Opinion filed November 5, 2009




                                           In The


   Eleventh Court of Appeals
                                        ____________

                                   No. 11-08-00119-CR
                                       __________

                        CHARLES DON THREET, Appellant

                                              V.

                             STATE OF TEXAS, Appellee


                          On Appeal from the 35th District Court

                                    Brown County, Texas

                              Trial Court Cause No. CR17050



                           MEMORANDUM OPINION
       The trial court convicted Charles Don Threet of theft of livestock and assessed his
punishment at confinement for ten years and a $10,000 fine. However, imposition of the sentence
was suspended, and Threet was placed on community supervision for ten years. Threet raises one
issue on appeal, contending that the evidence supporting his conviction is factually insufficient.1 We
affirm.
                                                          Standard of Review
           To determine if the evidence is factually sufficient, we must review all the evidence in a
neutral light and determine whether the evidence supporting the verdict is so weak that the verdict
is clearly wrong and manifestly unjust or whether the verdict is against the great weight and
preponderance of the conflicting evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim.
App. 2006).
                                                    Factual Sufficiency Analysis
           To commit the offense of theft, a person must unlawfully appropriate property with the intent
to deprive the owner of the property. TEX . PENAL CODE ANN . § 31.03(a) (Vernon Supp. 2009).
Appropriation of property is unlawful when it is done without the effective consent of the owner.
Id. at (b). Consent is not effective if induced by deception. Id. at (a).
           On appeal, Threet claims he had the effective consent of Jordan Cattle Auction and,
therefore, cannot be guilty of theft of cattle. The evidence supports the trial court’s decision that
Threet lacked consent because he used deception to take the livestock from Jordan Cattle Auction.
           Jordan Cattle Auction’s office manager, Brenda May, testified that Threet represented at
three separate auctions run by Jordan Cattle Auction that he was purchasing cattle for Joe Don
Pogue. Pogue had order-buyer status. Order buyers could defer payment up to a week after the
auction, but all other buyers were required to pay on the day of the auction. May testified that, if she
had known Threet was purchasing cattle for himself rather than Pogue, he would have been expected
to pay the day of the auction and his check verified before the cattle exchanged hands.
           Pogue had frequently used Threet as a purchasing agent at Jordan Cattle Auction in the past.
Everyone at Jordan Cattle Auction relied on this past relationship and assumed that Threet was
truthful about purchasing cattle for Pogue. Pogue had previously notified Jordan Cattle Auction that
Threet was not to purchase any more cattle for him, but Jordan Cattle Auction assumed this was only
a temporary situation. May testified that the transaction became unusual when Threet’s payment


           1
               We note that the State analyzed legal sufficiency in its brief, but Threet did not address it in his brief. Therefore, neither
will we.

                                                                       2
arrived a week after the auction. When Threet purchased cattle for Pogue, they had always received
a check drawn on Pogue’s corporate account. This time, however, the check was drawn on the
account of Jesse Threet, Charles Threet’s son. That check failed to clear because of insufficient
funds.
         Ken Jordan, the owner of Jordan Cattle Auction, testified about their attempts to collect
payment from Threet. Jordan contacted Pogue and was informed that Pogue was not involved with
the transaction. Jordan contacted Threet. Threet was evasive but promised to pay for the cattle. At
no time did Threet indicate that Pogue was involved with the transaction. Threet never paid for the
cattle, never returned the cattle, or made any other attempt to satisfy his obligation.
         Texas Ranger Joey Gordon testified that he conducted an investigation and discovered that
five cattle auctions, each in separate counties, had similar complaints against Threet. Threet had
made five cattle purchases within a two-week span and had paid with hot checks at each auction.
Prior to trial, Threet pleaded guilty to theft of livestock in two of these counties.
         Threet testified in his own defense that Jordan Cattle Auction extended him credit for the
auction purchase. He testified that he and his son never paid for the cattle the same day they picked
them up but would always pay a week later. He claims this arrangement started while working as
an agent for Pogue but that Jordan Cattle Auction “just kind of translated that on down and never
changed.” Threet also testified that his son picked up and paid for cattle at Threet’s direction.
Threet admitted that he pleaded guilty in the two other counties.
         After reviewing the evidence in a neutral light, the trial court’s determination that Threet
unlawfully appropriated property with the intent to deprive Jordan Cattle Auction of the property is
not against the great weight of the evidence, and the evidence is not so weak to make the
determination clearly wrong or unjust. Here, the trial court was the trier of the facts and was free
to determine the weight and credibility of the testimony. Garrett v. State, 619 S.W.2d 172, 174
(Tex. Crim. App. 1981). The trial court could reasonably disbelieve Threet’s claim that Jordan
Cattle Auction effectively consented to him taking the cattle by extending him credit. There was
ample evidence that Threet induced the sale by deception by lying about purchasing cattle on
Pogue’s behalf. Accordingly, we overrule Threet’s sole issue.


                                                   3
                                            Conclusion
       The judgment of the trial court is affirmed.




                                                      RICK STRANGE
                                                      JUSTICE


November 5, 2009
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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