Opinion
No. 05-10-00832-CR
Opinion issued August 24, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 380th District Court, Collin County, Texas, Trial Court Cause No. 380-80677-09.
Before Justices BRIDGES, LANG-MIERS, and MURPHY.
OPINION
Tonya Daugherty appeals her theft of service conviction. A jury convicted appellant, and the trial court sentenced her to one year of confinement, probated for two years, and ordered her to pay restitution of $8317.33. In a single issue, appellant argues the evidence is insufficient to support her conviction. We reverse the trial court's judgment and render judgment of acquittal. In April 2008, appellant signed a contract with general contractor Gary Bailey for Bailey's services in finishing out office space for appellant's window tinting business. Appellant agreed to pay a $1000 deposit and the remaining balance of $47,521 when Bailey completed the work and obtained a certificate of occupancy. Appellant's landlord was to pay part of the remaining balance. Appellant wrote Bailey a $1657 check for the deposit, and Bailey deposited the check and began the process of getting a building permit from the City of Frisco. It took forty-five days to obtain the building permit, and Bailey continued to finish out the office space. Approximately one week before the work was completed, Bailey contacted appellant and said he would have the certificate of occupancy the following week. Appellant assured Bailey she would pay the remaining balance due under the contract at that time. On July 14, 2008, after Bailey finished the work and obtained a certificate of occupancy from the City of Frisco, he met with appellant and her husband. Appellant wrote two checks to Bailey: a check for $32,040 representing the landlord's portion of the costs and a check for $15,871 representing appellant's portion. Appellant told Bailey that the money had been electronically transferred and was available that day. However, when Bailey went to his bank, the same bank on which appellant's checks were drawn, the branch manager said the checks would not clear. Bailey contacted appellant's husband, who stated "The check was good." Bailey returned to the bank, but there were still insufficient funds to cover the checks. On July 29, 2008, Bailey deposited the checks, and both were returned marked insufficient funds. Bailey sent appellant a demand letter and referred the case to the Collin County District Attorney's office. In the meantime, Bailey contacted appellant's landlord and obtained a $29,000 payment in exchange for releasing his claim to the $32,040 check. In October, appellant signed an agreement with the D.A.'s office to pay restitution and admitted she knew when she issued the $15,000 check that she did not have sufficient funds to cover it. Appellant paid approximately $7600 in restitution before she stopped making payments. Appellant was indicted for theft of service by securing performance of the service by deception. At trial, the evidence showed appellant's bank balance on May 31, 2008 was $1870.59, and at no time between June and September 2008 was appellant's balance over $15,000. Appellant testified she did not have $15,000 in August through December 2008. Appellant testified she wrote the checks to Bailey to make him "feel at ease that we were going to be working to get funds for him," but she never intended for Bailey to deposit the checks. Appellant testified Bailey was to hold the checks until they could be replaced with other funds four to six weeks later, but she never had the money to pay Bailey. Appellant testified Bailey "knew the check was not good." A jury convicted appellant of theft of service, and this appeal followed. In a single point of error, appellant argues the evidence is legally and factually insufficient to support her conviction. Specifically, appellant argues the evidence does not show she secured services with an insufficient funds check but rather wrote an insufficient funds checks for services already rendered. The court of criminal appeals held in Brooks v. State that the legal-sufficiency standard of Jackson v. Virginia, 443 U.S. 307 (1979), is now "the only standard that a reviewing court should apply in determining whether evidence is sufficient to support each element of a criminal offense." Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We will therefore address appellant's legal sufficiency challenge only. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). Appellant was indicted under section 31.04(a)(1) of the penal code, which provides a person commits the offense of theft of service if she knows the service is provided only for compensation, intends to avoid paying for the service, and knowingly secures performance of the service by deception. Tex. Penal Code Ann. § 31.04(a)(1) (West 2011). Deception is defined as, among other things, failing to correct a false impression of fact that the defendant previously created, and that the defendant does not now believe to be true and promising performance that the actor does not intend to perform or knows will not be performed (as long as there is some evidence besides mere failure to perform to show that the defendant knew the promise would not be performed). Tex. Penal Code Ann. § 31.01(1)(B) (E) (West 2011). The indictment in this case described appellant's offense as follows:
[B]y deception, threat, or false token: to wit: by issuing and passing a check, when the defendant did not have sufficient funds in and on deposit with the bank for the payment in full of the check as well as other checks then outstanding, intentionally and knowingly secure performance of a service, namely, construction services, of the value of at least Fifteen Hundred Dollars ($1,500.00) but less than Twenty Thousand Dollars ($20,000.00) from Gary Bailey, intending to avoid payment for the service and knowing that the service was provided only for compensation.We note all definitions of deception, except one not relevant here, require that the deception "affect the judgment of another in the transaction." Tex. Penal Code Ann. § 31.01(1)(A)-(E) (West 2011). Any deception that occurs after the other person has completed performance of the service allegedly stolen would not meet this requirement: once the other person has completed performance of his obligations in the transaction, any later deception would be incapable of affecting retrospectively his judgment in what he has already completed. Cortez v. State, 582 S.W.2d 119, 120-21 (Tex. Crim. App. 1979); see also Gibson v. State, 623 S.W.2d 324, 329-31 (Tex. Crim. App. 1981) (op. on reh'g). The State cites Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) in its attempt to distinguish Gibson and Cortez. In Gollihar, the court held that the hypothetically correct jury charge by which we measure the sufficiency of the evidence need not incorporate allegations that give rise to immaterial variances. Gollihar, 46 S.W.3d at 253-256; Cada v. State, 334 S.W.3d 766, 773 (Tex. Crim. App. 2011). The focus of the inquiry under Gollihar is upon the elements of the offense. Cada, 334 S.W.3d at 773. Before something may be an element of the offense in the hypothetically correct jury charge, it must be authorized by the indictment. Id. And the sufficiency of the evidence is measured by the specific alternative elements the State has alleged in the indictment. Id. at 773-74. The Texas "immaterial variance" law as set out in Gollihar does not apply to the specific statutory elements alleged in the indictment. Id. at 774. Thus, we measure the sufficiency of the evidence in this case by the specific allegations in the indictment. Id. at 773-74. Here, the record shows appellant contracted for Bailey's services and paid a deposit of $1657 with a valid check. Appellant promised to pay the remaining balance due upon Bailey's completion of the work. The record shows the work was completed when appellant met with Bailey to pay the balance due under the contract and gave Bailey the checks without sufficient funds on deposit to pay the checks. Thus, any deception committed "by issuing and passing a check, when the defendant did not have sufficient funds in and on deposit," as alleged in the indictment, was incapable of affecting Bailey's judgment with regard to the construction services he had already completed. See Gibson, 623 S.W.2d at 324; Cortez, 582 S.W.2d at 120-21. Accordingly, the evidence was insufficient to support appellant's conviction. See Brooks, 323 S.W.3d at 895; Gibson, 623 S.W.2d at 324; Cortez, 582 S.W.2d at 120-21. We sustain appellant's sole point of error. We reverse the trial court's judgment and render judgment of acquittal.