Fernandez, James ( 2015 )

PD-0123-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/8/2015 12:24:07 PM
June 8, 2015 Accepted 6/8/2015 1:35:35 PM
ABEL ACOSTA
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No. PD-0123-15
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IN THE TEXAS COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
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JAMES FERNANDEZ,
Appellant
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v.
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THE STATE OF TEXAS,
Appellee
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From the Fourth Court of Appeals in San Antonio, Texas
Cause 04-14-00039-CR
and
the 83rd Judicial District Court
of Val Verde County, Texas
Cause No. 12716CR
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BRIEF ON THE MERITS
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James Gerard McDermott, II
8140 N. Mopac
Westpark 4, Suite 250
Austin TX 78759
512.201.4083
512.298.1129 (facsimile)
james@centraltexaslawyers.com
Attorney for Appellant
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LIST OF PARTIES
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TRIAL COURT JUDGE
Hon. Stephen Ables
Kerr County Courthouse
700 Main Street, Second Floor
Kerrville, Texas 78028
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APPELLANT
James Fernandez
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APPELLANT’S ATTORNEYS AT TRIAL
Daniel A. Sanchez Robert Garza
State Bar No. 24004064 State Bar No. 07742800
Law Offices of Daniel A. Sanchez Law Offices of Robert Garza
501 E. Tyler Avenue 2116 Avenue F, Suite 5
Harlingen TX 78550 Del Rio TX 78840
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APPELLANT’S ATTORNEY ON APPEAL
James Gerard McDermott, II
State Bar No. 24041438
Thompson Salinas Rickers & McDermott, LLP
8140 N. Mopac
Westpark 4, Suite 250
Austin TX 78759
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APPELLEE
The State of Texas
APPELLEE’S ATTORNEY AT TRIAL APPELLEE’S ATTORNEY AT THE
& AT THE COURT OF APPEALS COURT OF CRIMINAL APPEALS
Lance Kutnick Melissa Hargis
State Bar No. 00791058 State Bar No. 24055766
Assistant Attorney General Assistant Attorney General
District Attorney Pro Tem District Attorney Pro Tem
Office of the Attorney General Office of the Attorney General
PO Box 12548 PO Box 12548
Austin TX 78711 Austin TX 78711
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TABLE OF CONTENTS
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LIST OF PARTIES ii
TABLE OF CONTENTS iii
TABLE OF AUTHORITIES iv
STATEMENT REGARDING ORAL ARGUMENT 1
STATEMENT OF THE CASE 1
STATEMENT OF PROCEDURAL HISTORY 1
QUESTION PRESENTED FOR REVIEW 2
STATEMENT OF FACTS 2
ARGUMENT 5
PRAYER 9
CERTIFICATE OF COMPLIANCE 10
CERTIFICATE OF SERVICE 10
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TABLE OF AUTHORITIES
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CASES
Daugherty v. State, 387 S.W.3d 654 (Tex. Crim.
App. 2013) 6, 8
Ehrhardt v. State, 334 S.W.3d 849 (Tex. App.—
Texarkana 2011, pet. ref’d) 5
Fernandez v. State, 2014 Tex. App. LEXIS
13868 (Tex. App.—San Antonio Dec. 31, 2014) 6-7
Geick v. State, 349 S.W.3d 542 (Tex. Crim. App.
2011) 5
In re Fernandez, 2015 Tex. Crim. App. LEXIS
581 (Tex. Crim. App. May 13, 2015) 1, 2
Merryman v. State, 391 S.W.3d 261(Tex. App.—
San Antonio 2012, no pet.) 6
CODES AND RULES
TEX. PEN. CODE § 12.21 1
TEX. PEN. CODE § 31.01(1) 1, 7
TEX. PEN. CODE § 31.01(1)(B) 7
TEX. PEN. CODE § 31.01(3)(A) 1, 6, 8
TEX. PEN. CODE § 31.03(a) 1, 6
TEX. PEN. CODE § 31.03(b)(1) 1, 6
TEX. PEN. CODE § 31.03(e)(2) 1
TEX. PEN. CODE § 31.03(f)(1) 1
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TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW Appellant, James Fernandez, and submits this brief on the
granted petition for discretionary review from an opinion and judgment from the
Fourth Court of Appeals that affirmed a judgment of conviction in the 83rd Judicial
District Court of Val Verde County, Stephen B. Ables, presiding.
STATEMENT REGARDING ORAL ARGUMENT
The Court has denied Appellant’s request for oral argument.
STATEMENT OF THE CASE
At the conclusion of a jury trial, Appellant was convicted of the offense of
theft by deception by a public servant. CR 6-7, 156, 166; RR5: 72; see TEX. PEN.
CODE §§ 31.01(1), (3)(A); 31.03(a), (b)(1), (f)(1). The trial court sentenced
Appellant to 90 days’ confinement in the county jail, suspended the sentence,
placed him on community supervision for 90 days, and ordered payment of
restitution. CR 166; RR5: 112. See TEX. PEN. CODE §§ 12.21, 31.03(e)(2), (f)(1).
On appeal, the Fourth Court of Appeals affirmed the conviction. Appellant filed a
petition for discretionary review, raising two issues. This Court granted review on
one issue. In re Fernandez, 2015 Tex. Crim. App. LEXIS 581 (Tex. Crim. App.
May 13, 2015).
STATEMENT OF PROCEDURAL HISTORY
This case arises from Cause 04-14-00039-CR from the Fourth Court of Ap-
peals in San Antonio, Texas. The Court of Appeals issued its opinion on December
31, 2014, and affirmed the conviction. Appellant filed no motion for rehearing.
Appellant filed the petition for discretion on March 2, 2015, which this Court
granted on his first question only. In re Fernandez, 2015 Tex. Crim. App. LEXIS
581 (Tex. Crim. App. May 13, 2015).
QUESTION PRESENTED FOR REVIEW
In affirming a conviction for theft by deception, did the Court of
Appeals err in finding evidence of deception when the record
shows only lack of actual consent? In other words, and consistent
with the language of the statute, may deception only be proven
when the record shows actual consent that was induced by
deception but not when the record shows lack of actual consent?
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STATEMENT OF FACTS
The Statement of Facts contained in the opinion of the Court of Appeals
omitted some important details. Thus, Appellant presents a more complete
recitation here.
Appellant was Justice of the Peace for Precinct 4 in Val Verde County. RR4:
25, 65. Appellant and another Val Verde justice of the peace, Joey Gonzalez,
planned to attend a conference in Orlando, Florida from June 20 to June 24, 2012.
RR4: 26; SX 1, 2. On February 6, 2012, Veronica Mojica, Appellant’s chief deputy
clerk, bought tickets on Southwest Airlines for Appellant to travel to the
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conference. RR4: 24-27, 159; SX 2. She used a county credit card issued to
Appellant to pay the $381.60 cost. RR4: 29-30, 49; SX 2.
In June, Appellant and Judge Gonzalez both fell ill. RR4: 30-31, 42-43, 161.
Appellant instructed Mojica to cancel the trip. RR4: 30-31. She cancelled the flight
on June 11 and the conference registration on June 12. RR4: 31, 46, 159. The
conference registration fee was refunded. RR4: 31. The Southwest Airlines ticket
and the funds used to purchase it were nonrefundable and nontransferable,
purchased in accordance with County procedure to purchase such lower-cost
tickets to save County money. RR4: 42-43, 61, 62, 107, 159, 309; SX 2. Southwest
Airlines did not refund the ticket but issued a credit to Appellant for use in a future
purchase, which could not be redeemed by anyone except Appellant. RR4: 42-43,
160, 311-19; SX 2. That credit was set to expire on February 4, 2013, if left unused
by Appellant. RR4: 62, 160; SX 2. Mojica informed the County Auditor’s office of
the cancellation and credit. RR4: 161.
About two months later, in August 2012, Appellant asked Mojica for the
reservation number for the Southwest Airlines flight. RR4: 32. He requested that
she call his son to give him the number, which she did. RR4: 33. On August 8,
Appellant booked a ticket to Phoenix on Southwest Airlines using the previous
reservation number. RR4: 91; SX 2. He also traveled on that ticket on the same
day. RR4: 47, 91; SX 2. The new itinerary cost $129.00 more than the Orlando
ticket, and Appellant paid the difference from his own credit card. RR4: 47-48; SX
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2. No county business was scheduled in Phoenix for August 2012, and Appellant
did not claim he was conducting any County business in Phoenix through a new
purchase order to the County. RR4: 47-48, 51. He did not request or receive
approval from any other County official to use the voucher. RR4: 148.
Frank Lowe, the county auditor, knew in June 2012 that (1) Appellant and
Judge Gonzalez bought airplane tickets to go to Orlando, (2) both cancelled the trip
when Judge Gonzalez had gotten ill, and (3) the tickets were nontransferable and
nonrefundable. RR4: 42-43, 87, 95-96, 161, 309; SX 2. Two months later, in
August, Lowe was reviewing each county office’s past fiscal-year expenses in
preparation for the County budget process. RR4: 35, 41. He noticed that travel
expenses were reaching the budget limit, and so he reviewed expenditures more
closely. RR4: 42. He directed a member of his staff to contact Southwest Airlines
to ask that, because Val Verde County is a local government entity, they make an
exception to the nonrefundable-ticket policy. RR4: 44, 92, 95, 96. He then found
out that the credit had been used. RR4: 96.
Lowe then spoke to the Val Verde County Attorney, who then contacted the
Office of the Attorney General. RR4: 51-52, 54, 91, 98, 103-04, 151, 184, 202,
280, 321, 322-23. On August 27, he informed the Val Verde County
Commissioners Court of his investigation. RR4: 54, 99, 176, 324-26. Appellant
attempted to make restitution through both the Auditor and the County Attorney,
which was refused. RR4: 51-52, 64-65, 74-76, 89, 276-77, 280-88; DX1, 4.
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ARGUMENT
QUESTION PRESENTED
In affirming a conviction for theft by deception, did the Court of
Appeals err in finding evidence of deception when the record
shows only lack of actual consent? In other words, and consistent
with the language of the statute, may deception only be proven
when the record shows actual consent that was induced by
deception but not when the record shows lack of actual consent?
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Here, the indictment alleged theft by deception.1 CR 6. Thus, the State’s
burden in this case was to prove that Appellant used the Southwest Airlines credit
without effective consent and that the lack of “effective consent” was due to
Appellant’s deception.2 However, the record in this case establishes that Appellant
did not obtain consent to use the credit.3 He could not have used any deception to
induce a consent that was never given.
Theft is an unlawful appropriation. TEX. PEN. CODE § 31.03(a). An
appropriation is unlawful if it is without the owner’s effective consent. Id.
§31.03(b)(1). Consent is not effective if it induced by deception. Id. §31.03(3)(A).
To “induce” means “to bring about, produce, or cause.” Ehrhardt v. State,
334 S.W.3d 849, 853 (Tex. App.—Texarkana 2011, pet. ref’d). That consent is
1Because the State alleged deception in the indictment, deception is an essential element of the
offense. See Geick v. State, 349 S.W.3d 542, 548 (Tex. Crim. App. 2011).
2 Appellant’s Brief to Court of Appeals, 19.
3Appellant’s issue at the Court of Appeals was the sufficiency of the evidence for the element of
deception. Appellant’s Brief to Court of Appeals, 2, 15-20.
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induced by deception means “that the victim relied on the defendant’s deceptive
act when giving his consent.” Daugherty v. State, 387 S.W.3d 654, 659 n.18 (Tex.
Crim. App. 2013) (internal citations omitted). The reliance “must be a substantial
or material factor in the decision-making process.” Id. n.18 (internal citations
omitted). “The distinguishing feature between lawful acquisitive conduct from
theft is the intent to acquire without effective consent at the time of the
deprivation.” Merryman v. State, 391 S.W.3d 261, 271 (Tex. App.—San Antonio
2012, no pet.). Thus, the timing is of vital importance. For deception to be relevant
for a conviction of theft, the deception must be committed before or in conjunction
with the consent. Otherwise, the deception cannot be “a substantial or material
factor” in the decision to give consent.
In this case, Appellant received consent to appropriate the County funds on
Feb. 6, 2012. RR4: 24-30, 159; SX 2. The Court of Appeals found that Appellant
“created an impression of fact that the tickets would be used to go to Orlando on
approved county business.” Fernandez v. State, 2014 Tex. App. LEXIS 13868 at
*13 (Tex. App.—San Antonio Dec. 31, 2014). That was true at the time; Appellant
received consent to buy the tickets to attend the conference. There is no evidence
that Appellant deceived the County when the County consented to the purchase of
the ticket. The Court of Appeals noted that Appellant “later caused those tickets to
be cancelled, resulting in a credit.” Id. at *13-14. This is also correct. There is no
evidence that Appellant deceived the County at that time. Appellant informed the
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County of the cancellation, and there is no issue in this case about the need to
obtain any consent to cancel. See RR4: 42-43, 87, 95-96, 161, 309; SX 2.
According to the Court of Appeals, Appellant committed deception in
August. Fernandez, 2014 Tex. App. LEXIS 13868, at *13. The Court reasoned that
Appellant made a (correct, non-deceptive) impression of fact in February that the
ticket would be used for County business, which induced consent; that in August
Appellant used the ticket for a personal trip; and that the failure to inform the
County beforehand was a failure “to correct the false impression that he previously
created that the tickets would be used for county business.”4 Id.
Notably, the Court of Appeals never used the word “induce” in its opinion.
The Court found what it considered to be deception but failed to connect the
deception it found to any inducement to consent. Appellant’s failure to
communicate with the County in August, if it was indeed deception,5 was
irrelevant. Appellant only sought consent in February, at which point there was no
4In drawing this conclusion, the Court of Appeals failed to utilize a significant factor in the defi-
nition of deception: “that is likely to affect the judgment of another in the transaction.” See TEX.
PEN. CODE § 31.01(1)(B). This factor is present in each of the definitions of deception. See id. §
31.01(1). In August, there was no transaction with the County when Appellant used the credit,
and so the judgment of the County was not implicated at all. This is just another way of stating
the argument of this brief: there was no transaction; there was no deception against the County;
there was no consent; thus, there was no inducement of consent by deception.
5Again, it does not matter if Appellant’s actions in August were deceptive according to a com-
mon meaning of the term. As noted in footnote 4, the Legislature has defined deception for pur-
poses of theft and decided that an action is deceptive only when it “is likely to affect the judg-
ment of another in the transaction.” See TEX. PEN. CODE § 31.01(1)(B).
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deception. In August, Appellant did not seek or receive consent. His court
coordinator gave the reservation number to his son. RR4: 32-33. Appellant booked
the ticket himself. RR4: 91; SX 2. He did not inform anyone that he would be
conducting any County business in Phoenix. RR4: 47-48, 51. He did not request or
receive approval or consent from any other County official to use the voucher.
RR4: 148. He did not inform the County upon his return that he had used the
voucher. RR4: 92-96. The Court of Appeals emphasized this point as well:
“Fernandez did not inform the county auditor’s office that he used the credit to
obtain these tickets for his personal use, nor did he reimburse the County for the
credit when he returned.” Id. At no point did the County rely in a substantial or
material way on a deception when giving Appellant consent. See Daugherty, 387
S.W.3d at 659 n.18. In February, there was no deception; in August, there was no
consent.
Deception only occurs in a theft-by-deception case when consent has been
induced. See TEX. PEN. CODE §31.03(3)(A); Daugherty, 387 S.W.3d at 659 n.18.
Alternatively, when there is no consent there can be no deception. A theft
conviction may still be found, but not on an indictment charging theft by
deception. The Court of Appeals erred in finding otherwise. This Court should
reverse Court of Appeals, reverse the judgment of conviction, and order an
acquittal.
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PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays that the Court
reverse the judgment and opinion of the Court of Appeals and render a judgment of
acquittal.
Appellant prays for any such further relief to which he may be entitled.
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Respectfully submitted,
/s/ James Gerard McDermott, II
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James Gerard McDermott, II
Thompson Salinas Rickers & McDermott, LLP
8140 N. Mopac
Westpark 4, Suite 250
Austin TX 78759
512.201.4099
512.298.1129 (facsimile)
james@centraltexaslawyers.com
Attorney for Appellant
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CERTIFICATE OF COMPLIANCE
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I hereby certify that this brief complies with Texas Rule of Appellate
Procedure 9.4. The computer-generated word count for this document is 1936
words, including headers and footnotes.
/s/ James Gerard McDermott, II
James Gerard McDermott
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CERTIFICATE OF SERVICE
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I hereby certify that a true copy of the foregoing document was served by
electronic service on June 8, 2015 to:
Melissa Hargis Lisa C. McMinn
Assistant Attorney General State Prosecuting Attorney
District Attorney Pro Tem 209 W. 14th Street
Office of the Attorney General Austin, Texas 78701
PO Box 12548 information@spa.texas.gov
Austin TX 78711
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/s/ James Gerard McDermott, II
James Gerard McDermott
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