Lasker v. State
| Decision Date | 22 November 1978 |
| Docket Number | No. 1,Nos. 55034-55036,s. 55034-55036,1 |
| Citation | 573 S.W.2d 539 |
| Parties | Yale LASKER, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
W. John Allison, Jr., on appeal only, Dallas, for appellant.
Henry M. Wade, Dist. Atty., Richard E. Zadina and Richard G. Worthy, Asst. Dist. Attys., Dallas, for the State.
Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
This is an appeal from a conviction for three offenses of theft over $200. Punishment was assessed by the jury at eight years.
Thirty-one witnesses testified. In brief, the testimony shows that appellant was engaged in a scheme whereby the complainants were induced to pay a fee in exchange for his promise to obtain for them small business loans. The record reflects that at the time of the instant offenses lending institutions often required loan applicants to obtain loan insurance from the Small Business Administration for up to ninety percent of the amount borrowed. By requiring such a federal guarantee that at least ninety percent of the loan would be repaid, banks reduced their risk in such transactions to ten percent. Such federally guaranteed notes are more readily saleable among banks and lending institutions. Loan applicants were further required, as a prerequisite of financing, to find another lending institution willing to purchase all or part of the ninety percent guaranteed note from the original lending bank.
Appellant moved from California to Dallas in March of 1975. In Dallas he rented a downtown office as well as an apartment in a downtown building. He placed advertisements in the classified section of both Dallas newspapers which read:
To the complainants, who were among eighteen Dallasites taken in by his scheme, the appellant represented that he would prepare a loan application and necessary accompanying documents, present the loan package to an original lending bank, apply to the Small Business Administration for a guarantee of the proposed loan and secure such a guarantee, and seek out and find a second lending institution willing and able to buy the guaranteed note in whole or in part. In exchange for his ostensible services, appellant charged each of the complainants a fee of $1500. Each received from appellant a gold embossed "Certificate of Guarantee" which read:
Victor Domino testified that he wanted to borrow $30,000 in order to buy a convenience food store. He went to appellant's office in response to his advertisement and was assured by appellant that there was a ninety-nine percent chance that his loan could be obtained within five to six weeks. Domino was told that the assistance fee would be $1500, with $750 payable immediately and the balance due upon completion of the loan. He wrote appellant a check for $750, signed a contract, and received a Certificate of Guarantee. Domino testified that appellant led him to believe that by virtue of this guarantee all of his money would be refunded in the event a loan could not be negotiated.
Appellant's son prepared a loan package in California and mailed copies to three Dallas banks. There was neither a personal followup nor any other effort made to obtain the complainant's loan. The loan was not obtained and appellant refused to return the complainant's down payment.
The same circumstances were repeated with regard to the other complainants, Rodney Hawkins and Ruth Johnson. Each responded to appellant's ad and each was told that his or her loan could be obtained in a matter of weeks. Both Hawkins and Johnson paid appellant the sum of $1500 in advance and received a Certificate of Guarantee which they were led to believe entitled them to a full refund if a loan could not be arranged. Neither Hawkins or Johnson obtained a loan. When they demanded a refund of their money they were refused. The record reflects that nothing more than a "loan package" was prepared for the complainant in each case and mailed to three banks. At trial, loan officers from various banks testified that their lending institutions would not consider a loan application which is merely mailed in and not followed by a personal meeting.
Lastly, the evidence shows that on July 3, 1975, approximately four months after his arrival in Dallas, appellant departed for California, leaving unpaid bills for apartment and office rent, printing and advertising.
Appellant contends that the trial court erred in refusing to submit a requested charge on the lesser included offense of deceptive business practices. See, V.T.C.A., Penal Code, Section 32.42. This contention is without merit. Article 37.09, V.A.C.C.P., provides, in part, that an offense is a lesser included offense if it is established by proof of the same or less than all the facts required to establish the commission of the offense charged. The offense of deceptive business practices is not a lesser included offense of theft. V.T.C.A., Penal Code, Section 32.42(b), provides that one is guilty of an offense if he commits one or more specified deceptive practices in the course of business. This element is not an element of the offense of theft. The elements of deceptive business practices, therefore, are not the same or less than the elements of theft. The appellant's requested charge was properly denied.
He alleges that the court further erred in failing to charge the jury on the defense of mistake of fact. V.T.C.A., Penal Code, Section 8.02. Appellant maintains, in support of this argument, that all three complaining witnesses were ignorant about the transaction they entered into with appellant, as well as about the intended meaning of the certificate of guarantee. Such ignorance on the part of the complainants is immaterial. Penal Code Section 8.02(a) provides that it is a defense to prosecution that the defendant (not the complainant) has, through mistake, formed a reasonable belief about a matter of fact which belief negates the culpability required. There is no evidence that appellant labored under any mistake of fact. Inasmuch as the issue was not raised by the evidence, the court did not err in failing to so charge the jury.
Appellant next argues that the court erred in permitting the State to prove that he left Dallas owing office rent, apartment rent, advertising bills and printing bills. Specifically, he contends that such proof showed extraneous offenses which were not relevant to any motive, intent, scheme, identity or design.
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