Mills v. State

• Decision Date: 23 December 1986
• Docket Number: No. 1094-83,1094-83
• Citation: 722 S.W.2d 411
• Parties: Joe E. MILLS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 411

722 S.W.2d 411

Joe E. MILLS, Appellant, v. The STATE of Texas, Appellee.

No. 1094-83.

Court of Criminal Appeals of Texas En Banc.

Dec. 23, 1986.

Timothy M. Carr, Dallas, for appellant.

Henry Wade, Dist. Atty. and R.K. Weaver, Steve Webster and Steve Springer Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted of the second degree felony offense of theft over $10,000.00, pursuant to V.T.C.A. Penal Code, Sec. 31.03(d)(5)(B) as it appeared prior to amendment by Acts 1983, 68th Leg., p. 3244, ch. 558, Sec. 11, eff. Sept. 1, 1983. Punishment was assessed accordingly by the trial court at sixteen years confinement in the Texas Department of Corrections.

On appeal it was contended, inter alia, that prosecution of appellant under Sec. 31.03, supra, had been improper in that a more specific statute existed proscribing his conduct, that being V.T.C.A. Penal Code, Sec. 32.46, "Securing Execution of a Document by Deception." While observing that appellant apparently could have been prosecuted under the terms of either statute, the Dallas Court of Appeals held, in an unpublished opinion, that the two provisions are "clearly not in pari materia [,]" that each statute is general, neither being "special" in relation to the other, and that therefore "the State properly exercised its option as to the offense it sought to prosecute. Alejos v. State, 555 S.W.2d 444 (Tex.Cr.App.1977)." Mills v. State, No. 05-82-00580-CR, delivered October 21, 1983. We granted appellant's petition for discretionary review in order to address his contention that the court of appeals erred in so holding. See Tex.Cr.App. Rule 302(c)(2), now Tex.R.App.Pro. Rule 200(c)(2).

I.

The indictment alleged that on or about May 27, 1981, appellant "knowingly and intentionally appropriate[d] property, other than real property, to wit: current money of the United States of America of value of at least $10,000.00, by deception and without the effective consent of H.G. Godsoe, the owner of said property, and with intent to deprive H.G. Godsoe of said property." ¹ Godsoe was manager and vice-president of Bowes & Company, Inc., a Dallas insurance agency specializing in casualty policies, and a broker for Lloyds of London.

In somewhat bowdlerized form, the facts are as follows. The State's evidence showed that appellant was a wholesale dealer in antiques and collectibles who operated out of his own home, and carried merchandise with him on various buying and selling trips on the road. In November of 1980, appellant obtained a "blanket" or "floater" policy through Bowes & Company, underwritten by Lloyds, to insure against loss of or damage to "owned and consigned antiques, fine arts, collectables [sic] and jewelry" up to $150,000.00. Appellant was not required under the policy to itemize and report merchandise as it came into and left his possession.

In March of 1981, appellant's duplex in Dallas was broken into and various items were taken. As a result of this burglary appellant filed a claim on his policy and in May he collected and deposited in his own account a check for $110,000.00 in settlement from Bowes & Company. Further evidence showed that a number of the items listed on his sworn proof of loss statement had been sold or otherwise disposed of by appellant both prior and subsequent to the breakin. By the terms of the policy, if any single item claimed on the proof of loss statement proved to be fraudulent, the entire claim would be voided. In his defense appellant presented some evidence that the merchandise the State had shown to have been sold or consigned by appellant was not what was listed on the proof of loss statement. Appellant testified his insurance agent prepared the statement and that he signed it without reading it, on his agent's representation that Bowes & Company would not pay the full claim for two years if he refused.

There can be no doubt that under the State's evidence a conviction would lie for second degree felony theft, under then Sec. 31.03(a), (b)(1) and (d)(5)(B). In definitional portions of the jury charge the trial court instructed the jury: that " '[a]ppropriate' means to acquire or otherwise exercise control over property other than real property." V.T.C.A. Penal Code, Sec. 31.01(5)(B); that "[c]onsent is not effective if induced by deception." Sec. 31.01(4)(A), supra; and that " '[d]eception' means creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, [or] that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true." Sec. 31.01(2)(A) and (B), supra. ² The court of appeals held the evidence sufficient to establish appellant acquired $110,000.00 from H.G. Godsoe, having effectuated apparent consent by means of deception, viz: the fraudulent proof of loss statement. Appellant does not now assail that holding.

Instead, appellant here asserts that Secs. 31.03 and 32.46 are in pari materia, and that Sec. 32.46 is the more specific statute as pertains to his conduct in this cause, inasmuch as he secured execution of the check from the insurance company. He argues that because Sec. 32.46 carries a lower range of punishment than theft over $10,000.00, he should have been prosecuted under that provision. Sec. 32.46, supra, reads:

(a) A person commits an offense if, with intent to defraud or harm any person, he, by deception, causes another to sign or execute any document affecting property or service or the pecuniary interest of any person.

(b) An offense under this section is a felony of the third degree.

Appellant argues the court of appeals could not conclude both that he "might indeed have been charged under section 32.46," and also that "that section is clearly not in pari materia with section 31.03[.]" We disagree, and will affirm the judgment of the court of appeals.

II.

The rule of in pari materia is nothing more than a principle of statutory interpretation, a means of devining and giving full effect to legislative intent. Two statutes that are in pari materia are to be construed together, "each enactment in reference to the other, as though they were part of one and the same law. Any conflict between their provisions will be harmonized, if possible, and effect will be given to all the provisions of each act if they can be made to stand together and have concurrent efficacy." Ex parte Harrell, 542 S.W.2d 169, 171 (Tex.Cr.App.1976); Alejos v. State, supra, at 450; Ex parte Wilkinson, 641 S.W.2d 927, 931 (Tex.Cr.App.1982); all quoting from 53 Tex.Jur.2d, Statutes, Sec. 186, pp. 281-83. Statutes may be said to be in pari materia "when they relate to the same person or thing, to the same class of persons or things, or have the same purpose or object. Characterization of the object or purpose is more important than characterization of subject matter in determining whether different statutes are closely enough related to justify interpreting one in light of the other." Ex parte Wilkinson, supra at 932, quoting what may currently be found at Singer, Sutherland Statutory Construction, Vol. 2A, Sec. 51.03, p. 467 (4th ed. 1984).

Furthermore:

"General and special acts may be in pari materia. If so, they should be construed together. Where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any conflict, the latter will prevail, regardless of whether it was passed prior to the general statute, unless it appears that the legislature intended to make the general act controlling."

Singer, supra, Sec. 51.05, p. 499. This echoes that provision of our Code Construction Act, made applicable here under V.T.C.A. Penal Code, Sec. 1.05, regarding the relationship between general and special statutory provisions, viz:

"(a) If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both.

(b) If the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail."

Tex.Gov.Code Ann., Sec. 311.026, formerly Art. 5429b-2, Sec. 3.06, V.A.C.S.

In construing penal provisions this Court has on a number of occasions found two statutes to be in pari materia, where one provision has broadly defined an offense, and a second has more narrowly hewn another offense, complete within itself, to proscribe conduct that would otherwise meet every element of, and hence be punishable under, the broader provision. In the case in which the special statute provides for a lesser range of punishment than the general, obviously an "irreconcilable conflict" exists, and due process and due course of law dictate that an accused be prosecuted under the special provision, in keeping with presumed legislative intent. Accordingly, where range of punishment under what is perceived to be the more specifically defined offense is less than that for the broader, and especially where the convicting court would be deprived of subject matter jurisdiction in a prosecution under the specific provision, this Court has not hesitated to reverse convictions obtained under the broader provision. Ex parte Harrell, supra (Because the prosecution should have proceeded under the more specific misdemeanor offense of forgery, under V.T.C.A. Penal Code, Sec. 32.21, conviction under the broader felony offense of unlawful use of a criminal instrument, under V.T.C.A. Penal Code, Sec. 16.01, was set aside.); Jones v. State, 552 S.W.2d 836 (Tex...