Neal v. State, 63819

• Decision Date: 24 October 1984
• Docket Number: No. 63819,63819
• Citation: 689 S.W.2d 420
• Parties: Jack G. NEAL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 420

689 S.W.2d 420

Jack G. NEAL, Appellant, v. The STATE of Texas, Appellee.

No. 63819.

Court of Criminal Appeals of Texas En Banc.

Oct. 24, 1984.

Rehearing Denied Feb. 27, 1985.

Rehearing Denied March 27, 1985.

Melvyn Carson Bruder, Dallas, for appellant.

C. Stephen Hughes, Dist. Atty., Sulphur Springs, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for official misconduct under then V.T.C.A. Penal Code, Sec. 39.01(a)(5). ¹ Appellant, a lawyer, appeared pro se. After finding appellant guilty, the jury assessed punishment at five years imprisonment and a fine of $5,000.00. Appellant brings twelve grounds of error.

In two grounds of error, appellant challenges the sufficiency of the evidence. The indictment in pertinent part, alleges that appellant, on or about the 27th day of September, 1976 "did then and there, while a public servant, to-wit: District Attorney of the Eighth Judicial District of Texas, with intent to obtain a benefit for himself, intentionally and knowingly take and misapply a thing of value belonging to the State of Texas, to-wit: a Texas State Treasury Warrant Number PO88795 in the amount of $7,000.00, issued September 13, 1976, by the State Comptroller of Public Accounts pursuant to Item 14, Judiciary Section--Comptroller's Department, Senate Bill 52, 64th Legislature, 1975, which came into [appellant's] custody and possession by virtue of his office and employment."

The evidence shows that appellant was District Attorney of the Eighth Judicial District from January 2, 1973 until December 31, 1976. On September 13, 1976, the State Comptroller issued the warrant named in the indictment to appellant as payee. The warrant was issued to appellant to pay the salaries of investigators and secretaries for the district attorney's office.

Appellant's secretary testified that appellant used one bank account, entitled "Jack G. Neal, Attorney" account, for both his private law practice and the business of the district attorney's office. The account was held in a Hopkins County bank.

Bank records showed that on September 23, 1976, the account had a balance of $0.97. On September 27th, the State warrant went through the bank. The warrant had been endorsed "Jack G. Neal." A deposit slip in the amount of $7,000.00 dated 9-27-76 bore the notation "State" and the signature "Jack G. Neal." Appellant's secretary testified that she recognized the signature on the slip as appellant's.

Accordingly, the bank credited the account with $7,000.00 on September 27th. Several checks previously drawn on the account cleared immediately.

From September 27th until December 29th, additional deposits were made. By December 30, 1976, however, the account had a balance of only $1,783.88.

Through the period September 23 to December 31, a total of $2,230.00 was paid out of the account to appellant's secretary, who worked for him both as a private secretary and an employee of the district attorney's office. No investigator worked for the office in this period.

The State put in evidence photocopies of a number of cancelled checks that had been drawn on the account, either by appellant or by his secretary at his direction, between September 27 and December 31. Appellant drew many of the checks for cash. The payees of the rest make up a wide variety of individuals and businesses.

Before prosecution was begun, the State sought from appellant an accounting of his use of the $7,000.00, but never received one.

Appellant argues that the only evidence to show the warrant was paid is hearsay. Because hearsay is no evidence, appellant claims there is no evidence to show the warrant was a "thing of value." Testimony established that such a warrant is evidence of an indebtedness of the State to the payee in the amount named. Appellant obtained credit in the face amount when he endorsed and deposited the warrant in his bank. The evidence was sufficient to show that the warrant was a thing of value.

Appellant argues further that there is no evidence to show that he obtained a benefit for himself from the warrant because the act of depositing the warrant alone does not suffice to establish this element of the offense. Appellant goes on to argue that by endorsing and depositing the warrant, "he did with the warrant what he was supposed to do," and that the evidence thus fails to show that he mis applied the warrant. Appellant relies on Dickey v. State, 65 Tex.Crim. 374, 144 S.W. 271 (1912).

In Dickey, the Court held that a city secretary had not misapplied city funds by depositing a check into a city account different from the one it was intended for, in an attempt to cover up his prior embezzlement from the account. The Court said that these facts showed no conversion of the check to the secretary's own use, since the city still had all the money, although in the wrong account.

The instant case is altogether different. The State issued the warrant to appellant to pay the salaries of secretaries and investigators. Appellant deposited the warrant in an account bearing his name and obtained credit with it. He then drew on this credit to pay obligations other than the salaries of secretaries and investigators, and to obtain cash for himself. The evidence showed that appellant used the warrant inconsistently with its purpose so that he might obtain a benefit for himself.

The evidence is sufficient to sustain the conviction. Grounds of error number seven and eight are overruled.

In his sixth ground of error, appellant contends that the trial court erred in denying his motion to quash the indictment because the indictment "fails to state sufficient facts with sufficient clarity to charge an offense." Appellant argues that the indictment fails to plead facts in support of the allegation that he intended to obtain a benefit for himself. The omitted factual allegation is essential because, appellant claims, "unless the State alleges facts to show a conversion of the property taken or misapplied for the accused's benefit, no offense is charged."

Appellant arrives at this conclusion because he believes the omitted allegation "replaces the 'conversion' allegations required by Article 95, the predecessor to section 39.01(a)(5)." A comparison of Art. 95 of the Old Penal Code with the new Sec. 39.01(a)(5) shows that "convert" as a form of the prohibited conduct was dropped when the new code was enacted. Under the new code, a public servant commits an offense when, with the necessary intent and culpable mental state, he takes or misapplies any thing of value, etc. We do not find that "convert" made its way back into the statute by way of the specific intent requirement. The indictment tracked the language of the statute in alleging the prohibited conduct. The allegations in the indictment were sufficient to charge the offense. The sixth ground of error is overruled.

In his ninth ground of error, appellant claims the trial court erred in denying his motion to quash the indictment based on Art. 27.03(2), V.A.C.C.P. Appellant contends that a person not authorized by law was present when the grand jury was deliberating upon the accusation against appellant. At the hearing on the motion the testimony showed that James L. Chapman, who succeeded appellant as District Attorney, appeared before the grand jury and presented evidence of appellant's offense. He denied that he was in the grand jury's presence while they deliberated upon the accusation. Two grand jurors testified that Chapman was not in their presence while they deliberated upon the accusation. A third grand juror stated his belief that the grand jury had discussed with Chapman the reasons for or against returning the indictment.

Before trial, Chapman disqualified himself from representing the State any further in the prosecution. The motion to disqualify and its supporting allegations do not appear in the record.

Appellant argues that he has made the factual showing called for in Payne v. State, 502 S.W.2d 812 (Tex.Cr.App.1974), and that Payne mandates reversal of this case. We disagree. Chapman's subsequent disqualification is irrelevant to the issue of whether a person not authorized by law was present when the grand jury was deliberating. Chapman said he was not present at deliberations, and two grand jurors agreed. If there is conflicting evidence at the pretrial hearing on the motion to set aside the indictment, the trial judge will be the sole judge of the weight and credibility of the witnesses' testimony. Hamilton v. State, 621 S.W.2d 407 (Tex.Cr.App.1981). The evidence supports the trial court's denial of the motion to quash based on Art. 27.03(2), V.A.C.C.P. The ninth ground of error is overruled.

In three grounds of error, appellant contends that his challenge to the array made pursuant to Art. 35.07, V.A.C.C.P., ² should have been sustained. He argues that the district clerk was without authority to excuse prospective jurors who had been summoned for jury service. This violation, he claims, calls for reversal because it is reversible error per se, with no need to prove harm, and because the violation denied him "the representative cross-section of the community which the jury selection statutes promote in furtherance of his constitutional rights regarding a trial by jury."

The trial court held a hearing on the challenge, at which the district clerk testified. The court overruled the challenge, and appellant asked the judge to attach the jurors whom the clerk had excused and have them brought before the court. The court overruled this request.

The record reflects that the sheriff's office summoned by mail 250 people for jury service in this cause. Thirty-one of these summonses were never delivered. Forty-five of the jurors summoned returned an exemption card to the clerk's office claiming a statutory exemption, and were excused, a procedure allowed by Art....