Larry Latulip v. State ( 1992 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-90-283-CR





LARRY LATULIP,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT

NO. 103,378, HONORABLE BOB JONES, JUDGE

Appeal is taken from a conviction of theft of property of the value of seven hundred fifty dollars or more but less than twenty thousand dollars. See Tex. Penal Code Ann. § 31.03 (e)(4)(A) (1989). Trial was before the court upon a plea of not guilty. Punishment was assessed at ten years' confinement and a fine of ten thousand dollars. The period of confinement and nine thousand dollars of the fine were probated.

Appellant urges three points of error. He asserts that the evidence is insufficient to prove that:  (1) the appellant appropriated property in the manner alleged in the indictment; (2) Kim Merrill was a special owner of the stolen property at the time appellant acquired or exercised control over the property; and (3) any property was appropriated from the NCNB Bank. We overrule appellant's points of error and affirm the judgment of the trial court.

While in jail in Williamson County during the summer of 1989, appellant asked Christie Drzewucki and Dennis Wighamans to pick up two checks for work he had done at Odeen Hibbs Trucking Company. Appellant gave Drzewucki and Wighamans a letter authorizing the trucking company to release the checks to them. At appellant's direction, Drzewucki picked up the checks, cashed them at the NCNB Bank in Austin and expended the proceeds in accordance with appellant's instructions.

After his release, appellant went to Odeen Hibbs and claimed that he had never received the checks. Jannette Gordillo, officer manager and bookkeeper for the trucking company, advised appellant that she would not give him a check to replace the two checks that had already been cashed until she was notified by the bank that the Odeen Hibbs account had been credited for the checks.

Appellant represented to Kim Merrill of the Security Department at NCNB that he had never received the two checks from Odeen Hibbs and that someone had forged his name to the checks. Appellant signed notarized statements that he had not endorsed the checks or authorized endorsement of the checks, had no knowledge of who endorsed the checks, and had not received any benefit from the checks. Following appellant's execution of the affidavits, Merrill informed appellant and Odeen Hibbs that the trucking company would be credited in an amount equal to the sum of the two checks. Appellant returned to Odeen Hibbs and was issued a check by Gordillo for $2,150.01, the total amount of the two checks.

Pursuant to Merrill's instruction, appellant went to the Austin Police Department where he gave additional statements relative to the forgery of his name on the checks. On appeal, appellant concedes that Drzewucki acted with his complicity and approval in her handling of the two checks.

In his first point of error, appellant asserts that the evidence is insufficient to prove that he appropriated property in the manner alleged in the indictment. The indictment alleges in pertinent part that appellant "did then and there intentionally and knowingly acquire and otherwise exercise control over property . . . without the effective consent of the owner, Kim Merrill."

A person commits the offense of theft "if he unlawfully appropriates property with intent to deprive the owner of property." Tex. Penal Code Ann. § 31.03 (a) (1989). As alleged in the indictment in the instant cause, "appropriate" means "to acquire or otherwise exercise control over property other than real property." Tex. Penal Code Ann. § 31.01 (5)(B) (1989).

It is undisputed that appellant's execution of the affidavits asserting that the checks had been forged caused Merrill to transfer funds to the Odeen Hibbs account. Appellant complains that while his acts may have brought about the transfer of funds, this does not amount to appellant exercising control over the funds. Our attention is directed to testimony elicited from Merrill on cross-examination that she did not give appellant U.S. currency or a check, nor did appellant exercise control of any property of the bank.

The thrust of appellant's contention appears to be that he never had any of the bank's property in his possession. In Miera v. State, 663 S.W.2d 508, 511 (Tex. App. 1983, no pet.), the court addressed the meaning of "exercising control" as that term is used in the theft statute:

A person appropriates personal property, under section 31.01(5)(B) of the Penal Code, if he acquires or otherwise exercises control over the property. . . .

. . . [T]he practice commentary to section 31.03 indicates an intent by the framers of the present Penal Code to include more than actual control in the concept of appropriation. It notes, for instance, that "exercising control" encompasses conduct that does not involve possession, and states, "anyone who is in a position to take some action that deprives the owner of property is in a position to exercise control." (Emphasis in original) (citations omitted).

In Salazar v. State, 711 S.W.2d 720 (Tex. App. 1986, pet. ref'd), the defendant contended the evidence was insufficient to support the allegation in the indictment charging that the defendant "did then and there unlawfully acquire and exercise control over the property. . . ." The evidence reflected that merchandise was shipped at the request of the defendant upon the receipt of defendant's check. There was, however, no evidence that the defendant ever received the merchandise. The defendant's check was dishonored when presented for payment. The Salazar court found, "As the victim parted with the merchandise because of these actions of [defendant], we hold that the [defendant] 'exercised control' over the goods insofar as he induced the victim to ship them." Id. at 723.

In the instant cause, the appellant's action in executing the affidavits caused Merrill to transfer funds into the Odeen Hibbs account. We conclude that appellant "exercised control" over the funds as a result of having induced the owner to take action that deprived the owner of property. Appellant's first point of error is overruled.

In his second point of error, appellant contends that the evidence is insufficient to show that Merrill was a special owner of the stolen property at the time appellant acquired or exercised control over the property. The resolution of whether the State discharged its burden in proving ownership as alleged in the indictment turns on the sufficiency of the evidence to show that Merrill had "a greater right to possession of the property than the [appellant]." Tex. Penal Code Ann. § 1.07(a)(24) (Supp. 1992).

Following appellant's representation to Merrill that he had never received the two checks issued to him as payee, and that someone had endorsed his name without his consent, Merrill explained to appellant that upon his signing the forgery affidavits, "We would reimburse our customer, . . . Odeen Hibbs, and that they would issue him another check." Merrill related that this was standard procedure when a person claims that a check has been forged and cashed at the bank. After the execution of the affidavits by appellant and the return of the original checks by Odeen Hibbs, Merrill instructed the bank to credit the account of Odeen Hibbs in a "miscellaneous charge-off form." Later, Merrill pulled the Odeen Hibbs account "to make sure there was a deposit in the exact amount."

In instances where an entity such as a corporation is the owner of the property, it is proper to allege a natural person who acts for the corporation is the owner of the property. Compton v. State, 607 S.W.2d 246 (Tex. Crim. App. 1979). "The natural person, alleged to be the owner, does not have to be an exclusive owner. 'Possession' may be proved by showing that the alleged owner controlled the property." Sowders v. State, 693 S.W.2d 448, 451 (Tex. Crim. App. 1985).

In Compton, the alleged owner in the theft indictment, an official in the Dallas office of the corporation, authorized a disbursement to appellant that had to be made from the corporation's home office in Atlanta. The check was issued by an official in the accounting department in the Atlanta office and sent directly to appellant without the alleged owner coming in contact with the check. In concluding that the official in Dallas who authorized the disbursement was an owner, the court found that both the alleged owner and the accounting officer in Atlanta (who issued the check) had responsibility for the money.

We find that the State discharged its burden in proving that Merrill had "a greater right to possession" of the bank's money than appellant and was properly alleged to be the owner. Appellant's second point of error is overruled.

In his third point of error, appellant asserts that the evidence is insufficient to prove that any property was appropriated from the NCNB Bank. Appellant points to the testimony of Merrill that she did not know of her personal knowledge whether the credit to the Odeen Hibbs account came from bank funds or from someone else who happened to make a deposit to the account. Merrill advised the appellant that the bank would reimburse the Odeen Hibbs account after he signed the forgery affidavits. Following the necessary paper work, Merrill instructed the bank to credit Odeen Hibbs and later pulled the account to "make sure there was a deposit in the exact amount."

When reviewing a challenge to the sufficiency of the evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the conviction, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989). A reviewing court should not substitute its determination of guilt for that of the fact finder unless it is found to be irrational or unsupported by the evidence, such evidence being viewed under the standard set forth in Jackson. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). "[I]t is enough that the conclusion of guilt is warranted by the combined and cumulative force of all the incriminating circumstances." Brandley v. State, 691 S.W.2d 699, 705 (Tex. Crim. App. 1985).

We conclude that a rational trier of fact could find from the evidence beyond a reasonable doubt that the credit to the customer's account came from NCNB Bank funds. Appellant's third point of error is overruled.

The judgment is affirmed.

Tom G. Davis, Justice

[Before Chief Justice Carroll, Justices B. A. Smith and Davis^*]

Affirmed

Filed: April 8, 1992

[Do Not Publish]

^* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (1988).