McClure v. State

OPINION ON STATE’S MOTION FOR REHEARING

ODOM, Judge.

This is an appeal from a conviction for theft. Punishment, enhanced under Y.T. C.A., Penal Code Sec. 12.42(d), is life.

On original submission a panel of this Court reversed the conviction for erroneous admission of evidence. The panel found the error to be fundamental, it not having been raised in the brief. Just as error at trial may be waived by failure to object, on appeal error may be abandoned by failure to assert it in the brief. Because the issue was not raised by appellant before this Court, the panel should not have considered it. The matter does not constitute fundamental error that should be considered in the interest of justice. The State’s motion for rehearing is granted.

We now consider the grounds of error raised in appellant’s brief.

The first and third grounds of error challenge the sufficiency of the evidence to prove appellant acted with intent to deprive the owner of property and to prove the property was obtained without the owner’s effective consent. Theft under V.T.C.A., Penal Code Sec. 31.03(a), (b)(1) requires proof of these two elements. Consent is not effective if induced by deception. V.T. C.A., Penal Code Sec. 31.01(4). Deception occurs if the defendant creates or confirms by words or conduct a false impression of fact that is likely to affect the owner’s judgment in the transaction, and that the defendant does not believe to be true. Sec. 31.01(2)(A), supra. Appellant was apparently prosecuted under this theory.

Appellant was alleged to have stolen over $200 from Otis Hatfield. The record shows that appellant obtained an order from Hatfield for several firearms and that Hatfield paid appellant several hundred dollars when the order was placed. The guns were never delivered. Eventually, after many inquiries by Hatfield about delays in filling his order, he canceled the order and requested a refund. After several checks for partial refunds were received by Hatfield, he found it impossible to reach appellant regarding refund of the balance, still well in excess of the over $200 allegedly stolen.

In Draper v. State, 539 S.W.2d 61, 69, the Court said:

“It does not negate intent to deprive to say that the [owners] could have gotten their money back. As the State points out, the offense of theft has long been held to be complete when the property is obtained, if the other elements are present.”

In this case the evidence is undisputed that appellant obtained and as of the time of trial still retained over $200 of Hatfield’s money, and that Hatfield obtained none of the promised merchandise. The intent to deprive element was sufficiently proven at trial.

Turning to the issue of deception, we find the record reflects that Hatfield before placing his order for the guns asked appellant if he had the required federal firearms license. Appellant told Hatfield that his company did. This was a matter of fact upon which Hatfield, being familiar with federal law requirements for sale of firearms, clearly relied when he paid appellant in advance for the guns. Appellant’s “company,” it was shown, was an assumed name under which he was lawfully registered to do business, but which nevertheless did not have the required federal license about which Hatfield had inquired. We find the evidence sufficient to show appellant’s deception induced Hatfield’s payment, and that Hatfield’s consent therefore was not effective. See Draper, supra.

The first and third grounds of error are overruled.

In his other ground of error appellant asserts it was error to deny his motion for new trial based on newly discovered evidence of another cheek for $100 refunded to Hatfield, receipt of which Hatfield had denied on the witness stand. Two of the four requirements for obtaining a new trial on the basis of newly discovered evidence are that the evidence was unknown to the defendant before trial and that his failure to discover it was not due to lack of diligence. Saunders v. State, 572 S.W.2d 944, 955, quoting Hernandez v. State, 507 S.W.2d 209. Appellant admitted at the hearing on the motion for new trial that he knew of the check before trial and failed to subpoena the bank records. Neither of the two requirements stated above have been met in this case. We also note that even with an additional $100 refund, Hatfield still lost well over the $200 plus alleged in the indictment. The ground of error is overruled.

The judgment is affirmed.