Opinion
02-23-00006-CR
07-27-2023
Frances Cole, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 362nd District Court Denton County, Texas Trial Court No. F19-1839-362
Before Kerr, Birdwell, and Bassel, JJ.
MEMORANDUM OPINION
Dabney Bassel Justice.
I. Introduction
Appellant Frances Cole entered into a transaction to purchase a truck from an automobile dealership (the purchase transaction). She provided false information and wrote the dealership a $10,000 check for a down payment on the truck. After Cole had taken possession of the truck, the dealership's owner attempted twice to cash Cole's down-payment check, and it bounced both times. Cole never returned the truck or paid the dealership any money. She gave the truck to her husband, who used it for work. Cole was tried and convicted for theft of property of the value of $30,000 or more but less than $150,000.
Cole now appeals, arguing in a single issue that the evidence is legally insufficient to support her conviction. We will hold that the evidence is legally sufficient to support Cole's conviction and affirm the judgment of the trial court.
II. Factual Background
In 2018, Cole contacted a dealership in Denton County about a truck she had seen on the internet. She filled out a credit application online and then came into the dealership. A salesman at the dealership submitted her application to multiple banks, one of which approved her for financing. Cole and the salesman signed an installment contract providing that Cole would make a $10,000 down payment and 43 monthly payments of $841.69 each on a 2014 Dodge Ram 3500 Crew Cab pickup (the truck). Cole provided the dealership with information about her address, income, and earnings history. She wrote the dealership a check for $10,000. She then took possession of the truck.
The salesman testified at Cole's trial that the truck was a "[d]ually," meaning it had dual rear wheels.
The owner of the dealership tried to deposit Cole's check but learned that she did not have sufficient funds in her bank account to cover it. Both the salesman she had dealt with and the dealership's owner contacted Cole, who asked the owner to wait "a couple of days" and then redeposit the check. The owner did so, but the check came back unpaid a second time due to insufficient funds. The salesman asked Cole to make arrangements to pay the $10,000, and she agreed. Meanwhile, the bank that had agreed to finance Cole's purchase of the truck called the dealership and informed the salesman and the owner that it had rejected the financing arrangement it had made with Cole after learning that Cole had falsified employment records about her income. The salesman and the dealership's owner made unsuccessful attempts to get the truck back from Cole but eventually called the local police and reported her for theft.
The salesman testified at Cole's trial that he called the police in "early January" but did not recall the exact date. A Northlake Police officer testified that she was dispatched out to the dealership on January 11, 2019. The owner of the dealership testified that his second attempt to deposit Cole's $10,000 check was made on January 7, which was consistent with what his bank records (also admitted in evidence) showed.
A detective from the Northlake Police Department spoke with Cole on January 15, 2019. Cole explained to him that "the dealership was supposed to have held the check until the Wednesday following the date of purchase, which would have been January 2[], 2019." She told him that the truck was in a repair shop in Midland, Texas, and that the dealership had told her to put it in the repair shop. She did not specify what repairs were being done on the truck. She told him she was "waiting on a payment" from someone for $53,000.
By the time of trial, the detective had been promoted to sergeant.
Nearly three months after the purchase transaction, the detective received a call from the Odessa Police Department. Odessa Police had pulled over Cole's husband, who had been driving the truck for months. Unaware of the theft investigation, Cole's husband had been carrying insurance on the truck and making payments to Cole, believing that she was using the money to pay for the truck and its insurance. Odessa Police released Cole's husband but seized the truck. The detective notified the dealership that the truck had been recovered, and the dealership got it back in early April 2019. The truck was damaged and had 12,768 more miles on it than it had had at the time of the purchase transaction.
The dealership's owner testified at the trial that the damages were not repaired at the time he got the vehicle back and that he had received a judgment against Cole in the amount of $8,169.55 plus $121 in fees.
Cole was indicted and stood trial for the theft of the truck. The officer who had responded to the initial call from the dealership, the salesman who had dealt with Cole, the owner of the dealership, the detective who had investigated the theft, and Cole's husband all testified at the trial. The credit application and installment contract Cole had signed were admitted in evidence, along with a document purporting to be a paycheck stub or an income statement that Cole had provided as part of her credit application. The $10,000 check she had written and bank records showing that it had gone unpaid were also admitted for the jury's consideration.
Cole chose not to testify until the trial on punishment.
Additional records were admitted at trial that showed Cole had falsified information she provided to obtain possession of the truck. Cole was hired by Lake Regional Community Center less than a year before the date she submitted her financial information to the dealership-she had indicated on her credit application that she had been working there for five years-and was earning $18.25 per hour in December 2018, far less than the $40.00 per hour reflected on the pay stub she had provided. The records also showed Cole's year-to-date (YTD) earnings to be $28,913.59 as of December 14, 2018; the pay stub she had provided to the dealership showed $55,000.00 in YTD earnings.
The jury found Cole guilty of the offense of theft as alleged in the indictment and, after hearing more evidence, assessed her punishment at twenty-seven years and three months in prison. Cole filed a notice of appeal.
III. Analysis
Cole argues on appeal that (1) the evidence was legally insufficient to show that she "deprived" the owners of the property permanently or for such a time that a major portion of the value or enjoyment of the property was lost to the owner and (2) alternatively, the evidence was legally insufficient to show that the value of any such deprivation was greater than or equal to $30,000 but less than $150,000. For the reasons that follow, we disagree and affirm Cole's conviction.
A. We set forth the standard of review.
In our evidentiary-sufficiency review, we view all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the crime's essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This standard gives full play to the factfinder's responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Harrell v. State, 620 S.W.3d 910, 914 (Tex. Crim. App. 2021).
The factfinder alone judges the evidence's weight and credibility. See Tex. Code Crim. Proc. Ann. art. 38.04; Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App. 2021). We may not re-evaluate the evidence's weight and credibility and substitute our judgment for the factfinder's. Queeman, 520 S.W.3d at 622. Instead, we determine whether the necessary inferences are reasonable based on the evidence's cumulative force when viewed in the light most favorable to the verdict. Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018); see Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017) ("The court conducting a sufficiency review must not engage in a 'divide and conquer' strategy but must consider the cumulative force of all the evidence."). We must presume that the factfinder resolved any conflicting inferences in favor of the verdict, and we must defer to that resolution. Braughton, 569 S.W.3d at 608. Reversal on evidentiary-sufficiency grounds is restricted to the "rare occurrence" when a factfinder does not act rationally. Arroyo v. State, 559 S.W.3d 484, 487 (Tex. Crim. App. 2018); Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016); see Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App. 2014) (stating that a reviewing court should not act as a "thirteenth juror").
To determine whether the State has met its burden to prove a defendant's guilt beyond a reasonable doubt, we compare the crime's elements as defined by a hypothetically correct jury charge to the evidence adduced at trial. Hammack v. State, 622 S.W.3d 910, 914 (Tex. Crim. App. 2021); see also Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. App. 2018) ("The essential elements of an offense are determined by state law."). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Hammack, 622 S.W.3d at 914. The law as authorized by the indictment means the statutory elements of the offense as modified by the charging instrument's allegations. Curlee v. State, 620 S.W.3d 767, 778 (Tex. Crim. App. 2021); see Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) ("When the State pleads a specific element of a penal offense that has statutory alternatives for that element, the sufficiency of the evidence will be measured by the element that was actually pleaded, and not any alternative statutory elements.").
B. The evidence was legally sufficient to prove that Cole had "intent to deprive" the owner of the truck.
A person commits the offense of theft if she unlawfully appropriates property with intent to deprive the owner of that property. Tex. Penal Code Ann. § 31.03(a). Appropriation of property is unlawful if "it is without the owner's effective consent." Id. § 31.03(b)(1). Here, the State alleged that Cole "unlawfully appropriate[d], by acquiring or otherwise exercising control over, [an] automobile, of the value of $30,000 or more but less than $150,000, without the effective consent of the owner . . . and with intent to deprive the owner of the property." Cole argues that the evidence was insufficient to prove that she deprived "or even intended to deprive" the owners of any substantial value of the truck.
This argument muddies the waters by conflating an essential element of theft- "intent to deprive"-with something that the State is not required to prove: actual deprivation of the property. See id. § 31.03(a). The Court of Criminal Appeals made clear decades ago that "[d]eprivation is not an element of intent to deprive; therefore, the State need not prove actual deprivation in order to prove intent to deprive." Rowland v. State, 744 S.W.2d 610, 612 (Tex. Crim. App. 1988). "While evidence of actual deprivation may be evidence of intent to deprive, other evidence may also indicate whether intent to deprive exists." Id.
Rowland involved facts similar to those at issue in this appeal. The complainant in Rowland had agreed to loan his truck to the appellant on the condition that the appellant return the truck within three days, which was the length of time the appellant had claimed he needed the truck. Id. at 611. The appellant never returned the truck, and sometime thereafter the complainant learned that the appellant had misled him into loaning the appellant his truck. Id. Nine days after the truck was supposed to be returned, the complainant notified the police. Id. Approximately one month later, a wrecker service notified the complainant that it had picked up his truck. Id. When he went to retrieve his truck, the complainant found it had been stripped of the battery, the jack, the spare tire, the alternator, and tools that he had placed in the truck. Id. The appellant was charged with and found guilty of the offense of theft of an automobile. Id.
The Court of Criminal Appeals held that a rational trier of fact could have found the appellant guilty beyond a reasonable doubt of having the intent to deprive the complainant of his vehicle. Id. at 613. The court reasoned that the appellant's intent to deprive the complainant of his truck could be inferred from the fact that the appellant did not return the truck to the complainant as he had promised, within three days; "in fact, he never returned the truck at all and . . . never contacted [the complainant] to offer an explanation." Id. "Moreover," the court continued, "the circumstances surrounding the way [the] appellant obtained the truck constitute[d] evidence that [he] had the requisite intent to deprive." Id. The appellant in Rowland deceived the complainant into letting him have his truck by falsely telling the complainant that he needed the truck to complete a painting job, id., just like Cole deceived the dealership into letting her take possession of the truck in this case by writing a bad check and providing false information about her income. "While unlawful appropriation of property does not alone prove intent to deprive the owner of the property, it could be construed by the trier of fact to constitute circumstantial evidence of intent to deprive." Id.
Cole relies on one of the statutory definitions of "deprive"-to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner, Tex. Penal Code Ann. § 31.01(2)(A)-and contends that the evidence "failed to show any intent to permanently deprive the dealership of its property, or to withhold the property for such a time as to render a major portion of its value lost." Our analysis shows why this contention is wrong, and there is another way that the evidence at trial proved Cole's intent to "deprive" the dealership or its owner of the truck. "Deprive" can also mean "to dispose of property in a manner that makes recovery of the property by the owner unlikely." Id. § 31.01(2)(C). From the following testimony, a rational juror could have found beyond a reasonable doubt that Cole intended to deprive the dealership and its owner of the truck at the time she unlawfully appropriated it:
The jury was not instructed of this definition, but we measure legal sufficiency by the elements of the offense as defined by a "hypothetically correct" jury charge. Hammack, 622 S.W.3d at 914.
• Cole's husband had told Cole that he wanted a dually;
• Cole was specifically interested in purchasing a dually;
• Cole gave the truck to her husband, who was working in Midland at the time, as a birthday present;
• she represented to him that she had made the down payment on the truck;
• she did not inform him that her down-payment check had bounced;
• they made an agreement that Cole's husband was going to make payments and pay for insurance on the truck;
• Cole's husband made payments to her that he expected to go toward "the truck and the insurance"; and
• she never paid that money toward the truck or insurance.See id. § 31.03(a); see also Douglas v. State, Nos. 02-15-00445-CR, 02-15-00446-CR, 2017 WL 444381, at *4 (Tex. App.-Fort Worth Feb. 2, 2017, pet. ref'd) (mem. op., not designated for publication) (reasoning that jury could have inferred that defendant hid car behind vacant house to prevent or delay its discovery). Cole's failure to return the truck further supported an inference of intent to deprive. See Amado v. State, 983 S.W.2d 330, 333 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd) ("The intent to deprive may be inferred from the failure to return the property."). The fact that the deprivation later became temporary does not automatically mean there was no intent to deprive permanently or for so long as to satisfy the statutory definition. Kuczaj v. State, 848 S.W.2d 284, 289 (Tex. App.-Fort Worth 1993, no pet.).
Cole makes a number of assertions in her brief that find no support in the record. She claims that "the evidence conclusively showed that once the dealership regained possession, it was able to re-sell the vehicle quickly and without any appreciable loss" and that once the dealership decided to proceed with a theft prosecution, "it quickly snatched up its vehicle and sold it for gain." Tellingly, Cole provides no record references for these statements. The dealership's owner was the only witness even questioned at trial about the truck's resale, and his testimony does not support Cole's assertions:
Q. So you did ultimately recover the truck, correct?
A. We did recover it, yes.
Q. So overall what was the net loss in that transaction?
A. I don't recall when I sold it. I don't have that information with me.
Q. What would you estimate it to be?
A. Again, I'd be speculating. I don't know.
Q. Less than the amount that it was sold for, would you say?
A. Ma'am, again, I do not have that information with me.
Even if Cole were correct, we have said that the fact that a vehicle is temporarily missing and subsequently recovered with a minimal amount of economic loss to the owner does not render the evidence of intent to deprive insufficient. See Palacios v. State, No. 2-05-438-CR, 2006 WL 3438050, at *4 (Tex. App.-Fort Worth Nov. 30, 2006, no pet.) (per curiam) (mem. op., not designated for publication). Cole's argument on the "intent to deprive" element has no merit.
C. The evidence was legally sufficient to prove that the value of the truck was $30,000 or more but less than $150,000 at the time and place of the offense.
Cole argues that the "amount of loss to the dealership was well below the threshold level" of the felony for which she was convicted because, "[t]o the extent the owners were deprived of property, the amount of that deprivation is capped at the value of the civil judgment already levied against [her]: $8,169.55, plus $121 in fees." Cole cites no authority supporting her proposition that, when the owner of stolen property recovers a civil judgment against the thief, the value of the property for purposes of a subsequent theft prosecution is "capped" at the amount of the civil judgment. We decline to adopt such a rule in this case.
Section 31.08(a)(1) of the Texas Penal Code defines "value" as "the fair market value of the property or service at the time and place of the offense." Tex. Penal Code Ann. § 31.08(a)(1). Fair market value is the dollar amount the property would sell for in cash, given a reasonable time for selling it. Simmons v. State, 109 S.W.3d 469, 473 (Tex. Crim. App. 2003); Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim. App. 1991). The Court of Criminal Appeals has also defined fair market value as "the price the property will bring when offered for sale by one who desires to sell, but is not obliged to sell, and is bought by one who desires to buy, but is under no necessity of buying." Simmons, 109 S. W3d at 473 (quoting Keeton, 803 S.W.2d at 306 (Clinton, J, concurring)). Thus, the amount of damage to the property is not a part of the statutory definition of "value" in a theft case.
The fair market value of property may be proven by the property owner's testimony. Sandone v. State, 394 S.W.3d 788, 791 (Tex. App.-Fort Worth 2013, no pet.). When the owner of the property testifies as to the value of the property, such testimony will constitute sufficient evidence for the trier of fact to make a determination as to value based on the witness's credibility. Sullivan v. State, 701 S.W.2d 905, 909 (Tex. Crim. App. 1986). In assessing the legal sufficiency of the evidence to support a criminal conviction, we must defer to the jury's credibility and weight determinations because the jury is the sole judge of witnesses' credibility and the weight to be given testimony. Martin, 635 S.W.3d at 679.
The "cash selling price" of the truck as stated by the dealership on Cole's credit application was $32,663.27. The dealership's owner testified that "the sales price of the vehicle was . . . $34,704, which included taxes and fees." He also testified that the manufacturer's suggested retail price (MSRP) provided at the time of the transaction-and acknowledged by Cole-was $37,545. Both "retail" price and "sales" price are appropriate measures of fair market value. Washington v. State, 881 S.W.2d 187, 191 (Tex. App.-Houston [1st Dist.] 1994, no pet.). The jury had before it sufficient evidence to find beyond a reasonable doubt that the fair market value of the truck at the time and place of the theft was $30,000 or more but less than $150,000. We overrule Cole's issue on appeal.
IV. Conclusion
Viewing all the evidence in the light most favorable to the verdict, we conclude that a rational factfinder could have found the essential elements of the charged offense beyond a reasonable doubt. The evidence is therefore legally sufficient to support Cole's conviction for theft. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Harrell, 620 S.W.3d at 913-14. Having overruled Cole's sole issue, we affirm the trial court's judgment.