Affirmed and Memorandum Opinion filed May 1, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-00200-CR
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PETER BROOKS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from 248th District Court
Harris County, Texas
Trial Court Cause No. 883,043
M E M O R A N D U M O P I N I O N
A jury found appellant, Peter Brooks, a police officer employed with North Forest Independent School District, guilty of misdemeanor theft by a public servant. In a single point of error, appellant contends the trial court erred by failing to charge the jury on the issue of mistake of fact. We affirm.
Facts
Appellant was employed approximately nine years as a security officer with the North Forest I.S.D. Police Department. During the period relevant to this case, appellant worked the second shift, which ran from 4:00 p.m. until midnight. Appellant was one of the subjects of an investigation regarding misrepresentation of time on the job. When Captain Fred Coutee and Chief Hubert Kerr of North Forest I.S.D. Police Department learned that appellant was working a second job at Ben Taub Hospital, they obtained his hospital time sheets. Without considering the travel time between North Forest and Ben Taub Hospital (at least a twenty minute drive), appellant worked 52 hours at Ben Taub that overlapped with his North Forest hours. At $14 per hour, North Forest calculated that it had paid appellant $728 for hours he had not actually worked.
The State presented proof that North Forest had rules prohibiting its officers from working extra jobs outside the school district. However, appellant presented evidence that officers at North Forest routinely arrived late and inaccurately recorded the time on sign-in sheets. Further, evidence was presented that North Forest did not enforce rules calculated to prevent such activity. Appellant alleges that cliques within the department received special treatment and the rules were not equally enforced. Additionally, appellant presented evidence that his immediate supervisor also left early to work a second job at Ben Taub. Finally, Chief Kerr testified that enforcement of this policy was lax and that it was common for officers to work extra jobs.
Mistake of fact
A defendant is entitled to a jury instruction on any defensive issue raised by the evidence, regardless of the strength, weight, or credibility of the evidence. See Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). To determine whether the issue of mistake of fact was raised, we view the evidence in light of Penal Code section 8.02, which provides in part:
it is a defense Athat the actor[,] through a mistake[,] formed a reasonable belief about a matter of fact[,] if his mistaken belief negated the kind of culpability required for the commission of the offense.
Tex. Pen. Code Ann. ' 8.02(a) (Vernon 1994).
Appellant was charged with theft by public servant. AA person commits [theft] if he unlawfully appropriates property with intent to deprive the owner of property.@ Tex. Pen. Code Ann. ' 31.03(a) (Vernon 2003). Several witnesses testified that officers regularly came to work late and left early without permission. Further, these officers entered their scheduled hours on the sign-in sheets, regardless of actual time worked. Many witnesses testified that this standard practice had been in effect for years. Appellant does not dispute the fact that he intended to engage in the proscribed conduct. Because leaving early and arriving late was common-place, appellant contends that he had no intent to unlawfully deprive his employer of its property. In particular, his own supervisor left his shift early to work a second job at Ben Taub.
To prove theft, it is essential that the State present evidence showing an Aexercise of control@ over the property with an Aintent to deprive the owner.@ Hill v. State, 633 S.W.2d 520, 521 (Tex. Crim. App. 1981). Here, evidence of consent to leave work early does not raise the mistake of fact defense because it does not negate appellant=s intent to deprive, which is requisite to culpability. Evidence of consent only casts doubt on whether the intended taking was Aunlawful.@ Because appellant=s purported mistake of fact did not negate the allegation of intent to deprive, he was not entitled to the requested instruction. Accordingly, appellant=s sole point of error is overruled and the decision of the trial court is affirmed.
/s/ Charles W. Seymore
Justice
Judgment rendered and Opinion filed May 1, 2003.
Panel consists of Justices Anderson, Seymore, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).