Simmons v. State

• Decision Date: 02 July 2003
• Docket Number: No. 1840-02.,1840-02.
• Citation: 109 S.W.3d 469
• Parties: Ricci Charles SIMMONS, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

109 S.W.3d 469

Ricci Charles SIMMONS, Appellant, v. The STATE of Texas.

No. 1840-02.

Court of Criminal Appeals of Texas.

July 2, 2003.

Stanley G. Schneider, Houston, for Appellant.

Alan Curry, Asst. DA, Houston, Matthew Paul, State's Atty., Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court, joined by MEYERS, PRICE, WOMACK, JOHNSON, and HOLCOMB, JJ.

After appellant accepted two GEICO checks as payment for his auto theft and car storage insurance claims, he was charged with theft for making a fraudulent insurance claim. The court of appeals reversed appellant's conviction, holding that the evidence was legally insufficient to prove the value of the two checks because the State did not show that "the drawer of the check had sufficient funds to cover the check at the time the [defendant] came into possession of the check."¹ We granted review to determine what evidence suffices to prove the value of checks in a theft case.² We conclude that the face amount written on the checks and signed by the drawer is prima facie evidence of the value of the checks. That evidence, coupled with testimony that appellant willingly exchanged his insurance claims of over $4,800 for two checks totaling that amount, is sufficient to prove that the checks were "property of the value of more than $1,500 but less than $20,000." We therefore reverse the judgment of acquittal by the court of appeals and remand for consideration of appellant's remaining claims.

I.

In a bench trial, the State offered evidence that Houston Police Department ("H.P.D.") officers and F.B.I. agents set up a sting operation to buy stolen cars. They opened a warehouse called "H. T. Exports" and spread the word that this company would buy stolen cars. In March of 1998, appellant's mechanic, Larry Davenport, contacted H.T. Exports about selling appellant's 1980 Porsche. Mike Murnane, an H.P.D. sergeant acting as H.T. Export's "buyer," agreed to buy the car. Davenport then had the inoperable Porsche towed to the warehouse. Davenport told Murnane that he was going to do an "insurance rip" on the car. Davenport said that he would call Murnane before he reported the car stolen to make sure that Murnane had gotten rid of it.

Murnane held the car at the warehouse for about ten days, and then he had it towed to Safeway Storage. In October of 1998, appellant received notice from Safeway Storage that his car was there. When appellant went to the storage facility, he learned that the F.B.I. had placed a "hold" on his car.

On January 13, 1999, appellant made the first of a series of calls to GEICO Insurance Company. He reported to GEICO that he had left his Porsche at his mechanic's shop in September of 1998, and that it had been stolen off that lot, but it had been recovered by H.P.D. and was in storage. Thereafter, appellant paid $1,242 to get the car out of storage. Appellant later told GEICO that he had purchased the car for $20,000, that it had been stolen in October of 1998, and that he had reported it stolen to the police that same month. Appellant said that the car had been damaged and various items were stolen out of it. Appellant did make a police report, but not until January, 1999. He told the police that he had last seen the car on November 15, 1998. He said the car was now in bad condition and had been burglarized of a stereo, battery, and some fire-fighting equipment. Appellant ultimately made insurance claims based on his losses and storage costs and provided GEICO with the police report, a repair estimate, storage receipt, and a service receipt showing the stereo installation.

GEICO, meanwhile, had been informed of the undercover operation and had been monitoring appellant's file for law enforcement. GEICO adjustors were independently concerned about appellant's claims because of his delay in reporting the theft, the condition of the car, and the discrepancies in his statements and reports. Nevertheless, at the direction of law enforcement, GEICO authorized the issuance of two claims checks for theft loss and storage costs, totaling $3,640 and $1,243.04. Appellant came to the GEICO claims office to pick up the two checks. As he left the office, he was arrested for theft.

Appellant, a retired fireman, testified and insisted that his insurance claims were valid. Nonetheless, the trial court convicted appellant of theft of property of the value of more than $1,500 but less than $20,000. The court of appeals, however, reversed and rendered a judgment of acquittal, stating that:

Through its cursory presentation, the State failed to present any evidence that there were sufficient funds on hand to cover the checks at the time appellant came into possession of them. Nor did the State present any evidence that the checks would have been paid if presented. Thus, after viewing the evidence in the light most favorable to the verdict, we cannot conclude that any rational trier of fact could have found that the essential element of the value of the checks was proven beyond a reasonable doubt.³

We consider only the narrow question of whether the State offered legally sufficient evidence to prove that the two checks were property of the value of more than $1,500 but less then $20,000. In evaluating that question, we must view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found that the State proved that value beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

II.

A person commits the state jail felony offense of theft if "he unlawfully appropriates property with intent to deprive the owner of property" and "the value of the property stolen is $1,500 or more but less than $ 20,000."⁴ "Property" subject to theft can be real property, personal property or a "document, including money, that represents or embodies anything of value."⁵ In this case, the State alleged that appellant:

"on or about MAY 27, 1999 did then and there unlawfully, appropriate, by acquiring and otherwise exercising control over property, namely, TWO CHECKS, owned by SANDY PORTER, hereafter styled the Complainant, of the value of over one thousand five hundred dollars and under twenty thousand dollars, with the intent to deprive the Complainant of the property."⁶

Based on this pleading, the State had the burden to prove that the documents, the two checks from GEICO, had a monetary value within that range.⁷

Under section 31.08(b) of the Penal Code, the value of documents, other than those having a readily ascertainable market value, is: "(1) the amount due and collectible at maturity less that part which has been satisfied, if the document constitutes evidence of a debt; or (2) the greatest amount of economic loss that the owner might reasonably suffer by virtue of loss of the document, if the document is other than evidence of a debt."⁸

Do signed checks which are made payable to a specific person have a readily ascertainable market value? Common sense and case law from other jurisdictions⁹ suggest that the answer is "no." While "market value" is not statutorily defined in the Texas Penal Code, this Court has defined the phrase "fair market value" as the dollar amount the property would sell for in cash, given a reasonable time for selling it.¹⁰ Put otherwise, fair market value is "the price the property will bring when offered for sale by one who desires to sell, but is not obliged to sell, and is bought by one who desires to buy, but is under no necessity of buying."¹¹ An unendorsed check made out to a specific person does not have a readily ascertainable market value because there is not much of a commercial market for unendorsed checks. Thus, although a check that is made out to "Ricci Charles Simmons" may have great value to both its maker and its intended recipient, Mr. Simmons, it has very little legal commercial market value unless and until it is endorsed.

Documents which do have a readily ascertainable market value are items such as public and corporate bonds and securities.¹² They are freely negotiable and usually do not, on their face, designate a specific payee. A check then, must be worth either "the amount due and collectible" if it is evidence of a debt or "the greatest amount of economic loss that the owner might reasonably suffer" by his loss of the check if that check is not evidence of a debt.¹³

Regardless of whether a check is viewed as evidence of a debt or not,¹⁴ the vast majority of American jurisdictions hold that "the value of a check, in the absence of proof to show a lesser value, is measured by what the owner of the check could expect to receive for the check at the time of the theft, i.e., the check's face value."¹⁵ The majority view is based upon the notion that the amount written upon the face of a signed check is competent evidence of its value.

Under Section 3.104 of the Texas Business and Commerce Code (U.C.C.), checks are drafts payable on demand and drawn on a bank.¹⁶ Checks are negotiable instruments and they play an important role in Texas, American, and international commercial transactions, serving, to a considerable degree, as a cash equivalent.¹⁷ As the Colorado Supreme Court stated: "In the overwhelming majority of ordinary commercial transactions, the drawee bank will pay the face amount of the instrument, or the drawer will make good the instrument.¹⁸ Indeed, shoppers and shopkeepers regularly and routinely rely on the promises and liabilities contained on the face of checks, and they conduct their commercial affairs accordingly.

Normally, a bank is solvent and will pay the face amount of a check drawn upon its customers' accounts. Normally, the drawer of a check has sufficient funds in his bank account to cover the amount of his signed checks. Thus, normally, the face amount of a check that is drawn and signed by a person or a corporate representative is prima facie evidence of the value...