           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-1717-11



                       TONYA JEAN DAUGHERTY, Appellant

                                             v.

                                THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE FIFTH COURT OF APPEALS
                            COLLIN COUNTY

       C OCHRAN, J., delivered the opinion of the Court in which K ELLER, P.J. and
P RICE, W OMACK, J OHNSON, and A LCALA, JJ., joined. H ERVEY, J., filed a dissenting
opinion in which M EYERS and K EASLER, JJ., joined.

                                       OPINION

       Appellant signed a construction-service contract with a general contractor to build out

office space for her and her husband’s window-tinting company. Appellant wrote a $1,657

check as a deposit. The rest of the approximately $48,000 contract price was not due until

the project was completed. At that time, however, appellant no longer had the money to pay

the contractual debt. She gave the contractor an “insufficient funds” check. A jury convicted
                                                                              Daugherty     Page 2

her of theft of services for obtaining the contractor’s service by deception when she gave him

the insufficient-funds check after he had completed the build-out. The court of appeals

reversed the jury’s verdict and rendered a judgment of acquittal because it determined that

the evidence was legally insufficient to support the conviction.1 We granted the State’s

petition to decide whether the failure to prove that appellant secured the performance of the

contract with a “worthless check” was merely an immaterial variance under Gollihar 2 or

whether the State failed to prove the essential element that an act of deception secured

performance of the contractor’s services.3 We conclude that the State failed to prove the

offense of theft of service by deception, so we affirm the court of appeals.

                                                  I.

       On April 16, 2008, appellant and her husband, Paul Daugherty, entered into a contract

with a general contractor, Gary Bailey, for Mr. Bailey to finish out office space for the

Daughertys’ window-tinting business. The contract was for a little more than $48,000 in all.

In accordance with Mr. Bailey’s normal practice, his contract stipulated that the company,



       1
        Daugherty v. State, No. 05-10-00832-CR, 2011 WL 3690052, at *3 (Tex. App.–Dallas
Aug. 24, 2011) (not designated for publication).
       2
           Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001).
       3
           The State’s sole ground for review is as follows:

       This Court held in Cada v. State that “immaterial variance” law as set out in
       Gollihar does not apply to the specific statutory elements alleged in the
       indictment. But what happens when the allegation at issue is not a statutory
       element and not part of the definitions of the offense but originates from another
       statute entirely? Does Gollihar’s two-part test for materiality apply?
                                                                          Daugherty      Page 3

Expertint, would pay a small deposit up front and then pay the “lion’s share” when the

project was completed and a certificate of occupancy obtained. According to the contract,

it was supposed to be a thirty-day job with the build-out completed by June 7th. The

Daughertys’ landlord would pay the major portion of the build-out, some $32,000, while the

Daughertys, as tenants, would pay about $16,000.

       Appellant gave Mr. Bailey a check for $1,657 for the deposit on April 16th. Mr.

Bailey successfully deposited that check in his bank, but he could not obtain the necessary

building permits for over a month. Therefore, the project was significantly delayed. Mr.

Bailey finished the build-out on July 2nd, but he did not obtain the certificate of occupancy

until July 10th. He said that he called the Daughertys about a week before “because I knew

we were virtually there, everything was looking good.” He called them to make sure that

they had enough “time to make arrangements” if they were short of money at that moment.

The Daughertys assured him that they would be able to make the payment. But, in fact, the

Daughertys had spent the Expertint money that they had intended to use for the payment of

the build-out on personal living expenses during the construction delay. At trial, appellant

explained that “we had to use the money that we did have in the account to support our–pay

our bills, pay our living expenses, so the money we did have in the beginning to pay [Mr.

Bailey] for the services, actually prepay, got ate up with the delay in the building.”

       Mr. Bailey met the Daughertys at a local Starbucks on July 14th, and they gave him

two checks: one was for the landlord’s portion of the build-out and the other–a check for
                                                                               Daugherty    Page 4

$15,871–for their own portion. Appellant wrote out the two checks on the Expertint

company account.4 The Daughertys told Mr. Bailey that “funds were deposited” in the

account; Paul said that the money was coming from American Express. When Mr. Bailey

took the checks to the bank two days later, the money was not there. Mr. Bailey called Paul,

and then went back to the bank again three or four days later and tried again, but without

success. Mr. Bailey called Paul once more, and Paul assured Mr. Bailey that the problem

was being taken care of, but it was not. Eventually, Mr. Bailey contacted the “hot check”

division of the Collin County D.A.’s Office.

       D.A. Investigator Gary Cochrane testified that he tried to resolve the check problem

with appellant.5 She told him that she wrote the check that bounced and that she owed Mr.

Bailey the contractual debt.      She said that she could pay the debt over time, so they

discussed a possible payment plan with a quarter down followed by three monthly payments.

Appellant agreed to the plan, and she brought $3,500 of the $4,000 down payment to their

meeting. She made the next monthly payment a few days late, but she did not make the last



       4
          According to appellant, the Daughertys’ landlord was out of town at this time, so he
could not write a check for his portion of the build-out. Eventually, the landlord did pay his
portion in return for Mr. Bailey’s release of a contractor’s lien against the property. Appellant
testified that she knew that Expertint did not have the funds to cover the check in the bank on (or
any time after) July 14th, but she wrote the two checks to make Mr. Bailey “feel better about the
situation” and to reassure him that he would be paid.
       5
         When shown Defendant’s Exhibit 4, a print-out of the Internet website for the Collin
County District Attorney’s Hot Check Division, Mr. Cochrane agreed that the website states that
“the D.A’s Office cannot accept the following kinds of checks for prosecution: . . . Checks
where no goods, products or services were given in immediate exchange . . . [or] checks given to
pay a pre-existing debt.”
                                                                          Daugherty      Page 5

two payments. She explained that their company, Expertint, went out of business when the

build-out wasn’t completed on time. Appellant admitted that, “like a lot of folks,” she and

her husband were affected by the economy in 2008. The total restitution that appellant paid

was $7,658.67. When appellant couldn’t pay the remainder of the restitution, the State filed

charges of theft of service by deception.

       The indictment read that appellant, on or about July 14, 2008,

       by deception, threat, or false token: to wit: by issuing and passing a check,
       when the defendant did not have sufficient funds in and on deposit with the
       bank for the payment in full of the check as well as other checks then
       outstanding, intentionally and knowingly secure performance of a service,
       namely, construction services, of the value of at least Fifteen Hundred Dollars
       ($1,500.00) but less than Twenty Thousand Dollars ($20,000.00) from Gary
       Bailey, intending to avoid payment for the service and knowing that the
       service was provided only for compensation.

Put more simply, the State alleged that appellant secured the performance of Mr. Bailey’s

construction services by the deceptive act of giving him a bad check on or about July 14,

2008. A jury convicted appellant of that offense and sentenced her to one year confinement

in the State Jail Division, probated for two years, and restitution of $8,317.33.

       The court of appeals reversed appellant’s conviction and entered a judgment of

acquittal. It relied on Cortez v. State,6 and Gibson v. State,7 in concluding that “any

deception committed ‘by issuing and passing a check, when the defendant did not have

sufficient funds in and on deposit,’ as alleged in the indictment, was incapable of affecting


       6
           582 S.W.2d 119 (Tex. Crim. App. 1979).
       7
           623 S.W.2d 324 (Tex. Crim. App. 1981) (op. on reh’g).
                                                                                  Daugherty      Page 6

Bailey’s judgment with regard to the construction services he had already completed.” 8 The

court of appeals followed our well-established precedent that holds that the deceptive act

must occur before, not after, the other person has performed his service.9

                                                   II.

       Under Texas Penal Code Section 31.04(a), the theft-of-services statute, the State is

required to prove the following:

       1)        The defendant had the intent to avoid payment for a service that she knows is
                 provided only for compensation, and

       2)        acting with that intent, she intentionally or knowingly

       3)        secured the other person’s performance of a service

       4)        by deception.10

All of these elements must occur at the same time. The defendant must have “secured” the

victim’s services–here, Mr. Bailey’s construction work–by an act of deception.11 That is, the


       8
        Daugherty v. State, 2011 WL 3690052, at *2 (“Any deception that occurs after the other
person has completed performance of the service allegedly stolen would not meet this
requirement [of affected the judgment of another in the transaction]: once the other person has
completed performance of his obligations in the transaction, any later deception would be
incapable of affecting retrospectively his judgment in what he has already completed.”).
       9
           Id. at *3 (citing Gibson and Cortez).
       10
           TEX . PENAL CODE § 31.04(a) (1) (“A person commits theft of service if, with intent to
avoid payment for service that the actor knows is provided only for compensation: . . . the actor
intentionally or knowingly secures performance of the service by deception, threat, or false
token[.]”).
       11
         The term “deception” for purposes of the theft of services statute means:
       (A)    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
                                                                                   Daugherty        Page 7

proof must be that (1) Mr. Bailey relied upon appellant’s prior act of deception when he

performed his build-out services, and (2) appellant had no intent to pay Mr. Bailey for his

services at the moment that she committed that deceptive act.12

        When the indictment alleges theft of services by “deception” through the issuance of

a bad check, proof that the check was issued after the performance of the services will not

support a conviction for theft of services.13 The defendant’s “deception”–issuing a check


                that the actor does not believe to be true;
        (B)     failing to correct a false impression of law or fact that is likely to affect the
                judgment of another in the transaction, that the actor previously created or
                confirmed by words or conduct, and that the actor does not now believe to
                be true;
        (C)     preventing another from acquiring information likely to affect his
                judgment in the transaction;
        (D)     selling or otherwise transferring or encumbering property without
                disclosing a lien, security interest, adverse claim, or other legal
                impediment to the enjoyment of the property, whether the lien, security
                interest, claim, or impediment is or is not valid, or is or is not a matter of
                official record; or
        (E)     promising performance that is likely to affect the judgment of another in
                the transaction and that the actor does not intend to perform or knows will
                not be performed, except that failure to perform the promise in issue
                without other evidence of intent or knowledge is not sufficient proof that
                the actor did not intend to perform or knew the promise would not be
                performed.
Id. at § 31.01(1).
        12
          Theft of service by deception requires proof of purpose. The defendant must have the
purpose to “obtain the services” of another, and she must simultaneously have a purpose to
deceive. “If the actor believes in the accuracy of the impression he seeks to convey, he will not
be guilty of a violation of Section 223.3 [theft by deception] even if his belief is unreasonable.”
ALI, MODEL PENAL CODE § 223.3 cmt. at 181 (1980).
        13
          Gibson, 623 S.W.2d at 326 (evidence that defendant “presented a check to a hotel for
services previously rendered . . . ‘could not have affected the judgment of the complaining
                                                                                Daugherty      Page 8

that she implicitly or explicitly claims will be honored by the bank–must be such as is likely

to affect the judgment of the service provider, i.e., to induce him to perform the service.14 But

once the service provider has completed his contractual performance, his judgment in what

he has already completed cannot be retrospectively affected by any purported deception, such

as issuing a worthless check.15

       Why is this timing important? Criminal liability depends upon a person’s culpable

mental state at the time the person performs some criminal act and is the convergence of a

bad act and a guilty mind.16 Theft of service by deception requires that the defendant intend

to defraud the service provider before that person provides the service, and the defendant

must commit some act of deception–lying about her bank account, giving the service

provider a bad check, promising to pay a leasing contract when the defendant has no intent



witness in the delivery of the services allegedly stolen’ because the check was presented after the
services had been rendered.’”); Cortez, 582 S.W.2d at 120-21 (stating that any deception that
occurs after the service provider has completed performance will not meet the requirement of
theft of service by deception; “once the other person has completed the performance of his
obligations in the transaction, any later deception would be incapable of affecting retrospectively
his judgment in what he has already completed.”).
       14
            Gibson, 623 S.W.2d at 326; Cortez, 582 S.W.2d at 120-21.
       15
            Id.
       16
          TEX . PENAL CODE § 6.02(a); see, e.g., Cook v. State, 884 S.W.2d 485, 487 (Tex. Crim.
App. 1994) (“[I]n order to constitute a crime, the act or actus reus must be accompanied by a
criminal mind or mens rea ”); Peterson v. State, 645 S.W.2d 807, 811 (Tex. Crim. App. 1983)
(to constitute theft, intent to deprive owner must exist at time property is taken); see generally, 3
WAYNE R. LA FAVE , SUBSTANTIVE CRIMINAL LAW § 19.7(g) (2d ed. 2003) (“In the light of the
basic criminal-law principle that the mental and physical elements of the crime must coincide,
the knowledge of the falsity of the statement and the intent to defraud must coincide with the
obtaining of the title to the property” in theft by deception statutes) (citations omitted).
                                                                                  Daugherty      Page 9

to do so, etc.–that is likely to affect the judgment of the service provider.17 And the service

provider must have actually relied upon that deceptive act in providing the service.18

        In sum, the deception must occur before the service is rendered, and that deceptive act

must induce the other person to provide the service. The other person must rely upon the

defendant’s deceptive act in providing the service.19

                                                  III.

        In this case, appellant, like the defendants in Cortez and Gibson, wrote a bad check

after the service provider had completed his performance. That check could not have

affected Mr. Bailey’s judgment in performing his services to renovate appellant’s office



       17
           This requirement, that the deceptive act be one that is likely to affect the judgment of
the other person, is meant only to test the relationship between the defendant’s falsehood and the
transaction to determine if a deception exists. Some falsehoods, after all, are not likely to affect a
service provider’s judgment in the transaction. Only if the jury finds a deceptive act that is likely
to affect the judgment of the service provider, must it then consider whether there was reliance,
i.e., whether the other person provided the service because of that act of deception. See State v.
LeFevre, 825 P.2d 681, 686 n.9 (Utah Ct. App. 1992).
       18
          See Swope v. State, 723 S.W.2d 216, 223 (Tex. App.–Austin 1986), aff’d on other
grounds, 805 S.W.2d 442 (Tex. Crim. App. 1991) (concluding that reliance upon the
defendant’s deception is an element of theft by deception). That reliance need not be the sole, or
even controlling, reason why the victim decided to provide the service, but it must be a
substantial or material factor in the decision-making process. See, e.g., LeFevre, 825 P.2d at
686-87 (concluding that the victim “need only have materially relied on the resulting deception”);
State v. Schneider, 715 P.2d 297, 300 (Ariz. Ct. App. 1986) (“The deceit must be ‘material’ to
constitute the offense, in the sense that it must be a significant factor in the transaction”); State v.
Finch, 573 P.2d 1048, 1052 (Kan. 1978) (in a theft-by-deception prosecution, “the state must
prove that the victim was actually deceived and relied in whole or in part upon the false
representation”).
        19
          See Garcia v. State, 669 S.W.2d 169, 171 (Tex. App.–Dallas 1984, pet ref’d)
(defendant’s act of giving store clerk a stolen credit card without any intent to pay for ring
affected the clerk’s judgment in giving him a ring during the transaction).
                                                                               Daugherty         Page 10

space. He was already done with the job.20

       On appeal, the State admitted that appellant did not commit theft of service by writing

a worthless check after Mr. Bailey had completed his work. Instead, the State suggests that

its allegation and proof of the alleged deceptive act as being appellant’s bad check is just an

immaterial variance which should be ignored. The State now argues that the jury could have

found that appellant committed theft by deception under an entirely different theory with a

different deceptive act at a different time.21

       Under this new theory, appellant’s deceptive act was that she failed to tell Mr. Bailey

       20
          See Hulse v. State, 180 S.W.3d 847, 850 (Tex. App.–Eastland 2005, pet. ref’d) (“[I]f
one simply pays for a completed transaction with an insufficient-funds check, no violation is
shown. On the other hand, if one prepays for services with that same check, the [theft of
services] statute is implicated. The distinction is the vendor’s reliance. The statute requires proof
that the appellant secured services with a deceptive act.”).
       21
            The State summarizes its argument as follows:

       Under Malik and Gollihar, evidentiary sufficiency should be measured against the
       essential elements of the crime as defined by the hypothetically correct jury
       charge. The hypothetically correct jury charge is one that is based in the
       indictment, accurately sets out the law that is authorized by the indictment,
       adequately describes the offense, and disregards variances that are immaterial
       under a two-part test adopted in Gollihar. Accurately setting out the law as
       authorized by the indictment requires that when the indictment narrows the list of
       possible statutory alternatives for proving the offense, the State is bound to prove
       the statutory alternative it alleges, regardless of materiality. . . . The only portion
       of the indictment the State did not prove as specifically alleged was that the
       worthless check secured Bailey’s performance. But this allegation at issue here
       was not statutory at all, but merely evidentiary. . . . Because the allegation at issue
       did not describe the allowable unit of prosecution, the State’s failure to prove the
       allegation could not have rendered the evidence insufficient.

But the State fails to focus on the importance of alleging and proving the deceptive criminal act
that it is relying on. Because a crime is composed of a bad act and a guilty mind, the State must
plead and prove the “bad act” that it is relying on.
                                                                              Daugherty      Page 11

that she and her husband had already spent the money that was allocated for the office

renovations on personal expenses. Although they did have the money to pay for the building

contract at the time she signed the contract, they had spent all of that money before Mr.

Bailey had finished his work. Thus, according to the State, the jury could have found that

she failed to correct a false impression–that she still had the money to pay for the

contract–during the time Mr. Bailey performed his part of the contract.22 Under this theory,

appellant did not commit theft of services at the time she entered into the contract with Mr.

Bailey,23 and she did not commit theft of services when she wrote the worthless check after

        22
             The State argues,

        The indictment alleged Appellant secured Bailey’s services by deception by
        giving Bailey a worthless check. At trial, the State proved Appellant secured
        Bailey’s services by standing silently by as Bailey performed under the contract,
        knowing she had spent the money she intended to pay him with, and by falsely
        reassuring him a week before he completed his service that she had the money to
        pay him. Both variations involve precisely the same statutory language in the
        theft-of-service offense.

State’s Brief at 19.
        23
           If the State had evidence that appellant never intended to pay for Mr. Bailey’s services,
or that she specifically knew that she would not be able to pay for his services at the time that she
signed the contract, the State could have pled and proven “deception” under Section 31.01(1)(E)
of the Penal Code. That section states that “deception” means

        promising performance that is likely to affect the judgment of another in the
        transaction and that the actor does not intend to perform or knows will not be
        performed, except the failure to perform the promise in issue without other
        evidence of intent or knowledge is not sufficient proof that the actor did not intend
        to perform or knew the promise would not be performed.

TEX . PENAL CODE § 31.01(1)(E). The evidence that appellant had the money to pay for the
services at the time she signed the contract and that she paid the contractual deposit with a valid
check is some evidence that she did intend to perform the contract at the time she signed. The
                                                                             Daugherty     Page 12

he had completed his work. Instead, according to this theory, she committed theft by (1)

failing to tell Mr. Bailey to stop work on the contract because she had already spent the funds

allocated for his contract on personal living expenses;24 and/or (2) reassuring Mr. Bailey, the

week before he was done with his performance, that she would have the money to pay the

contract.25 But the State neither pled nor proved these purported acts of deception.



State points to no evidence suggesting that she did not intend to pay for Mr. Bailey’s services (or
knew then that she would not be able to pay) at the time she signed the contract. Indeed, the
D.A. investigator’s testimony that appellant always acknowledged the contractual debt, agreed to
pay that debt, and did pay half of it is some evidence that she always intended to pay the
contractual debt and therefore never intended to obtain Mr. Bailey’s services without paying for
them. The fact that she could not pay this debt is not legally sufficient to prove that she never
intended to pay. Id. (“failure to perform the promise in issue without other evidence of intent or
knowledge is not sufficient proof that the actor did not intend to perform or knew the promise
would not be performed.”).
       24
           This is like holding the homeowner criminally liable for failing to tell the electric
company that he lost his job and won’t be able to pay the electric bill when it is due next month,
so the electric company can turn off the electricity before the bill is due.
       25
          If the State had wanted to prove that Mr. Bailey completed his performance under the
contract only because the Daughertys reassured him the week before he was done that they would
have the money to perform their end of the contract, the State could have pled and proven
“deception” under Section 31.01(1)(B). That section states that “deception” means

       failing to correct a false impression of law or fact that is likely to affect the
       judgment of another in the transaction, that the actor previously created or
       confirmed by words or conduct, and that the actor does not now believe is true.

TEX . PENAL CODE § 31.01(1)(B). Under this theory, appellant could be criminally liable only for
that portion of the service Mr. Bailey performed after he had called the Daughertys and they
assured him that he would be paid. Perhaps Mr. Bailey might have testified that his judgment
concerning the performance of his last week’s worth of construction services was affected by the
Daughertys’ false reassurance that he would be paid. But Mr. Bailey was never asked that
question, so we do not know what he would have said. And we do not know the value of that
last week’s worth of service. Furthermore, under the terms of the written contract, appellant did
not owe Mr. Bailey any money beyond the initial deposit until and unless he completed the
project and obtained the certificate of occupancy. Had he stopped work, this might constitute an
                                                                             Daugherty     Page 13

       According to the State, once it pled the word “deception” in the indictment, any

further description of the specific deceptive act was sheer lagniappe and should be ignored.

It was, under this argument, irrelevant that the State had pled one specific act of

deception–issuing a worthless check–and the jury returned a verdict concerning that one

specific act. Indeed, the jury charge contained a full page of instructions dealing very

specifically with “insufficient funds” checks, and the statutory presumption of intent to avoid

payment set out in Section 31.04(b) and (c). The State argues that the jury charge may be

ignored and the jury’s verdict could be upheld by evidence of entirely different acts of

purported deception at entirely different times–ones that did not involve any check. But even

if our “immaterial variance” law allowed such a dramatic variance from the indictment, jury

charge, and proof, there is no evidence that Mr. Bailey relied upon those specific acts in

completing his contractual performance.26

       Appellant breached her contract with Mr. Bailey. She still owes him the money that

she promised to pay under that contract. But this routine civil breach of contract case does

not give rise to a criminal conviction for theft of services. The court of appeals correctly held

that the evidence was insufficient to support appellant’s conviction. We therefore affirm the



anticipatory breach of the contract on his part. In any event, whether appellant’s assurance to Mr.
Bailey in early July that he would be paid when he finished his part of the contract would be
sufficient to establish an act of deception under the statute is not before us because there is no
evidence that Mr. Bailey relied upon that assurance in completing his end of the contract.
       26
          See Gibson v. State, 623 S.W.2d 324, 330-31 (Tex. Crim. App. 1981) (op. on reh’g)
(explaining that State could not support theft-of-services conviction on an entirely different
theory of deception than that which the State had pled and proven at trial).
                                    Daugherty   Page 14

judgment of the court of appeals.

Delivered: January 9, 2013
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