                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                 NO. 2-07-127-CR


JONATHAN DARRELL MAYHEW                                                   APPELLANT

                                            V.

THE STATE OF TEXAS                                                              STATE

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            FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                          MEMORANDUM OPINION 1

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I.   Introduction

     A jury convicted Appellant Jonathan Darrell Mayhew of theft of property

valued between $1,500 and $20,000. Appellant’s indictment contained two

enhancement paragraphs,          both    involving     previous   convictions   for the

unauthorized use of a motor vehicle.               Thus, Appellant’s conviction was



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         See T EX. R. A PP. P. 47.4.
enhanced to a third degree felony. The jury assessed punishment at eight

years’ confinement—the trial court sentenced Appellant accordingly. In one

point, Appellant complains that the evidence is legally insufficient to support his

conviction. We affirm.

II.   Factual and Procedural Background

      Mary Sillivent testified that on June 12, 2005, she sold a Mitsubishi car

to a person named Lorena Altamirano. She also testified that she signed the

title of the car over to Altamirano. Altamirano testified that she is married to

Carlos Silva and that Carlos—as he has done in the past—purchased the car in

her name. Altamirano also testified that Carlos occasionally buys vehicles in

her name and the checks he receives after they are sold are made out to her.

Carlos kept the Mitsubishi car for a few months and then decided to sell it in

the Wal-Mart parking lot in Hood County, Texas.

      Carlos and his brother, Marcos Silva, met Appellant and Michael Hester

about selling the car. Carlos typically has his brother accompany him when

selling cars because Marcos speaks better English than Carlos.          Appellant

agreed to purchase the car. A temporary check for $2,100 was made out to

Lorena Altamirano.    At trial, Carlos identified Appellant as the person who

wrote out the check. Both Marcos and Carlos identified Appellant as the person

who gave Marcos the check and to whom they gave the keys and the car.

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       Altamirano and Carlos went to cash the check. At the bank, they were

told that the check was written on a closed account. A bank employee testified

that the account had been closed for over two years prior to the date written

on the check and that the checking account had been opened by, and was

registered in the name of, Michael Hester, not Appellant.

III.   Discussion

       In one point, Appellant challenges the legal sufficiency of the evidence to

support the jury’s finding of his criminal intent. Appellant contends that he

lacked the requisite intent to be found guilty of theft. Appellant argues that this

is merely a contract dispute, and that because malfeasance cannot be proven,

he is not guilty of theft. See Baker v. State, 986 S.W.2d 271, 274 (Tex.

App.—Texarkana 1998, pet. ref’d). We disagree.

       A.    Standard of Review

       In reviewing the legal sufficiency of the evidence to support a conviction,

we view all the evidence in the light most favorable to the prosecution in order

to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).




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      B.      The Law Pertaining to Theft

      By statutory definition, theft is completed when an accused unlawfully

appropriates another person’s property with the intent to deprive the owner of

that property. See T EX. P ENAL C ODE A NN. § 31.03(a) (Vernon Supp. 2007); see

also Steele v. State, 22 S.W.3d 550, 554-55 (Tex. App.—Fort Worth 2000,

pet. ref’d). Furthermore, it is prima facie evidence that an accused intended to

permanently deprive the owner of the property at issue if the accused

purchased the property with a check written on a closed account. See T EX.

P ENAL C ODE A NN. § 31.06(a) (Vernon Supp. 2007); see also Thompson v. State,

89 S.W.3d 843, 849 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd).

      Here, evidence was presented to the jury that Appellant wrote a check

for $2,100 to pay for the Mitsubishi car, thus creating a presumption in the

minds of both Carlos and Marcos that Appellant intended to permanently

deprive Carlos of the car.   Additionally, the check was a temporary check

written on an account that had been closed for more than two years. The

account was in the name of Michael Hester, who accompanied Appellant when

Appellant exchanged this check for the car. Based on the record, we conclude

that a rational trier of fact could have found, beyond a reasonable doubt, that

Appellant intended to deprive Carlos Silva of the car. We overrule Appellant’s

sole point.

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IV.   Conclusion

      Having overruled Appellant's sole point, we affirm the trial court's

judgment.




                                           ANNE GARDNER
                                           JUSTICE

PANEL F:     LIVINGSTON, DAUPHINOT, and GARDNER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: March 13, 2008




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