Appellant was found guilty in a jury trial of the offense of theft of property over the value of seven hundred fifty dollars but less than twenty thousand dollars. The trial court assessed punishment at ten years confinement in the Texas Department of Corrections.
In his first two points of error appellant alleges the evidence is insufficient to support his conviction. The standard for review of sufficiency of the evidence is "whether after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 563 (1979); Chambers v. State,711 S.W.2d 240 (Tex.Crim.App. 1986).
Appellant was charged with theft of $5,000.00 from complainant, Maria Galindo Orozco, as a result of a real estate transaction in which complainant, in order to relieve her financial pressures, agreed to what can be called a fictional plan of borrowing by second lien against her home by selling the same to appellant with financing provided by a third party. Complainant received from closing funds $13,743.63 and gave appellant $5,000.00, which she claimed was for appellant to pay off the first lien balance of $8,000.00 and appellant claimed was for his services rendered (finder's fee) in connection with the transaction. Appellant argues that because one cannot pay off an $8,000.00 lien with $5,000.00 there is an impossibility of performance.
Some time later when the parties were informed by appellant's attorney that the whole transaction was questionable because of the Texas Homestead Act and Texas Usury Laws, appellant reconveyed the property in question back to complainant. It is undisputed that appellant received the $5,000.00 from complainant. The lien was not paid off and appellant did not return the money to complainant. The question before the jury was one of appellant's intent, and the evidence in the instant case raised that issue of fact.
Testimony was contradictory as to what was said, explained, and intended during the course of the transaction.
The jury as a trier of fact was the sole judge of the credibility of the witnesses and the weight to be given their testimony. Williams v. State, 692 S.W.2d 671 (Tex.Crim.App. 1984); Denison v. State, 651 S.W.2d 754 (Tex.Crim.App. 1983).
We find that when a person receives money from another person voluntarily through a contractual relationship and the contract cannot be performed, the intent of the person taking the money at the instant of the taking can be an issue raised by the evidence in the case which should be resolved by the trier of fact. We further find that in the instant case there is sufficient evidence that a rational trier of fact could convict under the evidence contained in the record.
Appellant's first and second points of error are overruled.
*Page 902 Appellant's points of error numbers four through seven allege that the trial court committed reversible error in admitting into evidence certain documentary evidence in violation of TEX.R.CRIM.EVID. 401 and 402. Those rules provide:
Rule 401. Definition of "Relevant Evidence"
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible.
All relevant evidence is admissible, except as otherwise provided by constitution, by statute, by these rules or by other rules prescribed pursuant to statutory authority. Evidence which is not relevant is inadmissible.
Appellant argues that the exhibits were irrelevant, prejudicial and inflammatory. The record reveals that the documentary evidence offered by the State and admitted into evidence by the trial court were certain filed "Assumed Name Certificates" executed by appellant and used to impeach appellant's claim that he did not have any knowledge about the real estate business and did not realize that one cannot borrow on one's homestead. The exhibits demonstrated he operated several businesses. We find that the exhibits in question were relevant evidence. Appellant's points of error numbers four through seven are overruled.
In his point of error number eight appellant alleges the trial court committed reversible error in failing to correctly instruct the jury in accordance with TEX.PENAL CODE ANN. s31.03(c)(1). Two witnesses testified about their dealings with appellant that were of a similar nature.
Section 31.03(c)(1) of the Texas Penal Code provides:
(1) evidence that the actor has previously participated in recent transactions other than, but similar to, that which the prosecution is based is admissible for the purpose of showing knowledge or intent and the issues of knowledge or intent are raised by the actor's plea of not guilty.
The trial court, over appellant's objection, delivered the following instructions to the jury in its final charge:
You are instructed that if there is any testimony before you in this case regarding the defendant's having committed offenses other than the offense alleged against him in the indictment in this case you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed, and even then you may only consider the same in determining the intent of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment in this case and for no other purpose.
Appellant argues that the charge is legally defective because it uses extraneous "offenses" not extraneous "transactions" as the statute provides and further omits the words "recent" and "similar." We agree.
The Texas Court of Criminal Appeals has indicated that using the term "offenses" rather than "transactions" increases prejudicial effect. Robinson v. State, 701 S.W.2d 895, 899 (Tex.Crim.App. 1985). We believe this is especially so in a deceit case where at issue is whether the dealings were an offense or merely a business transaction, depending on the defendant's intent.
The omission of the critical word "similar" is reversible because it is the touchstone in considering extraneous matters.Plante v. State, 692 S.W.2d 487 (Tex.Crim.App. 1985) stresses that "it is at least necessary that prior acts should be similar." Id. at 492. Therefore, the jury must be given guidance by instruction on this essential factor when considering the evidence. It follows, logically and practically, that the qualifier "recent" must also be given to the jury so that it can correctly deliberate on the evidence and whether it proves each
*Page 903 element of the indictment beyond a reasonable doubt.
When the legislature picks limiting language specifically, the jury must be instructed accordingly. In considering whether certain "transactions," rather than "offenses," applied to the intent of the accused, it is essential that the jury deliberate on whether the alleged transactions are both "similar" and "recent."
Instructing a jury without including clearly critical qualifiers does contribute to erroneous convictions and is harmful both to appellant and to the integrity of the law.
Appellant's point of error is sustained under Almanza v.State, 686 S.W.2d 157 (Tex.Crim.App. 1985) as appellant has shown "some harm."
We do not address the third point of error concerning the trial court's refusal to allow a defense witness to testify because of his presence in the courtroom after TEX.CODE CRIM.PROC.ANN. art. 36.03 had been invoked. TEX.R.APP.P. 90(a).
The judgment is reversed and the cause is remanded for a new trial.