Gentry v. State

• Decision Date: 01 May 1973
• Docket Number: No. 46127,46127
• Citation: 494 S.W.2d 169
• Parties: F. R. GENTRY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 169

494 S.W.2d 169

F. R. GENTRY, Appellant, v. The STATE of Texas, Appellee.

No. 46127.

Court of Criminal Appeals of Texas.

May 1, 1973.

Rehearing Denied May 23, 1973.

C. Anthony Friloux, Jr. (Court appointed), Houston, for appellant.

Robert O. Smith, Dist. Atty., Roy Q. Minton, Sp. Prosecutor, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of felony theft. His punishment was assessed by the court at a term of ten (10) years.

The sufficiency of the evidence is not challenged. The State's evidence made out a case of theft by fraudulent pretext, as provided in Article 1413, Vernon's Ann.P.C.

The record reflects that for a period of several years prior to 1968 the appellant had been a customer of the Bank of Austin, and that in October, 1968, had outstanding loans with the bank amounting to approximately $79,000.00. On November 11, 1968, he made a written application with the bank to extend his line of credit to $100,000.00, listing proposed collateral which he represented to own and to be of the value of $412,696.50. His dealings were with J. O. Nance, an official of the Bank of Austin. Based upon this application, and upon appellant's prior financial statement to the bank dated January 11, 1968, showing appellant's net worth as $846,500.00, the bank, acting through Nance, made an extension of credit to appellant, and on November 15, 1968, loaned him an additional $21,000.00.

The evidence was amply sufficient to establish that appellant knowingly made false representations to the bank as to his ownership of property included in his financial statement of November 11, 1968, and as to the value of such collateral as he may have owned, with the intent to secure the loan from the bank. The evidence likewise establishes that the bank and its official, Nance, relied upon the truth of appellant's representations, and would not have made the loan but for such false and fraudulent representations.

Although the indictment alleged theft under the provisions of Article 1410, V.A.P.C., the State's case comes within the provisions of Article 1413, V.A.P.C.; i.e., where 'the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete.'

It is appellant's contention, in his first ground of error that 'the court's refusal to grant appellant's motion to quash the indictment was error.' The indictment, appellant argues, was not sufficiently clear and certain for appellant to understand the nature of the cause of action against him because appellant did not know which 'of the original bank transactions' constituted theft.

The indictment in this cause was properly drawn, and alleged that the fraudulent taking occurred on or about November 15, 1968. A conviction for theft by false pretext may be had upon a general indictment for theft. Mount v. State, 167 Tex.Cr.R. 7, 317 S.W.2d 212; Cameron v. State, Tex.Cr.App., 401 S.W.2d 809. As the court noted in Mount, supra, 317 S.W.2d at 218:

'. . . there was no necessity to allege the misrepresentation in the indictment, and therefore no necessity to set forth the written instrument upon which the State relied to establish such misrepresentation.'

Appellant's first ground of error is overruled.

Appellant's grounds of error two, three and six concern the disposition by the trial court of appellant's pretrial motions for discovery, disclosure, inspection and deposition. The assertion that discovery, disclosure and inspection were denied to appellant is not supported by the record. On the contrary, the record reflects that appellant's motion to disclose mitigating and exculpatory evidence was granted by the trial court prior to trial in this cause. See Feehery v. State, Tex.Cr.App., 480 S.W.2d 649.

As for denial of appellant's application to take depositions, the record indicates that the application was filed on May 23, 1969. Thereafter the case was continued eight times on motion of appellant. The application was not presented to the court until the date of the trial. At the hearing prior to the trial, counsel for appellant stated to the court that the State's witnesses had not refused to talk to counsel. The court ruled that good cause had not been shown to require depositions. The record does not reflect any injury to appellant by the inability to depose the witnesses requested in his application. Article 39.02, Vernon's Ann.C.C.P. provides for the taking of depositions of witnesses, and the trial court has wide discretion in either granting or denying an application. Under the facts of this case no abuse is shown. Aguilar v. State, Tex.Cr.App., 468 S.W.2d 75; Beshears v. State, Tex.Cr.App., 461 S.W.2d 122.

Additionally, appellant contends that the special prosecutor for the State failed to produce records pursuant to a Brady v. Maryland ¹ demand. We find nothing in the record to indicate a violation of that duty in the case at bar. As this Court noted in Bell v. State, Tex.Cr.App., 442 S.W.2d 716 at 718:

'We further note that nowhere in the record has appellant shown that matters sought to be discovered were material to appellant's defense or material to the issue of punishment, or that material matters sought to be discovered were in the possession of and withheld by the State . . .'

Since the necessary matters were not preserved for review, extensive dissertation on Brady v. Maryland, supra, is not required. For such discussion, see Means v. State, Tex.Cr.App., 429 S.W.2d 490 and Campos v. State, Tex.Cr.App., 468 S.W.2d 81.

Appellant's complaint about the 'trial court's policy of not considering or granting any pretrial discovery until the date of the trial itself . . .' is totally unsupported by the record, bill of exception or by-standers bill. Nothing has been preserved for this Court to review. See 5 Tex.Jur.2d Appeal and Error--Criminal Cases § 114, et seq. This ground of error is wholly without merit.

Appellant's second, third and sixth grounds of error are overruled.

Appellant complains in his fourth ground of error of the admission of non-similar extraneous offenses by the court. The appellant did not testify; nevertheless, the offense of which appellant was convicted necessarily involved fraudulent intent, false pretext and wrongful motive of the borrower. The trial court orally at the time he admitted the evidence of appellant's transactions with other banks and individuals and also in his written charge instructed the jury that such evidence was admitted and should be considered by them solely for the purpose of showing, if it does, the intent, motive or system of the appellant at the time of the act alleged in the indictment. See Hill v. State, Tex.Cr.App., 364 S.W.2d 381; McClelland v. State, Tex.Cr.App., 389 S.W.2d 678; Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97; Granato v. State, Tex.Cr.App., 493 S.W.2d 822, (No. 45,965, February 28, 1973).

The appellant admits that the bank transactions were properly admitted for the limited purpose of showing intent, but complains of certain other evidence of grain transactions and stock sales. A careful reading of the record reveals that either no objection or only general objection was made to the testimony complained of. The record does not reflect any motion to instruct the jury to...