Watkins v. State, 41880

• Decision Date: 05 March 1969
• Docket Number: No. 41880,41880
• Citation: 438 S.W.2d 819
• Parties: R. D. WATKINS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 819

438 S.W.2d 819

R. D. WATKINS, Appellant, v. The STATE of Texas, Appellee.

No. 41880.

Court of Criminal Appeals of Texas.

March 5, 1969.

Rehearing Denied April 16, 1969.

Mitchell, Gilbert & McLean, by Arthur Mitchell, and Phillip W. Gilbert, Austin, for appellant.

Ogden Bass, Dist. Atty., James E. Brown, Asst. Dist. Atty. Angleton, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is theft over $50.00 by false pretext; the punishment, assessed by the jury, 5 years' confinement in the Texas Department of Corrections.

Appellant, in ground of error #2 and #3, challenges the sufficiency of the evidence to sustain the conviction.

The complaining witness, Mrs. Margaret Clark, a 74-year-old widow, testified that on April 6, 1967, the appellant and one David Snyder appeared at her house in Freeport, Brazoria County, Texas, between 9 and 10 a.m. She related that they stated they were representatives of an insurance company (American Retirement) which had purchased or merged with the insurance company (Community Health and Life) with which she held a policy; that such policy had to be 'updated' to make Medicare applicable; that when she protested she did not have time she was informed the two men had to return to Ft. Worth that day and it was 'now or not at all'; that the appellant requested her Community Health and Life policy and then filled out an application which he had her sign and that when she inquired if 'this costs money' Snyder informed her that only an annual payment was acceptable ($180.62); that after she 'started the check' she responded to the call of a painter working in the house and when she returned Snyder had entered his name as payee on the check and she signed the same, Snyder stating he had left her receipt in her insurance book; that the appellant and Snyder then left together.

Mrs. Clark further related that when Mr. Johnson, an official representative of Community Health and Life Insurance Company, appeared at her home a week or ten days later she learned there had been no merger; that she discovered she did not have a receipt in her insurance book; that her bank informed her the $180.62 check had been cashed in Ft. Worth the morning after it was signed and had cleared her account at Freeport National Bank; that the check returned to her bore the endorsement of 'David Snyder' and 'R. D. Watkins, Act. No. 417873'; that she had parted with her check upon the representations of the appellant and Snyder which she believed at the time to be true; that she had received nothing in return.

The check in question, State's Exhibit No. 1, was introduced into evidence without objection. It bore notations reflecting that it had been presented to the Union Bank of Ft. Worth, Texas, on April 7, 1967, and honored by the Freeport National Bank on April 10, 1967.

Other State's evidence reveals that neither the appellant nor David Snyder had ever been employed by Community Health and Life or American Retirement Insurance companies and that neither man was licensed at the time of the transaction ¹ by the State Board of Insurance to sell insurance; that there had been no merger of such companies both based in Ft. Worth.

Appellant did not testify, but called two alibi witnesses who placed the appellant in Ft. Worth and Dallas at the time in question where he was booking entertainment acts. Both alibi witnesses, an entertainersinger and appellant's secretary at the time, admitted the endorsement on the check in question, State's Exhibit No. 1, was appellant's signature with which they were familiar.

The court charged the jury on the law of principals.

The jury by their verdict rejected appellant's defense of alibi, and viewing the verdict in the light most favorable thereto, we find the evidence sufficient to sustain the conviction.

We find no merit in appellant's contention that the evidence does not support the allegations in the indictment that appellant acquired $180.62 'in money' but merely shows that appellant received a check. Though theft of money is alleged in the indictment it is sufficient for the State to prove that a check was given in the amount alleged, that the check was endorsed by the accused, cashed and cleared through the maker's bank and charged against the maker's account. Paiz v. State, 167 Tex.Cr.R. 496, 320 S.W.2d 827; 17A Texas Digest False Pretenses k38.

Lieske v. State, 60 Tex.Cr.R. 276, 131 S.W. 1126, relied upon by appellant, is distinguished from the case at bar for the same reasons set forth in Wimer v. State, 120 Tex.Cr.R. 576, 48 S.W.2d 296 and Paiz v. State, supra. Metzger v. State, 168 Tex.Cr.R. 268, 325 S.W.2d 396, also cited by appellant, has no application since Mrs. Clark's ownership of the bank account from which the money was withdrawn by virtue of the check is not questioned.

Appellant's grounds of error #2 and #3 are overruled.

Turning to appellant's first ground of error, we find he contends the trial court erred in failing to grant a new trial on the basis of newly discovered evidence.

Evidence discovered subsequent to trial is a proper ground of a motion for a new trial in a criminal case. See Article 40.03,...