                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-08-00158-CR

SUSAN HARGRAVE,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 40th District Court
                               Ellis County, Texas
                             Trial Court No. 31907CR


                          MEMORANDUM OPINION


      Appellant Susan Hargrave was charged by indictment with the state jail felony

offense of theft of service (greater than $1,500 but less than $20,000). The trial court

found her guilty and assessed punishment at 730 days’ confinement and a $1,000 fine.

The court then suspended the sentence and placed Hargrave on community supervision

for three years. By one issue, Hargrave contends that the evidence is legally insufficient

to support her conviction. We will affirm.
         When reviewing a challenge to the legal sufficiency of the evidence to establish

the elements of a penal offense, we must determine whether, after viewing all the

evidence in the light most favorable to the verdict, any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). Our duty is to

determine if the finding of the trier of fact is rational by viewing all of the evidence

admitted at trial in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d

418, 422 (Tex. Crim. App. 1992). In doing so, any inconsistencies in the evidence are

resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App.

2000).

         Section 31.04(a)(1) of the Penal Code provides: “(a) A person commits theft of

service if, with intent to avoid payment for service that he knows is provided only for

compensation: (1) he intentionally or knowingly secures performance of the service by

deception, threat, or false token.” TEX. PEN. CODE ANN. § 31.04(a)(1) (Vernon 2003).

“Deception” is defined in section 31.01(1) of the Penal Code to mean:

         (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 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;

         ....

         (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

Hargrave v. State                                                                       Page 2
       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. § 31.01(1)(A), (B), (E) (Vernon 2003).

       In this case, Richard Young performed well repair services for Hargrave. Young

testified that when he checked the well, he discovered that “the problem was down the

hole”; therefore, he had to “pull the well.” The cost to do this was $1,500, which

Hargrave paid with a check. Once Young pulled the well, he was then able to figure

out “what was wrong with it,” and he repaired the problem that same day by installing

a new pump. The cost for the repair was $3,750, which Hargrave paid with a second

check. Both checks were later returned for insufficient funds. On the date the checks

were drawn, the account had a balance of $732.89.

       Citing Cortez v. State, 582 S.W.2d 119 (Tex. Crim. App. 1979), and Gibson v. State,

623 S.W.2d 324 (Tex. Crim. App. 1980), Hargrave argues that the evidence is legally

insufficient to sustain her conviction because each insufficient-funds check was given

for past services rather than for future services and, therefore, the checks were not used

to secure service as required by the statute.

       In Cortez, the defendant paid for window tinting with an insufficient-funds check

and was convicted of theft by check of services.       The Court of Criminal Appeals

reversed, stating that the statute requires a deceptive act which affects the judgment of

another. Because defendant’s sole deceptive act was paying with an insufficient-funds




Hargrave v. State                                                                    Page 3
check after his windows had been tinted, the check could not have affected the vendor’s

judgment. Cortez, 582 S.W.2d at 120-21.

       In Gibson, the defendant was convicted of theft by check of services for paying

his hotel bill with a check drawn on a bank at which he had no account. A Court of

Criminal Appeals panel reversed, citing Cortez and holding that the check could not

have induced the hotel to provide any services since it was given after the services had

been rendered. Gibson, 623 S.W.2d at 325-26. The State filed a motion for rehearing that

was heard by the court en banc. In that motion, the State argued that, after passing the

check, the defendant incurred additional charges of $142.58 and that his check

confirmed the false impression that he intended to pay for his entire bill. That false

impression, according to the State, affected the hotel’s judgment in the events following

the check’s receipt. Id. at 329. Judge Clinton, writing for the court, rejected the State’s

argument for two reasons. First, Section 31.04(a) required, at that time, theft of at least

$200.00 in services.    The post-check services totaled only $142.58.       Secondly, the

evidence established that the hotel did not rely upon the check because it immediately

undertook significant activity to determine its validity. Id. at 331.

       Based on Cortez and Gibson, we agree with Hargrave that an insufficient-funds

check given to pay an antecedent debt, without more, does not violate Section 31.04(a).

However, this case involves more than just one insufficient-funds check given to pay an

antecedent debt.

       Viewing the evidence in the light most favorable to the finding of guilt, a rational

trier of fact could have found that Hargrave gave Young the $1,500 check for pulling the

Hargrave v. State                                                                    Page 4
well and that, secure in the thought that past services had been paid and that future

performance would be also, Young then repaired the well by installing the new pump.

A rational trier of fact could conclude that, had Hargrave told Young that she did not

have sufficient funds to pay for pulling the well, Young would not have performed the

remaining repairs, causing him to sustain an additional $3,750 in damages. See Huse v.

State, 180 S.W.3d 847, 850-53 (Tex. App.—Eastland 2005, pet. ref’d). We thus hold that

the evidence is legally sufficient to support Hargrave’s conviction for theft of service.

Her sole issue is overruled, and we affirm the trial court’s judgment.



                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed February 10, 2010
Do not publish
[CR25]




Hargrave v. State                                                                  Page 5
