Garza v. State

• Decision Date: 20 March 1985
• Docket Number: No. 938-83,938-83
• Citation: 687 S.W.2d 325
• Parties: Rafael E. GARZA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 325

687 S.W.2d 325

Rafael E. GARZA, Appellant, v. The STATE of Texas, Appellee.

No. 938-83.

Court of Criminal Appeals of Texas En Banc.

March 20, 1985.

Robin A. Hartman, Houston, for appellant.

Amado Abascal, III, Dist. Atty., Eagle Pass, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted upon his guilty pleas before a jury of three offenses of official misconduct (Trial Court Nos. 2498, 2499 and 2500) and three felony theft over $10,000.00 offenses (Trial Court Nos. 29501, 29502 and 29503). In each of the official misconduct cases the jury assessed punishment at five years' imprisonment and a $5,000.00 fine, and in each of the theft cases the jury assessed punishment at 10 years' imprisonment and a $10,000.00 fine.

On appeal appellant raised a number of grounds of error. The San Antonio Court of Appeals affirmed the judgments in the six cases, reforming, however, the theft sentences ordering that they run concurrently rather than consecutively as ordered by the trial judge. Garza v. State (No. 04-82-00256-CR). We granted appellant's petition for discretionary review to review several of appellant's contentions regarding the opinion of the Court of Appeals.

On appeal appellant complained the trial court erred by failing to sua sponte withdraw his plea of guilty to the three theft indictments when evidence was introduced which reasonably and fairly raised an issue of fact as to his guilt. Appellant contends the Court of Appeals erred in overruling this ground of error.

Appellant argues the evidence showed that at the time of the theft offenses he was County Treasurer of Maverick County and was the only person authorized to withdraw funds from the county bank account from which the money was missing, and he thus had a greater right of possession than "Ramon Saucedo, Jr., County Judge of Maverick County," who was alleged as the "owner" in the three theft indictments. See V.T.C.A., Penal Code, § 1.07(a)(24).

Appellant was duly admonished and entered pleas of guilty to the theft indictment before the jury.

In Darden v. State, 430 S.W.2d 494, 495 (Tex.Cr.App.1968), this Court stated:

"It is well established that a plea of guilty to a felony charge before a jury admits the existence of all facts necessary to establish guilt and, in such cases, the introduction of testimony by the State is to enable the jury to intelligently exercise the discretion which the law vests in them touching the penalty to be assessed (authorities cited omitted).

"Where the guilty plea is before the jury, the presumption of innocence does not obtain under the plea and there is no issue of justification under it. Stullivan v. State, 47 Tex.Cr.R. 615, 85 S.W. 810; Garcia v. State, 91 Tex.Cr.R. 9, 237 S.W. 279. See also Jackson v. State, 155 Tex.Cr.R. 466, 236 S.W.2d 623. Where such plea is before a jury, the accused may at any time before the retirement of the jury withdraw his plea and thus put upon the State the burden of proving his guilt beyond a reasonable doubt. Alexander v. State, 69 Tex.Cr.R. 23, 152 S.W. 436...." See Renesto v. State, 452 S.W.2d 498 (Tex.Cr.App.1970); Brinson v. State, 570 S.W.2d 937 (Tex.Cr.App.1978).

The evidence showed that at the time of the offenses appellant was County Treasurer of Maverick County. In that capacity he could make deposits in a county bank account entitled "Maverick County Interest and Sinking and Other Funds Account, No. 8-000-530." He was authorized to write checks on that account on his signature alone. Appellant set up a bank account in an adjoining county in the name of a fictitious company and over a two year period diverted approximately $84,000.00 in county funds from the above described account to the bank account in the adjoining county. Appellant used the money for personal expenses and to invest in businesses. The appellant made separate written judicial confessions to each offense tracking the allegations of each indictment. A further extrajudicial statement of appellant was also introduced in which he admitted that all of the money involved had been wrongfully appropriated from the rightful owner, Maverick County. Bank account records, checks and numerous other exhibits were offered and accepted into evidence.

The State called Saucedo, the County Judge, the County Auditor, and a witness as to the rental of a postal box. Numerous receipts, cancelled checks, deposit tickets and invoices were also introduced as well as appellant's statement admitting his guilt.

Saucedo testified he had been County Judge for 12 years prior to his testimony, and that permission had not been given appellant to take the various sums of money from the said account on the various dates involved, and appellant had not been given permission to take any county money. At the conclusion of his testimony, the prosecutor asked:

"Q. This money that we are talking about is not your personal money. It is money that belonged to Maverick County. Is that correct?

"A. That is correct."

Appellant called two reputation witnesses and then testified himself. He admitted his guilt of the offenses as charged along the lines of his statement previously introduced. He expressly admitted each and every element of the offenses charged. He asked for probation and promised to make restitution. He stated all funds taken were from the same Maverick County account while he was County Treasurer, that the Commissioners Court had required two signatures to withdraw money from other county funds, but had only required one signature--his--on the account in question. He detailed how he had spent the money once he had misappropriated the county money.

On appeal appellant seizes upon the Judge's testimony that the money was not his personal money and the fact his (appellant's) was the only authorized signature on the said bank account of the county. He contends that this gave him the greater right of possession than the County Judge, V.T.C.A., Penal Code, § 1.07(a)(24), and that the court on its own motion should have withdrawn the guilty pleas to the theft indictments.

In Varela v. State, 553 S.W.2d 111 (Tex.Cr.App.1977), we stated,

"This court has for years held that when evidence introduced before a jury (when a defendant has entered a guilty or nolo contendere plea) makes evident the innocence of the accused or which reasonably and fairly raises an issue as to such fact and such evidence is not withdrawn, the trial court is required, sua sponte, to withdraw the accused's guilty or nolo contendere plea and enter a not guilty plea for the accused. [Citations omitted] ...

"For the rule to come into play the evidence must go farther (sic) than just tending to show a defensive issue, it must reasonably and fairly present such issue before the trial court is required to withdraw the guilty or nolo contendere plea. Reyna v. State, [434 S.W.2d 362 (Tex.Cr.App.1968) ]; Galvan v. State, 525 S.W.2d 24 (Tex.Cr.App.1975); Davis v. State, 507 S.W.2d 740 (Tex.Cr.App.1974); Jones v. State, 491 S.W.2d 883 (Tex.Cr.App.1973).

"This is true even though no effort was made by defense counsel at any time during the trial to withdraw the plea and no objection was made to the court's charge to the jury instructing them that a finding of guilty be rendered, Woodberry v. State, 547 S.W.2d 629 (Tex.Cr.App.1977); Gates v. State, 543 S.W.2d 360 (Tex.Cr.App.1976), and even though the testimony of appellant himself may have shown him to be guilty of the offense. Woodberry v. State, supra; Gates v. State, supra."

See also Montalvo v. State, 572 S.W.2d 714 (Tex.Cr.App.1978); Taylor v. State, 555 S.W.2d 483 (Tex.Cr.App.1977); Malone v. State, 548 S.W.2d 908 (Tex.Cr.App.1977); Lewis v. State, 529 S.W.2d 550 (Tex.Cr.App.1975); Hayes v. State, 484 S.W.2d 922 (Tex.Cr.App.1972); Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460 (1942).

It was undisputed that the money in question belonged to Maverick County. It appears the State attempted to follow the better practice, that where the stolen property is owned by a corporation or like entity, to allege the property was taken from the custody and control of a natural person acting for the corporation or like entity. Eaton v. State, 533 S.W.2d 33 (Tex.Cr.App.1976); Castillo v. State, 469 S.W.2d 572, 573 (Tex.Cr.App.1971). It is then necessary to prove this natural person is the special owner of the property. Castillo v. State, supra. When this is done there is no variance between proof showing true owner and allegation of special owner. Eaton v. State, supra.

The Commissioners Court is the governing body of the county, and the County Judge is a member thereof and the presiding officer of the court. See Article 5, § 18, Tex. Const.; Article 2342, V.A.C.S.; Anderson v. Parsley et al., 37 S.W.2d 358 (Tex.Civ.App.1931); Dodson v. Marshall, 118 S.W.2d 621 (Tex.Civ.App.1938).

Article 1709, V.A.C.S., provides in part:

"It is the county treasurer's duty to receive all moneys belonging to the county from whatever source they may be derived, and to pay and apply them as required by law, in such manner as the commissioners' court of the county may require and direct...."

And it has been said that the Commissioners' Court, not the County Treasurer, is the custodian of county funds. Hurley v. Buchanan, 233 S.W. 590 (Tex.Civ.App.1921).

As the money was the county's, it was understandable that the State alleged Saucedo as the "owner" and alleged his official position as County Judge. It must be remembered these were pleas of guilty before the jury. These pleas admitted all the facts necessary to establish guilt, and evidence was introduced only to aid the jury in the assessment of punishment. Burks v. State, supra. The State was not required to prove each element of the offenses beyond a reasonable doubt. Under all the circumstances the trial court did not err in failing to...