Wooley v. State, 3-81-037-CR
| Decision Date | 24 February 1982 |
| Docket Number | No. 3-81-037-CR,3-81-037-CR |
| Citation | 629 S.W.2d 867 |
| Parties | Jimmy C. WOOLEY, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
James R. Kreimeyer, Cox, Kreimeyer, Cain & Jezek, P. C., Belton, for appellant.
Arthur C. Eads, Dist. Atty., James Russell, Administrative Asst., Belton, for appellee.
Appellant, Jimmy C. Wooley, appeals the judgment of the district court of Bell County that convicts him of official misconduct. Tex.Pen.Code Ann. § 39.01(a) (5) (1974). Following a jury trial resulting in a verdict of guilty, the jury assessed punishment at confinement for ten years and a fine of $5,000. After hearing, the court suspended imposition of sentence and placed appellant on probation for ten years, conditioned that appellant pay the $5,000 fine and $25,111 in restitution to the Temple Independent School District.
William H. Speer was the Food Service Director of the Temple Independent School District during the period of time here relevant. The evidence tended to show that appellant knowingly received from Speer thousands of cases of canned fruit juices owned by the school district and used the juice in his business without compensation to the school district.
By his first ground of error, appellant argues his indictment was fundamentally defective because it failed to allege a proper culpable mental state as required by Tex.Pen.Code Ann. § 6.02 (1974). 1 It is undisputed that appellant is not a public official. Nevertheless, he was convicted under Tex.Pen.Code Ann. § 39.01(a)(5) 1974), which states:
(a) A public servant commits an offense if, with intent to obtain a benefit for himself ... he intentionally or knowingly:
(5) takes or misapplies any thing of value belonging to the government that may have come into his custody or possession by virtue of his employment, ... or pays or delivers it to any person knowing that such person is not entitled to receive it.
Because appellant is not a public official, he could be found guilty of the offense of official misconduct only if he were criminally responsible for the conduct of the public official (Speer) under Tex.Pen.Code Ann. § 7.02(a)(2) (1974). Section 7.02(a)(2) provides:
(a) A person is criminally responsible for an offense committed by the conduct of another if:
(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.... (emphasis added).
Appellant argues that because he is not a public official, the only theory by which he could be convicted of official misconduct is that he acted "with intent to promote or assist" the public official to commit the offense. Since the indictment fails to allege any "intent to promote or assist," the proper culpable mental state as to his participation in the offense is not alleged, and, accordingly, the indictment is fundamentally defective.
The indictment states:
Jimmy C. Wooley, acting together with William H. Speer ... did then and there as a public servant, to-wit: an employee of the Temple Independent School District ... and with the intent to obtain a benefit for himself, did then and there intentionally and knowingly deliver a thing of value belonging to the government, to-wit: Fruit Juices that had come into his possession and custody by virtue of his employment, to Jimmy C. Wooley, doing business as Wooley Tom's Sales, knowing that the said Jimmy C. Wooley, doing business as Wooley Tom's Sales, was not entitled to receive it.
The indictment states appellant "acted together" with Speer to commit the offense. Furthermore, the indictment specifies the offense was committed "with the intent to obtain a benefit for himself" and a thing of value belonging to the government was "intentionally and knowingly" delivered, an obvious restatement of the language of § 39.01. The indictment therefore facially complies with the statutory requirement of a culpable mental state under Tex.Pen.Code Ann. § 6.02.
The question to be resolved by this Court is whether the omission of the words "intent to promote or assist the commission of the offense" from the indictment is fundamental error. The Court of Criminal Appeals has recognized the difficulties involved in drafting indictments properly charging parties to offenses. Pitts v. State, 569 S.W.2d 898, 900 (Tex.Cr.App.1978). The Court, in Pitts, commented:
Under the former code it was not necessary to allege the facts to show that a defendant was a principal; a principal offender could be charged directly with the commission of the offense although it was not actually committed by him; e.g., (citations omitted); Quillin v. State, 79 Tex.Cr.R. 497, 187 S.W. 199 (1916); (citation omitted); and V.T.C.A. Penal Code, Sec. 7.01(c) now plainly requires that we hold a party to an offense may be charged with the offense without alleging the facts which make the defendant a party to the offense and criminally responsible for the conduct of another. 2 (footnote added).
In the present case, appellant did not and could not commit the offense of official misconduct, but instead he aided the official in the commission of the offense. Nevertheless, under Pitts, appellant may be charged as if he had directly committed the offense. The indictment in this appeal charged appellant as if he directly committed the offense and, therefore, is sufficient. Appellant's first ground of error is overruled.
Appellant's second ground of error is that the district court erred in excluding testimony by an expert witness regarding an Internal Revenue Service audit. Appellant tendered the testimony of Roy Lott, a certified public accountant and appellant's accountant. Outside the presence of the jury, Lott offered to testify that the Internal Revenue Service had conducted an audit of appellant's business in 1980 and had not discovered "any type of fraud." Upon objection by the State, the district court excluded the proffered testimony.
Appellant claims Lott's statements are not hearsay. Appellant's rationale, as expressed at trial, is:
In general, evidence of a statement made...
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