GALEN RAY SUMROW, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed May 5, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-00884-CR
............................
GALEN RAY SUMROW, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 382nd Judicial District Court
Rockwall County, Texas
Trial Court Cause No. 02-07-631
.............................................................
OPINION
Before Justices O'Neill, Lang, and Myers
Opinion By Justice O'Neill
        Galen Ray Sumrow appeals his conviction for theft by a public servant. The jury assessed punishment at fifteen years' confinement. In six issues, appellant contends generally that: (1) the evidence was legally and factually insufficient to show that the owner of the property was either Rockwall County, the Rockwall County District Attorney's Office, or the State of Texas; and (2) the evidence is legally and factually insufficient to prove the allegation that any appropriation was induced by deception. We overrule appellant's issues and affirm the trial court's judgment.
 
Background
 
        Appellant was the Criminal District Attorney for Rockwall County for over twenty years. In that capacity, appellant received $34,500 in annual apportionment funds from the State of Texas. These funds are used at the district attorney's discretion to cover operating expenses including salaries, but not that of elected officials. Appellant used the apportionment funds to supplement his employees' salaries. Rockwall County advanced the supplements to the employees pro rata through their regular county paychecks. To get reimbursed for these advances, the county treasurer would prepare a reimbursement voucher, have appellant sign it, and send it to the State Comptroller.
        The State Comptroller's Office distributes the funds after receiving a voucher signed by the elected official. Until 2003, the Comptroller sent a check made payable to appellant who then endorsed it over to the county treasurer. In 2003, the State Comptroller began offering direct deposit of the apportionment funds and sent out direct deposit authorization forms. The form was sent in a packet of materials exclusively addressing the apportionment funds. The authorization form was clearly labeled “APPORTIONMENT FUNDS DIRECT DEPOSIT.”
        Appellant filled out the authorization form in January of 2003. He authorized the apportionment funds to be deposited directly into his personal checking account. The State Comptroller made the following three deposits of apportionment funds into appellant's personal bank account:
 
 
$34,500 on November 14, 2003
 
        $11,210 on December 8, 2003
        $22,420 on June 21, 2004
        In May of 2004, Sheree Jones, Rockwall County Treasurer, asked appellant whether he had received the outstanding apportionment checks from the Comptroller. Appellant said there were not any checks and that he would look into it. Appellant did not follow up. Jones finally called the Comptroller's office and was informed that three direct deposits had been made and provided her with the account number. Jones called appellant and told him what she had learned. He told Jones that account was his construction account. About one week later, appellant presented Jones with a check for $34,500. He told her the Comptroller's office had made a mistake and the bank was looking into it. Appellant said he would give the County the remaining funds after the bank corrected the problem. A few weeks later, on July 15, 2004, appellant gave Jones a second check for $22,420. Appellant did not pay the remaining $11,210 until early December of 2004. Jones had no knowledge of the direct deposit arrangement of the apportionment funds. Jones stated that the apportionment funds belong to Rockwall County to reimburse it for expenses it had paid out.
        Gilmore Kerry is a financial analyst with the FBI. Kerry looked at appellant's bank records from December 2001 through January 2007. In the twenty-three months prior to the first deposit of apportionment funds, appellant's checking account had a negative balance seventy percent of the time. During that twenty-three month period, appellant had 309 insufficient funds charges totaling $7,700. Kerry noted that appellant's spending behavior changed dramatically after the deposits of the apportionment funds. The amount of ATM withdrawals increased as did his spending. Kerry testified that appellant spent at least $35,000 of the apportionment funds that were deposited into his personal checking account. When the first deposit was made in November of 2003, appellant had an approximate balance of $1,500 in his checking account. He did not receive any loan proceeds that month. By the end of the month, however, he had spent over $9,000.
        Mike McCallum, regional president of the Community Bank in Rockwall, testified that the bank gave appellant six loans during 2002 and 2004. The bank gave appellant a loan for $30,000 on June 24, 2004. This was six days before appellant gave Rockwall County a check for $34,500. The bank also gave appellant a $320,000 equity loan in December of 2004.
        Larry Parks, a commercial banker for American National Bank of Texas, testified that appellant had numerous checks returned for insufficient funds. Parks counseled appellant about this problem and about improving his credit score. Appellant's account balance was readily accessible to him. One of the ATM machines appellant frequented automatically listed his balance on the receipt. His monthly bank statements listed the deposits of the apportionment funds and provided his balance.
        John Blackwood, the Rockwall County auditor, testified that the county treasurer does the accounting for the apportionment funds and prepares the vouchers. He contacted Jones about the apportionment funds in 2004. Blackwood testified that Rockwall County owns the apportionment funds once the State disperses them. Rockwall County does not allow any individual to use county money for personal purposes. He said no Rockwall County employee authorized appellant to divert the apportionment funds for his own personal use.
        Charles Demos, a former manager in the Comptroller's office, handled apportionment funds until his retirement in 2003. He testified that once the State disperses the funds, they belong to the county and that the funds cannot be used for personal expenses. Demos further testified that if his office had been told that the funds went into the wrong account, the problem could have been quickly corrected. He said appellant never contacted his office.
        On February 7, 2007, appellant was interviewed about the allegations by FBI special agent Brent Chambers and Texas Ranger Chris Clark. Appellant told them that he did nothing to trigger the apportionment funds going into his personal account. FBI senior forensics examiner, Rod Gregg, examined appellant's computer. A program called Evidence Eliminator had been used on February 15, 2007. The program shredded 18,697 files. He does not know what files were destroyed.
        Appellant was charged with three counts of abuse of official capacity and one count of theft by a public servant. The jury found appellant guilty only of the theft by a public servant and sentenced him to fifteen years' confinement. This appeal timely followed.
        Appellant challenges the legal and factual sufficiency of the evidence as to the ownership of the apportionment funds and that the appropriation was induced by deception. When considering a challenge to the legal sufficiency of the evidence, we review the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all evidence presented by either side. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). In performing a legal sufficiency review, we may not reevaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Instead, we determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007).         In contrast, when considering a factual sufficiency challenge, we view all the evidence from a neutral perspective. Watson v. State, 204 S.W.3d 404, 415 (Tex. 2006). The evidence, though legally sufficient, is factually insufficient if it is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or if, considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007). A clearly wrong and unjust verdict occurs where the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to be given to contradictory testimony. Lancon, 253 S.W.3d at 705.
        Texas Penal Code section 31.03 provides that a person commits the offense of theft if he unlawfully appropriates property with intent to deprive the owner of property. Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2009). It further states appropriation of property is unlawful if it is without the owner's effective consent. Id. § 31.03(b). “Appropriate” is defined as “to acquire or otherwise exercise control over property other than real property.” Id. § 31.01(4)(B) (Vernon Supp. 2009).
        The Texas Penal Code defines the word “owner” as a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor. Id. § 1.07(a)(35)(a) (Vernon Supp. 2009). The issue of “ownership” is intended to protect all ownership interests in property from criminal behavior. See Freeman v. State, 707 S.W.2d 597, 603 (Tex. Crim. App. 1986).
        The sole purpose of the apportionment funds is to “help defray the salaries and expenses of the [prosecutor's] office.” Tex. Gov't Code Ann. § 46.004(a) (Vernon Supp. 2009). A criminal district attorney is a specialized local entity. Tex. Local Gov't Code Ann. § 140.003(a)(1) (Vernon 2008). Each criminal district attorney “shall deposit in the county treasury of the county in which the entity has jurisdiction the funds the entity receives.” Id. § 140.003(f). In turn, the county shall disburse the funds as the criminal district attorney directs. Id.
        In his first three issues, appellant contends the evidence is legally and factually insufficient to show that the owner of the appropriation funds was either Rockwall County, the Rockwall County District Attorney's Office, or the State of Texas.
        The State owned the apportionment funds prior to disbursement. The State disbursed the funds to appellant for legislatively authorized purposes only. Appellant had the funds directly deposited into his personal checking account. He did not immediately turn the funds over to the county treasurer as required by law. Rather, appellant used a portion of the funds to pay personal expenses. Because appellant used the funds for unauthorized purposes, we conclude that he never acquired a greater right to possess those funds over the State.
        Appellant contends that the Rockwall Criminal District Attorney's Office cannot own the funds because it is not a separate entity apart from the criminal district attorney. The Government Code, however, recognizes the separation of the criminal district attorney's office and the criminal district attorney. It authorizes the apportionment funds to be used for the salaries of the office but not the criminal district attorney's salary. Tex. Gov't Code Ann. § 46.004(a). The purpose of the apportionment funds is to defray the costs of the criminal district attorney's office. The Rockwall Criminal District Attorney's Office had a greater right to possess the funds than appellant who had no right to use the funds to pay his personal expenses.
        We turn now to Rockwall County's right to possess the apportionment funds. Testimony at trial showed that the county advanced the employees' salary supplements in reliance on being reimbursed with the apportionments funds. Several witnesses testified that once the State disbursed the apportionment funds, those funds belonged to the county. Appellant acknowledged that the apportionment funds deposited into his personal checking account belonged to the county. The county's superior right to reimbursement in no way impinged upon appellant's right to determine what salaries and expenses of the criminal district attorney's office were to be paid with the apportionment funds. Having the right to determine how the apportionment funds are to be applied does not equate with ownership of the funds themselves.
        We conclude the evidence is both legally and factually sufficient to show that the State, the Rockwall County District Attorney's Office, and Rockwall County all had a greater right to possession of the apportionment funds over appellant. Accordingly, we overrule appellant's first three issues.
        In his fourth, fifth, and sixth issues, appellant contends the evidence is legally and factually insufficient to prove the allegation that the appropriation was induced by deception. The indictment alleged that any appropriation of the money was without the effective consent of the owner because any consent was induced by deception. The trial court's charge defined deception as “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, and that the actor does not believe to be true.” Appellant acquired the apportionment funds by signing a voucher and having it submitted to the comptroller's office.
        Although the apportionment funds could only be deposited in the county treasury, appellant provided the comptroller's office his own personal checking account information for the direct deposit of the apportionment funds. Tex. Local Gov't Code Ann. § 140.003(f). The comptroller's office was unaware that the account was appellant's personal account nor did they know it was the same account to which his salary was deposited. The direct deposit form and the literature accompanying it was clear that it was strictly for the direct deposit of the apportionment funds. Considering the negative balance of appellant's checking account at the time the apportionment funds were deposited into it, it was reasonable for the jury to conclude that appellant intended for the apportionment funds to go into his personal account.
        Appellant also deceived the State by signing the vouchers. The vouchers indicated that the apportionment funds would be used for the authorized items listed on the vouchers. The evidence at trial, however, showed that appellant spent a good portion of the funds. He paid the money back partly with loan proceeds deposited into his account. The State relied on the items listed on the vouchers in dispensing the apportionment funds. The State would not have released the funds if it had known appellant intended to use them for unauthorized personal expenses.
        Appellant likewise deceived Rockwall County by signing the vouchers seeking reimbursement for authorized expenses. Appellant argues in his brief that the money was “due to” him. He was not owed this money. Rockwall County had advanced the money for the salary supplements as directed by appellant. Rockwall County was due the apportionment funds as reimbursement. When the county mailed the vouchers signed by appellant, it expected that it would receive the funds from appellant. The county was unaware that appellant had arranged for the funds to be directly deposited into his personal bank account. By signing the vouchers, appellant created the false impression that the apportionment funds would be used as set forth in the vouchers. By law, appellant was to deposit the funds into the county treasury. For these reasons, the county was deceived by appellant.
        We conclude the evidence is legally and factually sufficient to show that appellant, through deception, had the apportionment funds deposited into his personal account for use on his personal expenses. We overrule appellants' fourth, fifth, and sixth issues.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
080884F.U05