Charles Timothy Pessarra v. State of Texas--Appeal from 23rd District Court of Brazoria County

IN THE

TENTH COURT OF APPEALS

No. 10-01-043-CR

CHARLES TIMOTHY PESSARRA,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 23rd District Court

Brazoria County, Texas

Trial Court # 37,626

O P I N I O N

A jury found Charles Timothy Pessarra guilty of theft of money in excess of $20,000 but less than $100,000. The trial court sentenced Pessarra to five years in prison but suspended the sentence and placed him on community supervision for 10 years. As a condition of probation, the trial court ordered Pessarra to pay $30,872.09 in restitution. Pessarra timely filed a notice of appeal. On appeal, Pessarra contends if the evidence proved any crime it was that he stole a sport utility vehicle rather than money. We disagree and affirm the judgment.

Factual Background

Victor Hugo, a South African national, wanted to import a Dodge Durango. He struck a bargain with Pessarra, a United States citizen, and Pessarra bought a Durango in Texas with Hugo s money. Pessarra was to ship it to South Africa; but instead, he sold it and pocketed $24,000. After months of being told that the Durango would arrive in South Africa, Hugo threatened Pessarra with going to the authorities. Hugo then lost contact with Pessarra. After Hugo discovered that Pessarra sold the Durango, Pessarra was arrested for theft.

Variance

In his first issue on appeal, Pessarra contends the evidence is insufficient as a matter of law because there is a variance between the cash money alleged and the State s proof at trial. Specifically, Pessarra argues that while the indictment alleged theft of money, the State proved that he sold a Dodge Durango for which Hugo paid. In essence, he argues that the State proved he stole the Dodge Durango but not money as alleged in the indictment.

Law

A variance occurs when there is a discrepancy between the allegation in the indictment and the proof presented at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001); Roy v. State, 76 S.W.3d 87, 100 (Tex. App. Houston [14th Dist.] 2002, no pet.). A variance between an indictment and proof constitutes a legal sufficiency issue. Gollihar, 46 S.W.3d at 246;Roy, 76 S.W.3d at 100. When the reviewing court is faced with a claim based upon a variance between the indictment and the proof, only a material variance is fatal and will render the evidence insufficient, warranting reversal. Gollihar, 46 S.W.3d at 257; Roy, 76 S.W.3d at 100. When reviewing a variance for materiality, we must determine: (1) whether the indictment, as written, sufficiently informed the defendant of the charge against him to allow him to prepare an adequate defense at trial, and (2) whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime. Id. The defendant has the burden to demonstrate the first prong in his appeal. Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001).

Facts

The State produced evidence that Victor Hugo met Pessarra in South Africa in 1995. In 1997, Pessarra learned that Hugo wanted to import a Dodge Durango, a vehicle which was not available in South Africa at the time. Pessarra suggested that he import the Durango for Hugo to save on the import fees. Pessarra told Hugo that a United States citizen could import a vehicle without any additional fees as long as the title to the vehicle remained in the citizen s name for at least two years. An agreement was reached that Hugo would pay half of the import fees to Pessarra, and Pessarra would import a Durango. Hugo would provide the purchase money for the vehicle. At the end of two years, Pessarra would transfer title of the Durango to Hugo.

Pessarra located a Durango for Hugo at Ragland Chrysler in Angleton, Texas. Hugo sent a check in the amount of $30,872.09 to First National Bank of Lake Jackson which then issued a cashier s check payable in the same amount to Ragland Chrysler. Hugo authorized the check to be given to Pessarra for the purchase of the vehicle. Pessarra was listed as the remitter of the check. Pessarra purchased the vehicle in his name. Fourteen days later, Pessarra obtained a duplicate title and sold the Durango to Jeff Dutcher, a used car dealer, for $24,000. After selling the Durango, Pessarra sent the original title, still in his name, to Hugo. For almost 6 months, Pessarra promised delivery of the Durango. He demanded an additional $1,500 from Hugo which Hugo paid. Pessarra never delivered the Durango. Hugo stated that he owned the money, in excess of $30,000, and had not given Pessarra consent to keep the money.

Application

Pessarra sold the Durango which Hugo had bought. He kept $24,000 of the $30,872.09 Hugo sent for the purchase of the Durango. Pessarra s retention of the $24,000 was without Hugo s consent. Thus, the State proved the property stolen was money greater than $20,000 but less than $100,000. There is no variance between the allegation in the indictment and the proof submitted by the State. Pessarra s first issue is overruled.

Legal Insufficiency

In his second issue, Pessarra contends the evidence was legally insufficient to prove his requisite criminal intent.

A legal-sufficiency review calls upon the reviewing court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000) (citing Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000)). See also Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979) (emphasis in original); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995). It does not involve any weighing of favorable and non-favorable evidence. Id.

Pessarra contends that the facts establish only a civil contract dispute. Theft convictions resulting from otherwise contractual civil disputes may warrant reversal for insufficient evidence where there is no evidence supporting the requisite criminal intent. Ellis v. State, 877 S.W.2d 380, 383 (Tex. App. Houston [1st Dist.] 1994, pet. ref d). Intent must exist at the time of the taking. Roper v. State, 917 S.W.2d 128, 131 (Tex. App. Fort Worth 1996, pet. ref d). But, specific intent to commit theft can be inferred from the surrounding circumstances. Coronado v. State, 508 S.W.2d 373, 374 (Tex. Crim. App. 1974).

When Pessarra learned that Hugo wanted to import a Dodge Durango, he suggested that he import the vehicle to avoid import fees. Pessarra purchased the Durango for Hugo using Hugo s money on February 12, 1998. He then sold that Durango to Dutcher on February 26, 1998, 14 days after he purchased it. Dutcher testified that a week to 10 days prior to the 26th, Pessarra approached him about selling the Durango. At the time of the initial approach, Pessarra did not have title to the Durango, and the sale could not be completed. So, approximately four to seven days after he purchased the Durango for Hugo, Pessarra was taking the steps necessary to sell it.

Pessarra repeatedly told Hugo that he had the Durango and would deliver it. At one point, Pessarra demanded an additional $1,500 for the delivery of the Durango. Hugo paid the sum but Pessarra never delivered the vehicle. When Hugo threatened to go to the authorities, Pessarra ceased communicating with him. Pessarra s last communication with Hugo occurred on July 28, 1998.

When viewing the relevant evidence in the light most favorable to the verdict, a rational trier of fact could have found that Pessarra intended to steal money from Hugo at the time he purchased the Durango. Pessarra s second issue is overruled.

Conclusion

Having overruled each issue, the trial court s judgment is affirmed.

TOM GRAY

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed August 7, 2002

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