Simmons v. State
Simmons v. State
Concurring Opinion
filed a concurring opinion in which KEASLER, and HERVEY, JJ., joined.
In a challenge to the sufficiency of the evidence the issue is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
In this day and age, checks are widely recognized as payment instruments in commercial transactions. People expect— and have a right to expect — that a check written for a certain amount will be honored for that amount. In rare circumstances a check may not be honored, such as when a check “bounces” due to insufficient funds, when a check is not honored due to a stop payment, or as in this case, when the intended victim successfully prevents the perpetrator from delivering the check to a financial institution for cash or deposit. By distinguishing Brown rather than overruling it, the Court draws a distinction between the first situation and the latter two.
The outcome of the three exceptional situations is the same: the perpetrator is prevented from successfully cashing or depositing the check. Either the check has its face value or it has no value-there is no in-between. One cannot distinguish these situations by saying that, in the first, the check writer had no intention of paying. The same could be said of GEICO, in the present case, and could be true in a stop payment case as well. And such a statement would not necessarily be accurate. A check writer might believe he would have sufficient funds to cover the check at the time it was written, even though that may later turn out not to be the case. Nor can a distinction be drawn based upon whether there presently exist sufficient funds to cover the check. A check writer who has insufficient funds may intend to deposit sufficient funds to cover the check shortly after it is written. If such funds are in fact deposited before the check clears (which, for example, can ordinarily be accomplished by depositing the funds later in the day), then the recipient of the check will be able to cash the check, and no one would argue that the check was worth anything less than the face value. On the other hand, a check writer may have sufficient funds in his account when the check is written, but the check could still bounce if the account has been depleted by the time the check is presented to the bank.
Moreover, even if the check writer’s account contains insufficient funds, the bank may honor the check anyway, either be
All of these factors have nothing to do with the intent, or the reasonable expectations, of someone who accepts a check. Instead of developing an intricate set of rules for determining a check’s value, we should recognize what our economic system generally presupposes: the face value of the check is the value of the check. I would overrule cases holding to the contrary.
With these comments, I concur in the Court’s judgment.
. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
. Brown v. State, 97 Tex.Crim. 452, 262 S.W. 479 (1924).
Opinion of the Court
OPINION
delivered the opinion of the Court,
After appellant accepted two GEICO checks as payment for his auto theft and car storage insurance claims, he was charged with theft for making a fraudulent insurance claim. The court of appeals reversed appellant’s conviction, holding that the evidence was legally insufficient to prove the value of the two checks because the State did not show that “the drawer of the check had sufficient funds to cover the check at the time the [defendant] came into possession of the check.”
I.
In a bench trial, the State offered evidence that Houston Police Department (“H.P.D.”) officers and F.B.I. agents set up a sting operation to buy stolen cars. They opened a warehouse called “H. T. Exports” and spread the word that this company would buy stolen cars. In March of 1998, appellant’s mechanic, Larry Davenport, contacted H.T. Exports about selling appellant’s 1980 Porsche. Mike Mur-nane, an H.P.D. sergeant acting as H.T. Export’s “buyer,” agreed to buy the car. Davenport then had the inoperable Porsche towed to the warehouse. Davenport told Murnane that he was going to do an “insurance rip” on the car. Davenport said that he would call Murnane before he reported the car stolen to make sure that Murnane had gotten rid of it.
Murnane held the car at the warehouse for about ten days, and then he had it towed to Safeway Storage. In October of 1998, appellant received notice from Safeway Storage that his car was there. When appellant went to the storage facility, he learned that the F.B.I. had placed a “hold” on his car.
On January 13, 1999, appellant made the first of a series of calls to GEICO Insur-anee Company. He reported to GEICO that, he had left his Porsche at his mechanic’s shop in September of 1998, and that it had been stolen off that lot, but it had been recovered by H.P.D. and was in storage. Thereafter, appellant paid $1,242 to get the car out of storage. Appellant later told GEICO that he had purchased the car for $20,000, that it had been stolen in October of 1998, and that he had reported it stolen to the police that same month. Appellant said that the car had been damaged and various items were stolen out of it. Appellant did make a police report, but not until January, 1999. He told the police that he had last seen the car on November 15, 1998. He said the car was now in bad condition and had been burglarized of a stereo, battery, and some fire-fighting equipment. Appellant ultimately made insurance claims based on his losses and storage costs and provided GEICO with the police report, a repair estimate, storage receipt, and a service receipt showing the stereo installation.
GEICO, meanwhile, had been informed of the undercover operation and had been monitoring appellant’s file for law enforcement. GEICO adjustors were independently concerned about appellant’s claims because of his delay in reporting the theft, the condition of the car, and the discrepancies in his statements and reports. Nevertheless, at the direction of law enforcement, GEICO authorized the issuance of two claims checks for theft loss and storage costs, totaling $3,640 and $1,243.04. Appellant came to the GEICO claims office to pick up the two checks. As he left the office, he was arrested for theft.
Appellant, a retired fireman, testified and insisted that his insurance claims were valid. Nonetheless, the trial court
Through its cursory presentation, the State failed to present any evidence that there were sufficient funds on hand to cover the checks at the time appellant came into possession of them. Nor did the State present any evidence that the checks would have been paid if presented. Thus, after viewing the evidence in the light most favorable to the verdict, we cannot conclude that any rational trier of fact could have found that the essential element of the value of the checks was proven beyond a reasonable doubt.3
We consider only the narrow question of whether the State offered legally sufficient evidence to prove that the two checks were property of the value of more than $1,500 but less then $20,000. In evaluating that question, we must view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found that the State proved that value beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
II.
A person commits the state jail felony offense of theft if “he unlawfully appropriates property with intent to deprive the owner of property” and “the value of the property stolen is $1,500 or more but less than $ 20,000.”
“on or about MAY 27, 1999 did then and there unlawfully, appropriate, by acquiring and otherwise exercising control over property, namely, TWO CHECKS, owned by SANDY PORTER, hereafter styled the Complainant, of the value of over one thousand five hundred dollars and under twenty thousand dollars, with the intent to deprive the Complainant of the property.”6
Based on this pleading, the State had the burden to prove that the documents, the two checks from GEICO, had a monetary value within that range.
Under section 31.08(b) of the Penal Code, the value of documents, other than those having a readily ascertainable mar
Do signed checks which are made payable to a specific person have a readily ascertainable market value? Common sense and case law from other jurisdictions
Documents which do have a readily ascertainable market value are items such as public and corporate bonds and securities.
Regardless of whether a check is viewed as evidence of a debt or not,
Normally, a bank is solvent and will pay the face amount of a check drawn upon its customers’ accounts. Normally, the drawer of a check has sufficient funds in his bank account to cover the amount of his signed checks. Thus, normally, the face amount of a check that is drawn and signed by a person or a corporate representative is prima, fade evidence of the value of that check.
Accordingly, we hold that the face amount of a cheek is presumptive evidence of its value. Of course, there are exceptions and unusual cases in which evidence rebuts that presumption and shows that the bank is, in fact, not solvent, that the drawer does not have sufficient funds to cover the check, or that there is some other fact which negates, lessens, or perhaps even increases the face value of the check. Thus, a prima fade showing of value by proof of the face amount of a signed check may be rebutted with other evidence. However, assuming that no evidence is produced to rebut the logical inference that the payee was entitled to receive the face value of the check, the amount written on the check is sufficient evidence to show its value.
Our case law has not been clear on this issue because our opinions have frequently dealt with unusual, rather than normal, check situations. Indeed, Texas has been called “a minority view” due to the perception in other jurisdictions that Texas requires proof that the maker had sufficient funds in his bank account to show the value of checks in theft cases.
For example, in Brown v. State,
Similarly, in Rasbury v. State,
*477 There is no testimony from any source that the alleged injured party had any property which could have been subjected to execution and out of which the check might have been satisfied. Nor is there any testimony that the check had any market value. In other words, had appellant offered to sell the check, it is not shown what it would have brought, if anything. It will be noted that testimony relative to the value of the check is unsatisfactory and too uncertain to sustain a conviction for a felony.31
In both of these cases, then, there was specific evidence which rebutted any pri-ma facie showing or presumption that the face value of the checks at issue had the actual value set out on their faces. Fifty years later, however, we rejected an argument, based on Brown and Rasbury, that a stolen unendorsed check had no value because — in contrast to Brown and Ras-bury — there was evidence “that the check had the value of $51.86 and, upon endorsement, could have been sold for that amount or would have been paid in the sum of $51.86 upon presentation.”
Because this Court has not always explained when it was following the rule of thumb that the face value of a check is prima facie evidence of its value versus when it was dealing with an “unusual” situation in which other evidence rebutted any prima facie showing, Texas courts of appeals have also split in their discussions of how to value a check.
III.
Measured by these principles, the evidence in this case is sufficient to prove, beyond a reasonable doubt, that the value of the checks appellant picked up from GEICO had a value of more than $1,500 but less than $20,000. The face value of the cheeks, added together, falls within that range. Each check read, “Pay to the order of Ricci Charles Simmons,” and each was signed by the drawer, a GEICO representative. There is also evidence that appellant willingly exchanged: 1) his insurance claim based on “loss and damage” of $3,892 for a check from GEICO for $3,642 (the amount of loss minus the $250 deductible); and 2) his insurance claim based on his storage costs of $1,242.04, for a check for that same amount from GEI-CO. By accepting these two checks in return for the release of his insurance claims, appellant’s conduct spoke volumes. His unspoken message was that these two checks had the equivalent value of cash in payment of his asserted claims. Because appellant presented a claim to GEICO which had a total cash value of $4,884.04, and he was willing to accept two checks written for that amount, this evidence tends to prove that appellant considered the checks as the equivalent of $4,884.04 in cash.
Although the checks were issued under the direction of law enforcement and the National Insurance Crime Bureau, they were nevertheless real checks, authorized by a real GEICO claims adjustor. It is true that the State produced no evidence that there were sufficient funds in GEICO’s bank account to cover the checks when appellant took possession of them, or that the checks would actually have been honored if presented. But there was also no rebuttal evidence (ie., no evidence that there were not sufficient funds on hand to cover the checks, or that the checks would not have been paid if presented). Even if there had been evidence that GEICO might have put a stop order on payment, that evidence would not affect the value of the checks or their negotiability when appellant accepted the checks in exchange for his claims.
In each case, the relevant question is whether sufficient evidence exists in the record to support a finding by a rational trier of fact that a check has the actual monetary value alleged in the indictment. Although an instrument’s face value will not always provide a sufficient indicator of the loss incurred by the theft of that instrument, if the instrument is authentic, the face value is generally prima facie evidence of its value. In this case, the
We therefore reverse the judgment- of acquittal entered by the court of appeals and remand the case to that court to consider appellant’s remaining claims.
. Simmons v. State, 84 S.W.3d 810, 813 (Tex.App.-Houston [1st Dist.] 2002) (citing Brown v. State, 97 Tex.Crim. 452, 262 S.W. 479, 480 (1924)).
. We granted the State’s sole ground for re
The First Court of Appeals erred in holding that, in order to prove value in a prosecution for theft, the State was required to prove that the insurance company, from whom the appellant fraudulently took two checks, had sufficient funds in order to pay the checks.
. Simmons, 84 S.W.3d at 813-14 (citations omitted).
. Tex Penal Code § 31.03. Subsection (d) of this statute provides that it is not a defense to prosecution under this section that:
(1) the offense occurred as a result of a deception or strategy on the part of a law enforcement agency, including the use of an undercover operative or peace officer;
(2) the actor was provided by a law enforcement agency with a facility in which to commit the offense or an opportunity to engage in conduct constituting the offense; or
(3) the actor was solicited to commit the offense by a peace officer, and the solicitation was of a type that would encourage a person predisposed to commit the offense to actually commit the offense, but would not encourage a person not predisposed to commit the offense to actually commit the offense.
. Tex Penal Code § 31.01(5). Both parties agree that the two GEICO checks are section 31.01(5)(C) property — documents that represent or embody value.
. Sandy Porter is the GEICO claims adjuster who authorized the checks paid to appellant. Appellant was originally indicted for insurance fraud, but the State later refiled the case as a theft offense.
. Sanders v. State, 664 S.W.2d 705, 709 (Tex.Crim.App. 1984)("the value of the property-stolen is an essential element of the offense
. Tex. Penal Code § 31.08(b). See, e.g., 52A C.J.S. Larceny § 60(2)(b) (“in a prosecution for the theft of evidences of debt, such as bonds, promissory notes, bills of exchange, checks, or public securities, the value of the instrument is measured according to the standard set up in the statute.... In the absence of statute, ... the value of a check is usually held to be the amount for which it is drawn, but, if the check is worth less than that amount, its actual or market value seems to be the determinative factor”).
. See, e.g., United States v. Cianscewski, 894 F.2d 74, 80 (3rd Cir. 1990)(noting that "when a thief sells his stolen checks at a discount, the 'market value’ of the stolen checks does not adequately measure the harm of his actions on the victim of the theft"); LeFlore v. State, 17 Ark.App. 117, 124, 704 S.W.2d 641, 646 (1986) (stating that while signed checks do not have a readily ascertainable market value, they can be valued as the greatest amount of economic loss that the owner might reasonably suffer by virtue of their loss); State v. Martines, 705 A.2d 1116, 1117 (Me. 1998) (although fair market value of property at the time and place of the crime is the standard for assessing the value of stolen property, under statute, the value of a written instrument which does not have a readily ascertainable market value, such as a check, draft, or promissory note is deemed to have the value of the amount due or collectible).
. Keeton v. State, 803 S.W.2d 304, 305 (Tex.Crim.App. 1991).
. Id. at 306 (Clinton, J., concurring); see also City of Pearland v. Alexander, 483 S.W.2d 244, 247 (Tex. 1972); City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808, 815 (1954); State v. Carpenter, 126 Tex. 604, 618, 89 S.W.2d 194, 202 (Comm.App. 1936).
. See, e.g., Connecticut v. Desimone, 241 Conn. 439, 441, 696 A.2d 1235, 1237
n. 4 (1997), observing that Connecticut's theft statute provides:
*474 Whether or not they have been issued or delivered, written instruments, except those having a readily ascertainable market value such as some public and corporate bonds and securities, shall be evaluated as follows: (A) The value of an instrument constituting evidence of debt, such as a check, draft or promissory note, shall be deemed the amount due or collectible thereon, such figure ordinarily being the face amount of the indebtedness less any portion thereof which has been satisfied; (B) the value of any other instrument which creates, releases, discharges or otherwise affects any valuable legal right, privilege or obligation shall be deemed the greatest amount of economic loss which the owner of the instrument might reasonably suffer by virtue of the loss of the instrument. ’
. Tex. Penal Code § 31.08(a)(2)(b)(l) & (2).
. Appellant and the State disagree on whether a check always, sometimes, or never constitutes "evidence of a debt.” Whether a check evidences a debt depends upon the specific circumstances surrounding its issuance and the intentions of the maker and recipient. Neither the State nor appellant contend, however, that categorization of the two checks in this case as "evidence of a debt” or not, is the crucial factor in determining their "value” for purposes of this prosecution.
. State v. Harris, 708 So.2d 387, 389 (La. 1998)(quoting Gallegos v. State, 113 N.M. 339, 340, 825 P.2d 1249, 1250 (N.M. 1992)). In Harris, the court cited, in part, to the following as supporting the majority view: United States v. Kucik, 844 F.2d 493 (7th Cir. 1988) (the prima facie value of the check is its face amount); People v. Marques, 184 Colo. 262, 520 P.2d 113 (Colo. 1974) (enbanc) (the prima facie value of a check is its face value); Bigbee v. State, 173 Ind.App. 462, 364 N.E.2d 149 (Ind.Ct.App. 2nd Dist. 1977) (the face value of a negotiable bearer instrument is the value of the instrument for purposes of grading the theft); State v. Evans, 669 S.W.2d 708 (Tenn.Crim.App. 1984) (the face amount of the check represents its true value in the absence of any proof to show a lesser value because the victim was entitled to receive the face amount); State v. Pacheco, 636 P.2d 489 (Utah 1981). (per curiam) (the face value of the checks, whether endorsed or not, is prima facie evidence of the value that determines the degree and penalty relevant in a theft case); State v. McClellan, 82 Vt. 361, 73 A. 993 (Vt. 1909) (the value of a stolen check is its face amount because that is the amount it was worth to the victim); and State v. Lee, 128 Wash.2d 151, 904 P.2d 1143 (. 1995) (enbanc) (the key in determining the value of a deprivation is the loss to the victim rather than the benefit to the offender); 50 Am.Jur.2d Larceny § 50 (1995) ("in a prosecution for theft of a check, the face amount of the instrument is presumptive evidence of its value. For the purpose of valuing stolen checks, a restrictive endorsement thereon is irrelevant.”); Rollin M. Perkins and Ronald N. Boyce, Criminal Law, 338 (3d ed. 1982) ("a negotiable instrument is taken at its face value so far as the law of larceny is concerned, even if it is a check on which payment has been stopped”).
Other cases supporting the majority position include: United States v. Geevers, 226 F.3d 186, 192 n. 5 (3rd Cir. 2000)(noting that federal' theft guidelines equate intended loss with the face value of stolen checks); United States v. Cianscewski, 894 F.2d at 80 rejecting contention that district court should have valued stolen checks at the. amount appellant received for them on resale, instead of at their face value; "[wjhen a check is stolen, the cost to the party who ultimately bears the loss is obviously the face value of thé check”); State v. Long, 2 Neb.App. 847, 852, 516 N.W.2d 273, 276 (1994)(agreeing "with the majority view from other jurisdictions that in a theft
. Tex. Bus. & Com.Code § 3.104(f).
. See 15-230 Dorsaneo, Texas Litigation Guide § 230.02.
. People v. Marques, 184 Colo, at 268, 520 P.2d at 117 (citing E. Fransworth & J. Hon-nold. Cases and Materials on Commercial Law, 47-54 (2d ed. 1968)).
. See State v. Long, 2 Neb.App. 847, 852, 516 N.W.2d 273, 276 (1994) (stating that "[w]e are aware of a minority view, found primarily in Texas cases such as Cooper v. State, 509 S.W.2d 865 (Tex.Crim.App. 1974), which would require proof of the sufficiency of funds in the maker’s account to determine the value of a stolen check, and we find these cases unpersuasive”); see also State v. Harris, 690 So.2d 999, 1004 (La.App. 1997) (Byrnes, J., dissenting) (quoting Long’s criticism of Texas view and arguing that majority was wrong to employ same logic as that apparently used in Texas cases), rev'd, 708 So.2d 387 (La. 1998) (holding that face amount of check is prima facie evidence of its value).
.See Jeffcoat v. United States, 551 A.2d 1301, 1303 n. 4 (D.C. 1988) (stating that “[a]c-cording to the weight of authority in other jurisdictions, the 'value' of a negotiable check is the amount for which it is drawn” and noting "cf. Christiansen v. State, 575 S.W.2d
. 97 Tex.Crim. 452, 262 S.W. 479 (1924).
. Id.
. Id.
. Id. This Court explained:
In the absence of any proof that the lodge had in the bank any funds after the giving of the second check, from which the lost check the check alleged to be stolen might have been later paid; and in the absence of any further proof of the financial ability of the lodge to remunerate any innocent holder of the check, or of the value of the check, we would be compelled to hold the record lacking in proof that same was of such value as to justify the jury in concluding appellant guilty of the taking of property of the value of more than fifty dollars $.
. Our holding in this case also contemplates instances in which extrinsic evidence would not always be necessary to prove that a check is not worth its face value. For example, a pickpocket who purloins a personal check written out for 50 million dollars, payable to the order of the Pink Panther, has not committed theft of 50 million dollars because a reasonable trier of fact could not assume that such a check is, in fact, worth its face amount.
. 136 Tex.Crim. 506, 126 S.W.2d 972 (1939).
. The testimony showed that: 1) the complainant told the miracle doctor that he did not have the money in the bank; 2) the complainant did not, in fact, have money in the
. Id.
. Cooper v. State, 509 S.W.2d 865, 867 (Tex.Crim.App. 1974).
. Draper v. State, 539 S.W.2d 61, 69 (Tex.Crim.App. 1976).
. Christiansen v. State, 575 S.W.2d 42, 44 (Tex.Crim.App. 1979).
.For example, in Huff v. State, 630 S.W.2d 909, 913 (Tex.App.-Amarillo 1982, no pet.), the court held that, based on Christiansen, Cooper and the definition of "properly” in Tex Penal Code § 31.01, “the value of a check is its face amount." On the other hand, in Davila v. State, 956 S.W.2d 587, 589 (Tex.App.-San Antonio 1997, pet. refd), the court held that, based on Brown and Rasbury, "[pjroof of theft of the value of a check requires showing the drawer of the check had funds sufficient to cover the check at the time the actor came into possession of the check.”
. As Judge Posner put it: “The theft of a personal check is a theft from the drawer or the bearer. The amount of the theft is, prima facie, the face amount of the check, and the prima facie case of theft is not rebutted by showing that payment was stopped on the check; it is enough if the check could have been negotiated!.]” United States v. Kucik, 844 F.2d 493, 497 (7th Cir. 1988)(internal citation omitted). While GEICO suffered no actual loss in this case, that is, as Judge Posner states:
... often true in cases of theft. If the stolen property is returned promptly there may be no loss (imagine that cash were stolen from the bank’s vault at midnight and recovered at 1:00 a.m.). Proof of loss is important in a civil case but usually is not required in a criminal case. It would thus be cutting things too fine to distinguish between thefts of cash and thefts of cashier’s checks.
Id. (citation omitted).
Reference
- Full Case Name
- Ricci Charles SIMMONS, Appellant, v. the STATE of Texas
- Cited By
- 46 cases
- Status
- Published