Edward Christensen v. The State of Texas--Appeal from 337th District Court of Harris County

Opinion issued July 6, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00713-CR

EDWARD CHRISTENSEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 971063

CONCURRING OPINION ON REHEARING

I join Justice Alcala's excellent opinion. I write separately to emphasize that there is simply no evidence in the record that appellant, Edward Christensen, under the law of parties, either used or encouraged anyone to make misrepresentations to the complainants to obtain their money.

There is no evidence that appellant, acting with the intent to promote or assist the commission of the offense of theft by deception, did in fact solicit, encourage, direct, aid, or attempt to aid another person to commit the offense. See Tex. Pen. Code Ann. 7.02(a)(2) (Vernon 2003). Nor is there any evidence that appellant, acting with the kind of culpability required for the offense of theft by deception, did in fact cause or aid an innocent or non-responsible person to engage in conduct prohibited by the definition of the offense. See id. 7.02(a)(1).

The Texas Penal Code provides that a person commits the offense of theft if he "unlawfully appropriates property with intent to deprive the owner of property." Id. 31.03(a) (Vernon Supp. 2006). Appropriation of property is unlawful if "it is without the owner's effective consent." Id. 31.03(b)(1). Consent is not effective if "induced by deception." Id. 31.01(3) (Vernon Supp. 2006). "Deception" means, (A) 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; . . . or

. . . .

(E) promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed, except that failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform of knew the promise would not be performed.

Id. 31.01(1)(A),(E). Moreover, a person acts intentionally, or with intent, "with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result." Id. 6.03(a) (Vernon 2003). In theft cases, the "[r]elevant intent to deprive the owner of property is the accused's intent at the time of the taking." Wilson v. State, 663 S.W.2d 834, 836-37 (Tex. Crim. App. 1984). In its charge to the jury, the trial court appropriately tracked the language of the above statutory provisions, and the State had the burden to show that appellant actually intended that the consent of the complainants in this case be induced by deception as defined above.

The State argues that the evidence is legally and factually sufficient to support appellant's conviction for the offense of theft by deception because "appellant induced others to gain money for [the Harris County Deputies' Organization ("HCDO")] by soliciting donations on behalf of the Toys for Tots program (1) when those donations were not intended to be provided to--and were not provided to--the Toys for Tots program, (2) when those donations would not have been provided had it not been represented that the donations were being made on behalf of the Toys for Tots program, and (3) when those donations were in fact not provided to the Toys for Tots program, but were instead used to pay stipends to the appellant and other members of the Board of the HCDO."

In support of this argument, the State relies exclusively on the following letter signed by appellant:

Dear Friend,

On behalf of the Harris County Deputies' Organization, please let me Personally thank you for your generous support.

Every year at this time the Harris County Deputies' Organization lends A helping hand of support to the "TOYS FOR TOTS " program. This Program provides toys for children of families who cannot afford to do So, and to those children who have no family. Just knowing that there Is a light at the end of the tunnel gives hope to these children year after Year. Let us all as a community give what we can in order to bring Some Joy and Laughter into the lives of those who are less fortunate Than others.

Once Again I would like to thank you for your generous support and Cooperation. It is only through such assistance that we can carry on.

Sincerely,

[Signature]

Ed Christensen, President

Harris County Deputies' Organization

The State asserts that by signing the letter, "appellant approved the telephone solicitation or marketing of individuals to donate money to the HCDO on behalf of the Toys for Tots program."

The State contends that "the letter authorized and signed by appellant was to induce donations to the HCDO on behalf of the Toys for Tots program when in fact it was clear that those donations would not be provided to the Toys for Tots program." However, the very first sentence of the letter expressly indicates that it is in fact a thank you letter for donations already received by the HCDO. After thanking the addressee for their support, the letter goes on to note that the HCDO "lends A helping hand of support" to the program.

The distinction here is critical. The State had the burden to prove, at the time of the taking of the complainants' money, either that appellant, acting with intent to promote or assist the commission of the offense of theft by deception, did in fact solicit, encourage, direct, aid, or attempt to aid another person to commit the offense, or, acting with the kind of culpability required for the offense, did in fact cause or aid an innocent or non-responsible person to engage in conduct prohibited by the definition of the offense.

In fact, Ron Kowalsky, the telemarketer hired to solicit funds for the HCDO, "could not recall the specifics" of his conversation with appellant about Toys for Tots. The record reveals the following exchange:

[State]: . . . Okay. Did you discuss the Toys for Tots Program and solicitation with Mr. Christ[e]nsen before you began soliciting for that?

[Kowalsky]: I remember drafting a letter, putting a letter in his mailbox to have it approved or disapproved.

After appellant signed the letter, Kowalsky began telemarketing for the HCDO. Subsequently, he subcontracted with John Merritt to solicit funds on behalf of the HCDO, and he gave the letter to Merritt.

However, there is no evidence at all that appellant had any role in the preparation or use of the scripts that were used by the telemarketers. There is no evidence that he knew what the telemarketers were representing to the complainants to obtain their money. For example, there is no evidence that appellant knew that the telemarketers were misrepresenting themselves as Harris County Sheriff's Deputies and specifically asking for donations for Toys for Tots and not the HCDO. Also, Merritt had no contact with appellant or anyone else at the HCDO, and he worked independently.

It cannot be inferred that, by signing the letter, appellant actually intended for Kowalsky or anyone else to make misrepresentations to the complainants to obtain their money. The presence of his signature on the letter does not support the inference that appellant, acting with the intent to promote or assist the commission of the offense of theft by deception, did in fact solicit, encourage, direct, aid, or attempt to aid another person to commit the offense. Nor can it be inferred from his signature on the letter that appellant, acting with the kind of culpability required for the offense of theft by deception, did in fact cause or aid an innocent or non-responsible person to engage in conduct prohibited by the definition of the offense. Also, Kowalsky's very limited testimony about his dealings with appellant does not support any such inferences, and, again, Merritt had no contact with appellant or anyone else at the HCDO. Appellant testified that Kowalsky was to raise funds for HCDO, and Kowalsky himself did not testify that he ever informed appellant that he would use the letter to raise money for Toys for Tots and not the HCDO.

In sum, the State presented no evidence to the jury to prove that appellant actually intended that the consent of the complainants in this case be induced by deception. There is no evidence in the record that appellant, under the law of parties, either used or encouraged Kowalsky, Merritt, or anyone else to deceive the complainants to deprive them of their money.

Terry Jennings

Justice

Panel consists of Justices Taft, Jennings, and Alcala.

Justice Jennings, concurring.

Justice Taft, dissenting.

Publish. Tex. R. App. P. 47.2(b).