Kirkpatrick v. State

OPINION

MORRISON, Judge..

The offense is misapplication of county funds under Article 95, Vernon’s Ann.P.C.; the punishment, two years probated.

Appellant’s first contention is that the evidence is insufficient to support the conviction because it was not shown that the appellant converted the $3.00 described in the indictment to his own use and benefit. The indictment charged basically that on or about October 15, 1970, the appellant, as Justice of the Peace, converted $3.00 belonging to Bexar County. The court charged the jury that the date alleged could mean any date between June 22, 1969, and June 21, 1972. The State’s evidence showed and the appellant admitted that he failed to account to the county for a total of $1594.00 which he had collected from individual defendants as fines in criminal cases during the said period of time set out in the court’s charge. Such monies were withheld for up to 14 months in appellant’s bank account while appellant was periodically turning over a portion of the funds collected to the cóunty and falsely reporting that these were all the monies collected. Only when an audit was instituted and appellant was called to account did he pay the county the $1594.00 due. We hold that the unauthorized retention by the appellant of this money due the county is sufficient evidence to support the jury’s verdict that the appellant converted these funds to his own use. See Vernon v. State, 170 Tex.Cr.R. 150, 338 S.W.2d 728; Mayse v. State, 156 Tex.Cr.R. 360, 242 S.W.2d 371. The State was not limited to the showing of $3.00 as being the subject of conversion. Mayse v. State, supra; Kugle v. State, 124 Tex.Cr.R. 550, 64 S.W.2d 961.

Grounds of error two, three, nine and ten relate to the admission of evidence and the refusal to give limiting charges regarding what appellant contends were extraneous offenses, to-wit: the receipt by the appellant of fines from some 275 persons accused of crimes, which fines he only partially transmitted to the treasurer.

We conclude that the $1594.00 which was embezzled, which included conversion of funds received from some 275 individuals, all involved circumstances to prove the State’s main case. The appellant urges that all transactions other than the one involving an individual by the name of Kouns were extraneous transactions. We reject this contention. The gravamen of the offense under this particular statute, Article 95, V.A.P.C., is embezzlement of funds belonging to a public body, not the taking of property from a particular individual or individuals. The indictment accordingly did not allege any particular transaction or any particular individual, and specifcally did not mention Kouns. In *292receiving funds in an official capacity, the appellant became, in effect, a trustee of funds for the county. Because of the nature of the employment involved, the State need not show that appellant converted any particular sum from a particular source to his own use, but may rely on a circumstantially proven case. The appellant, in fact, urged and urges on appeal that the evidence is insufficient to show that he converted any funds to his own use. These many transactions in which the appellant failed to account for funds collected were all a part of the State’s main case, and constituted circumstances in the chain of events by which the State showed the ultimate conversion of county funds to the appellant’s own use and benefit. • The court charged the jury on the law of circumstantial evidence. We conclude that the court did not err in refusing to give the limiting charge as requested by appellant. Dillard v. State, Tex.Cr.App., 477 S.W.2d 547; Cox v. State, 166 Tex.Cr.R. 587, 316 S.W.2d 891; 31 Tex.Jur.2d, Instructions, Sec. 132 (1962). See Tex.Digest, Criminal Law,

We are further convinced that appellant was not entitled to a limiting charge, because he not only testified himself as to the details of the ancillary transactions, but also initially introduced some of them.

In identifying Defendant’s Exhibits Nos. Three, Four, Five, Six and Seven, appellant explained that they were checks, drawn on his account, issued to various individuals who had had cases pending against them in appellant’s court. When questioned by his own counsel as to the nature of these checks', appellant admited to a discrepancy between the amount paid by these individuals in fines and the actual amount assessed against them.

“Q (DEFENSE ATTORNEY) All right, sir. Now what was the purpose or the reason in making these checks to these individuals?
A (APPELLANT) The reason being that those individuals had deposited — left with the court in my office an amount of money which was greater than the amount of fine and cost that was assessed by me in the judgment of these particular cases.”

The record further reflects that upon direct examination of the appellant by his own attorney, the appellant testified that he agreed with the auditors on their finding of a $1594.00 discrepancy on the county books.

“Q Okay. And when you got there (to the auditor’s office) what, if anything, was said by Mr. Sanderson or by Mr. Cox (the auditors) ?
A . (H)e said, well Judge as you know we’ve been auditing your books and so forth and we found a discrepancy of quite a large sum of money on a number of cases. I don’t know justly exactly how he put it. I believe he said a number of cases. I don’t know for sure.
Q All right, and what did you say, if anything ?
A I told him, yes, I agree.
Q All right and what, if anything did Mr. Cox or Mr. Sanderson say after that?
A Well, he advised me that I owed the county fifteen hundred and ninety four dollars. . . . He asked me could you pay the money and he asked me would you pay the money, meaning the county.”

Given this testimony, it is clear that the appellant was not entitled to a limiting charge on his own admissions. See Moss v. State, Tex.Cr.App., 364 S.W.2d 389; Sapp v. State, Tex.Cr.App., 476 S.W.2d 321, cert. den. 406 U.S. 929, 92 S.Ct. 1806, 32 L.Ed.2d 131; and Judge Onion’s discussion distinguishing Moss in his dissent in Lacy v. State, Tex.Cr.App., 424 S.W.2d 929, 936.

We further find that, even if error, the failure to give a limiting instruc*293tion was harmless error. An examination of the evidence reveals that the only defenses urged and the only issues the jury was called upon to resolve were (1) whether appellant converted the funds to his own use, and (2) whether the funds belonged to individuals rather than to the county as alleged in the indictment. In view of the testimonial admissions by the appellant that he was the person who committed all of the acts, the failure of the court to charge the jury not to consider the ancillary transactions unless they first believed the appellant committed such acts beyond a reasonable doubt obviously did not harm the appellant. As previously pointed out, the appellant himself introduced several extraneous acts in which he failed to fully account to the county for fines collected, but had refunded or attempted to refund all unaccounted monies to the respective individuals. We fail to see how the jury would have or could have considered these transactions for a purpose other than as circumstances bearing on the appellant’s intent, motive, etc. The failure of the court to limit the consideration of testimony to a certain purpose, where that testimony could not have been used for any other purpose, does not require reversal. Ross v. State, 71 Tex.Cr.R. 493, 159 S.W. 1063; Sapp v. State, supra.

The appellant confessed that he retained the funds. The court charged the jury on the intent required under the statute and on the law of circumstantial evidence. The charge as a whole fully protected the defendant’s rights. See Article 36.19, Vernon’s Ann.C.C.P. See particularly this Court’s reasoning in Campbell v. State, 131 Tex.Cr.R. 377, 99 S.W.2d 602.

Grounds of error four and five relate to argument of the prosecutor in which he made reference to “people in office” and “crooked politicians”, which appellant contends was outside the record, and a reference to Watergate. We find nothing in the argument referring directly or indirectly to our recent national scandal known as Watergate, and we do find that the remarks were invited by appellant’s counsel’s reference in his argument to the appellant’s being an elected official and a politician.

Ground of error six contends that the indictment is vague and uncertain and the court erred in failing to sustain appellant’s motion to quash the same. We find the indictment in the same form which this Court approved in Beard v. State, 140 Tex.Cr.R. 127, 143 S.W.2d 967. See also Willson’s Criminal Forms, Seventh Edition, Sec. 62, p. 30.

Ground of error seven urges that there is a fatal variance between the indictment, which alleged the conversion of cash, and the proof, which showed the conversion of a check. A similar contention was presented in Rick v. State, 151 Tex.Cr.R. 426, 207 S.W.2d 629, wherein this Court said:

“Appellant obtained the money of Richardson by a false pretext, through the instrumentality of the check, upon which he received the money.”

The Court held no variance. See also Stephenson v. State, 138 Tex.Cr.R. 384, 135 S.W.2d 1005, and Bennett v. State, 124 Tex.Cr.R. 128, 60 S.W.2d 790.

Cases cited by the appellant have application to tax collectors only, where a special statute controls, and are thereby not here controlling.

Ground of error eight relates to argument in which the prosecutor said in effect that if the jury did not convict this appellant he would engage in “further looting”. In Asay v. State, Tex.Cr.App., 456 S.W.2d 903, we said that a prosecutor’s plea to lock up the accused for a long time to prevent him from doing the same thing again was a proper plea for law enforcement. «

Ground eleven relates to the failure of the court to define the term “money” in his charge. In Mayse v. State, 156 Tex. *294Cr.R. 360, 242 S.W.2d 371, we held that no definition of this term was required.

Ground twelve relates to the failure of the court to grant his requested charge “on the effect of reputation evidence in determining guilt and innocence.” Such contention has been considered and overruled in Gilderbloom v. State, 160 Tex.Cr.R. 471, 272 S.W.2d 106.

Grounds thirteen and fourteen relate to improper comments in the form of questions. In both cases the objections were sustained; the questions were not answered; and instructions to disregard were given. Generally, the asking of questions does not constitute reversible error where no new fact is injected and no statute is violated. Reyes v. State, Tex.Cr.App., 388 S.W.2d 433; Ramos v. State, Tex.Cr.App., 419 S.W.2d 359; Blackstock v. State, Tex.Cr.App 433 S.W.2d 699.

Ground fifteen relates to failure to grant a motion to quash the jury panel because one member had read a news account concerning the case. Such news story related no more than the fact that the case was called for trial and the nature of the accusation. In Hice v. State, Tex.Cr.App., 491 S.W.2d 910, we held no error was shown where, as here, there was no showing that the juror discussed the news story with other jurors.

Finding no reversible error, the judgment is affirmed.