Compton v. State

OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

On original submission, the panel reversed this case on the ground of insufficient evidence to sustain the allegation of ownership. The indictment charged that Charles Compton “did unlawfully, knowingly, and intentionally exercise control over property other than real property, . . . without the effective consent of J. Howard Coonen, the owner thereof. . . . ” (Emphasis supplied)

The panel wrote that Coonen never had any contact with the funds disbursed to the appellant from the Atlanta office. According to the majority, the two Atlanta employees of International Harvester who signed the check “were in control of and jointly responsible for funds paid out of that office.” Further, the majority stated that these two employees neither received nor required Coonen’s approval to issue the check, and that it cannot be said that Coo-nen had a greater right to possession than the appellant.

An examination of the record, however, shows otherwise. Kent Hartley and John Pratt, the two Atlanta employees, testified that they were responsible for disbursing funds from the Atlanta office. Hartley stated that the disbursing of funds required prior approval before the money could be sent from Atlanta. George Bushfield and Tommy Bailey, a salesman and the manager of the Used Truck Center, respectively, testified that once a purchase of a truck had been negotiated the payment check had to be requested from the Atlanta office. Coonen testified that he was in charge of all disbursements from the Dallas area and all money to be paid out of the Atlanta office had to be “called in” from the Dallas regional office.

Robert Ewart, the Used Truck Center accountant, testified about the exact procedure he went through to order the check. His testiimony, in part, was as follows:

“A. All right. An invoice is given to me usually from the manager with instructions to purchase a truck for a certain amount of money. I write up a check request form and I get him to sign it. Usually if it is a quick transaction, they will request that I go down the street at our other branch and run a Twix to Atlanta requesting the money and checking the form that I made after I run the Twix. Of course, the check request form goes to our regional office and this is confirmed, confirming the Twix.”

He also stated that the Twix, or TWX, goes from the regional office to Atlanta, as does the check request form.

*250Pratt and Hartley were required to have Coonen’s, or his office’s, prior approval before any check could be issued. From this evidence, Coonen’s office did have some control of the funds to be disbursed.

Coonen also had authority to deal with the funds after the check was issued from the Atlanta office. The proper procedure required the Atlanta office to send the check to Coonen, who would then exchange the money for the title to the truck. In the instant case, the Atlanta accounting office erred when it sent the check directly to Compton.

In Cross v. State, 590 S.W.2d 510 (Tex.Cr.App.1979), the defendant was convicted of theft for stealing a commemorative watch. The alleged owner, a supervisor for Southwestern Bell, testified that her responsibilities included ordering watches for a benefit committee for Southwestern Bell. She stated that she used a standard form that was forwarded through channels to the committee. The watch would then be sent directly to her for presentment to the honored employee. The watch was stolen from Southwestern Bell’s mail room before the supervisor had a chance to receive it. We held that it is the employment relationship that determines whether a given individual is an “owner” within the meaning of V.T. C.A., Penal Code, Section 1.07(a)(24). We held that because the supervisor had managerial authority over her department and because it was her responsibility to order and to award the watch, she was the “owner” according to Section 1.07(a)(24), supra. She was to have care, custody and control of the watch until it was awarded. It is clear from the opinion that the benefit committee could not have sent the watch without the supervisor’s approval and order. Cf. McGee v. State, 572 S.W.2d 723 (Tex.Cr.App.1978); Commons v. State, 575 S.W.2d 578 (Tex.Cr.App.1979).

We must look to the employment relationship to determine who is the proper owner under Section 1.07(a)(24), supra. In any modern corporation, responsibility will probably extend to several different people at various levels within the organization.

In Cross, we looked to the employment relationship to determine the person responsible for initiating or for approving the transfer of property. It was the supervisor who approved the award and initiated the process. In the present case, it was Coonen who had to approve the request for funds prior to its transmittal to Atlanta. Hartley and Pratt, the Atlanta accountants, required someone’s approval before they could issue check. Finally, the check was to be sent to Coonen’s regional officer before it would be turned over to Compton, a procedure analogous to that used by Southwestern Bell in the Cross case.

II.

There is yet another more compelling reason to hold Coonen as the proper “owner.” Section 1.07(a)(24), supra, defines owner as:

“. . . a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.”

V.T.C.A., Penal Code, Section 1.07(a)(28), defines “possession” as “actual care, custody, control, or management.”

Thus, it is clear that the three ways ownership may be alleged are that the named individual had (1) title to the property, (2) possession, or (3) a greater right to possession than the defendant. Though the evidence clearly shows the title owner to be International Harvester, Inc., we have long held that the better pleading practice is to allege “special” ownership in a natural person acting for the corporation. Eaton v. State, 533 S.W.2d 33 (Tex.Cr.App.1976); Castillo v. State, 467 S.W.2d 572 (Tex.Cr.App.1971); Osborne v. State, 93 Tex.Cr.R. 54, 245 S.W. 928 (1922). In McGee v. State, supra, this Court held that the “greater right to possession” theory applied only in cases where both the owner and the actor had a joint interest in the property.

The McGee interpretation is wrong. By adding the third theory of ownership to the penal code, i. e., greater right to possession, it is clear that the Legislature intended to *251expand the class of individuals to be protected from theft. See and compare Articles 1414 and 1415, V.A.P.C. (1925). Though this third theory clearly applies to those persons with joint interest in property, see Y.T.C.A., Penal Code, Section 31.10, and the Practice Commentary, it is equally applicable to allegations of corporate ownership. The writer of the practice commentary was apparently basing his opinion that the greater right to ownership applied where there was a claim of right by the alleged thief upon the proposed code, Section 31.01(6), Penal Code (Proposed), which would have provided:

“(6) ‘Owner means a person other than the actor who has possession of property, or any interest other than a mortgage, deed of trust, or security interest in property, even if the possession or interest is unlawful.”

The practice commentary to the Proposed Penal Code (Section 31.03, Proposed Penal Code, Practice Commentary) made it clear that by virtue of the broader definition of “owner”, the theft responsibility of joint owners and others with part interest in the property was expanded. However, it was never adopted. We will follow the Penal Code as written by the Legislature.

Because of the necessity of corporations adopting sophisticated accounting procedures and cross-checking devices, it is unlikely that we will find any one individual in any given large corporation who can meet all the criteria of “possession”; i. e., care, custody, control, and management. V.T.C.A., Penal Code, Section 1.07(a)(28), as construed by the majority in McGee.

This increasing problem will not be solved by allowing allegations of corporate ownership in some high ranking management person. In Williams v. State, 101 Tex.Cr.R. 523, 276 S.W. 282 (1925), we held that the proof of management alone was insufficient to sustain the ownership allegations absent some showing that the named individual had care, custody, or control over the stolen property.

In Cross, the problem of the division of responsibility is apparent. The telephone company supervisor and the benefit committee had responsibility for the commemorative watch at some point in the ordering process. In the present case, we are faced with a like situation. Both Coonen and the Atlanta accounting office had responsibility for the money. Coonen cannot issue a check for a truck purchase nor can the Atlanta office issue a check without Coo-nen’s prior approval.

The McGee case is overruled.

By grounds of error two, three and seven, appellant advances varying attacks upon the sufficiency of the evidence to sustain his conviction. The third ground of error complains of the prosecutor’s reading to the jury the content of a written stipulation in which the parties agreed that “the endorsement ‘National Trailer Sales Ray Compton’ on State’s Exhibit No. 5 [the check issued by the Atlanta office] was made by the defendant Charles Ray Compton.”

Appellant asserts that the requisites of Article 1.15, V.A.C.C.P.,1 govern the introduction of the stipulation and that, the written waiver of confrontation required by Article 1.15 not appearing in the record, the content of the stipulation is not competent evidence of the identity of the person who converted the monies alleged stolen.

In Berry v. State, 504 S.W.2d 501 (Tex.Cr.App.1974), this Court rejected a comparable contention, concluding that, by its own terms, Article 1.15, supra, specifically governs only cases tried before the trial court without a jury. As in Berry, supra, the instant conviction was obtained in a jury trial. The stipulation contained in the *252record before us was signed by both counsel for the State and defense, as well as by appellant; as such, the content of the stipulation was appropriately offered by the jury’s consideration. See Buitron v. State, 519 S.W.2d 467 (Tex.Cr.App.1975). The evidence is sufficient to show that appellant endorsed the check in issue, and negotiated the face value amount by passing. Cf. Stell v. State, 496 S.W.2d 623 (Tex.Cr.App.1973).

Appellant’s third and seventh grounds of error assert a fatal variance between the allegation of $400,000 current money of the United States of America contained in the indictment, and the proof adduced at trial. This complaint is bottomed on the erroneous premise that appellant was shown only to have unlawfully exercised control over the cheek in issue, and not any “money” within the meaning of the law.

A similar contention was made by the appellant on motion for rehearing in Hedge v. State, 229 S.W. 862 (Tex.Cr.App.1921); this Court replied:

“If A. owes B. $7.50, and by mistake gives in settlement a check for $75, which B. accepts, places in his pocket, and presents at the bank, and, upon payment to him by the bank of the $75 called for by said check conceives the intent to appropriate the $67.50 excess, he would be guilty of theft by such excess.”

229 S.W. 865.

Here, the evidence shows that International Harvester was indebted to appellant in the amount of $11,650, and that, through mistake, a check was issued in the amount of $411,650, and forwarded to appellant, doing business as National Trailer Sales. Appellant renegotiated the check and International Harvester never recovered the $400,000 erroneously overpayed. As stated ante, it was only upon appellant’s negotiation of the check that he exercised control over it and, thus, its proceeds. See Watkins v. State, 438 S.W.2d 819 (Tex.Cr.App.1969). There is no fatal variance between the allegations in the indictment and the proof adduced at trial.

The evidence is sufficient to support the conviction and grounds of error two, three and seven are overruled.

By his fourth ground of error, appellant complains of the trial court’s admission of State’s Exhibit No. 5-the check-into evidence, because the necessary predicate for its admission was not made in compliance with Article 3737e, V.A.C.S., the Business Records Act. This ground of error is without merit.

The Business Records Act specifies the conditions under which an out-of-court statement may become admissible as an exception to the general prohibition against hearsay evidence. Compare and see Todd v. State, 598 S.W.2d 286 (Tex.Cr.App.1980). The rule which generally prohibits the introduction of hearsay evidence is:

“Evidence of a statement made out of court when such evidence is offered for the purpose of proving the truth of such statement, is inadmissible as hearsay. (Emphasis original)

1A Ray, Texas Practice (3rd ed. 1980).

The check in issue contains no “statement” or “assertion,” the truth of which the State sought to establish by its introduction into evidence. The check is the negotiable instrument through which appellant exercised control over the $400,-000 alleged stolen in the indictment. It was offered as evidence of its existence as a negotiable instrument and not for the purpose of proving the truth of any writing reflected upon it. Thus, the check did not amount to hearsay.

Because neither the check nor its content constituted hearsay evidence, there was no burden upon the State to establish its admissibility as an exception to the rule prohibiting hearsay. See, e. g., McClure v. State, 575 S.W.2d 564 (Tex.Cr.App.1979).

Appellant next complains of the admission of the content of the telephone conversation between Bushfield and a person who identified himself as “Ray Compton,” who stated that he understood he had some of Bushfield’s money, on Saturday, May 15, 1976. Appellant contends that the State failed to prove that the caller was in fact *253appellant, and Bushfield’s testimony was inadmissible hearsay.2

Assuming without deciding that this was error, we hold that it was not such as would require a reversal.

Finally, appellant alleges that an argument by the prosecutor constituted reversible error, because it was neither a reasonable deduction from the evidence, nor based upon evidence in the record.

The prosecutor asserted that it was important to appellant to get the check into the possession of Dallas Truck Sales (DTS), an innocent third party, so that International Harvester could not “tie up the funds” in view of an inability to prove that DTS had knowledge of the overpayment by International Harvester. In short, the assistant district attorney concluded: “You can’t touch the money once it is in Dallas Truck Sales’ account. How did it get there? By [appellant’s] endorsement on the check. That is exercising control over that money.”

Appellant’s objection to this argument was overruled, the trial court stating that the argument was invited.

The record reflects that in his closing argument, defense counsel had asserted that the State had failed to establish any relationship between appellant and Dallas Truck Sales, and that it was the latter’s account into which the check had been deposited-not into any account of appellant. Defense counsel argued that the State had proved neither what had happened to the proceeds, nor that appellant “got any of the money,” and observed that neither Fulton nor Jackson of Dallas Truck Sales testified even though defense counsel had been told by a representative of the State that Jackson would be called.

It has been settled by this Court that the generally approved areas of jury argument within which arguments must fall to be proper are: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Todd, supra; Dunbar v. State, 551 S.W.2d 382 (Tex.Cr.App.1977); Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973). “Even when an argument exceeds the permissible bounds of the above areas, such will not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute or injects new facts, harmful to the accused into the trial proceeding.” Todd, supra, at 297.

The complained of argument of the prosecutor, when placed in context, constituted a reasonable deduction employed in response to defense counsel’s arguments. Howard v. State, 505 S.W.2d 306 (Tex.Cr.App.1974); Houston v. State, 503 S.W.2d 540 (Tex.Cr.App.1974). No error is shown.

The State’s motion for rehearing is granted; the judgment is now affirmed.

. Article 1.15, supra, provides in part:

“The evidence may be stipulated if the defendant in such case consents in writing, in open Court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the Court. Such waiver and consent must be approved by the Court in writing, and be filed in the file of the papers of the cause.”

. At the hearing on punishment, appellant testified:

“I called International Harvester on a Saturday morning. He was talking about Friday afternoon when I wasn’t there. The first thing I done when I come in, I called International Harvester and I asked for Joe Bennett. He wasn’t there and Mr. Bushfield answered the phone. He said he would talk to me and I told Mr. Bushfield that if I had his money, I would give it back to him. I told him the truth.”