Opinion issued April 30, 2020




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-19-00176-CR
                           ———————————
                  JOHN WILLIAM MITCHELL, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 412th District Court
                           Brazoria County, Texas
                       Trial Court Case No. 80226-CR


                         MEMORANDUM OPINION

      John William Mitchell was indicted for aggregate theft of property,

specifically, “money,” based on his unauthorized use of a company charge card for

personal expenses. See TEX. PENAL CODE §§ 31.03, 31.09. Mitchell was tried,

convicted, and sentenced to 12 months’ confinement. In two issues, Mitchell
contends there is legally insufficient evidence that he (1) unlawfully appropriated

“money” as alleged in the indictment and (2) intended to deprive the company of

“money” when he made the unauthorized charges.

      We affirm.

                                   Background

      This is a case of employment-related theft. In February 2016, Mitchell was

hired as a driver by Century Concrete Partners, Inc. (“the Company”). The

Company issued Mitchell a charge card to purchase diesel fuel for his company

vehicle. To receive the charge card, Mitchell had to sign an Employee Fuel Card

Agreement.

      Under the agreement, Mitchell was permitted to use the charge card for

nonfuel business expenses. But such expenses had to be pre-approved and

supported by a receipt. If Mitchell failed to obtain approval or submit a receipt for

a nonfuel business expense, the expense would be charged back to Mitchell “in full

by payroll deduction.” The agreement further provided that “under no

circumstances” could Mitchell use the charge card “to make personal purchases.”

The agreement warned that “[w]illful intent” to use the charge card for “personal

gain” would “result in disciplinary action up to and including termination of

employment and criminal prosecution.”




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      In September 2016, the Company reviewed Mitchell’s charge card account

and discovered a large number of non-diesel and nonfuel purchases that were made

when Mitchell was not on duty and at locations where the Company was not doing

work. The charges had occurred over the course of Mitchell’s seven-month

employment. (A representative of the Company admitted that during this time the

Company did a poor job of reconciling its drivers’ charge card accounts.) Mitchell

had not obtained pre-approval for these charges, and he had not submitted any

receipts for them either. Most of the unauthorized charges were made at a

particular service station located in Channelview, Texas, near Mitchell’s residence.

Many of them were made in round $50 increments with no sales tax.

      When confronted with the unauthorized charges, Mitchell admitted to

making personal purchases on his charge card, including filling up his personal

vehicle with unleaded gasoline on a few occasions. But Mitchell disagreed with the

total amount of unauthorized purchases claimed by the Company.

      The Company terminated Mitchell’s employment and reported the matter to

law enforcement, resulting in Mitchell’s indictment for aggregate theft. Mitchell

pleaded not guilty, and the case went to trial, where the State presented evidence

showing a total loss to the Company in the amount of $15,814.89.

      At the end of trial, the jury found Mitchell guilty, and the trial court

sentenced him to 12 months’ confinement. Mitchell appeals.


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                                  Legal Sufficiency

      In two issues, Mitchell contends there is legally insufficient evidence that he

(1) unlawfully appropriated “money” as alleged in the indictment and (2) intended

to deprive the Company of “money” when he made the unauthorized charges.

A.    Applicable law and standard of review

      A person commits the offense of theft if he unlawfully appropriates property

with intent to deprive the owner of it. TEX. PENAL CODE § 31.03(a). Appropriation

is unlawful if it is without the owner’s effective consent. Id. § 31.03(b)(1).

      In the employer-employee context, an unlawful appropriation occurs when

an employee exercises unauthorized control over property belonging to the

employer with intent to deprive the employer of that property. See

Freeman v. State, 707 S.W.2d 597, 605 (Tex. Crim. App. 1986); Newman v. State,

115 S.W.3d 118, 121 (Tex. App.—Texarkana 2003, no pet.). The line between

lawful and unlawful activity by an employee is therefore a question of the scope of

the employee’s authority. Freeman, 707 S.W.2d at 606.

      In a legal sufficiency review, we review the evidence in the light most

favorable to the verdict and ask whether any rational factfinder could have found

the elements of the charged offense beyond a reasonable doubt. Fernandez v. State,

479 S.W.3d 835, 837–38 (Tex. Crim. App. 2016). If a rational factfinder could

have so found, we will not disturb the verdict on appeal. Id. at 838.


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B.    Appropriation of “money”

      In his first issue, Mitchell contends that there is legally insufficient evidence

that he committed theft of “money” as alleged in the indictment. By presenting

evidence of his unauthorized use of the Company charge card, Mitchell contends,

the State showed that he unlawfully appropriated credit, not money, resulting in a

material variance between the allegations in the indictment and the proof at trial.

See Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001) (“A ‘variance’

occurs when there is a discrepancy between the allegations in the charging

instrument and the proof at trial.”). Because of this variance, Mitchell argues that

the evidence is insufficient to support his conviction. See id. at 247 (variance

claims are treated as legal sufficiency challenges). We disagree.

      We considered and rejected a nearly identical argument in Beatty v. State,

No. 01-08-00335-CR, 2010 WL 2133870 (Tex. App.—Houston [1st Dist.] May

27, 2010, pet. ref’d) (mem. op., not designated for publication). There, the director

of a small charity was convicted of aggregate theft based on his unauthorized use

of the charity’s credit cards for personal expenses. Id. at *1–5. On appeal, the

director argued that there was a material variance between the indictment, which

alleged that he stole “money,” and the evidence offered at trial, which showed that

he charged a large amount of personal expenses on the charity’s credit cards

without authorization and never paid the balance. Id. at *8. We rejected this


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argument, reasoning that the director’s use of the charity’s credit cards was simply

the instrument by which he stole the charity’s money to pay for his personal

expenses. Id.

      Beatty is directly on point. Like the director of the charity, Mitchell used the

Company’s charge card to pay for personal expenses without authorization. He

never paid, or attempted to pay, the balance. Mitchell’s use of the Company’s

charge card was the instrument by which he stole the Company’s money.

      Mitchell contends that the unauthorized purchases he made with the

Company charge card constitutes credit card abuse under Penal Code section

32.21(b)(1)(A). See TEX. PENAL CODE § 32.21(b)(1)(A) (“A person commits an

offense if . . . with intent to obtain a benefit fraudulently, he presents or uses a

credit card or debit card with knowledge that . . . the card, whether or not expired,

has not been issued to him and is not used with the effective consent of the

cardholder.”). Because his conduct constitutes credit card abuse, and because credit

card abuse is not theft, Mitchell argues that the evidence is insufficient to show he

also committed theft under Penal Code section 31.03. See id. § 31.03(a). We

disagree.

      As courts have recognized, conduct that violates section 32.21(b)(1)(A) and

thus constitutes credit card abuse also violates section 31.03 and thus constitutes

theft. See Rabb v. State, 681 S.W.2d 152, 154–55 (Tex. App.—Houston [14th


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Dist.] 1984, pet. ref’d) (“[T]he conduct specified in [the predecessor of section

32.21(b)(1)(A)] is clearly theft under Section 31.03.”); Garcia v. State, 669 S.W.2d

169, 171 (Tex. App.—Dallas 1984, pet. ref’d) (same). Thus, assuming without

deciding Mitchell is right that the evidence is sufficient to show he committed

credit card abuse under section 32.21(b)(1)(A), it follows that the evidence is

sufficient to show he also committed theft under section 31.03. Mitchell’s

argument is therefore self-defeating.

      Mitchell cites three cases to show that credit card abuse is not theft. See

Watson v. State, 923 S.W.2d 829, 834 (Tex. App.—Austin 1996, pet. ref’d);

Meshell v. State, 841 S.W.2d 895, 896 (Tex. App.—Corpus Christi 1992, no pet.);

Colquitt v. State, 650 S.W.2d 128, 128 (Tex. App.—Houston [14th Dist.] 1983, no

pet.). But these cases do not address whether evidence establishing credit card

abuse can (or cannot) also establish theft. Instead, they address whether a prior

conviction under the credit card abuse statute is the equivalent of a prior conviction

under the theft statute when determining whether a subsequent conviction is

subject to enhanced punishment. Watson, 923 S.W.2d at 834; Meshell, 841 S.W.2d

at 896; Colquitt, 650 S.W.2d at 128–29. They hold that it is not, since enhancement

under the circumstances of those cases depends on whether the defendant has been

previously convicted under a specific statute, not whether the defendant has

previously engaged in specific conduct. Watson, 923 S.W.2d at 834; Meshell, 841


                                          7
S.W.2d at 896; Colquitt, 650 S.W.2d at 129. The cases cited by Mitchell are

therefore inapposite. They do not support his argument that the evidence of his

unauthorized use of the Company charge card is insufficient to show he committed

the offense of theft.

      Regardless whether Mitchell’s conduct violated the more specific statute for

credit card abuse, the State had discretion to charge and prosecute him under the

more general statute for theft in this case. See Alejos v. State, 555 S.W.2d 444, 451

(Tex. Crim. App. 1977) (even though State could have prosecuted defendant for

either “evading arrest” or “fleeing or attempting to elude a police office,” State

“properly exercised its option” to prosecute defendant under former statute);

Garcia, 669 S.W.2d at 172 (“[T]he special statute of credit card abuse does not

control over the general theft statute in this case”).

      As a Company driver, Mitchell had a right to possess and, to a limited

extent, use the Company charge card for certain work-related purchases. But once

Mitchell decided to use the charge card for his own benefit, rather than the benefit

of the Company, his control over the charge card (and the money it represented)

was no longer consensual and he committed theft.

      Viewing all the evidence in the light most favorable to the verdict, a rational

trier of fact could have found Mitchell committed theft of “money” from the




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Company by means of a company issued charge card. We overrule Mitchell’s first

issue.

C.       Intent to deprive

         In his second issue, Mitchell contends that there is legally insufficient

evidence that he had the requisite “intent to deprive” the Company of money. TEX.

PENAL CODE § 31.03(a). The requisite specific intent to commit theft is a fact issue

for the jury, which can be inferred from the defendant’s conduct, his remarks, and

from the surrounding circumstances. See Robertson v. State, 871 S.W.2d 701, 705

(Tex. Crim. App. 1993); Ford v. State, 152 S.W.3d 752, 756 (Tex. App.—Houston

[1st Dist.] 2004, pet. ref’d); McCurdy v. State, 550 S.W.3d 331, 337 (Tex. App.—

Houston [14th Dist.] 2018, no pet.).

         In determining whether there is legally sufficient evidence of Mitchell’s

intent, the following facts are undisputed:

     • When he was hired, and as a condition to receiving his charge card, Mitchell
       signed and agreed to abide by the Employee Fuel Card Agreement. Under
       the agreement, Mitchell agreed to obtain pre-approval and submit receipts
       for all nonfuel business expenses charged to his Company charge card; he
       agreed that “under no circumstances” would he use his charge card to “make
       personal purchases”; and he acknowledged that using his Company charge
       card for “personal gain” could result in the “termination of [his] employment
       and criminal prosecution.”

     • Nevertheless, over the eight-month term of his employment, Mitchell
       charged over $15,000 in personal expenses to his Company charge card.
       Mitchell did not obtain pre-approval or submit a single receipt for any of
       these charges. Most of the charges were made when Mitchell was off duty at
       a service station near his residence but far from the locations to which he
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      made deliveries. Many of the charges were made in round $50 increments
      with no sales tax.

   • During Mitchell’s term of employment, the Company did an admittedly poor
     job of reconciling its drivers’ charge card accounts. The Company did not
     reconcile Mitchell’s charge card account until his eighth (and final) month of
     employment. By then, the amount of unauthorized personal charges was too
     large to deduct from Mitchell’s pay.

      From these undisputed facts, a rational factfinder could have found that

Mitchell knew he had no authority to charge personal expenses to his Company

charge card, but did so anyway, charging over $15,000 in personal expenses,

perhaps believing (mistakenly) that the Company would never reconcile his

account.

      Mitchell nevertheless argues that the evidence is insufficient to prove intent

because the Company never deducted (or attempted to deduct) the charges from his

pay as permitted by the Employee Fuel Card Agreement. Because the Company

had the right to deduct unauthorized charges from his pay, Mitchell argues that the

State could not prove intent without showing that Mitchell “did not intend to allow

for a deduction from his paycheck” for his unauthorized, nonfuel personal charges.

And the only way to show he did not intend to allow the Company to deduct the

unauthorized charges, Mitchell contends, was with evidence that the Company

tried to make the deductions but Mitchell somehow preventing it from doing so.

Because the State presented no such evidence, Mitchell concludes, there is legally

insufficient evidence that Mitchell had the requisite intent.

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      The Company’s failure to regularly reconcile driver charge card accounts

during Mitchell’s term of employment and decision not to deduct the unauthorized

charges after they were discovered is not as probative as Mitchell claims. This

evidence cuts both ways, and, viewed in the light most favorable to the verdict,

actually supports a finding of intent. This is because it would permit a reasonable

jury to find that Mitchell came to believe that the Company had not been reviewing

his charges and would not do so in the future—giving him carte blanche to use the

charge card for personal expenses.

      Moreover, by the time the Company discovered that Mitchell had been

making unauthorized charges for personal expenses, the amount was too large to

deduct from Mitchell’s pay. This supports a finding of intent because it shows that

Mitchell could not have reasonably expected that all his unauthorized charges

could be deducted from his pay. See, e.g., Beatty, 2010 WL 2133870 at *7

(evidence showed defendant knew he was ultimately responsible for personal

charges and that he charged large amount of personal expenses on company credit

cards but did not pay balance).

      Mitchell’s failure to obtain pre-approval or submit a receipt for a single

charge over an eight-month period is probative of intent, as is the pattern of

unauthorized charges—made primarily at one location while Mitchell was off duty

for nonbusiness purposes in similar even-numbered amounts. See Riley v. State,


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312 S.W.3d 673, 678 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d)

(“[E]vidence of intent to commit theft through deception consists of the pattern or

scheme established in each of the four transactions . . .”); Merryman v. State, 391

S.W.3d 261, 272 (Tex. App.—San Antonio 2012, pet. ref’d) (holding evidence

sufficient to support contractor's conviction when it showed similar patterns of

accepting customers’ payments but failing to complete agreed-to projects).

      Viewing the record in the light most favorable to the verdict, we hold that a

rational juror could have found that Mitchell had the requisite intent to deprive the

Company of money when he made unauthorized personal charges with his

company issued charge card. Accordingly, we overrule Mitchell’s second issue.

                                    Conclusion

      We affirm.




                                                Gordon Goodman
                                                Justice

Panel consists of Justices Keyes, Goodman, and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).




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