                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-16-00410-CR


NORVELL NORMAN                                                        APPELLANT

                                         V.

THE STATE OF TEXAS                                                       STATE


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      FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
                    TRIAL COURT NO. 1392759D

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                           MEMORANDUM OPINION1

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                                  I. INTRODUCTION

      Appellant Norvell Norman appeals his conviction for theft of service in an

amount between $1,500 and $20,000. In one issue, Norman argues that the

evidence is insufficient to support his conviction. We will affirm.




      1
          See Tex. R. App. P. 47.4.
                                 II. BACKGROUND

      Steve Howard testified at trial that he owned Bob’s Automotive Repair

shop located in Richland Hills, Texas. According to Howard, Bob’s is a family-

owned business that his father started in 1989.        Howard said that he knew

Norman both through his own prior dealings with him and through Norman’s

previous dealings with Howard’s father, Bob. By Howard’s account, in January

2013, Norman called the repair shop and reported that his vehicle, an Audi, had

broken down and asked if Howard would send a tow truck to pick it up and bring

it to the repair shop. After having the vehicle towed to his shop and after his

mechanics examined it, Howard called Norman and gave him a verbal estimate

of slightly more than $3,900 to fix the vehicle.        Howard said that Norman

authorized the repairs at that time.

      After the repairs were finished, Howard called Norman and Norman came

to the shop. Howard said that when Norman came into the shop on February 2,

2013, he went over the repairs with Norman, and Norman signed the repair bill,

filled out a check that already had a signature on it, and presented it to him.

      The State introduced a copy of the check, which was made out in the

amount of $3,971.33. The account name on the check is Sheila Schuck, whom

Howard believed to be Norman’s wife. The State also introduced evidence that

at the time Norman authorized the repairs, Schuck’s account balance was

$33.77, and that at the time Norman presented the check, the account balance

was $4.45. Moreover, the State presented evidence that at no time during the


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months of January, February, or March 2013 did Schuck’s account balance

contain sufficient funds to cover a check for $3,971.33.      In fact, the State

introduced evidence that except for two deposits totaling $320 made prior to

January 17, 2013, no other deposits were made to the account before Norman

presented the check. The checking account was also insufficient to cover a $760

check to a different payee which was returned for insufficient funds on

February 4, 2013.2 Finally, the State presented evidence that despite the fact

that Schuck did not work outside the couple’s home, an IRS refund check in the

amount of $2,656.00 was deposited into her account on February 7, 2013, and

$1,800 of cash was withdrawn that same day.

      Howard averred that after he deposited the check, he received a notice

from his bank stating that it had returned the check because the issuing bank had

received a stop payment order. The State introduced evidence that the issuing

bank charged Schuck’s account a stop payment fee of $25 on February 4, 2013.

      Howard said that after he learned of the stop payment order, he attempted

to contact Norman by phone and then by registered mail unsuccessfully, so he

contacted the Richland Hills Police Department and filed a complaint. Howard

said that he never heard from Norman again and that his shop has never been

compensated for the repair work performed on the Audi. He also testified that if



      2
       The check that Norman presented to the repair shop is numbered 1074,
and the $760 February 4, 2013 check is numbered 1073.


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he had been notified that there was a problem with the repairs on the Audi, he

would have immediately rectified the situation.

      Sergeant Kirk Hamm of the Richland Hills Police Department testified that

he spoke with Howard about the complaint. Hamm said that he later called

Norman about it. According to Hamm, Norman initially told him that after he

picked up the Audi from the repair shop, it broke down in Odessa, Texas, while

he was driving to California. Norman also told Hamm that he had the vehicle

towed to a repair shop in Odessa.

      By Hamm’s account, he then visited with Norman at Norman’s residence in

Saginaw, Texas, on February 6, 2013. Hamm said that the Audi was parked

outside of Norman’s residence when he arrived. Hamm averred that Norman

told him that the Audi had been towed from Odessa to Saginaw, but despite

having told Hamm that he had a receipt for the alleged towing, Norman was

unable to produce one. Norman told Hamm that he couldn’t find the receipt, and

he believed it was boxed up because he and his girlfriend, Schuck, were moving

to California. Hamm did say that Norman demonstrated to him that the vehicle

would “turn over” but not start. Hamm stated that he also advised Norman to

contact the repair shop to see if he and the repair shop could “get it worked out,”

but that Norman replied he wanted to get a second opinion.

      Norman testified in his own defense. Norman stated that he and Schuck

had been in an on-and-off relationship for nearly twelve years and that the




                                        4
relationship—and where the couple chose to live—revolved around the couple’s

three children.

      Norman said that the Audi belonged to Schuck but acknowledged that both

his and her names were on the title. According to Norman, even though Schuck

was the primary driver of the Audi, he had the vehicle towed to the repair shop

and picked it up after Howard called him and informed him the repairs were

complete. Norman said that the check he provided to Howard had been entirely

filled in by Schuck and that she had told him to give it to Howard for the repairs.3

      Norman stated that he had made up the story about the Audi having

broken down in Odessa because he was scared about the ramifications of the

stop payment order on the check. By Norman’s account, he found out that the

check had been stopped via voicemail when Howard called a few days after he

picked up the vehicle. Norman said that he informed someone at the shop that

the vehicle had broken down two days after he had picked it up. He further said

that he never knew how much money was in Schuck’s account and she did not

tell him that she had stopped payment on the check. He averred that Schuck

was no longer his girlfriend and that she was “[o]ne hundred percent” responsible

for not having paid the shop for the repair work.

      3
         During oral arguments before this court, Norman’s attorney stated
specifically and repeatedly that Schuck had signed the check and that Norman
had filled out the remainder of the check once he arrived at the repair shop. A
review of a copy of the check that was admitted at trial suggests that whoever
filled in the majority of the check has a different style of penmanship than the
person who signed it.


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      On cross-examination, Norman testified that he lived next door to “Bob

Howard” who was the previous owner of the repair shop. He said that he knew

Bob, Bob’s wife, and Bob’s children and that he had done business with Bob in

the past. Specifically, Norman said that he had previously taken the Audi to the

repair shop once and that he had taken other vehicles in for repair “[p]robably

about four or five times.”

      Regarding his and Schuck’s finances, Norman averred that the two kept

their finances separate but that because Schuck did not work, he provided funds

to her to take care of household bills. He also said that Schuck’s parents paid for

“a lot of things.” Norman stated that he had never discussed whether Schuck’s

bank account had sufficient funds to cover the check he presented to Howard

when he picked up the Audi.

      Norman stated that he owned an “18-wheeler” that he drove and that he

did not use the Audi. He also admitted to having prior convictions for theft in

Texas and California. Norman further said that after he learned that Schuck had

stopped payment on the check, he did not attempt to speak with anyone at the

repair shop regarding the stopped check even though he had received voicemail

messages concerning the matter.

      The trial court found Norman guilty of theft of service in the amount of

more than $1,500 but less than $20,000. The trial court sentenced Norman to

two years in jail. This appeal followed.




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                                    III. DISCUSSION

         In one issue, Norman argues that the evidence is insufficient to support his

conviction.    Specifically, Norman argues that because a theft-of-service case

requires proof that the deception must have induced the services and because

he presented the check for the repairs after the repair work was performed, he

cannot be guilty of theft of service in this case. See generally Daugherty v. State,

387 S.W.3d 654, 658 (Tex. Crim. App. 2013); Gibson v. State, 623 S.W.2d 324,

325 (Tex. Crim. App. [Panel Op.] 1980); Cortez v. State, 582 S.W.2d 119, 121

(Tex. Crim. App. [Panel Op.] 1979).

         The State counters that Norman is improperly relying upon cases in which

the charging instrument specifically alleged the passing of a post-services check

as the deceptive act and that in this case the State did not allege that the check

was the deceptive act; rather, the State alleged generally that Norman had

secured performance of the repair services while intending to avoid payment and

that the evidence of the check and the circumstances surrounding the check

merely provided evidence that Norman’s deceptive act of promising to pay for the

repairs was done knowing that no payment would be made. We agree with the

State.

         A.    Standard of Review

         In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

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


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

307, 319, 99 S. Ct. 2781, 2789 (1979); Jenkins v. State, 493 S.W.3d 583, 599

(Tex. Crim. App. 2016). This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Jenkins, 493 S.W.3d at 599.

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Blea v. State,

483 S.W.3d 29, 33 (Tex. Crim. App. 2016).            Thus, when performing an

evidentiary sufficiency review, we may not re-evaluate the weight and credibility

of the evidence and substitute our judgment for that of the factfinder.       See

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we

determine whether the necessary inferences are reasonable based upon the

cumulative force of the evidence when viewed in the light most favorable to the

verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied,

136 S. Ct. 198 (2015).     We must presume that the factfinder resolved any

conflicting inferences in favor of the verdict and defer to that resolution. Id. at

448–49; see Blea, 483 S.W.3d at 33.

      To determine whether the State has met its burden under Jackson to prove

a defendant’s guilt beyond a reasonable doubt, we compare the elements of the

crime as defined by the hypothetically correct jury charge to the evidence

adduced at trial. See Jenkins, 493 S.W.3d at 599; Crabtree v. State, 389 S.W.3d


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820, 824 (Tex. Crim. App. 2012) (“The essential elements of the crime are

determined by state law.”). Such a charge is one that accurately sets out the

law, is authorized by the indictment, does not unnecessarily increase the State’s

burden of proof or restrict the State’s theories of liability, and adequately

describes the particular offense for which the defendant was tried. Jenkins, 493

S.W.3d at 599. The law as authorized by the indictment means the statutory

elements of the charged offense as modified by the factual details and legal

theories contained in the charging instrument. See id.; see also Rabb v. State,

434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (“When the State pleads a specific

element of a penal offense that has statutory alternatives for that element, the

sufficiency of the evidence will be measured by the element that was actually

pleaded, and not any alternative statutory elements.”).

      The standard of review is the same for direct and circumstantial evidence

cases; circumstantial evidence is as probative as direct evidence in establishing

guilt. Jenkins, 493 S.W.3d at 599. Additionally, we must review circumstantial

evidence of intent with the same scrutiny as other elements of an offense.

Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App. 2014). Faced with a

record that supports conflicting inferences of an appellant’s intent, we “must

presume—even if it does not affirmatively appear in the record—that the trier of

fact resolved any such conflict in favor of the prosecution, and must defer to that

resolution.” Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).




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      B.    Theft of Service

      Section 31.04(a)(1) of the penal code provides: “A person commits theft of

service if, with intent to avoid payment for service that the actor knows is

provided only for compensation: . . . [he] intentionally or knowingly secures

performance of the service by deception, threat, or false token.” Tex. Penal

Code Ann. § 31.04(a)(1) (West 2016). “Deception” is defined in section 31.01(1)

of the penal code to mean “creating or confirming by words or conduct a false

impression of law or fact that is likely to affect the judgment of another in the

transaction, and that the actor does not believe to be true.” Id. § 31.01(1)(A)

(West Supp. 2017).

      In this case, viewing the evidence in a light most favorable to the trial

court’s verdict and drawing the reasonable inferences from that evidence, we

conclude that the trial court could have reasonably found that because Schuck

and Norman were in a long-term relationship that revolved around the couple’s

three children and because Norman was the sole income earner in the family,

Norman was fully aware that neither he nor Schuck had the capability to pay for

the repair services whenever Norman authorized them to be performed. This

conclusion is buttressed by the evidence that at no time during the transaction

did Schuck’s account have sufficient funds to pay for the estimated repairs.

Thus, the trial court was free to find that Norman had intentionally or knowingly

secured the repair services with an intent to avoid payment for the repair services




                                        10
that he knew would only be performed for roughly $3,900—the quote that

Howard gave Norman prior to the services being performed.

      The trial court could have further reasonably found that Norman’s prior

conduct of having brought the Audi into the repair shop and having paid for those

repair services confirmed in Howard’s mind the false impression of fact that

Norman would pay for the services, thus affecting Howard’s judgment in the

repair-services transaction. See Hargrave v. State, No. 10-08-00158-CR, 2010

WL 486745, at *2 (Tex. App.—Waco, Feb. 10, 2010, pet ref’d) (mem. op., not

designated for publication) (“[S]ecure in the thought that past services had been

paid and that future performance would be also, Young then repaired the well by

installing the new pump.”).   Moreover, the trial court was free to reasonably

conclude that Norman’s actions of lying to Hamm about when and where the

Audi broke down and refusing to contact Howard to rectify or pay for the services

demonstrated a consciousness that he had never intended to pay for the

services and that he knew he had secured the performance of the repairs without

ever intending to pay for them. See King v. State, 29 S.W.3d 556, 565 (Tex.

Crim. App. 2000) (noting that making false statements to cover up a crime is

evidence indicating a consciousness of guilt and is admissible to prove the

commission of the offense); Comeaux v. State, 413 S.W.3d 176, 187 (Tex.

App.—Beaumont 2013) (holding that the jury is allowed to infer a consciousness

of guilt when defendant lies to police), aff’d, 445 S.W.3d 745 (Tex. Crim. App.

2014); Couchman v. State, 3 S.W.3d 155, 163–64 (Tex. App.—Fort Worth 1999,


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pet. ref’d) (holding that defendant’s changing story was evidence of a

consciousness of guilt).

        Norman argues that because he presented the check after the

performance of the repair services, he cannot be guilty of theft of service in this

case.    Norman argues that Daugherty, Gibson, and Cortez all stand for the

proposition that an insufficient or defective check presented after services have

been provided is insufficient to sustain his conviction.     See Daugherty, 387

S.W.3d at 658; Gibson, 623 S.W.2d at 325; Cortez, 582 S.W.2d at 121. But

Norman’s reliance on these cases is misplaced. As the State points out, in all

three of the cases cited by Norman, the State specifically alleged in the charging

instrument that the deceptive act was the passing of an insufficiently-funded

check after the services had been performed. See Daugherty, 387 S.W.3d at

658; Gibson, 623 S.W.2d at 325; Cortez, 582 S.W.2d at 121. But in this case,

the State did not allege that the deceptive act was the passing of the insufficient

check; rather, the State alleged generally that Norman had procured the repair

services by “deception, threat, or false token.”

        We hold that the trial court could have reasonably found that Norman, with

an intent to avoid payment for the repair services that he knew were provided

only for compensation, intentionally or knowingly secured the performance of the

repair services by creating or confirming through his words and conduct a false

impression in Howard’s mind that likely affected Howard’s judgment in the

transaction, and that Norman never believed that he would pay for the services.


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See Tex. Penal Code Ann. §§ 31.01(1)(A), 31.04(a)(1).         Thus, we overrule

Norman’s sole issue.

                                IV. CONCLUSION

      Having overruled Norman’s sole issue on appeal, we affirm the trial court’s

judgment.


                                                 /s/ Bill Meier

                                                 BILL MEIER
                                                 JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 1, 2018




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