Cheney v. State

• Decision Date: 29 June 1988
• Docket Number: No. 1065-84,1065-84
• Citation: 755 S.W.2d 123
• Court: Texas Court of Criminal Appeals
• Parties: Sandra CHENEY, Appellant, v. The STATE of Texas, Appellee.

Page 123

755 S.W.2d 123

Sandra CHENEY, Appellant, v. The STATE of Texas, Appellee.

No. 1065-84.

Court of Criminal Appeals of Texas,

En Banc.

June 29, 1988.

Mark C. Hall, Lubbock, for appellant.

G. Dwayne Pruitt, Criminal Atty., Brownfield, Robert Huttash, State's Atty. and Alfred Walker, First Asst., State's Atty., Austin, for the State.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Judge.

Appellant was convicted of the offense of felony theft under V.T.C.A., Penal Code, Section 31.03 and a jury assessed punishment at five years' confinement. The Amarillo Court of Appeals reversed the conviction holding that, although the evidence would support the theft conviction, there was also sufficient evidence to support a conviction under V.T.C.A., Penal Code, Section 32.32, the "false statement to obtain property or credit" statute. Assuming without analysis that Section 31.03, supra, is a "general" statute and that Section 32.32, supra, is a "special" statute subsumed by Section 31.03, the appeals court in an unpublished opinion observed that "the special statute here, in tandem with the State's theory of prosecution, is more specific than the general theft statute in the three particulars: (1) the victim (a creditor); (2) the property (funds advanced as a loan), and (3) the means of theft (a false or materially misleading written statement).... We ... conclude that appellant was entitled to be prosecuted under the applicable specific statute proscribing the giving of a false written statement to obtain credit ... Because an offense under section 32.32 of the penal code is a misdemeanor, the district court did not have jurisdiction to try the case." Cheney v. State, No. 07-83-0029-CR (Tex.App. Amarillo, September 19, 1984), citing Jones v. State, 552 S.W.2d 836 (Tex.Cr.App.1977).

We granted the State's petition for discretionary review to determine whether the appeals court erred in holding that appellant should have been prosecuted under Section 32.32, supra. Believing that the appeals court holding was erroneous, we reverse and remand for further review.

Appellant's conviction was upon an indictment which alleged that on or about March 17, 1981, she did unlawfully

"... appropriate corporeal personal property, to wit: lawful United States currency, by acquiring and exercising control over said currency, of the value of $200.00 or more, but less than $10,000.00 Dollars without the effective consent of L.G. Smith, the owner thereof, with intent to deprive said owner of said property...."

V.T.C.A., Penal Code, Section 31.03 (Vernon Supp.1984), in effect at the time of appellant's trial, read in pertinent part:

"(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property;

"(b) Appropriation of property is unlawful if:

(1) it is without the owner's effective consent; ...

"(d) An offense under this section is:

"...

"(4) a felony of the third degree if:

"(A) the value of the property stolen is $200 or more but less than $10,000, ..."

As applied to this case, the elements of the offense would be:

(1) a person,

(2) without the effective consent of the owner,

(3) with the intent to deprive the owner of the property,

(4) appropriates the property.

The record shows that appellant purchased various items under an open 90-day account with a furniture store. During this time she obtained a bank loan secured by her execution of a promissory note and security agreement covering the furniture. However, appellant did not use the loan proceeds to pay for the furniture, she failed to repay the loan, her checking account with the bank was closed for insufficient funds, and the bank was unable to enforce its security interest.

In this setting, the appeals court held that another statute more specifically proscribed appellant's conduct. V.T.C.A., Penal Code, Section 32.32, captioned "False Statement to Obtain Property or Credit," provides in part:

"(a) For purposes of this section, 'credit' includes:

"(1) a loan of money;

* * *

"(b) A person comments an offense if he intentionally or knowingly makes a materially false or misleading written statement to obtain property or credit for himself or another.

"(c) An offense under this section is a Class A misdemeanor."

As applied to the facts of this case, the elements of the offense would be:

(1) a person,

(2) intentionally or knowingly makes,

(3) a materially false or misleading statement in writing,

(4) to obtain a loan of money,

(5) for herself.

After setting out the elements of the two statutes implicated in this cause, the appeals court then said:

"If an accused's conduct is proscribed under a general statute and a specific statute, complete within itself, he should be charged under the latter statute. Ex parte Harrell, 542 S.W.2d 169, 172-73 (Tex.Cr.App.1976). In resolving whether a specific statute subsumed by the general theft statute should govern a prosecution to the exclusion of the general statute, guidance is afforded by determining whether the specific statute is more particular as to (1) the victim; (2) the property; and (3) the means of theft (fraudulent means, etc.). Jones v. State, 552 S.W.2d 836, 837 (Tex.Cr.App.1977).

"Measuring the circumstances of the instant case by the considerations enunciated in Jones, we observe that the special statute involved here, in tandem with the State's theory of prosecution, is more specific than the general theft statute in the three particulars: (1) the victim (a creditor); (2) the property (funds advanced as a loan); and (3) the means of theft (a false or materially misleading written statement). In this connection, we notice that our Court of Criminal Appeals, upon an analogous factual setting, applied the Jones analysis to conclude that an accused who assertedly had defrauded a bank by subverting to his own use funds which had been assigned by him to the bank as repayment for a loan, was entitled to be tried under the specific 'hindering a secured creditor' penal statute, to the exclusion of the general theft statute. Williams v. State, 641 S.W.2d 236 (Tex.Cr.App.1982). See also Tawfik v. State, 643 S.W.2d 127, 128-29 (Tex.Cr.App.1982). We likewise conclude that appellant was entitled to be prosecuted under the applicable specific statute proscribing the giving of a false written statement to obtain credit."

The court below assumed that Section 32.32, supra, is a "special" statute "subsumed" within the general subject matter of Section 31.03, supra. The court also assumed that Section 32.32, supra, "in tandem with the State's theory of prosecution," was more specific than the "general" theft statute as to victim, property and means of theft. Although the three-factor analysis found in Jones is helpful in construing two statutes generally proscribing the theft or unlawful acquisition of another's property, such analysis was prematurely invoked in this case, apparently because the appeals court assumed the two statutes are in pari materia and, therefore, subject to a Jones analysis. Before applying the rule and with it the Jones' three factor test, it is incumbent upon a reviewing court when faced with facts like these to first determine whether both statutes are indeed in pari materia.

The doctrine of pari materia is, simply put, a principle of statutory interpretation. It is a rule courts may use in determining the intent of the Legislature in enacting a particular statute or statutes. In 53 Tex.Jur.2d, Statutes, Section 186, page 280, the doctrine is defined and explained in the following manner:

"It is a settled rule of statutory interpretation that statutes that deal with the same general subject, have the same general purpose, or relate to the same person or thing or class of persons or things, are considered as being in pari materia though they contain no reference to one another, and though they were passed at different times or at different sessions of the legislature.

"In order to arrive at a proper construction of a statute, and determine the exact legislative intent, all acts and parts of acts in pari materia will, therefore, be taken, read, and construed together, each enactment in reference to the other, as though they were parts of one and the same law. Any conflict between their provisions will be harmonized, if possible, and effect will be given to all the provisions of each act if they can be made to stand together and have concurrent efficacy.

"The purpose of the in pari materia rule of construction is to carry out the full legislative intent, by giving effect to all laws and provisions bearing on the same subject. The rule proceeds on the same supposition that several statutes relating to one subject are governed by one spirit and policy, and are intended to be consistent and harmonious in their several parts and provisions. Thus, it applies where one statute deals with a subject in comprehensive terms and another deals with a portion of the same subject in a more definite way. But where a general statute and a more detailed enactment are in conflict, the latter will prevail, regardless of whether it was passed prior or subsequently to the general statute, unless it appears that the legislature intended to make the general act controlling. And, the rule is not applicable to enactments that cover different situations and that were apparently not intended to be considered together." (Emphasis added.)

V.T.C.A., Government Code, Section 311.026 (Code Construction Act), ¹ made applicable here under V.T.C.A., Penal Code, Section 105, provides for construing the relationship between general and special statutory provisions, viz:

"(a) If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both.

"(b) If the conflict between the general provision and the special or local provision is irreconcilable, the special or local...