









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-02-00092-CR
______________________________


DONALD NEWMAN, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 202nd Judicial District Court
Bowie County, Texas
Trial Court No. 01F0467-202





Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Justice Ross

O P I N I O N

Donald Newman (Mark) (1) appeals his jury conviction of theft over $20,000.00 but
less than $100,000.00.  Mark was sentenced to ten years' imprisonment.  In four points
of error, he contends the evidence was both legally and factually insufficient to support
the judgment.  For the reasons stated below, we overrule these contentions and affirm
the judgment.  
	Mark was employed by E-Z Mart Stores, Inc., in its M.I.S. (computer) department. 
Sometime before August 1999, Mark and Sonja Hubbard, president and CEO of E-Z Mart,
discussed the prospect of Mark purchasing fifty laptop computers from Grand Central
Computers of New York on behalf of E-Z Mart.  After looking at other alternatives, Hubbard
decided to proceed with the purchase, using Mark as E-Z Mart's intermediary.  Hubbard
wrote a check to Grand Central Computers in the amount of $79,218.38 and gave it to
Mark to purchase the computers. 
	Instead of purchasing the computers from Grand Central Computers, Mark and his
wife, Desha, traveled to Shreveport, Louisiana, and deposited the check into an account
at Bank One belonging to Desha.  Desha had opened the Bank One account under the
name of Grand Central Computers a few days earlier, using falsified corporate documents. 
The next day, Desha wrote a check for $79,218.38 drawn on the new Grand Central
Computers account, payable to Late Kick Farms, a corporate account belonging to Mark.
Mark then wrote a check from his Late Kick Farms account in the amount of $66,162.45
to Insight Computers, Inc., for the purchase of fifty computers with less memory than E-Z
Mart had agreed to.  No money, however, was transferred from E-Z Mart to the new Grand
Central Computers account or from Desha's Grand Central Computers account to Mark's
Late Kick Farms account.
	In four points of error, Mark contends the evidence was legally and factually
insufficient to support his conviction.  Specifically, Mark contends:  (1) the evidence was
factually and legally insufficient to support his conviction for theft where the evidence
established he never controlled the money from the check at issue; (2) the evidence was
factually and legally insufficient to support a conviction of theft of $79,218.38 where the
evidence established Mark only appropriated a check that was never credited to Desha's
Grand Central Computers account; (3) the evidence was factually and legally insufficient
to support the allegation Mark intended to steal the entire $79,218.38; and (4) the evidence
was only sufficient to establish that Mark's intent to steal, if any, was the amount of
$13,055.93 (the difference between the amount of the check and the cost of the
replacement computers).  
	In its response to all four points of error, the State contends Mark was indicted for
theft of United States currency in the form of a check worth $79,218.38, and once Mark
and his wife deposited the check in the Bank One account, theft of the full value of the
check occurred.  In reviewing the evidence for legal sufficiency, we look at all the evidence
in the light most favorable to the verdict to determine whether any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.  Sells v.
State, No. 73,993, 2003 Tex. Crim. App. LEXIS 63, at *4-5 (Mar. 12, 2003) (citing Jackson
v. Virginia, 443 U.S. 307 (1979)).  Any inconsistencies in the evidence should be resolved
in favor of the verdict.  Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).
	In a factual sufficiency review, we view all the evidence without the prism of "in the
light most favorable to the prosecution" and set aside the verdict only if the evidence
supporting the verdict is so weak or so against the great weight and preponderance of
contrary evidence as to render the verdict clearly wrong and manifestly unjust.  Johnson
v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  A clearly wrong and unjust verdict
occurs where the jury's finding is "manifestly unjust," "shocks the conscience," or "clearly
demonstrates bias."
	The offense of theft occurs when a person unlawfully appropriates property with
intent to deprive the owner of the property.  Tex. Pen. Code Ann. § 31.03(a) (Vernon 2003).
	To "appropriate" means to acquire or otherwise exercise control over property.  Tex.
Pen. Code Ann. § 31.01(4)(B) (Vernon 2003).  In the employer-employee context, an
unlawful appropriation occurs when an employee exercises unauthorized control over
property belonging to the employee's employer.  See Freeman v. State, 707 S.W.2d 597,
605 (Tex. Crim. App. 1986).  Theft does not occur until a fiduciary acts in some way
inconsistent with his or her lawful authority.  See id. at 606.  But when the employee
decides, for whatever reason, to unlawfully deprive (2) the lawful owner of the property, such
employee acts in an unauthorized capacity.  See id.  In short, unlawful appropriation occurs
at that moment in time when the employee breaches the trust that employee's employer
placed in her or him.  The line between lawful and unlawful activity by an employee,
therefore, is a question of the employee's scope of authority.  See id.
	In Texas, the "property" subject to theft can be real property, personal property, or
a "document, including money, that represents or embodies anything of value."  Tex. Pen.
Code Ann. § 31.01(5) (Vernon 2003).  A check can be considered property under the
Texas Penal Code.  See Simmons v. State, No. 1840-02, 2003 Tex. Crim. App. LEXIS 161,
at *6 (July 2, 2003).	
	In this case, the State alleged Mark:  

	on or about August 11, 1999, did then and there unlawfully appropriate, by
acquiring or otherwise exercising control over property, to wit:  United States
currency in the form of a check, of the value or [sic] $20,000 or more, but
less than $100,000, with intent to deprive the owner, Sonya Hubbard, of the
property.

	To convict Mark under Section 31.03 as authorized by the indictment, the State
needed to prove Mark intentionally or knowingly took United States currency in the form
of a check belonging to Hubbard, with intent to deprive her of the check. 
	In his first and second points of error, Mark contends the evidence was factually and
legally insufficient to show he actually appropriated property worth $79,218.38. 
Specifically, Mark insists that, because he never controlled $79,218.38 from E-Z Mart's
account, he never actually appropriated the property.  In making this argument, Mark points
to the fact that no money was ever transferred from E-Z Mart's account to Desha's Grand
Central Computers account.  
	This argument, however, is without merit.  First, the State indicted Mark for the theft
of the check itself, not the funds represented by the check.  This is an important distinction. 
Under the indictment, the State was required to prove Mark unlawfully appropriated a
check worth $79,218.38, not to show that the funds represented by the check were ever
actually controlled by Mark.
	The undisputed facts are as follows:  First, Mark and Desha took the check and
deposited it into Desha's Grand Central Computers account at Bank One.  Hubbard
testified this act was beyond Mark's authority as an employee of E-Z Mart.  Moreover, it is
undisputed Hubbard was the owner of the check.  Under these facts, there was factually
and legally sufficient evidence showing Mark unlawfully appropriated a check belonging to
Hubbard. 	
	The only outstanding issue under Mark's first and second points of error is whether
there was sufficient evidence to show Mark unlawfully appropriated property valued at
more than $20,000.00 and less than $100,000.00.  On this issue, the Texas Court of
Criminal Appeals recently held that, in cases involving the theft of checks, the face value
of the check is presumptive evidence of the check's value.  See id. at *13.  Here, the face
value of the check was $79,218.38.  This written value, absent disputed evidence, is
sufficient to show the check was worth $79,218.38.  See id.  The evidence, therefore, was
factually and legally sufficient to show Mark unlawfully appropriated a check worth
$79,218.38 with the intent to deprive Hubbard of the check.  Mark's first and second points
of error are overruled.  
	In his third and fourth points of error, Mark contends the evidence was factually and
legally insufficient to show he intended to steal the entire $79,218.38.  Rather, Mark
argues, his intention, if any, was only to deprive Hubbard and E-Z Mart of $13,055.93.  In
support of this contention, Mark points to the fact he attempted to write a check for
$66,162.45 for replacement computers.
	This contention also is without merit.  As stated above, Mark was indicted for the
theft of a check, not the funds the check represents.  Once Mark unlawfully appropriated
the check with the intent to deprive Hubbard of the check, the offense of theft was
complete.  Subsequent replacement of all or part of the property or replacing the property
with other similar property does not defeat prosecution for the full value of the original
property.  See Menke v. State, 740 S.W.2d 861, 864 (Tex. App.-Houston [14th Dist.] 1987,
pet. ref'd) (citing Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. [Panel Op.] 1981)). 
	Here, Mark and Desha deposited the check into the Bank One Grand Central
Computers account.  At that moment, a rational jury could have found beyond a
reasonable doubt Mark knowingly and unlawfully appropriated the check with the intent to
deprive Hubbard of the entire check valued at $79,218.38.  The evidence, therefore, was
factually and legally sufficient to show Mark intended to deprive Hubbard of the full value
of the check.  We overrule Mark's third and fourth points of error.
	We affirm the judgment.


							Donald R. Ross
							Justice

Date Submitted:	July 11, 2003
Date Decided:	July 17, 2003

Publish
1. Mr. Newman is referred to in the indictment and judgment as "Donald" Newman. 
However, throughout the reporter's record, he is referred to as "Mark"; therefore, in this
opinion, we refer to Mr. Newman as "Mark."
2. 
2Unlike the penal codes of many other states and the Model Penal Code, Texas does not
require the intent to "permanently" deprive the owner of the property.  The Texas Penal
Code defines deprive as:  "to withhold property from the owner permanently or for so
extended a period of time that a major portion of the value or enjoyment of the property is
lost to the owner."  Tex. Pen. Code Ann. § 31.01(2)(A) (Vernon 2003).

