
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-00-00233-CR


Jay Aloysius Moritz, Appellant


v.


The State of Texas, Appellee




FROM THE DISTRICT COURT OF DALLAS COUNTY, 292ND JUDICIAL DISTRICT

NO. F-9901903-WV, HONORABLE HENRY WADE, JR., JUDGE PRESIDING


The district court found appellant Jay Aloysius Moritz guilty of theft and assessed
punishment at incarceration in a state jail for two years, probated.  Tex. Penal Code Ann.
§ 31.03(a), (e)(4)(A) (West Supp. 2000).  Appellant's only point of error is that the evidence is
factually insufficient to sustain the conviction.  We will affirm.

In a factual-sufficiency review, the evidence is not viewed in the light most
favorable to the verdict.  Instead, all the evidence is considered equally, including the testimony
of defense witnesses and the existence of alternative hypotheses.  Orona v. State, 836 S.W.2d 319,
321 (Tex. App.--Austin 1992, no pet.).  A factual-sufficiency review asks whether a neutral
review of all the evidence, both for and against the finding of guilt, demonstrates that the proof
of guilt is so obviously weak or so greatly outweighed by contrary proof as to undermine
confidence in the fact finder's determination.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim.
App. 2000).  A verdict may be set aside only if a finding of guilt beyond a reasonable doubt is
clearly wrong and unjust.  Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone
v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd as untimely filed).

On June 30, 1998, appellant purchased a computer from Shakil Sattar, who was
doing business as Texas Micro Computers.  Sattar testified that appellant told him that he was a
software engineer.  Appellant gave Sattar a business card indicating that appellant was president
of Golden Touch Software, with offices in a suite on Preston Road in Dallas.  It was shown that
the Preston Road address was a mail drop and that the suite did not exist.  Appellant paid Sattar
by check, but asked him to hold the check for a week until he was paid for work he was doing. 
Sattar made several calls to appellant's bank over the next month, asking if appellant's account had
sufficient funds to pay the check.  It never did.  Sattar eventually deposited the check, which was
returned for insufficient funds.  Sattar also learned that appellant's credit card, an imprint of which
he had taken at the time of the sale in case the check did not clear, was in fact a debit card linked
to appellant's checking account.

In mid-August 1998 appellant came to Sattar's business and offered to work off his
debt.  Sattar rejected the offer and called the police.  Appellant ran away.  Appellant later entered
the district attorney's hot-check diversion program.  Pursuant to this program, appellant signed
an admission that he wrote the check to Sattar knowing he did not have sufficient funds and agreed
to a schedule of payments.  Appellant failed to make any of the agreed payments.

Appellant testified that he had an agreement with Sattar to work for him in exchange
for the computer.  Appellant called two witnesses who testified that they were under the
impression that appellant worked for Sattar.  One of these witnesses, Allen Baugh, testified that
he paid Sattar $90 an hour for appellant's work repairing computers Baugh purchased from Sattar.
In rebuttal, Sattar denied having any employment relationship with appellant.  Sattar acknowledged
referring appellant to Baugh, hoping that appellant would earn money to pay for the computer. 
Sattar denied billing Baugh for appellant's services, saying that Baugh paid him only for work
done by a man actually employed by Sattar.

In the exercise of our fact jurisdiction, we are not free to reweigh the evidence and
set aside a verdict merely because we feel that a different result is more reasonable.  Clewis v.
State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996); Reina v. State, 940 S.W.2d 770, 773 (Tex.
App.--Austin 1997, pet. ref'd).  We must maintain appropriate deference to the trier of fact by
finding reversible error only when the record clearly indicates that the verdict is wrong and
manifestly unjust.  Johnson, 23 S.W.3d at 9; Reina, 940 S.W.2d at 773.  A decision is not
manifestly unjust because the fact finder resolved conflicting views of the evidence in the State's
favor.  Roise v. State, 7 S.W.3d 225, 233 (Tex. App.--Austin 1999, pet. ref'd).  Having reviewed
all the evidence, we conclude that the finding of guilt is not clearly wrong or unjust.

The point of error is overruled and the judgment of conviction is affirmed.



  
				Lee Yeakel, Justice

Before Justices Jones, Kidd and Yeakel

Affirmed

Filed:   November 16, 2000

Do Not Publish

NO. F-9901903-WV, HONORABLE HENRY WADE, JR., JUDGE PRESIDING


The district court found appellant Jay Aloysius Moritz guilty of theft and assessed
punishment at incarceration in a state jail for two years, probated.  Tex. Penal Code Ann.
§ 31.03(a), (e)(4)(A) (West Supp. 2000).  Appellant's only point of error is that the evidence is
factually insufficient to sustain the conviction.  We will affirm.

In a factual-sufficiency review, the evidence is not viewed in the light most
favorable to the verdict.  Instead, all the evidence is considered equally, including the testimony
of defense witnesses and the existence of alternative hypotheses.  Orona v. State, 836 S.W.2d 319,
321 (Tex. App.--Austin 1992, no pet.).  A factual-sufficiency review asks whether a neutral
review of all the evidence, both for and against the finding of guilt, demonstrates that the proof
of guilt is so obviously weak or so greatly outweighed by contrary proof as to undermine
confidence in the fact finder's determination.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim.
App. 2000).  A verdict may be set aside only if a finding of guilt beyond a reasonable doubt is
clearly wrong and unjust.  Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone
v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd as untimely filed).

On June 30, 1998, appellant purchased a computer from Shakil Sattar, who was
doing business as Texas Micro Computers.  Sattar testified that appellant told him that he was a
software engineer.  Appellant gave Sattar a business card indicating that appellant was president
of Golden Touch Software, with offices in a suite on Preston Road in Dallas.  It was shown that
the Preston Road address was a mail drop and that the suite did not exist.  Appellant paid Sattar
by check, but asked him to hold the check for a week until he was paid for work he was doing. 
Sattar made several calls to appellant's bank over the next month, asking if appellant's account had
sufficient funds to pay the check.  It never did.  Sattar eventually deposited the check, which was
returned for insufficient funds.  Sattar also learned that appellant's credit card, an imprint of which
he had taken at the time of the sale in case the check did not clear, was in fact a debit card linked
to appellant's checking account.

In mid-August 1998 appellant came to Sattar's business and offered to work off his
debt.  Sattar rejected the offer and called the police.  Appellant ran away.  Appellant later entered
the district attorney's hot-check diversion program.  Pursuant to this program, appellant signed
an admission that he wrote the check to Sattar knowing he did not have sufficient funds and agreed
to a schedule of payments.  Appellant failed to make any of the agreed payments.

Appellant testified that he had an agreement with Sattar to work for him in exchange
for the computer.  Appellant called two witnesses who testified that they were under the
impression that appellant worked for Sattar.  One of these witnesses, Allen Baugh, testified that
he paid Sattar $90 an hour for appellant's work repairing computers Baugh purchased from Sattar.
In rebuttal, Sattar denied having any employment relationship with appellant.  Sattar acknowledged
referring appellant to Baugh, hoping that appellant would earn money to pay for the computer. 
Sattar denied billing Baugh for appellant's services, saying that Baugh paid him only for work
done by a man actually employed by Sattar.

In the exercise of our fact jurisdiction, we are not free to reweigh the evidence and
set aside a verdict merely because we feel that a different result is more reasonable.  Clewis v.
State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996); Reina v. State, 940 S.W.2d 770, 773 (Tex.
App.--Austin 1997, pet. ref'd).  We mu