John Raymond Cross v. State ( 2010 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00052-CR
______________________________
JOHN RAYMOND CROSS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Sixth Judicial District Court
Lamar County, Texas
Trial Court No. 22783
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
John Raymond Cross, a retired officer of the Texas Department of Public Safety,
developed a gambling problem in his retirement years. To finance his gambling, Cross
Aborrowed@ $128,952.001from Thomas Hale Glover, a retired physician who was over sixty-five
years of age. Cross misrepresented to Glover that the money was actually being used to finance
two business ventures that would benefit Glover’s home town of Deport, Texas. As a result,
Cross was convicted by a jury for theft of property in excess of $100,000.00 but less than
$200,000.00 from an elderly individual 2 and sentenced to twenty years’ imprisonment in the
Texas Department of Criminal Justice—Institutional Division. Cross appeals, complaining that
the indictment was defective and that the evidence was legally and factually insufficient to support
the verdict. We affirm the judgment of the trial court because (1) the indictment is without
fundamental defect, (2) complaint of any nonfundamental error in the indictment is waived, and
(3) the evidence is legally and factually sufficient to support the verdict.
Glover met Cross at church, but later developed a personal relationship with him in 2005,
after Glover became ill with cancer. Early on, Cross ran errands for Glover and helped with
household chores. Then, in July 2006, Cross approached Glover about a business venture
1
Glover also loaned Cross money to help pay for medical bills, but these amounts are not included in the
figure listed above.
2
See TEX. PENAL CODE ANN. § 31.03 (Vernon Supp. 2009).
2
involving the development of a door striker plate Cross invented, for which Cross indicated he had
received a patent. In fact, no patent had been issued.
Glover agreed to make an interest-free loan to Cross to help finance the venture; he
expected to be repaid. The initial $500.00 loan was made July 14, 2006. Other loans were made
thereafter, mostly in larger amounts. Glover continued to make interest-free loans to Cross
through March 2008, when the transactions were discovered by Glover’s niece. During a range
of months, on average, Glover wrote checks to Cross totaling $8,000.00 per month.3 The only
documentation of the loans are entries made by Glover in his day planner for the years 2007
through March 2008, indicating amounts paid to Cross, along with copies of the canceled checks.
At some point, Cross told Glover that Cross was paid $200,000.00 for his interest in the door
striker venture, but he no longer had the money because a lawyer in the Dallas area had stolen it.
In fact, Cross was never paid anything for the door striker venture.4
During the same time period, Cross approached Glover with a second business venture in
need of financing, a trolling motor manufacturing business. Cross told Glover that he planned to
develop a trolling motor he invented and that he would build a small plant in south Deport that
3
Cross lured Glover into a second alleged business venture involving a trolling motor manufacturing
business. It is not clear how the money was segregated between the two alleged business ventures.
4
Dave Stevens was a business partner of Cross in the door striker venture. Stevens testified that he, Cross,
and some others had registered the business name ―Adjustable Strike Defense‖ and formed a general partnership to
obtain a patent for an adjustable strike plate. After trying for several years to obtain a patent, the partnership was
informed that the design could not be patented. Cross helped finance the patent search in 2000 or 2001, but was not
involved in financing this project in 2006—07. In early 2006, a Frank Garen ―came on board‖ and took care of the
financing with the attorney. Cross played no role in financing after 2001.
3
would employ twelve to fifteen people. Cross managed to obtain money on a regular, ongoing
basis from Glover for this venture through a chain of misrepresentations, beginning with a request
for funds to obtain a patent on the trolling motor.5 Next, Cross requested funding for an engineer,
and thereafter requested funds to purchase equipment to manufacture the parts for the motor. In
time, Cross invented more falsehoods to explain his need for additional funding,6 when in fact, the
representations about the trolling motor venture were entirely fabricated. There was no trolling
motor business in need of financing; instead, the money Glover loaned to Cross was used by Cross
for gambling.
Cross told Glover he could not repay the loans right away because the trolling motor
equipment had been sabotaged. Cross maintained that he filed a lawsuit in Oklahoma to recover
his losses and led Glover to believe that he recovered a large sum of money from the lawsuit.
Cross explained to Glover that, because the money was in a bank in Oklahoma, it would be awhile
before he could get it. Glover received no further reports on the status of these alleged funds
before the discovery of Cross’ scheme.
Glover was motivated to finance Cross’ business ventures by Glover’s love for his
hometown of Deport. Glover worked for thirty years to build up the city, only to see it decline in
5
As was true of the door striker venture, Cross and Glover did not execute documents to formalize financing
for the trolling motor business.
6
Included were requests to fund (1) the purchase of or fabrication of trailers to haul heavy manufacturing
equipment, (2) a permit to do business in Oklahoma, (3) a fine for transporting equipment without a proper permit,
(4) a redesign of the motor to bring it up to engineering specifications, and (5) the transport of equipment from
Oklahoma to Texas.
4
his later years. Cross led Glover to believe that his business ventures would bring jobs and
prosperity back to the city, which was experiencing rapid economic decline. Cross looked Glover
in the eye, shook his hand, and told Glover that he would repay him. Glover believed Cross
would keep his word.
Cross’ ―house of cards‖ came tumbling down when Betsy and Jerome Chapman (Glover’s
niece and her husband) became concerned on discovering that Glover was involved in a business
venture with Cross. The Chapmans confronted Cross regarding the alleged business venture and
became convinced that Glover was being defrauded. Two days later, Cross visited Jerome
Chapman at Chapman’s place of business and admitted to Chapman that everything he told the
Chapmans about the invention was a lie—there was no patent and there was no invention.7 Cross
simply took Glover’s money. Thereafter, the Chapmans reported Cross to law enforcement.
(1) The Indictment Is Without Fundamental Defect
―An indictment is a written instrument presented to a court by a grand jury charging a
person with the commission of an offense.‖ TEX. CONST. art. V, § 12(b).
The sufficiency of an indictment is a question of law. State v. Moff, 154 S.W.3d 599, 601
(Tex. Crim. App. 2004). Because this issue is based on undisputed facts, we will review de novo
this issue of law. See generally Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997);
Brossette v. State, 99 S.W.3d 277, 280 (Tex. App.—Texarkana 2003, pet. dism’d, untimely filed).
7
The record does not specify whether Cross was referring to the door striker or trolling motor venture;
however, the context of the testimony seems to indicate that reference was made to the trolling motor venture.
5
Cross alleges that, because the indictment summarily alleges ―unlawful appropriation,‖ rather than
specifying the precise manner of unlawful appropriation, 8 the indictment is fundamentally
defective. In support of this position, Cross relies on Johnson v. State, 547 S.W.2d 599 (Tex.
Crim. App. 1977). In that case, the indictment alleged unlawful appropriation, but failed to
specify the manner of unlawful appropriation, in accordance with Section 31.03 of the Texas Penal
Code. The court concluded that, because the indictment failed to allege the specific type of theft,
the indictment was fundamentally defective. Id. at 600–01.
Article V, Section 12 of the Texas Constitution was amended in 1985, after the decision in
Johnson, to provide that the presentation of an indictment vests the trial court with jurisdiction
over the case. See TEX. CONST. art. V, § 12; see also Studer v. State, 799 S.W.2d 263, 272 (Tex.
Crim. App. 1990). A defendant waives any defect of form or substance in an indictment if no
8
Cross points out that Section 31.03 of the Texas Penal Code provides for three types of unlawful
appropriation:
(a) A person commits an offense if he unlawfully appropriates property with
intent to deprive the owner of property.
(b) Appropriation of property is unlawful if:
(1) it is without the owner’s effective consent;
(2) the property is stolen and the actor appropriates the property knowing it
was stolen by another; or
(3) property in the custody of any law enforcement agency was explicitly
represented by any law enforcement agent to the actor as being stolen and the actor appropriates the
property believing it was stolen by another.
TEX. PENAL CODE ANN § 31.03.
6
objection is made before the date trial commences. See TEX. CODE CRIM. PROC. ANN. art. 1.14(b)
(Vernon 2005).
Not all indictment defects are matters of substance such that a defendant must object to
them before trial or lose the right to complain on appeal. Defects that render the instrument a
nonindictment are of the type that would render it impossible for the defendant to know the offense
with which he or she has been charged. See Duron v. State, 956 S.W.2d 547, 550 (Tex. Crim.
App. 1997); Mantooth v. State, 269 S.W.3d 68, 72 (Tex. App.—Texarkana 2008, no pet.).
Conversely, a charging instrument vests jurisdiction in the trial court, and thus must be objected to
before trial, when the instrument is clear enough in its language that the defendant can identify the
offense alleged. Teal v. State, 230 S.W.3d 172, 180 (Tex. Crim. App. 2007).
The complained-of indictment in this case states, in pertinent part, that:
JOHN RAYMOND CROSS in Lamar County, Texas, anterior to the presentment
of this Indictment, did then and there unlawfully appropriate, by acquiring or
otherwise exercising control over property, to-wit: United States money, of the
value of $100,000 or more but less than $200,000 with intent to deprive the owner,
Thomas Glover, a person 65 years of age or older, of the property and all of the said
property was obtained pursuant to one scheme or continuing course of conduct
which began on or about July 1, 2006 and continued until on or about April 1, 2008.
Even though the indictment does not state the specific manner of unlawful appropriation, it
charges unlawful appropriation of funds with sufficient detail to permit identification of the penal
7
statute under which the State intended to prosecute.9 Thus, the State’s indictment did not contain
―fundamental‖ error. See Mantooth, 269 S.W.3d at 72.
(2) Complaint of any Nonfundamental Error in the Indictment is Waived
To preserve a complaint for appellate review, a party must generally have presented to the
trial court a timely request, objection, or motion that states the specific grounds for the desired
ruling, if they are not apparent from the context of the request, objection, or motion. See TEX. R.
APP. P. 33.1(a); see also TEX. R. EVID. 103(a). More specifically, Article 1.14(b) of the Texas
Code of Criminal Procedure provides:
If the defendant does not object to a defect, error or irregularity of form or
substance in an indictment or information before the date on which the trial on the
merits commences, he waives and forfeits the right to object to the defect, error, or
irregularity and he may not raise the objection on appeal or in any other
postconviction proceeding. . . .
TEX. CODE CRIM. PROC. ANN. art 1.14(b).
Because Cross failed to object to the indictment, he waived his right to complain on appeal
of any nonfundamental defect. The indictment here alleges that Cross ―unlawfully‖ appropriated
personal property with the intent to deprive the owner of the property. The State therefore alleged
all that is necessary to give Cross notice of the crime of which he was accused. It is not necessary
9
We note that the first page of the two-page indictment contains the following language:
CHARGE
THEFT OR [sic] PROPERTY MORE THAN $100,000
BUT LESS THAN $200,000 ELDERLY
TEXAS PENAL CODE, SECTION 31.03
8
for the State to plead the manner of acquisition or the circumstances surrounding the offense.
Berg v. State, 747 S.W.2d 800, 809 (Tex. Crim. App. 1984); Askari v. State, 129 S.W.3d 160, 165
(Tex. App.—Texarkana 2003, pet. ref’d).
(3) The Evidence Is Legally and Factually Sufficient to Support the Verdict
In his second and third points of error, Cross contends the evidence is legally and factually
insufficient because the evidence establishes only that, based on Cross’ misrepresentations, Glover
did not charge interest on the loans. In other words, Cross’ misrepresentations induced Glover
only to extend the loans free of interest; the misrepresentations did not induce Glover to extend the
loans in the first instance. Cross contends this to be the case because Glover never testified that
Cross’ use of the money was a material factor in making the loans. That is, Glover never testified
that, had Cross borrowed the money for some other reason, such as making improvements to his
home,10 Glover would not have loaned Cross the money.
In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light
most favorable to the verdict to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Laster v. State, 275 S.W.3d 512, 517
(Tex. Crim. App. 2009); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).
10
The record contains evidence that certain improvements were made to Cross’ house during the relevant
time period. In the spring of 2007, Cross put new siding on his house and added new windows to the front of the
house. New cabinetry and kitchen appliances were also added. In addition, Cross acquired two new boats in late
2006 or early 2007 and, in 2007, Cross acquired a new Jeep.
9
When conducting a factual sufficiency review, all evidence is viewed in a neutral light,
favoring neither party. Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson
v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We are to determine if the evidence
supporting the verdict, although legally sufficient, is nevertheless so weak that the verdict is
clearly wrong or manifestly unjust or whether the verdict is against the great weight and
preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414–15.
While a factual sufficiency review allows a very limited degree of ―second-guessing‖ the
jury, the review should be deferential, with a high level of skepticism about the jury’s verdict
before a reversal can occur. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007);
Watson, 204 S.W.3d at 417.
The legal and factual sufficiency of the evidence should be measured by the elements of the
offense as defined by a hypothetically correct jury charge. Grotti v. State, 273 S.W.3d 273 (Tex.
Crim. App. 2008); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge
accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the
State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately
describes the particular offense for which the defendant was tried. Villarreal v. State, 286 S.W.3d
321 (Tex. Crim. App. 2009); Malik, 953 S.W.2d at 240. Cross does not argue that the charge is
incorrect or not one authorized by the indictment, and it tracks the indictment and the statute that
criminalizes the conduct involved.
10
a. Evidence of Deception
The jury was charged to determine whether Cross, pursuant to one scheme or continuing
course of conduct,11 committed the offense of theft by unlawfully appropriating property with the
intent to deprive the owner, Glover, a person sixty-five years of age or older. The jury was
instructed that appropriation of property is unlawful if it is without the owner’s effective consent;
that consent was not effective if induced by deception or coercion. TEX. PENAL CODE ANN.
§ 31.01(3) (Vernon Supp. 2009); § 31.03.
Deception was defined in the charge as:
creating or confirming by words or conduct a false impression of law or fact that is
likely to affect the judgment of another in the transaction, and that the actor does
not believe to be true;
failing to correct a false impression of law or fact that is likely to affect the
judgment of another in the transaction, that the actor previously created or
confirmed by words or conduct, and that the actor does not now believe to be true.
TEX. PENAL CODE ANN. § 31.01(1)(A), (B).
Thus, we must determine whether the evidence is legally and factually sufficient to prove
that (1) Cross created a false impression of fact, which Cross did not believe, and which was likely
to affect Glover’s judgment in extending the loan, or (2) Cross failed to correct a false impression
11
Where ―amounts are obtained [by theft] pursuant to one scheme or continuing course of conduct, whether
from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in
determining the grade of the offense.‖ TEX. PENAL CODE ANN. § 31.09 (Vernon 2003); King v. State, 17 S.W.3d 7,
13 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).
11
of fact that he created, which Cross no longer believed to be true, and which was likely to affect
Glover’s judgment in extending the loan. Bruni v. State, 669 S.W.2d 829, 831 (Tex.
App.—Austin 1984, no pet.). The thrust of Cross’ argument is that Cross’ misrepresentations did
not induce Glover to extend the loans to Cross, but only to make them interest free.
This case shares many similarities with that of King. In that case, the evidence showed
that King deceived four individuals by representing that their money would be used for the sole
purpose of preparing portfolios of their start-up businesses to present to investors in order to obtain
financing. Instead of preparing and presenting portfolios to investors, King used the funds he
collected for the sole purpose of paying his personal expenses and making purchases of items for
his personal benefit, including payment of his personal credit card account, while representing to
his clients that their money was being used for the purpose of obtaining millions of dollars in
financing for their fledgling businesses. In doing so, King created a false impression of fact that
affected the judgment of the four complainants. Id. at 14.
In King, the court held that, based on these facts, a rational fact-finder could have found
that King had no intention of fulfilling his obligations to his clients; his promises and assurances to
perform ―were merely a ruse to accomplish theft by deception.‖ Id. at 15. Here, as in King, the
record is replete with deception. Cross argues that the following testimony by Glover establishes
that Cross’ misrepresentations induced only the interest-free aspect of the loans, rather than
inducing Glover’s decision to make the loans:
12
Q. [BY THE STATE] Okay. Why did you give him - - if this was some kind of
business arrangement and he was going to repay you, why was it, Doctor, that you
gave him an interest-free loan?
A. The city of Deport, that’s the love of my life. It is currently having a tough
time economically, it’s declining rapidly. I don’t think there’s more than one or
two retail outlets in downtown Deport anymore. Deport had a thriving community
at one time, especially when I was working. When you work for 30 years to build
up something, and then you have to stand by and watch it decline, that’s painful.
Q. So the interest-free loan was to help him build a business and attract business
to Deport?
A. Yes, to encourage him. When I hear someone wants to help Deport, well, I
want to help them help Deport.
Q. All right.
A. The interest-free - - I didn’t feel like charging him any interest on these loans
because I was just thrilled that somebody was trying to do something to help
Deport.
In contrast, the evidence of deception squelches the notion that there was a lack of inducement by
deception to make the loans. Sergeant Ted Gibson, an investigator for the Lamar County
Sheriff’s office, testified that Glover gave Cross $129,000.00 to finance his two fledgling
businesses. Glover testified that he paid $128,952.00 to Cross to develop the door striker
business and the trolling motor business.
b. The Door Striker Venture
13
In July 2006, Cross told Glover he invented and patented a door striker mechanism, but
needed funds to develop the business.12 On July 14, 2006, Glover wrote a check to Cross in the
amount of $500.00. Glover could not recall exactly how much money he gave Cross for the door
striker business, because Cross began to request funds to finance the trolling motor business very
soon after the initial $500.00 check was written. The record is clear that the first $500.00 was
given for the door striker business, followed soon thereafter by Cross= first request for funds to
finance the trolling motor business.13 Once Cross began requesting funds to finance the trolling
motor business, there is no evidence that he continued to request funds from Glover for the door
striker business.14 The record indicates that, indeed, Cross was a member of a partnership, the
purpose of which was to develop an adjustable strike plate. 15 While Cross told Glover this
invention was patented when in fact it was not, there is no evidence that Glover specifically relied
on this misrepresentation when he made the $500.00 loan to Cross. If the initial $500.00 loan is
12
In fact, the door striker mechanism was never patented.
13
Glover did not provide a precise date he began giving Cross money for the trolling motor business.
14
The following is a breakdown of funds Glover paid to Cross for the years 2006—2008: funds paid in 2006
totalled $7,675.00, funds paid in 2007 totalled $96,151.00, and funds paid in 2008 totalled $25,126.00.
15
A strike plate attaches to a doorframe to reinforce the door jam to keep the door from opening. The
adjustable striker plate takes into account door movement which causes a misalignment of the door throw or dead bolt
and the traditional striker plate.
14
therefore removed from the equation, there remains in excess of $128,000.00 that Glover
nevertheless paid Cross for the trolling motor venture.16
We further observe that additional misrepresentations regarding repayment of funds
intended to finance the door striker venture, 17 in addition to the myriad misrepresentations
regarding the trolling motor venture, are reflective of Cross= lack of intention to repay these funds
at the time he received them. See, e.g., Ellis v. State, 877 S.W.2d 380, 383 (Tex. App.—Houston
[1st Dist.] 1994, pet. ref=d).
c. Trolling for Money
Myriad misrepresentations flowed from Cross to Glover regarding the alleged trolling
motor business. First, Cross told Glover he had an invention for a trolling motor that would make
16
The testimony regarding the precise amount of money paid by Glover to Cross for each venture is not
clearly defined. We do know, however, that requests for money to fund the trolling motor venture came very soon
after the initial $500.00 payment by Glover. The most conservative approach would call for timing the financing of
the door striker venture to the date Glover clearly relates to that business. On March 2, 2007, Glover wrote a check to
Cross in the amount of $1,700.00. While this may or may not have been the first check Glover wrote to Cross for the
trolling motor business, this is the first check the record reflects to have been written in support of the trolling motor
business. Therefore, even if all of the funds paid by Glover through February 2007 were discounted for evidentiary
purposes—thus providing Cross with every conceivable benefit of the doubt regarding his intentions to repay funds
received to finance the door striker venture—we, nevertheless, are left with an amount in excess of $116,000.00 paid
to Cross for the trolling motor venture. This figure fits within the range set forth in the indictment.
17
Cross told Glover that the door striker business was ―going to be a success‖; that someone offered him
money for it; that he was paid approximately $200,000.00 for the sale of the door striker business; that he could not
pay Glover back because a lawyer had taken the money; and that he was going to get the money from the lawyer, but
the lawyer had stolen it. Cross then told Glover that the FBI was using that money to perform their projects, so Cross
could not ―get his hands on the money.‖ Regarding these misrepresentations, Gibson testified that Cross told him the
door striker business ―didn’t work out.‖ Cross never assisted with the financing of the door striker business after
2001. Rather, Cross attributed all of the money he had taken from Glover to gambling.
15
a lot of money—which would help the city of Deport because Cross would build a small plant in
Deport to employ twelve to fifteen people initially—but needed money for a patent search.
Cross told Glover he needed additional money to apply for a patent after the patent search was
completed, including money for related legal fees. Cross then required money to pay an engineer
to draw up specifications from which the motor could be manufactured. Because all of this would
cost so much money, Cross intended to seek corporate backing from the Indian Nation in
Oklahoma. Cross then found Asomeone@ in the Sherman/Denison area who reportedly had agreed
to manufacture a large piece of very expensive equipment necessary for Cross to build the motors.
As all of this was ongoing, Cross reported that he had unfortunately been stopped by the Oklahoma
Highway Patrol, because he did not have a permit to do business in Oklahoma. Cross related to
Glover that he would need money for such a permit. Thereafter, Cross told Glover that the motor
manufacturing business was doing well and that he should not worry about getting his money. In
the interim, however, something had gone wrong with the trolling motor manufacturing business
in Oklahoma, and Cross told Glover he needed to retrieve his equipment from the Indian Nation
quickly, and needed money to do so.
Cross then told Glover that he was meeting a representative from the Yamaha Corporation
in the Marshall/Longview area because Yamaha was interested in backing him, but Cross needed
money to get the equipment down to Marshall. In reporting to Glover on the meeting with the
Yamaha representatives, Cross indicated that, as he was demonstrating the motor, it began to emit
16
smoke and fire. Glover was advised that the motor had been sabotaged by the Indian Nation
representative because he was angry with Cross for taking his business elsewhere. Cross told
Glover that he filed a lawsuit in Oklahoma to recover his losses on the motor and that he recovered
―quite a large sum.‖ Because this money was in an Oklahoma bank, Cross told Glover he could
not pay it back on time because he could not get Ahold@ of it.
The record shows that each of these statements was false. Cross admitted to Chapman
that everything he told Chapman about the invention was a lie; he did not have a patent or any
paperwork. He had simply taken the money. Cross admitted to Gibson that the trolling motor
business was a complete fabrication. Cross explained to Gibson that he obtained money from
Glover because he, Cross, was ―hooked on gambling.‖ Glover testified, ―Of course, I know now
that it was all a pack of lies. But I didn’t know it then.‖ Further, Glover testified to the following
during trial:
Q. [BY THE STATE] Doctor, can you tell us how much money you gave to Mr.
Cross over that period from July 2006 to March of 2008?
A. $128,952.00
Q. Dr. Glover, if you had learned that this defendant never had a trolling motor
business, would you have given him the money?
A. No.
Q. Dr. Glover, if you had learned that this defendant never sold his interest in the
door striking business, and never got $200,000 for that, or whatever it was, would
you have loaned him that money?
17
A. No.
Q. Do you feel like you were deceived?
A. Oh, I was deceived all right.
This testimony establishes Glover’s reliance on Cross’ misrepresentations as an inducement to
make the loans, interest-free or otherwise, thus fulfilling the requirements of Section 31.01(1)(A)
of the Texas Penal Code. We do not find the statute to allow the fine distinctions Cross asserts
here. The statute is violated when the actor makes a false impression of fact, that the actor knows
to be false, that is likely to affect the judgment of another in the transaction. TEX. PENAL CODE
ANN. § 31.01. Cross’ misrepresentations meet this requirement, and ―were merely a ruse to
accomplish theft by deception.‖ See King, 17 S.W.3d at 15. There is ample evidence of
deception in the record, which we find to be both legally and factually sufficient to support the
jury’s finding that Cross created false impressions of fact that were likely to affect Glover’s
judgment in extending loans to Cross. We overrule points of error numbers two and three.
We find no fundamental error in the indictment and find a failure to preserve error with
respect to nonfundamental defects therein. Further, and after reviewing the record in the light
most favorable to the verdict, we find that the evidence was sufficient to support Cross= conviction.
A rational juror could have found that Cross had no intention of fulfilling his obligations under the
agreements with Glover.
We affirm the judgment of the trial court.
18
Josh R. Morriss, III
Chief Justice
Date Submitted: January 20, 2010
Date Decided: February 9, 2010
Do Not Publish
19