



ORR V. STATE                                                        



IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

 


NO. 3-90-333-CR


MITCHELL MARK ORR,


	APPELLANT


vs.



THE STATE OF TEXAS,

	APPELLEE 

 


NO. 3-91-062-CR


WAYMON B. PITCHFORD, JR.,

	APPELLANT

vs.



THE STATE OF TEXAS,

	APPELLEE

 


FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT

NO. CR90-0065-B, HONORABLE JOHN E. SUTTON, JUDGE

 

	After a joint trial, a jury convicted Mitchell Mark Orr and Waymon B. Pitchford,
Jr., appellants, of theft.  See Tex. Penal Code Ann. § 31.03 (1989).  The jury assessed
punishment for both appellants at ten years' imprisonment, probated for ten years, and a fine of
$10,000.  On appeal, appellants assert five points of error challenging the legal sufficiency of the
evidence to support their conviction.  We will reverse the convictions and reform the judgments
to reflect acquittals.

BACKGROUND
	In October 1988 Randy Hutto contacted Tom McCann regarding several oil and
gas wells that Pitco Energy Company was interested in selling.  After gathering information
regarding the wells and negotiating with Pitco, McCann eventually bought eight or nine wells
from Pitco for $325,000 on March 2, 1989.
	According to McCann, his primary contact during the transaction was Hutto, who
was working for a commission.  Hutto would relay information between McCann and Pitco. 
McCann's other contacts with Pitco during the transaction were appellants Orr and Pitchford. 
Pitchford was the president of Pitco; however, there is no evidence in the record regarding what
association Orr had with Pitco.
	McCann's testimony regarding the negotiations for the purchase of the wells from
Pitco is vague.  At some point after Hutto contacted him in October 1988, McCann sent a request
to Pitco asking for documentation regarding the production history of the wells, and Pitco sent
McCann production reports that it had filed with the Texas Railroad Commission.  McCann
testified that he first talked to appellant Orr in October or November of 1988.  At about this same
time, McCann went out to inspect the wells.
	McCann also went to Pitco's offices to inspect its files on the subject wells.  It was
during this trip to Pitco's offices that McCann first met and conversed with appellant Pitchford,
the president of Pitco.  McCann testified that Pitchford told him the wells were generating
revenues of between $16,000 and $18,000 a month; he also testified that Pitchford told him Pitco
had reworked the wells and that was why production from the wells had increased over what it
was when Pitco obtained the wells in January 1988.  McCann further testified that the documents
he inspected at Pitco's offices appeared to show that Pitco had indeed reworked the wells and that
production had increased.
	On December 12, 1988, McCann sent a letter to Pitco offering to buy five
producing wells and three or four non-producing wells for $150,000.  Pitco rejected the offer. 
McCann testified that he then forgot about the deal until Hutto contacted him again a short time
later and told him that Pitco had reworked another well and boosted production to about $20,000
a month.  In mid-January 1989 Pitco again sent production records to McCann that showed
production had increased.
	McCann eventually agreed to purchase the wells for $325,000.  On March 2, 1989,
he delivered to Pitco's offices a bank money order in the amount of $298,000, payable to Pitco
Energy Company.  Another bank money order in the amount of $27,000 went to Hutto to pay him
for his commission on the sale.
	McCann took over operation of the wells at the beginning of March 1989.  As
shown below, the revenues from the sale of natural gas from the wells dropped immediately
thereafter.  The following list shows the revenues generated by the natural gas from the wells
from May 1988 through February 1989, while Pitco still owned the wells:

05-23-88	$ 5,720.37
05-25-88	12,038.86
06-23-88	7,570.15
06-24-88	12,449.73
07-26-88	16,923.96
08-25-88	23,038.16
09-26-88	17,943.07
10-27-88	20,936.30
11-23-88	11,836.93
12-07-88	8,372.48
12-28-88	12,796.23
01-06-89	5,157.17
01-26-89	23,186.92
02-23-89	558.63
02-24-89	19,786.74

As can be seen from the list below, the monthly revenues from the wells dropped noticeably from
that point, except for the months of July and August 1990:

03-27-89	$10,828.72
04-25-89	9,714.13
07-24-89	(for April and May production) 20,625.29
07-26-89	8,260.11
08-25-89	10,495.49
09-26-89	9,025.73
10-23-89	1,016.53
10-25-89	8,748.20
11-28-89	9,510.25
12-28-89	11,829.60
01-25-90	8,951.67
02-26-90	12,587.15
03-27-90	10,165.62
04-25-90	8,386.72
05-25-90	7,850.65
06-25-90	8,921.53
07-25-90	16,508.86
08-24-90	20,712.52
09-26-90	5,690.45

	McCann testified that when he received the April 1989 check for $9,714.13, he was
surprised because he thought the check would be about twice that amount.  He tried two or three
times to contact Orr and Pitchford by phone, but could not reach them; nor did he get a return call
after leaving a message with a secretary.  McCann then contacted Sun Exploration & Production
Company, the company purchasing the gas from the wells, and asked them why production had
taken such a dramatic drop.  In response Sun sent McCann copies of the gas-meter charts that it
had interpreted to determine the production from the subject wells.
	After further investigation, McCann believed that Orr and Pitchford had deceived
him into buying the subject wells for $325,000 by providing him with false information
concerning the true amount of natural gas the wells were producing.  Based on the evidence
provided by McCann and others familiar with the subject wells, the State eventually obtained a
grand-jury indictment against Orr and Pitchford for theft.
	At trial the State introduced evidence that sometime during the period when Pitco
operated the wellsbut before McCann took over their operationcertain production mechanisms
on the wells had been arranged and manipulated in a way that gave false production readings.  As
a result, the wells were not producing as much natural gas as the production readings showed. 
The State's theory was that Orr and Pitchford knew the production reports that they provided to
McCann during the negotiations were false, and that Orr and Pitchford used the false production
records to deceive McCann into buying the wells for $325,000 when the wells were actually worth
much less, if in fact they were worth anything at all.  The jury apparently accepted the State's
theory and convicted both Orr and Pitchford of theft.


STANDARD OF REVIEW
	Appellants challenge the legal sufficiency of the evidence to support their
conviction.  Accordingly, we must determine whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Griffin
v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981).

DISCUSSION
	The indictment in the present case stated the following:

MITCHELL MARK ORR and WAYMON B. PITCHFORD, JR. . . . , on or
about the 2nd day of March, A.D. 1989, . . . did then and there intentionally and
knowingly appropriate, by acquiring and otherwise exercising control over tangible
personal property, other than real property, to-wit:  cash money of the value of
more than $20,000.00 from Tom McCann, the owner, without the effective
consent of the owner, and with intent to deprive the said owner of said property.

(Emphasis added.)  With respect to both Orr and Pitchford, the trial court charged the jury with
the following:

	[I]f you believe from the evidence beyond a reasonable doubt that on or
about MARCH 2, 1989, . . . the defendant . . . either

	(a)	by his own conduct did intentionally or knowingly appropriate, by
acquiring and otherwise exercising control over tangible personal
property, other than real property, to wit:  cash money of the value
of more than $20,000.00 from Tom McCann, the owner, without
the effective consent of the owner, and with intent to deprive the
said owner of said property,

		OR

	(b)	acting with the intent to promote or assist the commission of the
offense, the said defendant . . . solicited, encouraged, directed,
aided, or attempted to aid [the other defendant] to commit the
offense of FELONY THEFT, and that the said [other defendant] on
or about MARCH 2, 1989, . . . did knowingly or intentionally
appropriate, by acquiring and otherwise exercising control over
tangible personal property, other than real property, to-wit:  cash
money of the value of more than $20,000.00 from Tom McCann,
the owner, without the effective consent of the owner, and with
intent to deprive the said owner of said property,

then you will find the defendant guilty of the offense of FELONY THEFT . . . .

(Emphasis added.)
	In their fifth point of error, appellants argue the State failed to prove beyond a
reasonable doubt that they appropriated $20,000 in cash money from McCann as required by the
indictment and jury charge.  We agree.
	As discussed above, McCann testified at trial that on March 2, 1989, he delivered
two bank money orders to Pitco's offices to pay for the wells.  The State introduced carbon copies
of these money orders into evidence.  There is absolutely no evidence in the record, however, that
the money orders were ever negotiated by Orr, Pitchford, Pitco, or anyone else.  This, we
conclude, constituted a fatal variance between the indictment and the proof at trial.
	In Lieske v. State, 131 S.W. 1126 (Tex. Crim. App. 1910), the Court of Criminal
Appeals was presented with a case very similar to the present cause.  The defendant was indicted
for appropriating $250 in current money of the United States by false pretenses.  At trial the State
offered evidence that the victim had given the defendant a check for $250.  In reversing the
defendant's conviction, the court held that the allegation in an indictment, alleging unlawful
acquisition of money of the United States, will not be sustained by proof of the unlawful
acquisition of a check for the same amount of money.  Id. at 1127.
	In Wimer v. State, 48 S.W.2d 296 (Tex. Crim. App. 1932), the court was again
presented with a situation where the defendant was indicted for unlawfully obtaining a certain
amount of money of the United States from the victim, yet the State's evidence showed only that
the victim gave the defendant a check for that amount.  The defendant argued that this constituted
a fatal variance between the indictment and the proof at trial.  In rejecting the defendant's
argument, the court distinguished Lieske:

	It is observed that the opinion in Lieske v. State, supra, fails to show that
the accused in fact received the money on the check he obtained.  Hence it would
not appear that the check was simply an instrument through which the money was
received.  In the present case and the other cases to which reference has been
made, the checks were cashed and the money obtained.  Thus the checks were
simply used as instruments through which the money was received.  Disclaiming
any intention to hold that a variance would not be presented in a case where it was
alleged that money was acquired and the proof merely showed that a check was
obtained without further showing that the money was obtained by cashing the
check, the opinion is expressed that the facts of the present case bring it within the
holding of Robinson v. State, supra, and King v. State, supra.  These cases and the
present case are distinguishable upon the facts from Lieske v. State, supra, in that
in Lieske's Case it was not shown that the check was cashed, whereas, in the
present case and the other cases referred to, the proof showed that the checks were
in fact cashed and the money obtained.  We are constrained to overrule appellant's
contention that there is a fatal variance.

Wimer, 48 S.W.2d at 303.
	Since Wimer, the Court of Criminal Appeals has continued to recognize the
distinction between proof that a defendant merely obtained a check as opposed to proof that the
defendant obtained a check, endorsed it, and cashed or otherwise negotiated it.  See, e.g., Jackson
v. State, 646 S.W.2d 225, 226 (Tex. Crim. App. 1983); Compton v. State, 607 S.W.2d 246, 252
(Tex. Crim. App. 1980) (opinion on motion for reh'g), cert. denied, 450 U.S. 997 (1981);
Watkins v. State, 438 S.W.2d 819, 821 (Tex. Crim. App. 1969); Paiz v. State, 320 S.W.2d 827,
828 (Tex. Crim. App. 1959).
	The State's reliance on Grogen v. State, 745 S.W.2d 450 (Tex. App. 1988, no
pet.), is misplaced.  The court's opinion in Grogen did not specifically state whether the stolen
checks in that case had been negotiated.  Moreover, we assume they had been negotiated, because
the two Court of Criminal Appeals cases relied on by the Grogen court, Jackson, 646 S.W.2d
225, and Kirkpatrick v. State, 515 S.W.2d 289 (Tex. Crim. App. 1974), were both cases in which
stolen checks had been negotiated.
	The State also argues that a money order "is bearer paper and is the equivalent of
cash."  This argument is without merit.  "Bearer paper" or a "bearer instrument" is an instrument
that does not designate a specific payee, but instead is payable to "bearer" or to "cash," such that
anyone possessing the instrument may negotiate it.  See Tex. Bus. & Com. Code Ann. § 3.111
(1968).  The two money orders in the present case were payable to "Pitco Energy Co" and
"Venture Equipment Co."  Therefore, the money orders were not "bearer paper."  We hold that
a check or money order that designates a specific payee is not the equivalent of cash.  We do not
address whether true "bearer paper" might be the equivalent of cash in this context.
	In the present case the State presented evidence only that McCann delivered bank
money orders to Pitco's offices; there is no evidence that the money orders were ever cashed or
otherwise negotiated in any way by anyone.  Therefore, there is no evidence that Orr or Pitchford
used the money orders as instruments to obtain or exercise control over "cash money" as required
by the indictment.  Thus, we conclude that a fatal variance existed between the indictment and the
proof at trial.
	Appellants' fifth point of error is sustained.  Therefore, we need not address their
remaining points.

CONCLUSION
	Based on our foregoing discussion, we conclude, even after looking at the evidence
in the light most favorable to the prosecution, that no rational trier of fact could have found all
of the essential elements of theft beyond a reasonable doubt as those elements were alleged in the
indictment.  Therefore, we reverse both appellants' convictions and reform each judgment to
reflect an acquittal.

   
						J. Woodfin Jones, Justice 
[Before Justices Powers, Jones and Kidd]
Reversed and Reformed on Both Causes
Filed:  August 12, 1992
[Publish]
