on company credit
cards but did not pay balance).
Mitchell’s failure to obtain pre-approval or submit a receipt for a single
charge over an eight-month period is probative of intent, as is the pattern of
unauthorized charges—made primarily at one location while Mitchell was off duty
for nonbusiness purposes in similar even-numbered amounts. See Riley v. State,
11
312 S.W.3d 673, 678 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d)
(“[E]vidence of intent to commit theft through deception consists of the pattern or
scheme established in each of the four transactions . . .”); Merryman v. State, 391
S.W.3d 261, 272 (Tex. App.—San Antonio 2012, pet. ref’d) (holding evidence
sufficient to support contractor's conviction when it showed similar patterns of
accepting customers’ payments but failing to complete agreed-to projects).
Viewing the record in the light most favorable to the verdict, we hold that a
rational juror could have found that Mitchell had the requisite intent to deprive the
Company of money when he made unauthorized personal charges with his
company issued charge card. Accordingly, we overrule Mitchell’s second issue.
Conclusion
We affirm.
Gordon Goodman
Justice
Panel consists of Justices Keyes, Goodman, and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
12