Opinion
No. 05-05-00047-CR
Opinion Filed December 13, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 5, Collin County, Texas, Trial Court Cause No. 005-82731-04. Reverse and Render.
Before Justices WHITTINGTON, WRIGHT, and MAZZANT.
OPINION
Jamie Johnson appeals her conviction for theft of services. After the trial court found her guilty, it assessed punishment at confinement for one year, probated for two years. In four issues, appellant contends the evidence is legally and factually insufficient to support her conviction. Because we conclude the evidence is legally insufficient to show appellant secured day care services by deception, threat, or false token, we reverse the trial court's judgment and render a judgment of acquittal. When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. Id. The State alleged in its information that appellant knowingly and intentionally secured child care services by deception, threat, or false token. At trial, the State relied on two returned checks to prove deception, threat, or false token. Thus, the State must show that presenting the complained — of checks secured performance of future child care services. See Cortez v. State, 582 S.W.2d 119, 120-21 (Tex.Crim.App. 1979) (deception must be such as is likely to affect the judgment of another and any deception that occurs after the other person has completed performance of the service allegedly stolen would not meet this requirement). After reviewing the record, we cannot conclude the State met its burden. Matthew Cloutier testified that he is the owner of Kids R Kids Childcare Center where appellant's children were enrolled. Cloutier identified two checks he received from appellant: check number 2538, issued on April 30, 2003 in the amount of $500 and check number 2600, issued on June 20, 2003 in the amount of $800. Both checks were presented to Cloutier for payment of child care services, and both were later returned for insufficient funds. Cloutier explained that the services at Kids R Kids were billed weekly, due in advance. However, Cloutier testified that throughout the time appellant's children were at Kids R Kids, appellant would not pay her account on a weekly basis and her account was in arrears. Cloutier explained that although he and appellant never expressly talked about it, appellant had Cloutier's "implied" consent to have child care services rendered without payment in advance and "the children were welcome as long as [Cloutier] knew that maybe she was making an attempt to pay for the services." On cross-examination, Cloutier agreed the account statement indicated that throughout their relationship, Cloutier extended appellant credit for child care services. The account statement supports Cloutier's testimony and shows appellant did not pay in advance for child care services, but rather made periodic payments that were applied to an outstanding balance. On April 30, 2003, the date check number 2538 in the amount of $500 was issued, appellant had an outstanding balance of $1,106.45-leaving a balance of $606.45 after the check was applied. On June 20, 2003, the date check number 2600 in the amount of $800 was issued, appellant had an outstanding balance of $48.50. However, the account statement does not show that check number 2600 was ever in any way recorded or applied to appellant's account. In fact, check number 2600 was not presented for payment until August 13, 2003, after appellant stopped using Kids R Kids for daycare. At the time Kids R Kids chose to present the complained of check, appellant had an outstanding balance of $1406.55. Finally, appellant's account statement shows that between June 20th, when she issued check number 2600 and August 13th, when Kids R Kids presented it for payment, appellant made several payments on her outstanding balance with checks in the amount of $490, $600, and $220, all of which apparently cleared. She also made a cash payment of $300 during that period of time. Appellant testified that when she began taking her children to Kids R Kids, she explained to the director, Cindy L. Harris, that because she was paid every two weeks, she would not be able to pay in full every week. Harris told appellant it would be okay to pay every two weeks. During the summer of 2003, appellant's son became ill and was hospitalized for a week, and later had ear surgery. Appellant had to have surgery that summer as well. As a result, appellant had a lot of medical bills and was unable to meet her financial obligations. She accumulated a large outstanding balance at Kids R Kids. Shortly before she stopped taking her children to Kids R Kids, Cloutier called her and told her unless she was able to pay her account in full every week, the children could not continue to attend. Because she was unable to pay her account in full every week, she stopped taking her children to Kids R Kids. With respect to the checks relied on by the State to support appellant's conviction, appellant explained that she received a letter from Kids R Kids informing her she must pay her account in full because check number 2537 in the amount of $1000 had been returned by the bank and Kids R Kids was concerned check number 2538 would not clear. In fact, check number 2538 did not clear, and in response to the letter, appellant gave Kids R Kids two cashiers checks, one in the amount of $500 and one in the amount of $1650 to bring her account current. The account statement shows receipt of the two cashiers checks. Appellant did not retrieve the checks from Kids R Kids because she thought if she "made it good," she did not need them back. Appellant also testified that she thought she had paid check number 2600 after it was returned. Even viewed in the light most favorable to the verdict, the evidence fails to show that appellant knowingly and intentionally secured future child care services by deception, threat, or false token by presenting check numbers 2538 and 2600. Although Cloutier testified the general policy of Kids R Kids may have been to require payment in advance, appellant had Cloutier's consent to have child care services rendered without payment in advance. At the time the complained-of checks were presented for payment by Kids R Kids, appellant had an outstanding balance for child care services that had already been completed. Check number 2538 was applied to appellant's outstanding balance. Although check number 2600 did not clear, appellant was no longer utilizing Kids R Kids and she had an outstanding balance remaining. Thus, we can only conclude Kids R Kids attempted to cash check number 2600 in order to apply it to appellant's outstanding balance. Thus, contrary to the State's assertion, the evidence shows appellant presented the complained-of checks not to "secure" future child care services, but rather to pay a debt for services that had already been rendered. Consequently, the evidence is legally insufficient to support appellant's conviction for theft of services. See Cortez, 582 S.W.2d at 120-21 (check given after completion of tinting of plate glass windows could not have affected judgment of the complaining witness in delivery of services); Gibson v. State, 623 S.W.2d 324, 325 (Tex.Crim.App. 1980) (check presented to hotel for services previously rendered). We sustain appellant's first issue. In light of our disposition of appellant's first issue, we need not address appellant's remaining issues. Accordingly, we reverse the trial court's judgment and render a judgment of acquittal.
Although the State charged appellant with theft of services, the judgment shows appellant was convicted of " THEFT BY CHECK committed on the 30th day of APRIL, 2003, as charged in the Information." However, at trial, the trial judge orally pronounced appellant was "guilty of the offense of theft of services."
Specifically, the information alleged appellant:
Knowingly and intentionally by deception, threat, and false token secure[d] performance of a service Namely; CHILD CARE from Matthew Cloutier of the value of at least Five Hundred Dollars ($500.00) but less than Fifteen Hundred Dollars ($1500.00) with intent to avoid payment for the service and knowing that the service provided by Matthew Cloutier only for compensation [sic],
DATE APPROPRIATED OWNER
PROPERTY AMOUNT
April 30, 2003 Matthew Cloutier child care $500 or more but less than $1500
July 20, 2003 Matthew Cloutier child care $500 or more but less than $1500
And all of the said amounts were appropriated, as alleged in one scheme and continuing course of conduct and the aggregate amount of the property appropriated is more than Five [sic] Dollars ($500.00), but Less than Fifteen Hundred Dollars ($1500.00).