Opinion
No. 05-18-00708-CR
05-30-2019
SADUMAN K. GURBUZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 401st Judicial District Court Collin County, Texas
Trial Court Cause No. 401-82278-2013
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Reichek
Opinion by Justice Osborne
Saduman K. Gurbuz appeals the trial court's final judgment convicting her of theft of property valued at $1,500 or more but less than $20,000. The jury found Gurbuz guilty. The trial court assessed her punishment at two years of confinement, but suspended the imposition of confinement and placed Gurbuz on community supervision for five years. Also, the trial court assessed a fine in the amount of $500 and ordered Gurbuz to pay restitution to the "victim" in the amount of $7,500. In her sole issue on appeal, Gurbuz argues the evidence is insufficient to support her conviction because of a "fatal variance" between the evidence at trial and the allegations in the indictment. We conclude the asserted variance in this case is not material and does not render the evidence insufficient to support Gurbuz's conviction. The trial court's final judgment is affirmed.
At the time of the offense, section 31.03(e)(4)(A) of the Texas Penal Code provided that an offense under that section was a state jail felony if the value of the property stolen was $1,500 or more but less than $20,000. Act of May 13, 2009, 81st Leg., R.S., ch. 139, § 1, 2009 Tex. Gen. Laws 461, 462 (amended 2015) (current version at TEX. PENAL CODE ANN. § 31.03(e)). In 2015, section 31.03(e)(4) was amended and now states an offense under section 31.03 is a state jail felony if the value of the property stolen is $2,500 or more but less than $30,000. TEX. PENAL CODE ANN. § 31.03(e)(4)(A). Gurbuz was indicted and convicted under the statute in effect at the time of the offense.
I. FACTUAL AND PROCEDURAL CONTEXT
Toward the end of the 1970s, the Turkish American Association of North Texas, Inc., a/k/a TURANT, was founded for the purpose of increasing, improving, and promoting public knowledge and understanding of the Turkish culture among the Turkish communities as well as to provide humanitarian assistance. Around 1990, TURANT, a non-profit corporation, obtained "501 charity" status. TURANT used a bank account established at Bank One, which merged with Chase in 2004. The president and treasurer had the ability to write checks from the Chase account. After providing the treasurer with receipts, officers and members were reimbursed for TURANT expenses they incurred.
In 2008, Gurbuz was elected president of TURANT. On May 12, 2008, Gurbuz opened a second account on behalf of TURANT at Bank of America. The signature card for the Bank of America account lists Gurbuz as the "director" and gives her exclusive access to that account. The address provided for TURANT was a post office box and, as president of TURANT, Gurbuz had the key to that box. Some of the other TURANT officers later claimed they had no knowledge of the Bank of America account.
In February 2009, the Turkish Coalition of America (TCA) awarded a $10,000 grant (grant money) to TURANT for the benefit of Ahiska (Meskhetian) Turks. Ahiska Turks are Muslims from the Meskheti area of Georgia. They were deported in the mid-1940s by Joseph Stalin but have since faced resettlement issues in various other countries and regions. Around 2004, the United States began accepting Ahiska Turks as refugees. On February 25, 2009, the TCA issued to TURANT a check for the grant money. Gurbuz deposited the grant money check in TURANT's Bank of America account on March 6, 2009. Within days after depositing the grant money, Gurbuz wrote three checks payable to her husband, Ergin Gurbuz, as follows: (1) March 9, 2009, in the amount of $5,000; (2) March 13, 2009, in the amount of $1,000; and (3) March 19, 2009, in the amount of $1,500. Gurbuz wrote "loan" on the memo line for each of those checks.
A TURANT member became concerned about TURANT, in particular the use of the grant money. In the spring of 2012, that TURANT member contacted the Plano Police Department regarding his concerns. Detective Brenda Speaker investigated the case. During her investigation, Detective Speaker did not speak with anyone on the TURANT board who knew the Bank of America account existed. Also, Detective Speaker interviewed an Ahiska Turk who told her that Gubuz had offered him $2,000 if he and the other Ahiska Turks signed a document confirming they received the full $10,000 of the grant money. The Ahiska Turk stated that he had refused Gurbuz's offer.
Gurbuz was indicted for theft of property valued at $1,500 or more but less than $20,000. Gurbuz's defensive theory at trial was that she had loaned money to TURANT, her withdrawals were actually loan repayments, and she was still owed a substantial amount of money from TURANT. After a trial, the jury found her guilty of the offense. The trial court assessed her punishment at two years of confinement, but suspended the imposition of confinement and placed Gurbuz on community supervision for five years. Also, the trial court assessed a fine in the amount of $500 and ordered her to pay restitution to the "victim" in the amount of $7,500.
II. VARIANCE BETWEEN EVIDENCE AND ALLEGATIONS
In one issue, Gurbuz argues the evidence is insufficient to support her conviction because there was a fatal variance between the evidence presented at trial and the allegations in the indictment. She contends that she was indicted for the theft of grant money from the TCA and TURANT, two separate entities, but the State presented evidence of theft from only TURANT. Gurbuz claims there is no evidence that the TCA was the owner of the grant money. The State responds that under a hypothetically correct jury charge, the jury was required to find only that the TCA or TURANT was the owner of the property. The State maintains that the evidence was sufficient for the jury to find TURANT was the owner of the grant money. Also, the State contends that there was sufficient evidence for the jury to find that the TCA was an owner because the TCA had a greater right to possession of the grant money than Gurbuz.
A. Standard of Review
In cases involving sufficiency claims based on a variance between the indictment and the evidence, rather than reviewing the evidence based under the traditional sufficiency standards, appellate courts consider the materiality of the variance. See Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002); see also Johnson v. State, No. 05-16-00195-CR, 2017 WL 769874, at *2 (Tex. App.—Dallas Feb. 28, 2017, no pet.) (mem. op., not designated for publication). The bottom line is that, in a sufficiency review, appellate courts will tolerate variances as long as they are not so great that the proof at trial "shows an entirely different offense" than what was alleged in the charging instrument. See Johnson v. State, 364 S.W.3d 292, 295 (Tex. Crim. App. 2012) (discussing variances with respect to non-statutory allegation); see also Ramjattansingh v. State, 548 S.W.3d 540, 547 (Tex. Crim. App. 2018) (discussing variances with respect to statutory allegations).
B. Applicable Law
1. Theft
A person commits theft if he unlawfully appropriates property without the owner's consent and with the intent to deprive the owner of the property. See PENAL § 31.03(a), (b)(1); Byrd v. State, 336 S.W.3d 242, 250-51 (Tex. Crim. App. 2011). To appropriate property means "to acquire or otherwise exercise control over property other than real property," or to transfer "title to or other nonpossessory interest in" property to a person other than the property's owner. PENAL § 31.01(4). Appropriation is unlawful if it is without the owner's effective consent. PENAL § 31.03(b)(1); Byrd, 336 S.W.3d at 251. An "owner" is "a person who . . . has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor." PENAL § 1.07(a)(35)(A); Byrd, 336 S.W.3d at 251.
While the existence of a specific owner is an element of the offense, his name is not. See Byrd, 336 S.W.3d at 251-52. However, the Texas Code of Criminal Procedure requires the State to allege the name of the owner of the property in the charging instrument. See TEX. CODE CRIM. PROC. ANN. art. 21.08; Byrd, 336 S.W.3d at 251.
2. Variance
Variances are mistakes of one sort or another. See Byrd, 336 S.W.3d at 246. A "variance" occurs when "there is a discrepancy between the allegations in the charging instrument and the proof at trial." See, e.g., id.; Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). "In a variance situation, the State has proven the defendant guilty of a crime, but has proven its commission in a manner that varies from the allegations in the charging instrument." Gollihar, 46 S.W.3d at 246. The Texas Court of Criminal Appeals has recognized three different categories of variance:
(1) a statutory allegation that defines the offense; not subject to materiality analysis, or, if it is, is always material; the hypothetically correct jury charge will always include the statutory allegations in the indictment;Ramjattansingh, 548 S.W.3d at 547. A variance with respect to the name of the owner of the stolen property in a theft prosecution is the second type of variance. See Johnson, 364 S.W.3d at 295; Byrd, 336 S.W.3d at 244, 255-58.
(2) a non-statutory allegation that is descriptive of an element of the offense that defines or helps define the allowable unit of prosecution; sometimes material; the hypothetically correct jury charge will sometimes include the non-statutory allegations in the indictment and sometimes not;
(3) a non-statutory allegation that has nothing to do with the allowable unit of prosecution; never material; the hypothetically correct jury charge will never include the non-statutory allegations in the indictment.
However, only a "material" variance, one that prejudices a defendant's substantial rights, will render the evidence insufficient. See, e.g., Ramjattansingh, 548 S.W.3d at 547; Gollihar, 46 S.W.3d at 257; see also TEX. R. APP. P. 44.2(b) ("Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded."). A variance is material if it: (1) deprived the defendant of sufficient notice of the charges against him; or (2) would subject him to the risk of being prosecuted twice for the same crime. See, e.g., Ramjattansingh, 548 S.W.3d at 547; Fuller, 73 S.W.3d at 253; Gollihar, 46 S.W.3d at 257; see also Johnson, 2017 WL 769874, at *2. The burden of demonstrating the materiality of a variance rests with the defendant. See Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001); see also Johnson, 2017 WL 769874, at *2.
C. Application of the Law to the Facts
We note that Gurbuz does not raise a traditional challenge to the sufficiency of the evidence to support her conviction. Instead, she claims there was a "fatal variance" between the allegations in the indictment and the proof at trial, which rendered the evidence insufficient. Specifically, Gurbuz argues that the State was required to prove that both the TCA and TURANT were owners of the stolen property and the State failed to prove that the TCA was an owner of the property. Assuming, without deciding, that there was a variance as Gubuz alleges, she must establish that the alleged variance was a material variance that prejudiced her substantial rights. See, e.g., Ramjattansingh, 548 S.W.3d at 547; Gollihar, 46 S.W.3d at 257; see also TEX. R. APP. P. 44.2(b). However, Gurbuz's argument does not comport with the standard against which we determine whether a variance is material. Although Gurbuz has the burden to demonstrate that the alleged variance was material, she does not argue that she lacked notice of the charges against her such that she could not prepare an adequate defense or that she could be subject to the risk of being prosecuted twice for the same offense. See, e.g., Ramjattansingh, 548 S.W.3d at 547; Fuller, 73 S.W.3d at 253; Gollihar, 46 S.W.3d at 257; see also Johnson, 2017 WL 769874, at *2.
Although the record shows that both the indictment and the trial court's jury charge referred to the TCA and TURANT as owners of the stolen property in the conjunctive, it also shows that Gurbuz was not surprised by the alleged variance and her defense was not prejudiced by the State's alleged failure to prove the TCA was also the owner of the stolen property. A copy of the TCA's check to TURANT transferring the grant money was admitted into evidence, as were the bank statements for the Bank of America account where that check was deposited. During closing argument, Gurbuz's counsel focused on the conjunctive nature of the ownership of the stolen property in the jury charge, arguing:
I'm going to focus on the most single important issue in this case, and it's this, and it comes from your jury charge. They are alleging that $1500 or more but less than 20,000 was taken from the [TCA] "and" [] TURANT. And the word "and" I've highlighted for you. You will find it in both paragraphs, with this one and with Mr. Gurbuz, the money to him. "And" means plus. It means both. They have to show that she stole that money. They have to show that she stole from the [TCA] and from TURANT. I don't know what trial you've been watching. I have seen no evidence in this case that shows that she stole anything from the [TCA]. In fact, State's Exhibit 4-A is the award of the grant. "You're getting this money."The State also addressed the ownership of the stolen money in its closing argument, stating:
. . . .
But what they're saying is that by her misappropriating money or by her putting money in her account for TURANT, that somehow that is theft from the [TCA]. "And," "and." They have to prove both.
The check we are looking at from TCA-which let me just say this right here. The check itself describes that this is a theft from the [TCA] because it's written from [the TCA], to TURANT, and what it's for.
We conclude the asserted variance in this case is not material and does not render the evidence insufficient to support Gurbuz's conviction. Gurbuz makes no argument that the alleged variance was material because she lacked notice of the charges against her such that she was unable to prepare a defense or the variance could subject her to the risk of being prosecuted twice for the same offense. Rather, the record shows that Gurbuz was fully aware that the ownership of the stolen property had been charged in the conjunctive and made it a key part of her defense. Accordingly, even if we accept Gurbuz's argument that the State was required and failed to prove that the TCA was also the owner of the stolen property, Gurbuz has not met her burden of demonstrating the materiality of the alleged variance.
Issue one is decided against Gurbuz.
III. CONCLUSION
The asserted variance in this case is not material and does not render the evidence insufficient to support Gurbuz's conviction.
The trial court's final judgment is affirmed.
/Leslie Osborne/
LESLIE OSBORNE
JUSTICE Do Not Publish
TEX. R. APP. P. 47 180708F.U05
JUDGMENT
SADUMAN K GURBUZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 401st Judicial District Court, Collin County, Texas
Trial Court Cause No. 401-82278-2013.
Opinion delivered by Justice Osborne. Justices Schenck and Reichek participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 30th day of May, 2019.