Denby v. State

• Decision Date: 16 March 1983
• Docket Number: No. 62561,No. 3,62561,3
• Parties: Perry Como DENBY, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 457

654 S.W.2d 457

Perry Como DENBY, Appellant, v. The STATE of Texas, Appellee.

No. 62561.

Court of Criminal Appeals of Texas,

Panel No. 3.

March 16, 1983.

Rehearing Denied July 20, 1983.

Josh Don Curnell, III, Houston, for appellant.

Doyle W. Neighbours, Dist. Atty., and Kim Fallwell, Asst. Dist. Atty., Angleton, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before W.C. DAVIS and TEAGUE, JJ., concur.

OPINION

TEAGUE, Judge.

Perry Como Denby, appellant, was indicted for committing the offense of felony theft of the third degree. See V.T.C.A., Penal Code, Sec. 31.03. He was tried and convicted by a jury, which also assessed punishment at six years' confinement in the penitentiary. Because we find the evidence insufficient as a matter of law to sustain the conviction, we are compelled to reverse the conviction.

The indictment in this cause alleges in pertinent part that on or about December 27, 1977, appellant "did then and there with intent to deprive the owner, Jack Potter, of property, namely money, did unlawfully appropriate such property, without the effective consent of said owner, which property had a value of over Two Hundred and No/100 Dollars and less than Ten Thousand and No/100 ($10,000.00) Dollars." Jack Potter was a vice president of Angleton Bank of Commerce, which actually sustained the loss.

The State asserts that "This case involves a scheme where Appellant was accused of kiting checks between Angleton Bank of Commerce and other banks." By definitions we have found for the term "check kiting," as applied to this cause, we are not completely convinced that this is a check kiting case. Check kiting is a species of fraud or fraudulent practice consisting of the exchange of checks of approximately the same dates and amounts between two banks for the purpose of obtaining money. Baskerville v. State, 23 Md.App. 439, 327 A.2d 918 (Md.App.1974). To put it another way: it is a process where checks written on one account are continually covered with deposits of checks written on another account thereby creating positive statement balances and preventing overdrafts but resulting in a steadily decreasing deficit in the collective balance in most of the accounts. North Carolina National Bank v. South Carolina National Bank, 449 F.Supp. 616, 617 (D.C.S.C.1976). Also see First State Bank & Trust Company of Edinburg v. George, 519 S.W.2d 198, 204 (Tex.Civ.App. Corpus Christi 1974, Writ Ref'd n.r.e.).

Potter, testifying in the capacity of a custodian of the records of Angleton Bank of Commerce, testified that records of the bank reflected that on December 27, 1977, a personal checking account in the name of appellant was opened with Angleton Bank of Commerce, "probably by mail." A third party check with the signature of a person who was not authorized to sign the check was used in opening the account. Texas Commerce Bank in Houston, on which the check issued, subsequently made it good for reasons not clearly stated in the record of appeal. Records of Angleton Bank of Commerce also reflect that in a relatively short period of time several checks totaling $2,606.81 were posted to the checking account. The records of the bank also reflect that most of the posted checks turned out to be uncollectible or were checks written on other bank accounts which had been closed prior to the issuance of the checks or were in fact checks drawn on accounts that did not exist. Apparently, only two checks that were posted to the checking account subsequently cleared by being paid by the bank on which they were drawn. Records of the Angleton bank also reflect that 10 checks, totaling $2,411.36, were written against the account. Without discussing the details of the transactions involving the checking account, suffice it to say that the bank sustained a total loss of $2,606.17. Records of the bank also reflect that a savings account was opened in the name of the appellant. A check drawn on First National Bank in Huntsville was used in opening that account. Records of the Angleton bank reflect that the account at the Huntsville bank had been closed prior to the issuance of the check. Records of the Angleton bank also reflect that other than the savings account being opened, with a bad check being used in opening the account, no further activity regarding this account took place.

It is axiomatic that hearsay evidence has no probative value. Salas v. State, 403 S.W.2d 440, 441 (Tex.Cr.App.1966). However, one exception to the hearsay rule of evidence is that information contained on a business record maintained and kept in the regular course of the business may be introduced into evidence, after the proper predicate has been satisfied, even though to the testifying witness the business record and its contents are hearsay. Art. 3737e, V.A.C.S. Also see Ray, Texas Practice, Sec. 1257, footnote 74; McCormick on Evidence, Section 307 (1972 Edition); Binder, The Hearsay Handbook, Exception 8. Thus, in this instance, records of the Angleton bank, though hearsay to Potter, were admissible pursuant to Art. 3737e, supra, to establish whatever happened to the checks that were posted to the checking account, either in the form of a deposit to or a withdrawal from the account. The records of the Angleton bank which pertained to the checking and savings accounts were therefore admissible for the truth of the matter of the items contained in the records. However, it would be multiple hearsay for a custodian such as Potter to express any opinion as to the truth of the matter of what may have existed at a second banking institution. For example, State's Exhibit Number 6 is a check drawn on The Citizens Bank of Philadelphia, Mississippi, in the amount of $189.50, payable to Angleton Bank of Commerce. As to any notations that may have been placed on the check by employees of the bank in Angleton in the regular course of business, when the check was processed through that bank either initially or after it was returned to the bank by the bank in Mississippi, the custodian of the Angleton bank's records could testify to whatever the notations on the checks meant. It was thus permissible for Potter to testify that the check was returned unpaid to the Angleton bank. However, it was not permissible for Potter to testify as to the truthfulness of the records of the account at the bank in Mississippi because he had no personal knowledge of the business of that bank, nor was it shown that he was a custodian of the Mississippi bank's records.

Other evidence adduced showed that appellant and Potter first met one another at some time on a late Friday afternoon in January, 1978, when appellant attempted to purchase money orders and cashier checks at a drive-in bank window of the Angleton Bank. Potter had gone to that location after he was summoned by a teller. Potter advised appellant to return to the bank on Monday because such a purchase had to be made inside the bank and that part of the bank was then closed. Appellant told Potter or the drive-in teller that he had an account at the bank, which, of course, by the bank's own records was true. Whether appellant returned to the bank on the following Monday is not reflected by the record of appeal.

Angleton police officer Daniel Beaver testified that on January 3, 1978, at 5:19 a.m., he had occasion to come into contact with appellant outside the bank on the bank's parking lot. Appellant told Beaver he was then in the process of making a night deposit of a check but did not have an envelope in which to put the check in order to make a deposit at that time. The evidence does not reflect whether or not appellant actually made a deposit. Our reading of Potter's testimony and examination of the exhibits that were introduced into evidence does not reveal where a deposit of any kind was posted to the checking account on January 3, 1978.

Andy De Sham, a handwriting expert, testified he made a comparison of a known handwriting exemplar of appellant with exhibits introduced into evidence by the State, and in his opinion some of the exhibits were made by appellant. However, this testimony is somewhat weakened by the provisions of Art. 38.27, V.A.C.C.P., which provides as follows: "It is competent to give evidence of handwriting by comparison, made by experts or by the jury. Proof by comparison only shall not be sufficient to establish the handwriting of a witness who denies his signature under oath." (Emphasis Added). In this cause, appellant expressly denied that he had signed any of the checks that were posted to the checking account, either in the form of a credit or a debit to the account. He further denied that he had signed or endorsed any of the checks, and further denied using a signature stamp for those purposes. Appellant did not deny, but in fact admitted he had accounts at the Angleton bank. He also admitted that he had "twenty (or) twenty-one ... of them signature stamps." Thus, if all that was before this Court was the testimony of Potter, the State's exhibits, and De Sham's testimony, the evidence would clearly be insufficient. In addition to Art. 38.27, supra, also see Turner v. State, 636 S.W.2d 189, 194 (Tex.Cr.App.1982) (Roberts, J. On State's Motion for Rehearing), and footnote 3 of the opinion; Ex parte Watson, 606 S.W.2d 902, 905 (Tex.Cr.App.1980); Cadd v. State, 587 S.W.2d 736, 740 (Tex.Cr.App.1979) (Opinion on State's Motion for Rehearing); and Herndon v. State, 543 S.W.2d 109, 118-119 (Tex.Cr.App.1976). The only remaining significant testimony and evidence that the State presented concerned the appellant's arrest.

Tony Mostia, at the time an Angleton police officer, testified that on January 25, 1978, he arrested appellant in Houston pursuant to an arrest warrant. Appellant was then sitting at a desk inside a building, which was apparently owned by appellant's father. Next to the desk was a briefcase. Found on top of and inside...