Carrillo v. State, 57329

• Decision Date: 10 May 1978
• Docket Number: No. 2,No. 57329,57329,2
• Citation: 566 S.W.2d 902
• Parties: O. P. CARRILLO, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 902

566 S.W.2d 902

O. P. CARRILLO, Appellant, v. The STATE of Texas, Appellee.

No. 57329.

Court of Criminal Appeals of Texas,Panel No. 2.

May 10, 1978.

Rehearing En Banc Denied June 28, 1978.

Randy Schaffer, Houston, for appellant.

Oscar McInnis, Dist. Atty., Edinburg, F. A. Cerda, Dist. Atty., Hebbronville, John L. Hill, Atty. Gen., Max P. Flusche, Jr., and Gerald C. Carruth, Asst. Attys. Gen., Austin, for the State.

Before ONION, P. J., and DOUGLAS and ODOM, JJ.

OPINION

ONION, Presiding Judge.

This is an appeal from a felony theft conviction under the former Penal Code. A jury found appellant guilty and assessed his punishment at four (4) years' confinement.

Appellant urges twenty-one grounds of error.

In his first ground of error, appellant challenges the sufficiency of the evidence to establish that he was a principal to the offense of theft. Omitting the formal parts, the indictment alleges:

". . . that O. P. Carrillo, on or about the 11th day of January, A.D.1972, and before the presentment of this indictment, in said County and State, did then and there unlawfully and fraudulently take current money of the United States of the value of over two hundred dollars ($200.00), the same then and there being the corporeal personal property of the Duval County Conservation and Reclamation District, from the possession of the said District, without the consent of the said District, and with the intent then and there to deprive the said District of the value of the same and to appropriate it to the use and benefit of himself, the said O. P. Carrillo."

The record reflects that in November, 1971 appellant purchased a station wagon from M & R Motor Company for $5,631.00 and paid for it by personal check. His bank account was already overdrawn at the time but he secured a sixty (60) day loan from his bank for $5,650.00, placed that money in his account, and the check to M & R Motor Company was paid even though appellant's account remained overdrawn by $50.19 after the payment was made. Appellant was a director of the bank.

In early January, 1972, just before the sixty day note was due, appellant told Rodolfo Couling, a friend and business associate, that George Parr ¹ was going to give him a station wagon and that the check for it was going to come from the Water District, the name commonly used to refer to the Duval County Conservation and Reclamation District. Couling at the time was the tax collector for the Benavides Independent School District and operated a hardware store under the name of Benavides Implement and Hardware Company (BIHC). Although Couling was listed as the sole owner of BIHC, and his bank account and income tax statements so indicated, he testified that in fact appellant and appellant's brother, Ramiro Carrillo, were his silent partners and he had opened the store with the financial help of Ramiro Carrillo. BIHC sold supplies to various branches of local governmental bodies and to local people of Duval County. Couling stated that he had paid hundreds of thousands of dollars to the Carrillos during the five or six years he operated BIHC under this silent partnership arrangement.

On January 10, 1972, the Water Board met at its regularly scheduled monthly meeting and approved several bills for payment, which may have included four invoices from BIHC totalling $5,625.00. It was stipulated that the minutes of the meeting and the approved invoices were no longer in existence at the time of the trial, but Couling testified that he did not submit the invoices on behalf of BIHC and that BIHC had not performed services nor sold anything to the Water District to support the invoices. The only evidence of the invoices was the notation on the check issued by the Water District that it was in payment for invoices numbered 289 through 292. Both appellant and his brother, Ramiro, had a supply of invoice forms from BIHC.

The Water District is a political subdivision governed by an elected four-member board. In January, 1972 the board consisted of D. C. Chapa, who was the president of the board and the father of appellant; Jose Tovar, the secretary-treasurer; and Herberto Garza and Julio Benavides, members. Mr. Tovar and Mr. Benavides were deceased at the time of trial. Mr. Garza testified that he would never knowingly consent to anybody stealing money from the Water District and would vote to authorize paying a bill only if it was valid, but he stated he never voted against anything that D. C. Chapa wanted to do. He did not recall discussing invoices from BIHC at that meeting. D. C. Chapa did not testify.

The Water District check for $5,625.00 to BIHC was signed by Mr. Tovar and counter-signed by D. C. Chapa on January 11, 1972 and delivered to Mr. Couling by either appellant or appellant's nephew who was an employee of the Water District. Couling deposited the Water District check in the BIHC bank account on January 13, 1972, and on the same day gave to appellant a blank check drawn on the BIHC account. Couling testified that he wrote the date, the notation "one stationwagon," and his signature on the check. On this same day, the remaining blank spaces on this check were filled in to make it payable to appellant's bank in the amount of $5,725.34 and the check was used to pay off appellant's loan for the station wagon. It was indicated that the amount of $5,725.34 was the amount of the loan plus interest for two months.

Appellant's contention that the evidence was not sufficient to establish that he was a principal is two-pronged. He argues that the offense of theft was complete when Couling accepted the Water District check knowing he was not entitled to it and that since the evidence does not clearly account for the presence and activities of appellant at that time, then the evidence might demonstrate that he received stolen property but not that he was a principal to the theft.

We do not find these arguments to be persuasive.

The indictment charged appellant with theft of money, not a check, and in Hedge v. State, 89 Tex.Cr.R. 236, 229 S.W. 862 (1921), this court noted the difference between stealing a check and stealing money. In that case, a debtor mistakenly gave his creditor a check for an amount $424.21 in excess of the amount actually owed. The creditor, knowing the check to be excessive, cashed it and commenced flight across the state. He was charged with and found guilty of stealing the $424.21 and not the check itself. This court held that when the creditor, with the intent to appropriate the excess amount, cashed the check, he was guilty of the theft of money because the check was but a means to obtain the money. See also Speer v. State, 123 Tex.Cr.R. 188, 58 S.W.2d 95 (1932), wherein a sheriff received a warrant for $1,000.00 in excess of a bill he had submitted to the State and this court, in upholding the conviction for theft of the $1,000.00, found that the warrant was but the means by which he had obtained the money. Here, there is ample evidence to show that the check from the Water District was but the means by which appellant obtained the money to pay off his sixty day note and that therefore the theft was not complete when Couling accepted the check.

It must be remembered that this is not a quick crime of violence where the offense is conceived, executed and accomplished in an instant nor is it a simple case where thieves break in and steal property that is in the possession of the owner. Here the jury was fully justified in finding a broad, comprehensive scheme involving appellant and others to steal money from the Water District and the offense was not committed by a simple act, but a series of acts which culminated in appellant receiving money.

In Bush v. State, 506 S.W.2d 603 (Tex.Cr.App.1974), it was stated:

"In determining whether a party was acting as a principal, the trial court may look to events before, during and after the commission of the offense. Westfall v. State, 375 S.W.2d 911 (Tex.Cr.App.1964). Further, '(A)n agreement of parties to act together in a common design can seldom be proven by words, but reliance can often be had on the actions of the parties showing an understanding and common design to do a certain act.' Everett v. State, 153 Tex.Cr.R. 79, 216 S.W.2d 281, 283 (1949)."

The evidence here showed a common design and understanding between appellant and Couling, and perhaps others, to steal money from the Water District. In November, appellant was overdrawn at his bank, but bought a station wagon and obtained a sixty day loan for $5,650.00 to cover the purchase. In early January appellant told Couling that George Parr was going to give him a station wagon and the check for it would come from the Water District. On January 11, the Water District issued a check for $5,625.00 to BIHC for which BIHC had neither performed services nor provided goods. Couling, the ostensible owner of BIHC, did not submit invoices to the Water District for this or any other amount, but his silent partner, appellant, had a supply of blank BIHC invoice forms. When Couling received the check, he deposited it in the BIHC account and on the same day gave appellant a blank, signed check with the notation "one stationwagon" on it. Also on the same day, appellant took this blank check to his bank where the amount of his loan, plus interest, was filled in and the loan repaid. Under these circumstances, we conclude that the evidence is sufficient to show that appellant was a principal to the theft.

This ground of error is overruled.

Appellant next argues that the evidence is insufficient to corroborate the testimony of the accomplice witness Couling. The trial court correctly charged the jury that Couling was an accomplice as a matter of law and properly charged the jury with respect to accomplice testimony.

The criteria by which accomplice testimony is judged was set forth in Bentley v. State, 520 S.W.2d 390 (Tex.Cr.App.1975), as follows:

"In Edwards v. State, ...