Frank Pete Tambrella v. The State of Texas--Appeal from 221st District Court of Montgomery County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00238-CR

Frank Pete Tambrella,

Appellant

v.

The State of Texas,

Appellee

From the 221st District Court

Montgomery County, Texas

Trial Court No. 03-01-00124 CR

MEMORANDUM Opinion

A jury convicted Frank Pete Tambrella of theft and assessed his punishment at two years confinement in a state jail and a $10,000 fine. Tambrella contends in two issues that the evidence is legally and factually insufficient to prove venue. We will affirm.

The facts are not disputed. Tambrella had a checking account and a savings account with a bank in Montgomery County and another checking account with a bank in Harris County. He wrote checks on the Harris County account which he deposited in the Montgomery County accounts by presenting the checks to other branches of that bank in the Houston area, outside of Montgomery County. However, Tambrella did not have sufficient funds in the Harris County account to pay these checks. Tambrella withdrew funds from the Montgomery County accounts by using a debit card at various ATM s in Harris County and other locations outside of Montgomery County.

Tambrella contends in his first and second issues that the evidence is legally and factually insufficient to prove venue in Montgomery County because he was not in that county when he exercised control over U. S. Currency belonging to the Montgomery County bank and because there is no evidence that the Montgomery County bank had any U. S. Currency during this timeframe. Tambrella also contends that the court erred by holding that article 13.08 of the Code of Criminal Procedure applies to this crime rather than article 13.18.

Article 13.08 establishes venue for the trials of offenders who steal the property of another person and remove that property from one county to another. [1] Jones v. State, 979 S.W.2d 652, 657 (Tex. Crim. App. 1998); accord Stewart v. State, 44 S.W.3d 582, 586 n.6 (Tex. Crim. App. 2001). Article 13.18 applies [i]f venue is not specifically stated. Tex. Code Crim. Proc. Ann. art. 13.18 (Vernon 2005). The determination of whether one venue statute or another applies to a particular case is a mixed question of law and fact. Stewart, 44 S.W.3d at 586. The State need prove venue by only a preponderance of the evidence. Murphy v. State, 112 S.W.3d 592, 604 (Tex. Crim. App. 2003).

Tambrella argues that article 13.08 does not apply because he was not located in Montgomery County when he exercised control over the monies in question. We disagree. Although the manner of exercising control is different, the holding in Stewart compels the conclusion that venue was proper in Montgomery County.

[T]he crucial element of theft is the deprivation of property from the rightful owner, without the owner s consent, regardless of whether the defendant at that moment has taken possession of the property. Appellant exercise[d] control over the property and committed theft when, by his threats, he caused the complainant to release the money to the police in Montgomery County. Further, because appellant directed the removal of the money from Montgomery County to Harris County, he is responsible for that removal. Article 13.08, the theft-specific venue statute, is appropriate here and venue is proper in Montgomery County.

Id.at 589 (footnote omitted).

Here, Tambrella exercised control over the monies in his Montgomery County accounts via ATM withdrawals in Harris County and other locations outside of Montgomery County. See Bailey v. State, 885 S.W.2d 193, 200 (Tex. App. Dallas 1994, pet. ref d); accord Stewart, 44 S.W.3d at 589; see also Coats v. State, 712 S.W.2d 520, 522-23 (Tex. Crim. App. 1986) ( So called debit cards permit the holder of the card to obtain cash or transfer funds from one account to another without ever obtaining physical possession of the actual currency. ). Therefore because [Tambrella] directed the removal of the money from Montgomery County to Harris County [and other counties], he is responsible for that removal. Article 13.08, the theft-specific venue statute, is appropriate here and venue is proper in Montgomery County. See Stewart, 44 S.W.3d at 589.

Tambrella also contends that the State failed to prove that the Montgomery County bank had physical possession of currency which he unlawfully appropriated. Carlos Sepida, an employee in the Montgomery County bank s fraud department, identified State s Exhibit No. 2 as a listing of checks which were deposited in Tambrella s Montgomery County checking account and State s Exhibit No. 3 as a listing of checks which were deposited in his Montgomery County savings account. Sepida testified that Tambrella deposited money into his [Montgomery County] accounts. Tambrella s bank statements (admitted as State s Exhibit No. 1) list all the deposits and withdrawals for these accounts.

Nearly twenty years ago, the Court of Criminal Appeals discussed the possession of money or currency in this age of electronic transfers.

[M]oney or interest in money is transferred in several diverse ways. For example, electronic bank transfers permit a banking institution to transfer funds from one account to another, or even to a different institution, upon instructions from the owner of the money. So called debit cards permit the holder of the card to obtain cash or transfer funds from one account to another without ever obtaining physical possession of the actual currency. Clearly, money or currency is frequently transferred without the owner of the currency being in actual possession of the money; a nonpossessory interest in currency is not only possible, it has become a common method of transferring currency. Appellant could have effected an unlawful transfer of funds from the complainant s bank account to his own. The theft would be complete upon the crediting of the transfer to appellant s account, even though the appellant was not in possession of the cash money.

Coats, 712 S.W.2d at 522-23.

Due to the manner in which funds are electronically transferred between banks, we hold that the State presented legally and factually sufficient evidence to prove by a preponderance of the evidence that Tambrella unlawfully appropriated U. S. currency which belonged to the Montgomery County bank. See id.

Accordingly, the State offered legally and factually sufficient evidence to establish
venue in Montgomery County. Thus, we overrule the issues presented and affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed September 14, 2005

Do not publish

[CR25]

[1] Article 13.08 provides:

Where property is stolen in one county and removed by the offender to another county, the offender may be prosecuted either in the county where he took the property or in any other county through or into which he may have removed the same.

Tex. Code Crim. Proc. Ann. art. 13.08 (Vernon 2005).