In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-02-223 CR
____________________
JONATHAN MIZIOLER, Appellant
V.
STATE OF TEXAS, Appellee
Montgomery County, Texas
Trial Cause No. 01-167894
A jury convicted appellant of the misdemeanor offense of Theft "A." Punishment was assessed by the trial court at one year confinement in the Montgomery County Jail, and a fine of $500. Imposition of appellant's incarceration was suspended and he was placed on community supervision for a term of two years by the trial court. The only issues for appellate review complain of the existence of legally and factually sufficient evidence to sustain appellant's conviction.
The pertinent wording contained in the information charging appellant with theft reads, ". . . with intent to deprive the owner of property, namely, TOBY REYNOLDS, did appropriate property, to wit: A CHECK, of the value of $500 or more but less than $1500, without the effective consent of TOBY REYNOLDS, . . . ." Certain basic facts are not in dispute. The complainant, Toby Reynolds, testified that he gave appellant, a used-car dealer, $1,000 down for the purchase of a vehicle that was not in running condition when Reynolds gave appellant the down payment. Reynolds was told by appellant that a computer would have to be installed prior to delivery of the vehicle to Reynolds.
The gravamen of the dispute arose when the vehicle was not ready for delivery when Reynolds believed it would be, based upon appellant's representations. A heated confrontation took place when Reynolds showed up at appellant's dealership after hours. (1) During the course of this confrontation, appellant directed his wife to write a personal check to Reynolds for $1,000 and give it to Reynolds. This check for $1,000 was given to Reynolds on the evening of April 9, 2001. The next day, appellant's wife went to the bank and executed a stop payment order on the check. Reynolds subsequently contacted the Montgomery County Sheriff's Office, which resulted in the theft charge against appellant.
Tex. Pen. Code Ann. § 31.03 (Vernon 2003), states in part:
(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.
(b) Appropriation of property is unlawful if:
(1) it is without the owner's effective consent[.]
(Emphasis added).
Tex. Pen. Code Ann. § 31.01(3) (Vernon 2003) provides:
(3) "Effective consent" includes consent by a person legally authorized to act for the owner. Consent is not effective if:
(A) induced by deception or coercion[.]
(Emphasis added).
Additionally, section 31.01 states:
(1) "Deception" means:
(A) 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;
(B) failing to correct a false impression of law or fact . . .
(C) preventing another from acquiring information likely to affect his judgment in the transaction;
(D) selling or otherwise transferring or encumbering property without disclosing a lien, . . .
(E) promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed, except that failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed.
(Emphasis added).
At the outset, we wish to address the State's position on appeal with regard to appellant's contention that the entire transaction between appellant and Reynolds is ultimately a contractual dispute. The State strenuously denies this in its appellate brief by contending that "any 'contract' was over the moment Appellant gave Reynolds the check on April 9, 2001." Indeed, the State frames the issue as "whether stopping payment on a check, which had already been given to another, constituted theft." The State's position, in a nutshell, is that it was not Reynolds' deposit check to appellant that was the basis for the theft prosecution, but the "refund" check, because "[o]nce Appellant gave Reynolds the one thousand dollar check, written out to Reynolds, Reynolds became the owner of that check as possessor and 'holder in due course of a negotiable instrument.' See Tex. Pen. Code Ann. § 1.07(a)(35) (Vernon 2003)." Other than setting-out the basic statutory provisions contained in the Penal Code for the offense of theft, and the definition of "owner," as including a "holder in due course," the State provides no authority for this theory of prosecution.
We cannot ignore the entirety of the context in which Reynolds came to be a "possessor" of the "refund" check in question. By definition, a "holder in due course" takes an instrument for value in good faith and without notice, either that the instrument is overdue or has been dishonored or that any person has a defense against or claim to the instrument. Tex. Bus. & Com. Code Ann. § 3.302(a)(1), (2)(A)-(C) (Vernon 2002). The check from appellant to Reynolds was based entirely on the events of the previous days in which Reynolds expressed an interest in purchasing the vehicle in question, to which appellant indicated that before he could deliver the vehicle to Reynolds a new "computer" would have to be installed, which was either accomplished or was in the process of being accomplished when Reynolds showed up the night of April 9, 2001, after business hours, to secure delivery of the vehicle. Generally, the payee on a check is not considered a "holder in due course." See Friddell v. Greathouse, 230 S.W.2d 579, 580 (Tex. Civ. App.--Dallas 1950, writ dism'd w.o.j.). And the check simply reflected the $1,000 deposit that Reynolds gave to appellant at the time of the negotiations for the purchase of the vehicle.
We believe this case is governed by Phillips v. State, 640 S.W.2d 293 (Tex. Crim. App. 1982). In Phillips, a contractual agreement was entered into between the defendant and the complainants for the defendant to build an addition onto a house. Id. at 294. Complainants gave the defendant a down-payment. The defendant took some measurements and drew up plans, but there was conflicting evidence as to whether the defendant built forms for concrete. Ultimately, the defendant could not perform as per the contract and told the complainants on several occasions he was having trouble with certain sub-contractors' work. Phillips was charged with the theft of the down-payment. The Court of Criminal Appeals noted that the down-payment was given to Phillips voluntarily pursuant to the contractual agreement, and held there was insufficient evidence to show the down-payment was obtained by deception. The conviction could not stand. Id.
In the instant case, as the "refund" check relates directly back to the transaction involving the purchase of the vehicle by Reynolds and his $1,000 deposit check, in order to successfully prosecute appellant for theft, there must be proof in the record that appellant's intent to deprive Reynolds of the $1,000 was present at the time Reynolds tendered his deposit check to appellant. See Wilson v. State, 663 S.W.2d 834, 836-37 (Tex. Crim. App. 1984). From the record evidence, no such intent can be inferred. Reynolds admitted that appellant informed him the vehicle was not running and would require the installation of a computer. Nevertheless, Reynolds tendered the $1,000 to appellant prior to the vehicle being operable. The record indicates that a contract (2) for the sale of the vehicle was contemplated by both parties.
Essentially, this case involves a contractual dispute. As in Phillips, the only "deceptive intent" evidence presented was appellant's failure to perform, which, under section 31.01(1)(E), is not sufficient to prove deception without other evidence of deceptive intent. Again, the focus on any "deceptive intent" would be at the time of appellant's acquisition of Reynolds' deposit check. (3) As such, we hold that, after viewing all the evidence in the light most favorable to the verdict, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Accordingly, the judgment of the trial court must be reversed and an order of acquittal rendered. Tex. R. App. P. 43.2(c); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).
REVERSED AND RENDERED.
PER CURIAM
Submitted on June 9, 2003
Opinion Delivered August 27, 2003
Do Not Publish
Before McKeithen, C.J., Burgess and Gaultney, JJ.
1. Appellant's home was also on the premises of his dealership. 2. 3. For example, there was no evidence elicited at trial indicating appellant had ever
engaged in similar business practices which resulted in the eventual forfeiture of deposits
or down payments for vehicles without the vehicles being subsequently tendered to the
purchasers.