Geick v. State

• Decision Date: 05 October 2011
• Docket Number: No. PD–1734–10.,PD–1734–10.
• Parties: Alan Joel GEICK, Appellant,v.The STATE of Texas.
• Court: Texas Court of Criminal Appeals

349 S.W.3d 542

Alan Joel GEICK, Appellant,

v.The STATE of Texas.

No. PD–1734–10.

Court of Criminal Appeals of Texas.

Oct. 5, 2011.

Barbara A. Drumheller, Houston, for Appellant.Brandy Davidson, Asst. D.A., Bellville, Lisa C. McMinn, State's Attorney, Austin, for State.WOMACK, J., delivered the opinion of the unanimous Court.

The appellant was indicted for theft by deception. At trial, the jury charge allowed for a conviction without limiting the manner in which the theft was committed. The jury found the appellant guilty “as charged in the indictment” and sentenced him to 3 years in prison and a $10,000 fine.

The Fourteenth Court of Appeals acquitted the appellant because there was no evidence of deception.¹ We refused the State's petition for discretionary review, but we granted review on our own motion on the ground, “Did the Court of Appeals err in requiring the State to prove theft by deception, where deception was alleged in the indictment?”

We hold that if an indictment uses a statutory definition to specify how a theft was committed, the State must prove the offense as charged in the indictment. Because the State produced no evidence of deception, we shall affirm the Court of Appeals.

I. Background

A. Investigation & Trial

In June 2005, acting on an anonymous tip that there was stolen machinery at the site, state and county law-enforcement officers searched a wooded property in Austin County belonging to the appellant's parents. They recovered numerous pieces of stolen machinery, including a bulldozer. In August 2005, an Austin County grand jury indicted the appellant, and in November 2008 the State amended the indictment to charge that:

Alan Joel Geick on or about January 15, 2005 ... in Austin County, Texas, did then and there unlawfully appropriate, by acquiring or otherwise exercising control over property, to-wit: bulldozer, of the value of $20,000.00 or more but less than $100,000.00 from F. Phillips, the owner thereof, without the effective consent of the owner, namely, by deception, with intent to deprive the owner of the property....

At the appellant's trial in February 2009, the State presented four witnesses, none of whom said how the appellant acquired the bulldozer. A Department of Public Safety sergeant told the jury about the investigation and the machinery found during the search. One neighbor testified that he had responded to an advertisement and hired the appellant to use the bulldozer on his property. A second neighbor said that he had seen the appellant using the bulldozer on the first neighbor's property. Finally, Flavil Phillips testified that the bulldozer belonged to his company, that it was stolen from a work site in Harris County, that he did not know who stole it, and that it was insured for $32,000 at the time of the theft. Phillips said he did not know the appellant.

The defense called the appellant and his wife, Ashley. The appellant testified that he had bought the bulldozer from a friend's father, Clint Hampton, whose landscaping business owned several pieces of large equipment. The appellant said that Hampton agreed to take installment payments for the bulldozer and give the title to the appellant after the last payment was made. The appellant said he paid Hampton in cash and had no receipts. Ashley testified that she went with the appellant when he bought the bulldozer, and that the appellant had made several payments on the bulldozer, either with checks or cash. She said they had no receipts for the payments.

The application paragraph of the jury charge, unlike the indictment, was not limited to theft by deception:

Now, if you find from the evidence beyond a reasonable doubt that on or about JANUARY 15, 2005, in Austin County, Texas, the defendant, ALAN JOEL GEICK, did intentionally or knowingly appropriate, by acquiring or otherwise exercising control over property, to-wit: bulldozer, of the aggregate value of more than $20,000.00 and less than $100,000.00, from F. PHILLIPS, the owner thereof, without the effective consent of the owner, with the intent to deprive the owner of the property, then you will find the defendant guilty of theft as charged in the indictment.

The definition section of the charge used portions of the statute concerning the nature of consent:

“Effective consent,” includes consent by a person legally authorized to act for the owner. Consent is not effective if induced by deception or coercion or given by a person the actor knows is not legally authorized to act for the owner.²

The appellant made no objection to the jury charge, and the jury found him guilty “as charged in the indictment.”

B. Direct Appeal

On appeal, the appellant argued, among other points, that the State was required to prove that the theft was committed “by deception,” as alleged in the indictment, and that the evidence at trial was legally insufficient to prove deception.

Relying on our opinions in Malik v. State³ and Gollihar v. State,⁴ and its own opinion in Jacobs v. State,⁵ the Fourteenth Court of Appeals agreed with the appellant and acquitted him. ⁶ The Court of Appeals based its decision on two premises: (1) To determine sufficiency, evidence is compared to the hypothetically correct jury charge, which is based on “the law as authorized by the indictment.” (2) “[W]hen the statute defines alternative methods of manner and means of committing an element [of the offense] and the indictment alleges only one of those methods, ‘the law’ for purposes of the hypothetically correct charge, is the single method alleged in the indictment.” ⁷ Therefore, because the indictment alleged that the theft was committed by deception but no evidence of deception (as that term is defined in the Penal Code) emerged at trial, the appellant was entitled to an acquittal.⁸

II. Review

A. Legal Sufficiency Review

The Court of Appeals's first premise is indisputably true. On a challenge to the sufficiency of the evidence, a court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ⁹

To determine what “the essential elements of the crime” are, we look to “the hypothetically correct jury charge for the case.” ¹⁰ A hypothetically correct jury charge “would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.” ¹¹

When a statute lays out several alternative methods of committing the offense, and the indictment alleges only one of those methods, “the law as authorized by the indictment” is limited to the method specified in the indictment.¹² Thus, in Curry v. State, in which the indictment alleged that the defendant “abducted” the victim “by using and threatening to use deadly force,” one of two statutory means of abducting a victim, the hypothetically correct jury charge included that specific allegation. ¹³ Proof that the defendant abducted the victim by “secreting or holding him in a place where he is not likely to be found,” the other statutory method of abduction,¹⁴ would not have supported a conviction.¹⁵

However, when an indictment needlessly pleads an allegation that gives rise to an immaterial variance, that allegation will not be included in the hypothetically correct jury charge.¹⁶ In Gollihar, the indictment alleged that the defendant stole “One Go–Cart [ sic ] Model 136202,” but the evidence at trial was that the stolen Go Kart was model 136203.¹⁷ Because the model number was not a statutory element and the inaccurate allegation of the model number did not prejudice the defendant's substantial rights, the model number did not factor into a sufficiency review.¹⁸

B. Theft and the Hypothetically Correct Jury Charge

In this case, we must determine what “the law authorized by the indictment” is in a theft case. In order to charge theft, absent a notice-based motion to quash, a charging instrument need allege only the statutory elements of the offense: the charged person unlawfully appropriated property with the intent to deprive the owner of property.¹⁹ Had the indictment charged the appellant merely in those terms, that would be “the law authorized by the indictment” for purposes of the hypothetically correct jury charge.

The simplicity of the statutory elements of theft hides the complexity of the overall scheme. Penal Code § 31.02 explains that our current theft statute was meant to encompass what had previously been a dozen or more distinct offenses. The comprehensive nature of the statute becomes apparent in the definitions offered to explain the terms of the basic offense. In Sections 31.01 and 31.03 there are three ways in which appropriation can be unlawful, two ways to appropriate, three types of property, and three ways to deprive. One of the ways in which appropriation is unlawful is that “it is without the effective consent of the owner.” Section 31.01(3) lists five ways in which consent is not effective.²⁰ One of those is that the consent was “induced by deception or coercion;” and Sections 1.07(9) and 31.01(1) combine to offer eleven different definitions of coercion and deception.

The State in this case used these statutory definitions to allege a more narrow offense than was required. The indictment specified one of the two means of appropriation: ²¹ that the appellant acquired or otherwise exercised control over property other than real property. The indictment specified one of the three ways in which appropriation can be unlawful: ²² that the appropriation was without the effective consent of the owner. And the indictment specified one of the five circumstances that make consent ineffective: ²³ deception.

The State argues that these more specific phrases in the indictment were...