No. 14-08-00538-CR
Memorandum Opinion filed September 17, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the County Criminal Court at Law No. 7 Harris County, Texas, Trial Court Cause No. 1398072.
Panel consists of Chief Justice HEDGES and Justices YATES and FROST.
KENT C. SULLIVAN, Justice.
Appellant, Gerry Dwayne Dickews, appeals his conviction for theft. In two issues, appellant challenges the legal and factual sufficiency of the evidence to show intent. We affirm.
The trial court's judgment is styled "The State of Texas v. Gerry Dwayne Dickews." The clerk's record and reporter's record use the names "Gerry Dwayne Dickews aka Gerry D. Dickens." Both appellant's and the State's briefs are styled, "Gerry D. Dickens v. State." For purposes of this appeal, we will use the name the trial court used in its judgment.
I. Background
On August 29, 2004, appellant wrote a check in the amount of $933 for the purchase of clothes and shoes from the Lakeside Country Club tennis shop. The check was a temporary check written on the account of R G Acceptance Corporation. The Lakeside accounting department attempted to deposit the check, but it was returned with the notation, "Account Closed." The director of the tennis shop called the telephone number listed on the check, but was unable to speak with the person who had written the check. On October 14, 2004, a certified letter was sent to the address on the check demanding payment within 10 days. The return receipt for the letter was signed by Evan Lively. Appellant never paid for the clothes and shoes purchased. Mary Dorsey, an administrative assistant at JP Morgan Chase bank, testified that appellant opened a business account in the name of R G Acceptance Corporation on June 26, 2004, with an opening balance of $1500. On August 6, 2004, Chase closed the account because a negative balance had been maintained on the account for more than one month. At the time the account was closed it carried a negative balance of $1395.75. During the previous month appellant attempted to make deposits to the account, but the checks appellant attempted to deposit into the account were written on accounts with insufficient funds. Appellant was convicted of misdemeanor theft and sentenced to 90 days in the Harris County Jail. II. Legal and Factual Sufficiency
In two issues appellant challenges the legal and factual sufficiency of the evidence to support his conviction. In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and of the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). In evaluating the factual sufficiency of the evidence, we view all the evidence in a neutral light and will set aside the verdict only if we are able to say, with some objective basis in the record, that the conviction is clearly wrong or manifestly unjust because the great weight and preponderance of the evidence contradicts the jury's verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). We do not intrude upon the fact-finder's role as the sole judge of the weight and credibility of witness testimony. See id. at 417; Fuentes, 991 S.W.2d at 271. A person commits the offense of theft when he unlawfully appropriates another person's property with the intent to deprive the owner of that property. TEX. PENAL CODE ANN. § 31.03(a) (Vernon Supp. 2008). It is prima facie evidence that an accused intended to permanently deprive the owner of the property at issue (1) if the accused purchased the property with a check written on a closed account, or (2) payment was refused by the bank or other drawee for lack of funds or insufficient funds, on presentation within 30 days after issue, and the issuer failed to pay the holder in full within 10 days after receiving notice of that refusal. TEX. PENAL CODE ANN. § 31.06(a) (Vernon Supp. 2008); see also Thompson v. State, 89 S.W.3d 843, 849 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd). Appellant contends that he overcame the statutory presumption because the State failed to prove that he received notice of the bank's refusal to honor the check. He further asserts that he had no notice that the checks he attempted to deposit had been returned. Appellant fails, however, to rebut the presumption of intent when a check is written on a closed account. The bank notified appellant 23 days before he wrote the check, on August 6, 2004, that the account had been closed. Appellant was the only individual authorized to sign on the account. There was no evidence that appellant failed to receive notice of the account's closure. Having reviewed the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant intended to permanently deprive Lakeside Country Club of the clothing and shoes. We have further reviewed the evidence in a neutral light, and find no objective basis in the record to determine that the jury's verdict was clearly wrong or manifestly unjust because it was contradicted by the great weight and preponderance of the evidence. We therefore overrule appellant's first and second issues. The judgment of the trial court is affirmed.