Edward Christensen v. State

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Opinion issued July 6, 2007























In The

Court of Appeals

For The

First District of Texas



NO. 01-04-00713-CR



EDWARD CHRISTENSEN, Appellant



V.



THE STATE OF TEXAS, Appellee



On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 971063



OPINION ON REHEARING



On November 16, 2006, a panel of this Court reversed on appeal the conviction of appellant, Edward Christensen, and remanded the cause to the trial court for further proceedings. The State filed motions for rehearing and en banc reconsideration. At the request of this Court, appellant timely filed a response to the State's motion. We grant the State's motion for rehearing, withdraw our previous opinion, and substitute this opinion in its stead. (1)

Appellant appeals from a conviction for state jail felony theft of property valued between $1,500 and $20,000. See Tex. Pen. Code Ann. § 31.03(e)(4) (Vernon Supp. 2006). Appellant pleaded not guilty. (2) The jury found appellant guilty of theft, and the trial court assessed punishment at confinement for two years in a state jail facility, suspended for four years of community supervision, and a fine of $1,000. We sustain appellant's first issue that asserts that the evidence is legally insufficient to establish his guilt, and reverse and render judgment that he is not guilty of the offense. (3)



Background Appellant was a deputy with the Harris County Sheriff's Office. In March 1997, appellant became president of the Harris County Deputies' Organization (the Organization), a union that is a not-for-profit organization composed of approximately 3,000 deputies. The Organization was formed to provide services for the benefit of its members, such as the improvement of employment benefits, the improvement of working conditions, assistance to injured deputies, and assistance to the families of deputies injured or killed in the line of duty. The Organization maintained an office run by four officers--president, vice-president, secretary, and treasurer--and eight board members. The Organization raised funds for its expenses and activities from fees it received from its members through payroll deductions.

The Organization also raised funds through telemarketing. One of the telemarketers used by the Organization was Ron Kowalsky. Kowalsky began working for the Organization in January 1998 under a written agreement that was negotiated by William Tabor, then the Organization's vice-president, and that was ratified by the Organization's board of directors. The agreement provided that Kowalsky would receive contingency fees that allowed him to keep 75% to 80% of the money raised from the "sale of advertising." Although appellant did not participate in the formation of the agreement, he was a primary contact for Kowalsky when Kowalsky began telemarketing for the Organization. Kowalsky's telemarketing that began as "the sale of advertising" later included the solicitation of funds for the Organization over the telephone by mentioning the Organization's support for different programs, such as drug awareness and Toys for Tots. The Organization never had official permission, authorization, or recognition to solicit donations for Toys for Tots, which is a program trademarked by the United States Marine Corps. It did, however, donate toys to the program.

Consistent with his general practice for obtaining approval of a telemarketing campaign for the Organization, Kowalsky "briefly" discussed Toys for Tots with appellant, although Kowalsky could not recall the specifics of the conversation. Kowalsky then drafted the correspondence that mentioned Toys for Tots. Kowalsky sent the draft to appellant for approval. Appellant signed the draft letter, which, according to Kowalsky, permitted the telemarketing for Toys for Tots. Appellant later signed another letter mentioning Toys for Tots. The two letters signed by appellant regarding Toys for Tots were virtually identical, except that the names of the officers and board members shown on the stationery were different, which Kowalsky explained was consistent with his general practice to obtain new letters when the members of the board changed.

The Toys for Tots letter stated as follows:

Dear Friend,



On behalf of the Harris County Deputies' Organization, please let me Personally thank you for your generous support.

Every year at this time the Harris County Deputies' Organization lends A helping hand of support to the " TOYS FOR TOTS " program.. This Program provides toys for children of families who cannot afford to do So, and to those children who have no family. Just knowing that there Is a light at the end of the tunnel gives hope to these children year after Year. Let us all as a community give what we can in order to bring Some Joy and Laughter into the lives of those who are less fortunate Than others.

Once Again I would like to thank you for your generous support and Cooperation. It is only through such assistance that we can carry on.

Sincerely,

[Signature]

Ed Christensen, President

Harris County Deputies' Organization



(Emphasis, punctuation, and capitalization in original).

Although Kowalsky initially conducted the telemarketing through his own business, he soon hired subcontractors. One of the subcontractors was John Merritt, who had a telemarketing business consisting of approximately 15 employees seated at rows of tables with telephones. Merritt solicited funds for Toys for Tots on behalf of the Organization in 1999 and 2000. Merritt worked independently, deciding on his own the programs for which he would solicit. Kowalsky's sole involvement with Merritt's telemarketing consisted of tendering, in September 1999, the Toys for Tots letter that was signed by appellant, in addition to letters for other programs that were approved by appellant. Merritt used the correspondence that he received from Kowalsky to prepare a script for his employees to read during their telephone solicitations. Merritt also gave copies of that correspondence to approximately 10% of prospective contributors who requested written verification before making a contribution. Merritt did not contact appellant or anyone at the Organization regarding the Toys for Tots solicitation.

Merritt tendered the funds received from contributors to Kowalsky about once a week, but no attempt was made to segregate the funds to determine which programs the contributors intended to support. Kowalsky took the commingled funds that he received from Merritt to the clerical staff at the Organization, who would deposit all the funds into a bank account that belonged to the Organization. About two days later, Kowalsky would receive a check from the Organization for 75% to 80% of the funds that he had delivered to the Organization. Appellant and another officer usually signed the check for Kowalsky's payment. Kowalsky kept 10% of the payment, but tendered the rest to Merritt.

The clerks at the Organization who accepted the funds from Kowalsky reported to the treasurer. The treasurer then reported the information to the board at regularly scheduled meetings. Kowalsky went to a couple of board meetings to discuss fundraising, but he did not recall discussing the Toys for Tots program with the board.

In mid-November 2000, after Terry Padilla had taken over as treasurer for the Organization, she noticed that some of the checks received from Kowalsky had Toys for Tots written on the memo line of the checks. Padilla was unaware of the telemarketing for Toys for Tots and asked Kowalsky about the checks. After speaking with Kowalsky, Padilla reported Kowalsky's activities to appellant, who, according to Padilla, was surprised to learn about the Toys for Tots solicitations. In Padilla's presence, appellant made a telephone call to Kowalsky, instructing him to stop soliciting funds for Toys for Tots. Padilla and appellant also discussed their desire to donate toys for Toys for Tots at that year's annual Christmas party hosted by the Mexican American Sheriff's Organization (MASO), another union composed of deputies employed by the sheriff's office.

Also in mid-November, a search warrant was executed at Merritt's business after an investigator at the Harris County Attorney's Office learned that Merritt's employees were falsely identifying themselves as peace officers when they made telephone calls requesting donations for the Organization. During the execution of the search warrant at Merritt's business, officers recovered the original correspondence signed by appellant that mentioned the Toys for Tots program.

After the search warrant was executed at Merritt's business, the Organization's board discussed the Toys for Tots telemarketing campaign at its next regularly scheduled meeting. Louis Guthrie, the vice-president, asked appellant whether funds were being raised for Toys for Tots. Appellant responded that he "was going to look into it." At the next meeting of the Organization, appellant said that he had "investigated Toys for Tots and anybody could raise money for Toys for Tots." Appellant, a former Marine, explained that he had "contacted a Hispanic sergeant at the Marine Corps base who stated it was okay."

In December 2000, MASO held its annual Christmas party, where appellant arranged the donation of $1,700 worth of bicycles to Toys for Tots. The bicycles were accepted by uniformed Marines representing Toys for Tots at the party. Kowalsky also donated approximately $500 worth of toys. Several members of the Organization recounted that the Organization also made at least one other contribution to Toys for Tots before 2000.

Although the Organization made donations to Toys for Tots, the amount of funds expended for Toys for Tots was substantially less than the amount of funds received from the telemarketing solicitations. David Pilant, a fraud examiner employed by the Harris County District Attorney's office, explained that bank records for the Organization show that between September and December 2000, the Organization received $20,515 for the Toys for Tots program through 222 checks that had a notation that the donation was for "Toys for Tots." (4) After paying Kowalsky 75% to 80% of these funds, the Organization kept approximately $4,000 from these checks written in late 2000. After the search warrant was executed and after appellant instructed Kowalsky to stop the telemarketing for Toys for Tots, the Organization accepted at least four checks from people who made donations intended for Toys for Tots.

At trial, appellant denied any intent to commit theft. Appellant said that Kowalsky was supposed to be raising funds for the Organization generally and the correspondence was "simply to explain to people what we do." Appellant acknowledged that, as a former Marine, he was very familiar with Toys for Tots. Appellant, the Organization, and Merritt were sued by the Harris County Attorney's Office, resulting in a $125,000 settlement, part of which was forwarded to the Toys for Tots program.

Legal Sufficiency of the Evidence

Appellant contends that the evidence is legally insufficient to establish his criminal intent to commit theft because he did not approve or write any of the scripts used by the solicitors during the telemarketing; he did not have any contact with Merritt; he did not have control over funds for the Organization or over the amount of donations made to Toys for Tots; he never personally received any funds from the Toys for Tots program; donations were made to Toys for Tots from the funds received by the telemarketing; his signature was on a thank-you letter, not a solicitation letter; and his directions to Kowalsky were to collect donations for the Organization generally and not for any specific program. The State responds that appellant's criminal intent is established by evidence that shows that the correspondence mentioning Toys for Tots was signed by appellant; donations made by the Organization to Toys for Tots were inadequate in relation to donations made to the Organization that were intended for Toys for Tots; appellant was deceptive; and appellant personally benefitted from the funds received from contributions to Toys for Tots.

A. Applicable Law for Determination of Legal Sufficiency of the Evidence

In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to give their testimony. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). A jury is entitled to accept one version of the facts and reject another, or reject any part of a witness's testimony. Id.

In determining whether circumstantial evidence is legally sufficient to establish guilt, we must consider the "logical force of the combined pieces of circumstantial evidence in the case, coupled with reasonable inferences from them." Evans v. State, 202 S.W.3d 158, 166 (Tex. Crim. App. 2006) (holding that evidence was legally sufficient to show that appellant exercised actual care, custody, control, or management of cocaine on coffee table by examining combined pieces of circumstantial evidence). A court must not conclude that the evidence is legally insufficient by merely analyzing each fact in isolation, and must not rely on alternative inferences from or explanations for the isolated pieces of evidence. Id. at 164. Instead, appellate courts are to view the evidence "in combination and in sum total." Id. at 166.B. Applicable Law Concerning Theft Under Law of Parties

The Texas Penal Code states that "[a] person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003). Criminal responsibility is defined in several ways, one of which is that the defendant, "acting with intent to promote or assist the commission of the offense . . . solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." Id. § 7.02(a)(2) (Vernon 2003).

When a party is not the "primary actor," the State must prove conduct constituting an offense plus an act by the defendant done with the intent to promote or assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985); Miller v. State, 83 S.W.3d 308, 313 (Tex. App.--Austin 2002, pet. ref'd). "Circumstantial evidence alone may be used to prove that a person is a party to an offense." Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006). The evidence must show that the parties were acting together to accomplish their common purpose. See Wygal v. State, 555 S.W.2d 465, 469 (Tex. Crim. App. 1977); Miller, 83 S.W.3d at 314. The agreement to accomplish a common purpose, if any, must be made before or contemporaneous with the criminal event, but in determining whether one has participated in an offense, the court may examine the events occurring before, during, and after the commission of the offense. Wygal, 555 S.W.2d at 469; Miller, 83 S.W.3d at 314; see also Powell, 194 S.W.3d at 507.

It is undisputed that appellant never had any contact with any complainant. His guilt, if any, is only as a party to theft. For the State to establish appellant's guilt as party to theft, the jury charge instructed the jury, in accordance with the Texas Penal Code, that (1) Padilla, Kowalsky, or Merritt, between August to December 2000, acting with the intent to deprive the complainants of their money, appropriated complainants' money valued between $1500 and less than $20,000, by deception by (a) giving them a false impression of law or fact that affected their judgment and that appellant, Padilla, Kowalsky, or Merritt did not believe to be true, or (b) promising performance that affected the judgment of complainants in the transaction, which appellant, Padilla, Kowalsky, or Merritt did not intend to perform or knew would not be performed, see Tex. Pen. Code Ann. §§ 31.03(a), (e)(4) (Vernon Supp. 2006), 31.09 (Vernon 2003); and (2) appellant acted with intent to promote or assist the commission of theft by soliciting, encouraging, directing, aiding or attempting to aid them to commit the offense. See id. §§ 7.01(a), 7.02(a)(2).

C. Applicable Law and Analysis Concerning Criminal Intent to Commit Theft

Because no direct evidence establishes appellant's guilt, we must determine whether the circumstantial evidence shows that he had criminal intent to commit theft. A person acts with intent when it is his conscious objective or desire to engage in the conduct or cause the result. Id. § 6.03(a) (Vernon 2003). Intent is most often proven through the circumstantial evidence surrounding the crime, rather than through direct evidence. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991). A jury may infer intent from any facts that tend to prove its existence, such as the acts, words, and conduct of the defendant. Id. Criminal intent is necessary to establish theft. See Ellis v. State, 877 S.W.2d 380, 383 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd). In determining whether the evidence is legally sufficient to establish whether appellant had criminal intent to commit theft, we examine the evidence in the record in a light most favorable to the jury's verdict, which includes evidence pertaining to whether he personally gained from what was allegedly taken, whether he partially performed on any of the representations that were made to the complainants, whether he used deception to obtain property, and whether any inferences can properly be drawn from the combined force of the circumstantial evidence.

1. Personal Gain

In determining whether the defendant had criminal intent to commit theft, we may consider whether the defendant experienced personal gain from the property obtained from the complainants. See King v. State, 17 S.W.3d 7, 17 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd) (noting that evidence that King had criminal intent is shown in part by his use of complainant's money for sole purpose of paying personal expenses and purchasing items for personal benefit). Viewed in a light most favorable to the jury's verdict, the evidence shows that appellant used a credit card that belonged to the Organization to cover his expenses while performing work for the Organization and received a stipend of $1,500 for his services as president of the Organization. The evidence also shows that funds solicited under the telemarketing campaign were used to finance a party for the Organization, a benefit for appellant as well as the other members of the Organization. The evidence is undisputed, however, that the board controlled the finances of the Organization. Appellant attended the party, but the decision to host the party was made by the Organization's board, not appellant. The board paid appellant the stipend for his work as president of the Organization and allowed him to use the credit card to cover expenses for that work. But it is undisputed that appellant never received any funds that were not authorized by the board.

The State also points out that the evidence, viewed in the light most favorable to the jury's verdict, shows that the solicitations for Toys for Tots by the telemarketers occurred during the period of time when appellant was the president of the Organization, appellant "called the shots" for the Organization, and appellant controlled some of the finances for the Organization by writing checks for the Organization. This evidence is no evidence of criminal intent to commit theft by deception, however, because no evidence shows that appellant received any funds that had not been authorized by the board. In one of its appellate briefs, the State concedes that it "has not claimed . . . that the appellant became rich or gained anything extra as a result of the solicited donations to the [Organization] on behalf of the Toys for Tots program." We conclude no evidence shows that appellant personally benefitted from the telemarketing that mentioned the Organization's support for Toys for Tots.

2. Partial Performance

The evidence may be legally insufficient to show criminal intent when the evidence shows partial performance of the matter for which funds were tendered. See Peterson v. State, 645 S.W.2d 807, 811-12 (Tex. Crim. App. 1983) (holding evidence legally insufficient to show criminal intent to commit theft when evidence showed that Peterson failed to complete construction of project that was 95% complete); Martinez v. State, 754 S.W.2d 799, 800 (Tex. App.--San Antonio 1988, pet. ref'd) (holding evidence legally insufficient to show theft when evidence showed payment of almost half of amount owed before dispute arose as to amount still unpaid); Cox v. State, 658 S.W.2d 668, 670 (Tex. App.--Dallas 1983, pet. ref'd) (holding evidence legally insufficient because evidence showed Cox performed "a great deal of the services" that he promised to perform and thus no evidence showed any representation or promise that was false "at the time complainant surrendered any of the money to him"). It is undisputed that the Organization gave $1,700 in toys to Toys for Tots in December 2000, and thus it financially gave "support" to Toys for Tots, consistent with the representation in the letter that was signed by appellant. The Organization thus undisputedly performed, at least partially, what was represented in the letter signed by appellant, by giving "support" to Toys for Tots. See Peterson, 645 S.W.2d at 811-12; Martinez, 754 S.W.2d at 800; Cox, 658 S.W.2d at 670.

The dissenting opinion suggests that the jury could have determined that the December 2000 donation was part of appellant's plan to try to cover up the crime because the donation was made only after the search warrant was run at Merritt's business. Although the dissenting opinion questions appellant's motives, the evidence undisputedly shows that the Organization donated toys to Toys for Tots, supported Toys for Tots, and thus partially performed what the telemarketers represented would be performed. See Peterson, 645 S.W.2d at 811-12; Martinez, 754 S.W.2d at 800; Cox, 658 S.W.2d at 670.

Even if appellant did not partially perform on the representation that the Organization would support Toys for Tots, that lack of performance alone would be insufficient to establish a criminal offense. See Phillips v. State, 640 S.W.2d 293, 294 (Tex. Crim. App. 1982) (holding evidence legally insufficient to show criminal intent to commit theft when contractor received down payment and failed to perform anything under agreement because no evidence showed deception by contractor). Thus, the mere fact that the Organization did not perform what it represented to the complainants would alone be legally insufficient to establish criminal intent to commit theft. See id.

3. Deception by Appellant

a. No Evidence of Deception at Time of Solicitation

The critical distinction between conduct that is criminal versus civil in nature is whether the record shows deception and not merely a failure to perform. Webb v. State, 752 S.W.2d 208, 210 (Tex. App.--Houston [1st Dist.] 1988, pet. ref'd) (stating, "Here, unlike in Phillips . . . the critical distinction is that the record shows deception, and not a mere failure to perform"); see Phillips, 640 S.W.2d at 294. Proof of intent to commit theft is determined at the time the alleged criminal act is committed. See Wilson v. State, 663 S.W.2d 834, 836-37 (Tex. Crim. App. 1984) ("Relevant intent to deprive the owner of the property is the accused's intent at the time of the taking"); Kinder v. State, 477 S.W.2d 584, 586 (Tex. Crim. App. 1971) (holding evidence legally insufficient to prove theft because no proof showed promises were false ab initio, when evidence showed some money was paid as partial performance of agreement); Reed v. State, 717 S.W.2d 643, 645 (Tex. App.--Amarillo 1986, no pet.) ("To prove its allegation of appellant's intent to deprive [complainant] of the money, the State was obligated to establish that intent at the time appellant exchanged the check into cash.").

Under the Penal Code, "deception" is defined as "creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true." See Tex. Pen. Code Ann. § 31.01(1)(A) (Vernon Supp. 2006). As a party to the offense, the evidence must show that appellant intended for the telemarketers to use deception to obtain the contributions. However, here, no evidence shows that appellant intended for telemarketers to use deception to obtain funds from contributors. Viewing the evidence in a light most favorable to the jury's verdict, the evidence shows that appellant testified that he was a former Marine and was familiar with Toys for Tots, appellant signed the letter that began the Toys for Tots telemarketing, and appellant knew that the telemarketers would be telling contributors that the organization supports Toys for Tots. However, no implied or express promises were made to the complainants concerning the amount of support the Organization would give to Toys for Tots. Rather, the representations in the letter and the type of telemarketing that appellant authorized were simply that the Organization would support Toys for Tots, which it did.

The dissenting opinion strongly relies on evidence that, as a former Marine, appellant knew he could not solicit funds in this manner for Toys for Tots. The use of the trademark owned by the Marine Corps was not authorized, and appellant and the Organization have a civil judgment against them for that conduct. (5) The issue here, however, is whether appellant intended to deceive complainants into making a donation. No evidence shows an intent by appellant to deceive the complainants. The letter signed by appellant informed contributors that the checks they were writing were for the Organization. The letter then told contributors that the Organization supports Toys for Tots, which it undisputedly did. No evidence shows any intent by appellant to commit theft by deception of the contributors. See Wilson, 663 S.W.2d at 836; Kinder, 477 S.W.2d at 586; Reed, 717 S.W.2d at 645. (6)

b. Deception After Event is Alone Not Enough to Show Intent

The State points to appellant's "deception" after the search warrant was run on Merritt's business to show deception by appellant. Deception after an alleged crime is a circumstance that may permit an inference of guilt. See Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1979) (noting that event after alleged crime, such as flight from scene, is circumstance from which guilt may be inferred); Sosa v. State, 177 S.W.3d 227, 230 (Tex. App.--Houston [1st Dist.] 2005, no pet.) (following Valdez). However, evidence that only shows deception after the fact is legally insufficient to establish criminal intent at the time of the telemarketing. See Scott v. State, 946 S.W.2d 166, 168 (Tex. App.--Austin 1997, pet. ref'd) (holding that, standing alone, proof that defendant assisted primary actor in making getaway after crime committed is insufficient to support defendant's conviction as party to crime); Guillory v. State, 877 S.W.2d 71, 74 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd) (holding that if evidence shows mere presence of defendant at scene of crime, or even his flight from scene, without more, then it is insufficient to sustain conviction as party to offense).

Viewed in a light most favorable to the jury's verdict, the evidence shows that after the criminal investigation began with the execution of the search warrant on Merritt's business, appellant was not forthcoming with the Organization about his knowledge of the Toys for Tots telemarketing. Appellant told the board, at first, only that he would look into the matter. Later, appellant said that he had "investigated Toys for Tots and anybody could raise money for Toys for Tots" and that he had "contacted a Hispanic sergeant at the Marine Corps base who stated it was okay." The State suggests that appellant had to know these statements were untrue due to appellant's familiarity with Toys for Tots. Even if these statements were deceptive, the statements occurred after the commencement of the criminal investigation, and, alone, are insufficient to show criminal intent to commit theft at the time the contributions were made. See Scott, 946 S.W.2d at 168; Guillory, 877 S.W.2d at 74.

4. The Combined Evidence

The State contends that the logical force of the combined pieces of circumstantial evidence in the case, coupled with reasonable inferences from them, provides legally sufficient evidence to support appellant's conviction. See Evans, 202 S.W.3d at 166. Viewed in a light most favorable to the jury's verdict, the combined evidence shows that appellant knew that he had signed correspondence that expressly tells contributors that the Organization lends a "helping hand of support" to Toys for Tots and requesting that people "give what we can"; that he discussed the Toys for Tots telemarketing with Kowalsky; that by signing the letter that mentioned the program, he approved of the Toys for Tots telemarketing just as he approved other telemarketing campaigns; that he failed to arrange for or tender funds received by the telemarketers to Toys for Tots in amounts commensurate with what was contributed; and that he did not disclose his knowledge of the telemarketing for Toys for Tots when directly asked about it after the telemarketing had ceased.

Appellant was charged with his role in the telemarketing that asked the complainants to contribute to the Organization under the representation that the Organization supports Toys for Tots. Appellant did not have permission to use the Toys for Tots name, and was sued civilly for that conduct, which resulted in a large civil judgment against him and the Organization. But improper use of the Toys for Tots name does not make what is improper conduct subject to liability in civil court into a criminal offense of theft. The complainants were plainly told in the letter signed by appellant that money was for the Organization and that their contribution was for the Organization to "carry on." The letter told contributors only that the Organization gave "support" to Toys for Tots, which is shown by the evidence to have undisputedly occurred. No evidence shows deception of these complainants who wrote checks to the Organization, which supports Toys for Tots.

The dissenting opinion suggests that the jury could simply have convicted if it believed Kowalksy's testimony. However, reliance on Kowalsky's testimony would result in the acquittal of appellant, because Kowalsky plainly testified that appellant had no criminal intent to commit theft or any criminal act. The dissenting opinion also finds distasteful the arrangement that allowed the telemarketers to keep over 75% of the total funds collected in checks that included a notation stating "Toys for Tots" and the Organization. That financial division, however, was undisputedly arranged by others in the Organization, not appellant. Additionally, the division of assets here is consistent with the customary division of assets between telemarketers and their clients.

The only evidence in the record that suggest deception by appellant is the deception that occurred after the criminal investigation began when appellant related that anyone could raise money for Toys for Tots and that a sergeant said it was okay, but that later deception to the board for the Organization is no evidence that at the time the contributions were made, appellant intended to have anyone deceive the complainants. The bottom line is that there is no evidence in the record that appellant either used or encouraged Kowalsky or anyone else to make misrepresentations to the complainants to obtain their money. We conclude that, viewing the evidence in a light most favorable to the jury's verdict and considering the combined evidence and the reasonable inferences from that evidence, a rational trier of fact could not have found that appellant acted with intent to promote or assist the commission of theft by soliciting, encouraging, directing, aiding or attempting to aid others to commit the offense. See Tex. Pen. Code Ann. §§ 7.01(a), 7.02(a)(2); King, 29 S.W.3d at 562. We hold that the evidence is legally insufficient to establish appellant's guilt as a party to theft because no evidence shows that he had the criminal intent to commit theft. Conclusion

We reverse the judgment of the trial court and render judgment that appellant is not guilty of the offense.





Elsa Alcala

Justice



Panel consists of Justices Taft, Jennings, and Alcala.



Justice Jennings, concurring.



Justice Taft, dissenting.



Publish. Tex. R. App. P. 47.2(b).

1. Having granted rehearing, we overrule the State's motion for en banc reconsideration as moot. See Giesberg v. State, 945 S.W.2d 120, 131 n.3 (Tex. App.--Houston [1st Dist.] 1996), aff'd, 984 S.W.2d 245 (Tex. Crim. App. 1998).

2. Appellant pleaded not guilty to the indictment for the felony offense of engaging in organized criminal activity. See Tex. Pen. Code Ann. § 71.02 (Vernon Supp. 2006). When the State rested its case-in-chief, appellant moved for and was granted a directed verdict on the offense of engaging in organized criminal activity. The trial, however, proceeded on the lesser offense of state jail felony theft.

3.

Because we conclude that the evidence is legally insufficient to sustain appellant's conviction, we need not address appellant's remaining issues that challenge the factual sufficiency of the evidence and the trial court's ruling that overruled his motion to quash the indictment.

4.

At trial, 18 people testified that they would not have sent checks to the telemarketer if they had known that Toys for Tots would not receive the majority of the funds. The record shows, as follows:



  • •On August 1, 2000, Timothy Stovall wrote a check for $100;
  • •On October 2, 2000, Michael Likos wrote a check for $200;
  • •On October 2, 2000, Paul Fisher wrote a check for $150;
  • •On October 4, 2000, Albert Coveney wrote a check for $100;
  • •On October 4, 2000, Sandra Wilson wrote a check for $150;
  • •On October 10, 2000, Malcolm Phillips wrote a check for $500;
  • •On October 10, 2000, Dr. Gary Flores wrote a check for $250;
  • •On October 17, 2000, Jimmy Nichols wrote a check for $125;
  • •On October 18, 2000, Karen Perez wrote a check for $400;
  • •On October 19, 2000, Norma Young wrote a check for $100;
  • •On October 25, 2000, Sam Johnson wrote a check for $150;
  • •On November 8, 2000, Bryant Dussetschleger wrote a check for $250;
  • •On November 22, 2000, Annika Tycer wrote a check for $100;
  • •On November 28, 2000, Marienne Beeckman wrote a check for $100;
  • •On November 29, 2000, John Cartwright wrote a check for $50;
  • •On December 17, 2000, Richard Stamper wrote a check for $75;
  • •On November 29, 2000, Santos Guajardo wrote a check for $100; and
  • •On December 4, 2000, Thomas Clark wrote a check for $100.

    5. Using a trademark improperly is a deceptive trade practice for which a person may be civilly sued. Under Section 17.46(b)(5) of the DTPA, a deceptive trade practice is,



    representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he does not.



    Tex. Bus. & Com. Code Ann. § 17.46(b)(5) (Vernon Supp. 2006).

    6. The telemarketers developed a script that went much further than what was mentioned in the letter signed by appellant. No evidence shows that appellant had any knowledge of or role in the development or use of the scripts. Similarly, Merritt had telemarketers falsely represent themselves as peace officers, and other improper activity occurred at Merritt's office. The evidence undisputedly shows that appellant had no contact with Merritt and no evidence connects appellant with any of Merritt's activities.