               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS
                                                NO. PD-0197-17



                                    DONDRE JOHNSON, Appellant

                                                           v.

                                          THE STATE OF TEXAS

                ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                     FROM THE SECOND COURT OF APPEALS
                               TARRANT COUNTY

                  W ALKER, J., filed a concurring opinion in which K ELLER, P.J., joined.

                                         CONCURRING OPINION


         In discussing whether there was sufficient evidence to support the jury’s guilty verdict on

Count I,1 the majority and Judge Yeary’s concurring opinions consider whether the evidence was

sufficient to show that Appellant was guilty as a party either under section 7(a)(2) as charged, or

under a section 7(a)(1) theory, respectively. However, the indictment did not charge Appellant as a

party. The indictment alleged that Appellant committed the offense as a primary actor, and the jury’s

         1
            W ith regard to Count II, I agree with the majority opinion that the evidence shows Appellant intended to
deprive the victims named in that count of their money intended to pay for cremation services, even if the evidence shows
he performed other paid-for services. See Majority Op. at 6–8.
                                                                                                          2

instructions authorized his conviction not just as a party but also as a primary actor. “[W]hen the trial

court’s charge authorizes the jury to convict on several different theories . . . the verdict of guilty will

be upheld if the evidence is sufficient on any one of the theories.” Swearingen v. State, 101 S.W.3d

89, 95 (Tex. Crim. App. 2003). The evidence is sufficient on the theory that Appellant was guilty

as a primary actor, and for that reason I concur in the Court’s decision to reverse the judgment of the

court of appeals.

                 Sufficient Evidence Shows Appropriation as a Primary Actor

        A person commits the offense of theft if he unlawfully appropriates property with the intent

to deprive the owner of that property. TEX . PENAL CODE Ann. § 31.03(a). Appellant’s argument on

appeal, and again before this Court, is that the evidence is insufficient to support the guilty verdict

because one of the elements of theft, appropriation, is not shown. “Appropriate” means:

                (A) to bring about a transfer or purported transfer of title to or other
                nonpossessory interest in property, whether to the actor or another; or
                (B) to acquire or otherwise exercise control over property other than real
                property.

TEX . PENAL CODE Ann. § 31.01(4) (emphasis added). Appellant argues that he did not exercise

control over Francois’s money because he was not the named payee on the check. Therefore, the

argument goes, he could not have appropriated Francois’s property.

        In his brief to this Court and in his brief to the court of appeals, Appellant’s argument relies

upon Newman v. State, 115 S.W.3d 118 (Tex. App.—Texarkana 2003, no pet.). In Newman, the

defendant was charged with theft of “United States currency in the form of a check,” and he was

convicted. Id. at 119–20, 121. On appeal, Newman argued that the evidence was insufficient because

there was no proof that he actually controlled the money represented by the check. Id. at 121.
                                                                                                    3

Appellant, in his brief, quotes the following passage in Newman:

       This argument, however, is without merit. First, the State indicted [Newman] for the
       theft of the check itself, not the funds represented by the check. This is an important
       distinction. Under the indictment, the State was required to prove [Newman]
       unlawfully appropriated a check worth $79,218.38, not to show that the funds
       represented by the check were ever actually controlled by [Newman].

Appellant’s Reply Br. 9 (quoting Newman, 115 S.W.3d at 122). Appellant seizes upon this language

and points out that he was indicted for theft of money, not a check. “In other words, Appellant may

have exercised control over the check, but not the currency it represented.” Id.

       In essence, Appellant argues there is a fatal variance between the indictment alleging theft

of money and the evidence showing theft of a check. But it is well-settled that there is no fatal

variance between an indictment alleging theft of money and evidence showing theft of a check. See

Jackson v. State, 646 S.W.2d 225, 226 (Tex. Crim. App. 1983); Kirkpatrick v. State, 515 S.W.2d

289, 293 (Tex. Crim. App. 1974); Rick v. State, 207 S.W.2d 629, 630 (Tex. Crim. App. 1947). A

check is an instrumentality by which one receives money. Jackson, 646 S.W.2d at 226.

       The court of appeals, however, found significant to the “control” issue the fact that Appellant

did not negotiate Francois’s check:

       Appellant argues that the evidence is insufficient to support the guilty verdict in
       Count One because he was charged with appropriation of the cash and not the check.
       The evidence shows that he possessed the check from Francois, not cash. The check
       was made out to and deposited in the account of Johnson Family Mortuary. Had the
       check been made out to Appellant, and had he negotiated the check, he obviously
       would have exercised control over the money. But the evidence shows that Appellant
       was not a signatory on the funeral home account. He was not an owner of Johnson
       Family Mortuary. He argues that the check represented to him just that—a check over
       which only his wife could have exercised control. Proof of appropriation of a check
       is not proof of appropriation of money unless there is also proof that the accused
       negotiated the check.

Johnson v. State, 513 S.W.3d 190, 196 (Tex. App.—Fort Worth 2016, pet. granted). To support that
                                                                                                     4

last statement, the court of appeals cited Orr v. State, 836 S.W.2d 315, 319 (Tex. App.—Austin

1992, no pet.). The State argues that the court of appeals’s reliance on Orr was mistaken. I agree.

       In Orr, the evidence showed that the victim, McCann, purchased several oil and gas wells

from Pitco Energy Company. Id. at 315–16. After the purchase, McCann realized that Orr and

Pitchford, who was Pitco’s president, provided false information about the wells’ production. Id. at

317. Mechanisms on the wells had been manipulated, and consequently they reported greater

production than what the wells were actually producing. Id. Orr and Pitchford were both charged

with theft, and the State’s theory at trial was that Orr and Pitchford knew the reports were false and

used those false reports to deceive McCann into paying more for the wells than they were worth. Id.

On appeal, Orr argued that the evidence was insufficient to show appropriation of “cash money,” as

alleged in the indictment, because McCann paid Pitco with money orders. Id. at 318. The Austin

Court of Appeals agreed and held that there was a fatal variance. Id. Because there was no proof that

the money orders were ever negotiated by anyone, the evidence was insufficient to show that “cash

money” was appropriated from the victim. Id. at 319.

       Assuming, for the sake of argument, that Orr was correctly decided, it was misapplied by the

court of appeals in this case. Unlike Orr, in this case there was proof that Francois’s cashier’s check

was negotiated. It was deposited by Appellant’s wife. This simple fact makes Orr distinguishable,

and other courts have distinguished Orr for the same reason. For example, in Mueshler v. State, the

defendant was her workplace’s office manager and bookkeeper and was responsible for receiving

and paying the company’s bills. Mueshler v. State, 178 S.W.3d 151, 152 (Tex. App.—Houston [1st

Dist.] 2005, pet. ref’d). The firm’s owner frequently signed blank checks for Mueshler to use to pay

the company’s bills while he was away from the office. Id. Mueshler instead wrote several checks
                                                                                                   5

from the business to herself and to her creditors. Id. Mueshler was convicted of theft, and on appeal

she argued that there was insufficient evidence to support the verdict because the indictment alleged

theft of cash money, and the proof showed theft by writing checks. Id. at 152, 153. In support of her

argument, Mueshler cited to Orr. Id. at 155. The court of appeals in Mueshler, however,

distinguished Orr because the “State introduced evidence that the unauthorized checks written by

Mueshler were negotiated—such that the bank used cash from the firm’s checking account to pay

for them.” Id. The court of appeals thus held that the evidence was sufficient to sustain Mueshler’s

conviction of theft of cash money. Id.

       Similarly, the Austin Court of Appeals—the very same court that issued the opinion in

Orr—distinguished Orr in Denton v. State, No. 03-96-00006-CR, 1998 WL 476459 (Tex.

App.—Austin Aug. 13, 1998, pet. ref’d) (mem. op., not designated for publication). Denton was the

executive director of the Texas Department of Public Safety Officers Association (DPSOA), and the

evidence showed that he wrote a number of checks from DPSOA, payable to South Coast, a

corporation organized and run by some of Denton’s close friends. Id. at *1–2. Denton was convicted

of theft, and on appeal he argued that there was a fatal variance between the indictment, which

alleged theft of “lawful United States currency,” and the evidence at trial, which showed checks. Id.

at *1, 5. The Austin Court of Appeals found its Orr opinion distinguishable because the evidence

showed that the DPSOA checks Denton wrote to South Coast were actually negotiated by South

Coast. Id. at *5. Additionally, the court of appeals dismissed Denton’s argument that the State had

to prove that he personally negotiated the checks in order for the checks to be considered the same

as lawful United States currency. Id. at *6.

       Just as in Mueshler and Denton, in this case there was evidence that the check was
                                                                                                                        6

negotiated. Appellant’s wife, Hardy, deposited Francois’s cashier’s check into the business’s

account. Orr is distinguishable.2

           Chief Justice Livingston, dissenting to the court of appeals’s majority below, argued that

additional factors showed that Appellant controlled Francois’s property. Appellant was heavily

involved with the day-to-day aspects of the business:

           The State proved that appellant held himself out as a co-owner of the mortuary, that
           he did everything “but the paperwork” there, that he negotiated contracts, that he
           signed documents that the mortuary submitted to the medical examiner’s office, that
           he alone represented the mortuary in negotiating a lease, that he accepted cash from
           clients on behalf of the business and gave them receipts (including signing Francois’s
           receipt), that he alone was the point person in conversations about paying rent and
           about eviction for failure to pay the rent (including making a “gentleman’s
           handshake” agreement on rent matters), and that he assisted the police in identifying
           decomposing bodies (while his wife believed “there was only one body there”).
           Francois testified that she spoke only with appellant about services the mortuary
           agreed to provide for a decedent.

Johnson, 513 S.W.3d at 203 (Livingston, C.J., dissenting). Chief Justice Livington’s point is well-

taken, and the jury would have been reasonable in inferring that Appellant actually controlled

Francois’s money through the business, which he exercised a great deal of control over.

           Additionally, the dissent argued that, at the time Appellant exercised control over Francois’s

cashier’s check, he also exercised control over the money it represented. Id. The court of appeals’s

majority disagreed with this assertion and concluded “[w]hen Appellant possessed the check, he did

not possess the $1,500. He ‘was in possession of a piece of paper worth, at the most, pennies.’” Id.

at 199 (quoting Heimlich v. State, 988 S.W.2d 382, 385 (Tex. App.—Houston [14th Dist.] 1999, pet.

ref’d)).


           2
            My discussion of Orr and how that case is distinguishable from the case before the Court today should not
be taken as tacit or implicit approval of the decision in that case. The court of appeals relied upon it, however, and the
point is that the court of appeals misapplied the case it relied upon.
                                                                                                          7

        The property at issue in this case—Francois’s cashier’s check—was worth far more than

mere pennies. Because Francois’s cashier’s check was not made payable to Appellant, the court of

appeals declared that “[t]he cashier’s check was payable only to the funeral home and of no

significant value except to the funeral home.” Id. In Simmons v. State, we similarly recognized that

“[a]n unendorsed check made out to a specific person does not have a readily ascertainable market

value because there is not much of a commercial market for unendorsed checks.” Simmons v. State,

109 S.W.3d 469, 473 (Tex. Crim. App. 2003). “Thus, although a check that is made out to ‘Ricci

Charles Simmons’ may have great value to both its maker and its intended recipient, Mr. Simmons,

it has very little legal commercial market value unless and until it is endorsed.” Id. Nevertheless, we

noted that “the vast majority of American jurisdictions hold that ‘the value of a check, in the absence

of proof to show a lesser value, is measured by what the owner of the check could expect to receive

for the check at the time of the theft, i.e., the check’s face value.’” Id. at 474 (quoting State v. Harris,

708 So.2d 387, 389 (La. 1998)). Rejecting the notion that Texas is a “minority view” state, we

clarified that Texas:

        has followed and does follow the majority rule absent special circumstances. Thus,
        a check is a “document that represents or embodies value” and checks embody, in .
        . . all but the exceptional cases, a value equivalent to what is written on their faces.
        Accordingly, we hold that the face amount of the instrument is presumptive evidence
        of its value. Assuming that no evidence is produced to rebut the logical inference that
        the payee was entitled to receive the face amount of the check, it is sufficient
        evidence of value to show the face amount of the check.

Id. at 477–78.

        It is true that the checks at issue in Simmons were made payable to the defendant in that case,

and Francois’s check in this case was made payable, not to Appellant, but to the Johnson Family

Mortuary. But the fact that Appellant was not the named payee on the cashier’s check does not make
                                                                                                     8

Simmons distinguishable. In Cooper v. State, the defendant stole a number of bills and an unendorsed

check from a cash drawer. Cooper v. State, 509 S.W.2d 865, 866 (Tex. Crim. App. 1974). The check

was made by Frito-Lay, Inc., and was payable to the Rhodes Auto Service in the amount of $51.86.

Id. After Cooper was arrested, payment on the check was stopped. Id. at 867. On appeal, Cooper

argued that the unendorsed check had no value. Id. We disagreed:

       the evidence was that the check had the value of $51.86 and, upon endorsement,
       could have been sold for that amount or would have been paid in the sum of $51.86
       upon presentation. A check may be the subject of theft, and the fact that the check
       was not endorsed when it was stolen will not protect appellant.

Id. Such is the case here. Francois’s cashier’s check, upon endorsement, could have been sold for

$1,500. It also would have been paid in the sum of $1,500 upon presentation.

       In Simmons, we recognized that there are exceptions and unusual cases where the evidence

can rebut the presumption, such as proof that the maker of the check lacked sufficient funds or that

the bank was insolvent. Simmons, 109 S.W.3d at 475. In this case, there was no such evidence that

rebutted the presumption.

       It is also highly doubtful that any such proof which could rebut the Simmons presumption,

that the face amount of a check is its value, could have been presented in this case. The check in this

case was a cashier’s check. Unlike a regular check, a cashier’s check is drawn by the bank on itself

and accepted in advance by the act of its issuance, and it is therefore not subject to countermand by

either its purchaser or the issuing bank. Wertz v. Richardson Heights Bank and Tr., 495 S.W.2d 572,

574 (Tex. 1973). A cashier’s check is accepted when issued, and section 4.303 of the Business and

Commerce Code prevents a bank from making a stop payment order after the cashier’s check has
                                                                                                                     9

been issued.3 Id.

         As we said in Simmons, “[c]hecks are negotiable instruments and they play an important role

in Texas, American, and international commercial transactions, serving, to a considerable degree,

as a cash equivalent.” Simmons, 109 S.W.3d at 475. To the extent that is true for regular checks,

cashier’s checks are even closer to cash, and our courts have treated cashier’s checks as equivalent

to cash. See Dilling v. Nationsbank, N.A., 897 S.W.2d 451, 457 (Tex. App.—Waco 1995), rev’d on

other grounds, 922 S.W.2d 950, 952 (Tex. 1996) (rejecting bank’s argument “because of the ease

with which cashier’s checks are passed, virtually as a cash equivalent, in the business community”);

Arline v. Omnibank, N.A., 894 S.W.2d 76, 82 (Tex. App.—Houston [14th Dist.] 1995, no writ)

(“Having accepted the check upon issuance, Omnibank’s cashier’s check was the functional

equivalent of cash.”); Angelo v. Chem. Bank and Tr. Co., 529 S.W.2d 783, 786 (Tex. App.—Dallas

1975, writ dism’d) (“We hold that where the evidence, as in this case, discloses that plaintiffs

tendered a cashier’s check, as opposed to a check drawn on plaintiffs’ personal account, for the total

purchase price, plaintiffs have complied with the requirement of the contract stating that payment

was to be made in cash.”); Cmty. Nat’l Bank v. Channelview Bank, 814 S.W.2d 424, 427 (Tex.

App—Houston [1st Dist.] 1991, no writ) (“A cashier’s check circulates through commerce as the

equivalent of cash.”); see also Tarrant Wholesale Drug Co. v. Kendall, 223 S.W.2d 964, 967 (Tex.

App.—San Antonio 1949, no writ) (in a pre-UCC case, “Cashier’s checks are regarded substantially

as the money which they represent.”).4

        3
           However, in certain narrowly defined circumstances, a bank obligated to pay a cashier’s check may have
defenses against the person asserting the right to enforce the check. T EX . B U S . & C O M . C O D E Ann. § 3.411(c).

        4
            This “cash equivalent” view of cashier’s checks is shared by a majority of jurisdictions. See generally
Stringfellow v. First Am. Nat’l Bank, 878 S.W .2d 940, 943–44, 943 nn.3–4 (Tenn. 1994) (discussing the “cash
equivalent” approach versus the “ordinary negotiable instrument” approach; collecting cases on both sides, including
                                                                                                        10

        Thus, contrary to the court of appeals’s characterization of Francois’s cashier’s check as

worth “mere pennies,” it was worth its face value: $1,500. Regardless of whether Appellant could

personally negotiate the cashier’s check or not, Francois was deprived of property worth that amount.

On that score, I return to section 31.01(4), defining “appropriate”:

        (4) “Appropriate” means:
               (A) to bring about a transfer or purported transfer of title to or other
               nonpossessory interest in property, whether to the actor or another; or
               (B) to acquire or otherwise exercise control over property other than real
               property.

TEX . PENAL CODE Ann. § 31.01(4) (emphasis added). As written, section 31.01(4)(B) provides two

ways of appropriation, either acquiring property or otherwise exercising control over property. The

indictment alleged that Appellant appropriated Francois’s money “by acquiring or otherwise

exercising control over property,” and thus the State needed to prove that Appellant either acquired

Francois’s property or otherwise exercised control over the property. While the court of appeals

devoted time and attention to whether Appellant controlled Francois’s money through the

instrumentality of the check, it did not consider whether he acquired it.

        Acquire is not defined in the penal code. When interpreting statutes, we necessarily focus on

the literal text of the statute in question and attempt to discern the fair, objective meaning of that text

at the time of its enactment. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). If the

meaning of the statutory text, when read using the established canons of construction relating to such

text, should have been plain to the legislators who voted on it, we ordinarily give effect to that plain

meaning. Id. Where application of the statute’s plain language would lead to absurd consequences

that the Legislature could not possibly have intended, we should not apply the language literally. Id.


Wertz; and adopting the “cash equivalent” approach in Tennessee).
                                                                                                     11

        What is the plain meaning of “acquire”? To “acquire” something is: “to get or gain by one’s

own efforts or actions . . . to come to have as one’s own; get possession of.” Houghton Mifflin

Harcourt, Webster’s New World College Dictionary (5th ed. 2016); see also Acquire, Black’s Law

Dictionary (10th ed. 2014) (“To gain possession or control of; to get or obtain.”). This definition of

“acquire” fits the theft statute without causing any absurd consequence: a person who unlawfully

possesses, gets, or obtains the property of another, with the intent to deprive that other person of the

property, is a thief. Plainly, Appellant came into possession of Francois’s check when she handed

it to him. Appellant got the check. Appellant obtained the check. He acquired the check when

Francois gave it to him, and, consequently, he appropriated the check.

        For all of these reasons: (1) allegation of theft of money and proof of theft of a check is not

a fatal variance; (2) Orr does not apply because the check was deposited into the business account,

which was owned by Appellant’s wife; (3) even if the “controller” of the check was the business,

Appellant had a significant hand in running the business; (4) the business was an LLC owned by

Appellant’s wife and Texas is a community property state; and (5) Appellant acquired Francois’s

money in the form of the check, I believe the evidence is sufficient to show that Appellant

appropriated Francois’s money. Therefore, the guilty verdict on Count I—theft of Francois’s

money—is supported by sufficient evidence. The court of appeals erred in finding otherwise.

                                             Conclusion

        In conclusion, the jury found Appellant guilty on a charge that authorized conviction as a

primary actor, and the evidence is sufficient to support that verdict. Appellant appropriated

Francois’s money when he acquired her cashier’s check. As for the other elements of theft, I agree

with the analysis and conclusion of both the majority opinion and Judge Yeary’s concurring opinion
                                                                                                                     12

that Appellant’s appropriation was unlawful, and, at the time he unlawfully appropriated Francois’s

property, Appellant had the requisite intent to deprive. Because there is sufficient evidence to show

that Appellant was guilty as a primary actor, we need not delve into whether the evidence is also

sufficient to show he was guilty as a party. Vasquez v. State, 665 S.W.2d 484, 487 (Tex. Crim. App.

1984), disapproved on other grounds by Gonzales v. State, 723 S.W.2d 746, 751 (Tex. Crim. App.

1987) (“If there is sufficient evidence to prove one of the two ways of committing the offense, this

Court need not consider whether the evidence is also sufficient to prove the alternative theory.”).5

The majority and concurring opinions’ discussion of whether Appellant is guilty on Count I as a

party is unnecessary. I concur in the Court’s decision to reverse as to Count I, and I join the majority

opinion as to Count II.



Filed: Nov. 7, 2018
Publish




        5
            See also Pinkerton v. State, 660 S.W .2d 58, 62 (Tex. Crim. App. 1983) (“Since the State proved murder
during the course of burglary, we need not consider whether the evidence is sufficient to show murder during the course
of robbery.”); Wright v. State, 364 S.W .2d 384, 387 (Tex. Crim. App. 1963) (“There being sufficient evidence to support
a finding by the jury that appellant obtained carnal knowledge of the prosecutrix without her consent by threats to kill
her, while holding a knife at her side, we need not pass upon the question of whether the prosecutrix offered the
resistance required where the state relies upon rape by force or by a combination of force and threats.”).
