Opinion issued November 16, 2006=20
In The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
01-04-00713-CR
EDWARD =
CHRISTENSEN, Appellant
V.
THE =
STATE OF=20
TEXAS, Appellee
On =
Appeal from the=20
337th District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 971063
DISSENTING=20
OPINION
<=
/SPAN>Because=20
the majority errs in concluding that the evidence is legally =
sufficient to=20
support the conviction of appellant, Edward Christensen, of the =
state jail=20
felony offense of theft by deception as a party and in overruling =
his=20
first issue, I respectfully dissent.
<=
/SPAN>I=20
agree with the majority that because appellant never had any =
contact with=20
any of the complainants, =E2=80=9C[h]is guilt, if any, is only as =
a party=E2=80=9D to the=20
offense of theft by deception. Here, however, there is no evidence =
that=20
appellant, acting with intent to promote or assist the commission =
of the=20
offense of theft by deception, did in fact solicit, encourage, =
direct, aid=20
or attempt to aid another person to commit the =
offense.
See Tex. Pen. Code Ann. =C2=A7 7.02(a)(2) =
(Vernon 2003).=20
Nor is there any evidence that appellant, acting with the kind of=20
culpability required for the offense of theft by deception, did in =
fact=20
cause or aid an innocent or non-responsible person to engage in =
conduct=20
prohibited by the definition of the offense. See id. =
7.02(a)(1).=20
<=
/SPAN>The=20
Texas Penal Code provides that a person commits the offense of =
theft if he=20
=E2=80=9Cunlawfully appropriates property with intent to deprive =
the owner of=20
property.=E2=80=9D Id. =C2=A7=20
31.03(a) (Vernon Supp. 2005). Appropriation of property is =
unlawful if =E2=80=9Cit=20
is without the owner=E2=80=99s effective consent.=E2=80=9D Id. =C2=A7 31.03(b)(1). =
Consent is not=20
effective if =E2=80=9Cinduced by deception.=E2=80=9D Id. =
=C2=A7 31.01(3)(A) (Vernon=20
Supp. 2005). =E2=80=9CDeception=E2=80=9D means:
(A) creating or confirming by words or =
conduct a=20
false impression of law or fact that is likely to affect the =
judgment of=20
another in the transaction, and that the actor does not believe to =
be=20
true; or
<=
/SPAN>.=20
. . .
(E) promising performance that is likely =
to affect=20
the judgment of another in the transaction and that the actor does =
not=20
intend to perform or knows will not be performed, except that =
failure to=20
perform the promise in issue without other evidence of intent or =
knowledge=20
is not sufficient proof that the actor did not intend to perform =
of knew=20
the promise would not be performed.
Id. =C2=A7 31.01(1)(A),(E). =
Moreover, a person=20
acts intentionally or with intent =E2=80=9Cwith respect to the =
nature of his=20
conduct or to a result of his conduct when it is his conscious =
objective=20
or desire to engage in the conduct or cause the result.=E2=80=9D =
Id. =C2=A7=20
6.03(a) (Vernon 2003). In theft cases, the =E2=80=9C[r]elevant =
intent to deprive=20
the owner of property is the accused=E2=80=99s intent at the time =
of the taking.=E2=80=9D=20
Wilson v. State, 663 S.W.2d 834, 836=E2=80=9337 (Tex. Crim. =
App. 1984).=20
<=
/SPAN>In=20
its charge to the jury, the trial court appropriately tracked the =
language=20
of the above statutory provisions, and the State had the burden to =
show=20
that appellant actually intended that the consent of the =
complainants in=20
this case be induced by deception as defined above. =
<=
/SPAN>The=20
State argues that the evidence is legally and factually sufficient =
to=20
support appellant=E2=80=99s conviction for the offense of theft by =
deception=20
because =E2=80=9Cappellant induced others to gain money for [the =
Harris County=20
Deputies=E2=80=99 Organization (=E2=80=9CHCDO=E2=80=9D)] by =
soliciting donations on behalf of the=20
Toys for Tots program (1) when those donations were not intended =
to be=20
provided to=E2=80=94and were not provided to=E2=80=94the Toys for =
Tots program, (2) when=20
those donations would not have been provided had it not been =
represented=20
that the donations were being made on behalf of the Toys for Tots =
program,=20
and (3) when those donations were in fact not provided to the Toys =
for=20
Tots program, but were instead used to pay stipends to the =
appellant and=20
other members of the Board of the HCDO.=E2=80=9D =
<=
/SPAN>In=20
support of this argument, the State relies exclusively on the =
following=20
letter signed by appellant:
<=
/SPAN>Dear=20
Friend,
On behalf of the Harris County =
Deputies=E2=80=99=20
Organization, please let me Personally thank you for your =
generous=20
support.
Every year at this time the Harris =
County=20
Deputies=E2=80=99 Organization lends A helping hand of support =
to the =E2=80=9C TOYS FOR TOTS =
=E2=80=9C program.. This Program=20
provides toys for children of families who cannot afford to do So, =
and to=20
those children who have no family. Just knowing that there Is a =
light at=20
the end of the tunnel gives hope to these children year after =
Year. Let us=20
all as a community give what we can in order to bring Some Joy and =
Laughter into the lives of those who are less fortunate Than=20
others.
Once Again I would like to thank you for =
your=20
generous support and Cooperation. It is only through such =
assistance that=20
we can carry on.
Sincerely,
[Signature]
Ed Christensen, =
President
Harris County Deputies=E2=80=99=20
Organization
(Errors in original.) The State asserts =
that, by=20
signing the letter, =E2=80=9Cappellant approved the telephone =
solicitation or=20
marketing of individuals to donate money to the HCDO on behalf of =
the Toys=20
for Tots program.=E2=80=9D
<=
/SPAN>The=20
State contends that =E2=80=9Cthe letter authorized and signed by =
appellant was to=20
induce donations to the HCDO on behalf of the Toys for Tots =
program when=20
in fact it was clear that those donations would not be provided to =
the=20
Toys for Tots program.=E2=80=9D The majority agrees that =
=E2=80=9Cat least part of the=20
correspondence was a solicitation for donations to Toys for =
Tots.=E2=80=9D=20
However, the very first sentence of the letter expressly indicates =
that it=20
is in fact a thank you letter for donations already received by =
the HCDO.=20
After thanking the addressee for their support, the letter goes on =
to note=20
that the HCDO =E2=80=9Clends A helping hand of support=E2=80=9D to =
the program.=20
<=
/SPAN>The=20
distinction here is critical. Again, the State had the burden to =
prove, at=20
the time of the taking of the complainant=E2=80=99s money, either =
that appellant,=20
acting with intent to promote or assist the commission of the =
offense of=20
theft by deception, did in fact solicit, encourage, direct, aid or =
attempt=20
to aid another person to commit the offense, or, acting with the =
kind of=20
culpability required for the offense, did in fact cause or aid an =
innocent=20
or non-responsible person to engage in conduct prohibited by the=20
definition of the offense.
<=
/SPAN>The=20
majority notes that although Ron Kowalsky, the telemarketer hired =
to=20
solicit funds for the HCDO, =E2=80=9Ccould not recall the =
specifics=E2=80=9D of his=20
conversation with appellant about Toys for Tots, the solicitation =
was=20
consistent =E2=80=9Cwith Kowalsky=E2=80=99s general practice =
regarding telemarketing.=E2=80=9D=20
Here, the record reveals the following exchange:
[State]:Ed Christensen. Okay. Did you =
discuss the=20
Toys for Tots Program and solicitation with Mr. Christensen before =
you=20
began soliciting for that?
[Kowalsky]:I remember drafting a letter, =
putting a=20
letter in his mailbox to have it approved or disapproved.=20
After appellant signed the letter, =
Kowalsky began=20
telemarketing for the HCDO. Subsequently, he subcontracted with =
John=20
Merritt to solicit funds on behalf of the HCDO, and he gave the =
letter to=20
Merritt.
<=
/SPAN>However,=20
as noted by the majority, there is no evidence that appellant had =
any role=20
in the preparation or use of the scripts that were employed by the =
telemarketers. There is no evidence that he knew what the =
telemarketers=20
were representing to the complainants to obtain their money. For =
example,=20
there is no evidence that appellant knew that the telemarketers =
were=20
misrepresenting themselves as Harris County Sheriff=E2=80=99s =
Deputies and=20
specifically asking for donations for Toys for Tots and not the =
HCDO.=20
Also, as noted by the majority, Merritt had no contact with =
appellant or=20
anyone else at the HCDO, and he worked independently. =
Nevertheless,=20
because appellant signed the letter, and because Kowalsky =
=E2=80=9Cdiscussed the=20
Toys for Tots solicitation with appellant=E2=80=9D and appellant =
was =E2=80=9Cone of the=20
primary people who met with Kowalsky,=E2=80=9D the majority =
concludes there is=20
=E2=80=9Csome evidence that shows that appellant=E2=80=99s actions =
in signing the [letter]=20
served as the impetus for the organization=E2=80=99s telemarketing =
campaign for=20
Toys for Tots.=E2=80=9D
<=
/SPAN>Although=20
appellant=E2=80=99s signature on the letter may have been the =
impetus for the=20
telemarketing campaign, it cannot be inferred that, by signing the =
letter,=20
appellant, actually intended for Kowalsky or anyone else to make=20
misrepresentations to the complainants to obtain their money. The =
presence=20
of his signature on the letter does not support the inference that =
appellant, acting with intent to promote or assist the commission =
of the=20
offense of theft by deception, did in fact solicit, encourage, =
direct, aid=20
or attempt to aid another person to commit the offense. Nor can it =
be=20
inferred from his signature on the letter that appellant, acting =
with the=20
kind of culpability required for the offense of theft by =
deception, did in=20
fact cause or aid an innocent or non-responsible person to engage =
in=20
conduct prohibited by the definition of the offense. =
Kowalsky=E2=80=99s very=20
limited testimony about his dealings with appellant also does not =
support=20
any such inferences.
<=
/SPAN>Appellant=20
testified that Kowalsky was to raise funds for HCDO, and it should =
be=20
noted that Kowalsky himself did not testify that he ever informed=20
appellant that he would use the letter to raise money for Toys for =
Tots=20
and not the HCDO. The bottom line is that there is no evidence in =
the=20
record that appellant either used or encouraged Kowalsky or anyone =
else to=20
make misrepresentations to the complaints to obtain their money.=20
<=
/SPAN>The=20
majority concludes that the record =E2=80=9Cshows deception by =
appellant=E2=80=9D because=20
appellant, when confronted, initially =E2=80=9Cfeigned =
ignorance of the=20
Toys for Tots telemarketing by stating only that he would look =
into the=20
matter=E2=80=9D and later =E2=80=9Cfalsely =
represented=E2=80=9D to the HCDO board that=20
he had =
=E2=80=9Cinvestigated=20
Toys for Tots and anybody could raise money for Toys for =
Tots=E2=80=9D and that he=20
had =E2=80=9Ccontacted a Hispanic sergeant at the Marine Corps =
base who stated it=20
was okay.=E2=80=9D It should be noted that there is no evidence in =
the record that=20
appellant did not in fact investigate the program and talk to a =
sergeant=20
about it. More importantly, as noted above, in theft cases, =
the=20
deception must be directed at the complainants and the =
=E2=80=9C[r]elevant intent=20
to deprive the owner of property is the accused=E2=80=99s intent =
at the time of=20
the taking.=E2=80=9D Wilson, 663 S.W.2d at =
836=E2=80=9337 (emphasis added).=20
Here, again, there is no evidence in the record that appellant =
either used=20
or encouraged Kowalsky or anyone else to make misrepresentations =
to the=20
complaints to obtain their money.
=
Accordingly,=20
I would sustain appellant=E2=80=99s first issue, reverse the =
judgment of the trial=20
court, and render judgment of acquittal.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
Terry=20
Jennings
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
Justice
Panel consists of Justices Taft, =
Jennings and=20
Alcala.
Justice Jennings,=20
dissenting.
Publish. Tex. R. App. P.=20
=
47.2(b). |