                                      NO. 07-03-0466-CR

                                 IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                            PANEL E

                                         JULY 25, 2005

                             ______________________________


                          JAMES THOMAS HARMON, APPELLANT

                                               V.

                             THE STATE OF TEXAS, APPELLEE


                           _________________________________

                FROM THE 287TH DISTRICT COURT OF BAILEY COUNTY;

                   NO. 2193; HONORABLE GORDON H. GREEN, JUDGE

                            _______________________________

Before REAVIS and CAMPBELL, JJ. and BOYD, S.J.1


                                   MEMORANDUM OPINION


       Following a plea of not guilty, appellant James Thomas Harmon was convicted by

a jury of felony theft and sentenced to five years confinement, $53,402.55 in restitution, and




       1
           John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
a $10,000 fine. By a single point of error, appellant contends the State’s evidence is

factually insufficient to support his conviction. We reverse and remand.


       Appellant is a livestock dealer who purchases cattle and resells them for profit. He

purchases cattle from various livestock auctions which, for a commission, provide a market

for sellers and the labor and services necessary to facilitate a sale.


       Over the course of several years, appellant routinely purchased large numbers of

cattle from the Muleshoe Livestock Auction. Clayton Myers, President and part owner of

the Auction and Jamie Myers, a bookkeeper, testified to the operations and business

practices of the auction company. The Auction, which holds a sale every Saturday, acts

as a seller’s agent and the cattle to be sold remain property of the seller until a buyer is

located. When a buyer is declared the high bidder, he becomes the owner of the cattle and

is obligated to pay the Auction the purchase price indicated by his bid. When received, the

buyer’s payment is placed into a custodial account from which the Auction issues the seller

a check for the amount of the sale, minus a commission and fees. The seller is allowed to

pick up this check at any time following the sale, even if the buyer has not yet paid for the

cattle. When a check is issued to a seller prior to a buyer making payment, the Auction

becomes liable for the unpaid balance in the account and is responsible for collecting

payment from the buyer.




                                             2
       Depending on the situation, buyers may pay for cattle either on sale day, upon taking

possession of the cattle, or any other time prior to the next week’s sale.2 Myers testified

although the Auction preferred appellant pay for his cattle on the Saturday of purchase, this

did not always occur. He testified, on many occasions, appellant did pay for his cattle on

the Saturday of the sale or upon him taking physical possession of the cattle. However,

at other times, appellant was allowed to pay for his cattle several days after they had been

removed from the Auction yard. There were also instances when appellant paid with a

check shortly after purchase but would request the Auction hold the check until he was able

to procure sufficient funds to cover the amount. In such instances, appellant would attempt

to resell the cattle and use the proceeds to reimburse the auction for the purchase price.

Even though this practice occasionally resulted in some of appellant’s checks being

returned for insufficient funds, Myers testified “we made out just fine,” and “he always made

them good.”


       On Saturday, October 12, 2002, appellant was declared the high bidder on 218 head

of cattle at the Muleshoe Auction. As was custom, the Auction issued a check to the seller

from the custodial account shortly following the sale. That evening or Sunday, with the

Auction’s permission, appellant removed the cattle from the Auction yard. On Monday,



       2
       Myers explained that the Federal Packers and Stockyards Act requires the custodial
account be fully reimbursed and balanced within seven days following the sale date;
however, no expert testimony was offered regarding the Act. But cf. Blackfoot Livestock
Comm’n v. Dept. of Agric., 810 F.2d 916, 921 (9th Cir. 1987) (holding that “[t]he Act
requires all auction transactions to be closed at the end of the next business day.”).

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October 14, appellant wrote a check payable to Muleshoe Livestock Auction, Inc. for the

purchase price in the amount of $53,402.55. However, appellant asked Myers to hold the

check until the following Friday due to insufficient funds in his account. Myers agreed and

did not deposit the check. Appellant was unable to sell the cattle or otherwise obtain funds

sufficient to cover the amount of the check.3 The Auction deposited appellant’s check on

Friday, October 18, and it was presented for payment at appellant’s bank on October 21.

Appellant’s bank immediately returned the check for insufficient funds.


       When appellant discovered the check had been returned, he contacted Myers and

explained he was having difficulty selling the cattle. He asked Myers if he would withhold

from depositing the check again, and Myers agreed. Myers and appellant continued to do

business together until it became clear Myers would not be able to recover the amount of

the check. However, Myers continued to hold appellant’s check and did not present it to

the bank for payment again. In February 2003, appellant was charged with felony theft of

the $53,402.55. After a jury trial, he was found guilty and sentenced to five years

confinement, $53,402.55 in restitution, and a $10,000 fine.


       By his sole point of error, appellant contends the State’s evidence pertaining to the

consent element of theft is factually insufficient to support his conviction. We agree.



       3
        There is some evidence in the record appellant attempted to sell the purchased
cattle at a livestock auction in Clovis, New Mexico, intending to use the proceeds to cover
the check held by Myers. Apparently, he was unable to do so as the cattle were
confiscated for undisclosed reasons by the New Mexico Livestock Board.

                                             4
          As material here, the trial court instructed the jury that:

          Appropriation of property is unlawful if it is without the owner’s effective
          consent;

          “Consent” means assent in fact, whether express or apparent;

          “Effective consent” includes consent by a person legally authorized to act for
          the owner. Consent is not effective if induced by deception; and

          Among other things, the jury was charged that a finding of guilty must be
          based upon their finding that the cattle were taken “without the effective
          consent of the owner.”


Appellant does not present any charge error.


                                       Standard of Review


       When reviewing a factual sufficiency claim, we must view all the evidence without the

prism of “in the light most favorable to the prosecution” and set aside the verdict only if it is

so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

Clewis v. State, 922 S.W.2d 126, 129 (Tex.Cr.App. 1996). We must determine, considering

all of the evidence in a neutral light, whether the jury was rationally justified in finding guilt

beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Cr.App. 2004).

However, we must give deference to the jury verdict and their determinations involving the

credibility of witnesses. Clewis, 922 S.W.2d at 135 (holding “courts ‘are not free to reweigh

the evidence and set aside a jury verdict merely because the judges feel that a different

result is more reasonable’") (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex.

1986)).

                                                 5
       There are two ways evidence may be insufficient. Zuniga, 144 S.W.3d at 484. First,

evidence supporting the verdict may be too weak to support a guilty verdict beyond a

reasonable doubt. Id. Second, there may be evidence supporting the verdict and evidence

contrary to the verdict. Evidence is factually insufficient if, when weighing all the evidence,

the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not

have been met. Id. at 485. Under this standard, evidence of guilt can “preponderate” in

favor of conviction but still be insufficient to prove the elements of the crime beyond a

reasonable doubt. Id.


                                          Analysis


       Section 31.03 of the Penal Code provides that a person commits the offense of theft

if (1) he appropriates property, (2) without the owner’s effective consent, and (3) with intent

to deprive the owner. Tex. Pen. Code Ann. § 31.03(a)-(b) (Vernon Supp. 2004-05). An

owner’s consent is not effective if induced by deception or coercion. Id. at § 31.01(3)(a).

Indeed, the sine qua non of the offense of theft is lack of effective consent on the part of the

owner. Ex Parte Smith, 645 S.W.2d 310, 311 (Tex.Cr.App. 1983). Since appellant does not

challenge the jury’s finding as to the element of appropriation, we first consider whether the

evidence is factually sufficient to allow a jury to conclude the $53,402.55 was taken without

the owner’s effective consent.


       After being informed the check would not clear the bank because of insufficient funds,

Myers accepted appellant’s check and agreed not to deposit it until the Friday following the

                                               6
sale. Due to appellant’s inability to procure sufficient funds, the check was returned to the

Auction without payment. When appellant contacted Myers and explained the situation,

Myers agreed to hold the check once more. The check was never presented for payment

again. Myers testified to the handling of the matter as follows:


       Q. And you agreed with Mr. Harmon that you would hold his check when he
       paid you for those cattle; is that correct?

       A. Yes, until Friday.

       Q. And then Mr. Harmon contacted you, and you agreed to hold the check
       longer; is that correct?

       A. When it was insufficient, yes, we held it again.


However, the State does not contend the Auction allowed appellant to take possession of

the cattle before he wrote the check payable to the Auction.4


       The State does not present any evidence disputing the fact that Myers agreed to hold

the check for a second time. Furthermore, we find nothing in the record suggesting Myers

made any attempt to collect on the check once it was returned for insufficient funds. To the

contrary, according to the record, demand for payment was not made until after the parties’

business relationship had ceased.




       4
        According to State’s Exhibit 1, the check dated October 14, 2002, in the amount of
$53,402.55 was made payable to Muleshoe Livestock Auction, Inc., and indorsed “For
deposit only.” At the time of trial, a “NSF” notation appeared on the face of the check, but
it bore no endorsement provisions making it payable to Clayton Myers or otherwise.

                                             7
       In support of its argument, the State references the following question asked of Myers

on direct examination:


       Q.     Now, one of the things that we have to ask you is if you gave Mr.
              Harmon your consent to take your money by giving you this check. Did
              you tell him it was okay to give you a check that was no good?
       A.     No, sir, I didn’t.


       Although this testimony may be sufficient to overcome a no evidence challenge to the

lack of consent requirement, a question we need not decide, other testimony shows Myers

did consent. After being informed by appellant that the check would not clear, he agreed

to accept the check and hold it until Friday. More important, we find the State’s focus on

consent in their brief is misplaced. Regardless of whether Myers consented to being issued

a bad check, the check was accepted, and when the check was presented for payment and

returned as insufficient, he consented to appellant’s actions by agreeing to continue to hold

the check and never presenting it for payment again.


       The statutory presumption of intent provided in section 31.06(a) is not controlling here

because the evidence is uncontradicted that the Auction allowed appellant to take

possession of the cattle before he wrote the check. Moreover, the State does not argue and

the evidence does not show that Myers’s consent was induced by any form of deception or

coercion. Given the established custom and dealing between Myers and appellant, and

viewing the evidence in a neutral light, we conclude the jury’s finding of the absence of

Myers’s effective consent was not rationally justified beyond a reasonable doubt. Lacking


                                              8
evidence of the element of “without the owner’s effective consent,” no jury would be

rationally justified in finding appellant guilty of theft beyond a reasonable doubt. Appellant’s

sole point of error is sustained.


       Accordingly, we reverse the judgment and remand the cause to the trial court for a

new trial.



                                                   Don H. Reavis
                                                     Justice
Do not publish.




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