Compton v. State

• Decision Date: 25 April 1979
• Docket Number: No. 57195,No. 1,57195,1
• Citation: 607 S.W.2d 246
• Parties: Charles Ray COMPTON, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 246

607 S.W.2d 246

Charles Ray COMPTON, Appellant, v. The STATE of Texas, Appellee.

No. 57195.

Court of Criminal Appeals of Texas, Panel No. 1.

April 25, 1979.

On Rehearing Oct. 8, 1980.

Rehearing Denied Nov. 19, 1980.

Kerry P. Fitzgerald, Dallas, for appellant.

Henry N. Wade, Dist. Atty., W. T. Westmoreland, Jr., Richard E. Zadina and Ron Poole, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction of theft over $10,000.00. The jury assessed punishment at twelve (12) years' confinement in the Texas Department of Corrections.

Appellant urges reversal on seven grounds of error, but in view of our disposition of the case, only one ground will be discussed. In that ground of error, appellant contends that the evidence is insufficient to sustain the judgment because the State failed to prove that J. Howard Coonen was the owner of the property in question as alleged in the indictment.

Omitting the formal parts, the indictment reads in pertinent part as follows:

"... CHARLES RAY COMPTON ... did unlawfully, knowingly and intentionally exercise control over property other than real property, to-wit: $400,000.00 current money of the United States of America, of the value of at least $10,000.00, without the effective consent of J. Howard Coonen, the owner thereof, and with the intent to deprive the said owner of said property ...." (Emphasis supplied.)

Without presenting the extremely intricate details of this case, it suffices to say that the record reflects that in late March or early April of 1976, the appellant, doing business as National Trailer Sales, purchased a 1972 Diamond Reo truck from one Dan Thompson. Payment was to be made to Thompson as soon as appellant was able to re-sell the truck to someone else. This re-sale occurred on May 3, 1976, when, after negotiating with George Bushfield and Joe Bennett, two employees of the International Harvester (hereinafter referred to as International), Used Truck Center-Dallas office, appellant agreed to sell the truck to International for $11,650.00. The facts indicate that pursuant to this purchase agreement, International's Dallas office made a request for $11,650.00 from the home office in Atlanta, Georgia in order to purchase the truck. However, because of an error, the Atlanta office forwarded a check in the amount of $411,650.00. The check was signed by two officers of the Atlanta office and sent directly to the appellant, who presented the same to a bank. It appears from the record that J. Howard Coonen represented International in the capacity of manager for the Southwest Region, which included the Dallas office, and was in charge of disbursement of funds from the Dallas area. It is clear, however, that he at no time had any contact with the funds disbursed to the appellant from the Atlanta office. The record further reflects that the two employees of the Atlanta office who signed the check were in control of and jointly responsible for funds paid out of that office. Moreover, although Dallas and Atlanta were in different regions so far as "sales people" were concerned, the Atlanta office was in charge of "accounting" for the "Eastern part of the United States, including the Texas area."

When the property referred to in an indictment is the property of a corporation, it is not only permissible, but also better pleading practice to allege ownership in some natural person acting for the corporation. Article 21.08, V.A.C.C.P.; Commons v. State, 575 S.W.2d 518 (Tex.Cr.App.1978); Eaton v. State, 533 S.W.2d 33 (Tex.Cr.App.1976); Roberts v. State, 513 S.W.2d 870 (Tex.Cr.App.1974). However, when specifying this natural person, it is equally important to satisfy the requirement of V.T.C.A., Penal Code, §§ 1.07(a)(24) and (28), which defines the terms "owner" and "possession" as follows:

" 'Owner' means a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor."

" 'Possession' means actual care, custody, control, or management."

In view of these definitions, there are three different ways provided in the statute by which the State may have shown that Coonen, as manager of the Dallas Region, was the owner of the property taken: (1) title, (2) possession, or (3) a greater right to possession than appellant. McGee v. State, 572 S.W.2d 723 (Tex.Cr.App.1978).

The record does not support the State's contention that the property was either owned or possessed by Coonen. To the contrary, the record clearly shows that Coonen exercised no control over the check at any time. Although the check was requested by the Dallas office, of which Coonen was in charge the issuance was approved by and the check was drafted by employees of the Atlanta office. In fact, Coonen testified that so far as disbursements of funds were concerned, he was in charge of those disbursed from the Dallas office. Since the funds in question were disbursed from the Atlanta office and sent directly to the appellant, Coonen had no occasion to see the check, much less gain title to or exercise any care, custody, control or management over it. Moreover, to the extent that the check was issued in appellant's name and signed by two employees who neither received nor required Coonen's approval to do so, it cannot be said that Coonen had a greater right to possession than appellant.

We therefore conclude that the evidence was insufficient to convict appellant of the offense alleged in the indictment, or, more particularly, to show that Coonen was the "owner of the property as alleged in the indictment." See, McGee v. State, supra; Commons v. State, supra. We further conclude that no further prosecution may be had in this cause pursuant to the holdings in Burks v. United States, 431 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). These cases dictate that once this court has found the evidence legally insufficient to sustain a conviction, a second trial is precluded by the Double Jeopardy Clause of the Constitution of the United States. ¹

The judgment of conviction is set aside and is reformed to show acquittal. The judgment is reversed and the cause remanded accordingly.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

DOUGLAS, Judge.

On original submission, the panel reversed this case on the ground of insufficient evidence to sustain the allegation of ownership. The indictment charged that Charles Compton "did unlawfully, knowingly, and intentionally exercise control over property other than real property, ... without the effective consent of J. Howard Coonen, the owner thereof...." (Emphasis supplied)

The panel wrote that Coonen never had any contact with the funds disbursed to the appellant from the Atlanta office. According to the majority, the two Atlanta employees of International Harvester who signed the check "were in control of and jointly responsible for funds paid out of that office." Further, the majority stated that these two employees neither received nor required Coonen's approval to issue the check, and that it cannot be said that Coonen had a greater right to possession than the appellant.

An examination of the record, however, shows otherwise. Kent Hartley and John Pratt, the two Atlanta employees, testified that they were responsible for disbursing funds from the Atlanta office. Hartley stated that the disbursing of funds required prior approval before the money could be sent from Atlanta. George Bushfield and Tommy Bailey, a salesman and the manager of the Used Truck Center, respectively, testified that once a purchase of a truck had been negotiated the payment check had to be requested from the Atlanta office. Coonen testified that he was in charge of all disbursements from the Dallas area and all money to be paid out of the Atlanta office had to be "called in" from the Dallas regional office.

Robert Ewart, the Used Truck Center accountant, testified about the exact procedure he went through to order the check. His testiimony, in part, was as follows:

"A. All right. An invoice is given to me usually from the manager with instructions to purchase a truck for a certain amount of money. I write up a check request form and I get him to sign it. Usually if it is a quick transaction, they will request that I go down the street at our other branch and run a Twix to Atlanta requesting the money and checking the form that I made after I run the Twix. Of course, the check request form goes to our regional office and this is confirmed, confirming the Twix."

He also stated that the Twix, or TWX, goes from the regional office to Atlanta, as does the check request form.

Pratt and Hartley were required to have Coonen's, or his office's, prior approval before any check could be issued. From this evidence, Coonen's office did have some control of the funds to be disbursed.

Coonen also had authority to deal with the funds after the check was issued from the Atlanta office. The proper procedure required the Atlanta office to send the check to Coonen, who would then exchange the money for the title to the truck. In the instant case, the Atlanta accounting office erred when it sent the check directly to Compton.

In Cross v. State, 590 S.W.2d 510 (Tex.Cr.App.1979), the defendant was convicted of theft for stealing a commemorative watch. The alleged owner, a supervisor for Southwestern Bell, testified that her responsibilities included ordering watches for a benefit committee for Southwestern Bell. She stated that she used a standard form that was forwarded through channels to the committee. The watch would then be sent directly to her for presentment to the honored employee. The watch was stolen from Southwestern Bell's mail room before the supervisor...