Floyd v. State, 28388

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtMORRISON; DAVIDSON
Citation164 Tex.Crim. 50,296 S.W.2d 523
PartiesRoy FLOYD, Appellant, v. The STATE of Texas, Appellee.
Docket NumberNo. 28388,28388
Decision Date31 October 1956

Page 523

296 S.W.2d 523
164 Tex.Crim. 50
Roy FLOYD, Appellant,
The STATE of Texas, Appellee.
No. 28388.
Court of Criminal Appeals of Texas.
Oct. 31, 1956.

[164 Tex.Crim. 51]

Page 525

C. D. Little, Baytown, Chas. A. Keilin, Houston, for appellant.

Dan Walton, Dist. Atty., Eugene Brady and Thomas D. White, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is a violation of Article 95, Vernon's Ann.P.C., which denounces, among other things, the misapplication by a city officer, or person employed by such officer, of city property which has come into his possession by virtue of his office or employment; the punishment, 4 years.

Because of the unusual complexity of the State's proof (the statement of facts consists of 500 pages) and in the interest of brevity, we have concluded that the issues presented for our [164 Tex.Crim. 52] determination may be made clear by outlining the evidence introduced by the State and the appellant without identifying in every case the source of the evidence.

During the time involved in this prosecution the city was acquiring by condemnation within the city limits the right of way for a new state highway.

The appellant was director of the Treasury of the City of Houston and, in his role as such, on November 30, 1954, requested authority from the city council to sell at public auction all buildings located on the

Page 526

proposed right of way and to demolish those that could not be sold. The State established that it was the policy of the city in cases where frame structures were to be demolished that this work should be done by prison farm labor and that the lumber so salvaged should be stored at a central warehouse house for issuance to any city department in need thereof. On December 1, such authority was granted the appellant by the city council, and he was directed to report to them what disposition was made of the buildings involved.

During the month of November, the appellant has purchased in his own name a vacant lot in the City of Houston and, according to his testimony, had rented the same to a Mr. Fortenberry, a house mover.

On February 2, 1955, the city acquired by condemnation a six-room duplex which bore the address 2601-2601 1/2 Nance Street. Some two weeks later, the appellant, in his official capacity, addressed a letter 'To Whom It May Concern' authorizing Mr. Fortenberry to move the improvements located at a number of different addresses, among them being 2601-2601 1/2 Nance Street, out of the highway right of way. When confronted with a carbon copy of this letter, the appellant stated that he might have dictated the same but did not remember signing or mailing it.

Following this, the appellant reported to the council, pursuant to their previous order, that he had been unable to sell, among others, a three-room dwelling located at 2601 Nance Street and stated that the same was to be demolished by the public works department with prison farm labor. It should be noted that this report was in a measure inaccurate because the property was actually a six-room duplex and bore the street numbers 2601-2601 1/2 Nance Street. This report was approved by the city council in March, and on March 18 the appellant [164 Tex.Crim. 53] reported that he had demolished the buildings mentioned in his earlier report.

Everything progressed smoothly for the appellant until a reporter from the Houston Chronicle evidently discovered the duplex in question properly set up on cement blocks and leveled on the appellant's lot.

Upon being informed of the situation, the mayor terminated the appellant's services with the city. The appellant was questioned in the city attorney's office and made a statement in which he denied that he had authorized Mr. Fortenberry to move any house from the land in question.

According to the appellant's testimony, Mr. Fortenberry approached him on February 9 about buying the duplex located at 2601-2601 1/2 Nance, as well as some other buildings, and the appellant told him that time would not permit him to advertise the same for competitive bidding but that he might have the same for the salvage if he would demolish it and get it off the right of way. Appellant stated that he returned to the area about February 20 and found the duplex gone.

The appellant produced no written evidence supporting his claim that he had rented the property to Fortenberry, and Fortenberry was not called as a witness.

The appellant's defense was that as the time grew short in which the city had to clear the right of way he went to the mayor and reported the dilemma in which he found himself and was instructed to give away, burn or bulldoze those houses which remained on the right of way.

The then-mayor was called in rebuttal and denied having so instructed the appellant. He testified further that he had never given the appellant any specific instructions as to what land to clear first but told him to get that information from a Mr. Nagle and the State Highway Department since the city was depending on the State Highway maps to give them the order of priority.

Fire Chief LaBoue was called in rebuttal by the appellant, and he testified that he had overheard a conversation in which the mayor told the appellant that a certain right of way had to be cleared at any cost and authorized

Page 527

the appellant to give the improvements away as salvage to anyone who would move them.

[164 Tex.Crim. 54] The State offered evidence that would indicate that the property at 2601-2601 1/2 Nance Street was not located in the path of the right of way that was being hurriedly cleared.

The appellant testified that, pursuant to the mayor's instructions, he had given Fortenberry authority to demolish the house in question and that he had not known that it was on his property until the newspaper reporter questioned him about the same.

The State rebutted with evidence that the duplex had been repaired after it had come to rest on the appellant's property.

We shall state the facts more fully in our discussion of the bills of exception which were so ably advanced in brief and argument.

We are met at the outset with a motion to quash the indictment.

In alternate counts, the indictment charged the taking, misapplication, and conversion of a 'house' and 'lumber.' Appellant contends that a 'house' cannot be the subject of theft and that the allegation 'lumber' is insufficient in that there is no designation as to its quantity. In support of his first contention, reliance is had upon Walles v. State, 136 Tex.Cr.R. 509, 126 S.W.2d 989, 990. At first blush, it would appear that the Walles case supports the appellant. This Court reversed the conviction in the Walles case because the trial court failed to instruct the jury in his charge 'that if appellant believed in good faith that such house belonged to Leroy McCall at the time he paid him the $12.50 and received the bill of sale, and at the time he tore the house down, then to acquit the appellant.' It is authority for that question of law and no more. While it is true that the dictum of the opinion states further that a 'house' is not a proper subject of theft, it must be noted that the judgment was reversed and the cause remanded. If this Court had decided that the indictment was fatally defective, then the judgment would have been reversed and the prosecution ordered dismissed.

The moment the house was raised from its foundations, it became severed from the realty and assumed the character of personal property and thereby became the subject of theft. Under Article 95, V.A.P.C., the value thereof is immaterial, and we have concluded that the indictment is not subject to this first [164 Tex.Crim. 55] attack. The evidence here shows that the house was moved intact from the city's property to that of the appellant, which presents an entirely different state of facts from those before this Court in the Walles case.

Our disposition of this first attack upon the indictment obviates the necessity of passing upon the second because the jury returned a general verdict and all of the evidence was admissible under the count charging the misapplication of a house. Vincent v. State, Tex.Cr.App., 55 S.W. 819; 21a Texas Digest, Indictment and Information, k203.

Another ground alleged for the motion to quash was that the allegations of the indictment were duplicitous in that it charged that the accused did fraudulently 'take, misapply and convert.' Reliance is had upon Ferguson v. State, 80 Tex.Cr.R. 383, 189 S.W. 271, 273 which held that the words 'embezzlement', 'abstract', and 'misapply', when used in the same count of the indictment charge two or more distinct offenses and rendered the same duplicitous. While the soundness of the Ferguson case might be questioned, it is authority only for the proposition that 'the terms 'embezzlement' and 'misapplication' used with reference to the funds of a bank are not convertible terms.' Such rule has no application here.

In Beard v. State, 140 Tex.Cr.R. 127, 143 S.W.2d 967, 968, which was a prosecution under the same statute as the case at bar, the indictment charged that Beard did

Page 528

"fraudulently take, misapply and convert", and this Court held the indictment sufficient, citing a number of cases.

While it is true that the 4th, 5th and 6th Editions of Willson's Criminal Forms omit the word 'misapply' in the forms drawn for this offense, we have concluded that the inclusion of such term does not render the indictment duplicitous.

The appellant next contends that the trial court erred...

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  • Franklin v. State, No. 57348
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 24, 1978
    ...charging the same offense are drawn to prevent a variance and there is evidence to support each count. Floyd v. State, 164 Tex.Cr.R. 50, 296 S.W.2d 523 (1956); Smith v. State, 141 Tex.Cr.R. 387, 148 S.W.2d 844 (1941). In the instant case, there is sufficient evidence to support a conviction......
  • Cook v. State, No. 63643
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    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 9, 1987
    ...charging the same offense are drawn to prevent a variance and there is evidence to support each count. Floyd v. State, 164 Tex.Cr.R. 50, 296 S.W.2d 523 (1956); Smith v. State, 141 Tex.Cr.R. 387, 148 S.W.2d 844 See also Williams v. State, 680 S.W.2d 570, 574 (Tex.App.--Corpus Christi 1984). ......
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