Burleson v. State

Citation449 S.W.2d 252
Decision Date03 December 1969
Docket NumberNo. 42311,42311
PartiesBilly James BURLESON, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Brown & Harding, by Clifford W. Brown, Lubbock, on appeal only, for appellant.

Tom Curtis, Dist. Atty., John B. Reese, Asst. Dist. Atty., Amarillo, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

The conviction is for theft by false pretext of property over the value of fifty dollars; the punishment, five years.

The indictment was for ordinary theft. The record reflects that appellant presented a forged instrument with a forged endorsement and an unauthorized deposit slip to, and obtained $340.00 from, a bank teller.

The check was drawn on the Brownfield State Bank and Trust Company, payable to the order of 'Deans Garage' and was purportedly signed by J. D. Millican.

James D. Millican testified that State's Exhibit No. 1 was one of his personalized checks and that he did not sign or authorize anyone to sign his name to the check.

Lewis Dean Gilliam testified that he was the owner of Dean's Garage, that he received State's Exhibit No. 2, the deposit slip, which appeared to be for a $740.00 check less $340.00 cash, in his bank statement, and that he did not know appellant, did not authorize the transaction reflected by the deposit slip and that the endorsement, 'Deans Garage', on the check was forged.

Juanita Carroll testified that at the time she was a drive-in teller at the North State Bank in Amarillo, appellant presented the check and deposit slip; she knew that Dean's Garage had an account at the bank, and she gave him $340.00 in cash.

Appellant testified that he was in San Angelo on the day in question and that he had never been in Amarillo until the day of the trial. A witness called by appellant testified in support of the alibi. The jury chose not to believe appellant's version of the facts.

In the first, fifth and sixth grounds of error, it is contended that the evidence is insufficient to support the conviction.

One of the contentions is that the proof did not show that the money belonged to Juanita Carroll as alleged in the indictment. Her testimony shows that she had the regular routine duties of a drive-in bank teller, which included taking deposits and cashing checks.

This proof was sufficient to show that she was a special owner and had the care, control and custody of the money as required under Article 1415, Vernon's Ann.P.C.

Complaint is also made that the proof does not show that appellant obtained as much as $50.00 in order to prove a felony.

After Juanita Carroll testified that she checked the deposit slip and check, she gave appellant some cash and made the deposit. She was then asked: 'Did you give him the $340.00 less cash that he requested?' She answered: 'The check was for $740.00 less $340.00--yes, I did.' The evidence was sufficient to show that appellant received $340.00 cash.

He next contends that Juanita Carroll had the means at hand to detect any false pretext, because she could have checked the endorsement on the check to see if it was that of Dean's Garage. Reliance is had on Deitle v. State, Tex.Cr.App., 363 S.W.2d 939, where the teller had actual knowledge that the account did not contain sufficient funds to cover the instrument. The court also stated that the teller had the means at hand to detect the falsity of the sole pretext that there was insufficient funds. The present case is distinguishable from Deitle because there the teller knew the account did not contain sufficient funds to cover the check. In the present case there is no such showing. In addition to the forged endorsement there were the forged check and the unauthorized deposit slip made out to an account other than that of appellant.

It is further contended since the check admitted into evidence bore the printed notation 'account closed', there was a showing...

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8 cases
  • Moulton v. State, 44186
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 25, 1971
    ...appellant. This evidence, together with other evidence to be stated, is sufficient to show theft by false pretext. See Burleson v. State, 449 S.W.2d 252 (Tex.Cr.App.1969). The trial court did not err in overruling the appellant's motion for an instructed verdict. The first three grounds of ......
  • Morrow v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 7, 1973
    ...36.14 and 36.15, V.A.C.C.P.; Spencer v. State, Tex.Cr.App., 466 S.W.2d 749; Baity v. State, Tex.Cr.App., 455 S.W.2d 305; Burleson v. State, Tex.Cr.App., 449 S.W.2d 252. No error is Appellant contends the court erred in admitting into evidence the copy of judgment and sentence relied upon by......
  • Spencer v. State, 43497
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 7, 1971
    ...was submitted. Under Art. 36.14 and 36.15, V.A.C.C.P., no error is shown. Martinez v. State, Tex.Cr.App., 448 S.W.2d 488; Burleson v. State, Tex.Cr.App., 449 S.W.2d 252. Appellant's tenth ground of error is There being no reversible error, the judgment is affirmed. 1 Elizondo v. State, 130 ......
  • Mills v. State, 48382
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 8, 1974
    ...to charge on circumstantial evidence. Art. 36.14, Vernon's Ann.C.C.P.; Gray v. State, Tex.Cr.App., 475 S.W.2d 246; Burleson v. State, Tex.Cr.App., 449 S.W.2d 252. In Ground No. 6 appellant urges that he should have been allowed to impeach the witness Chandler by showing a prior conviction f......
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