## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S

N o . P D - 0 4 8 0 - 1 0

N E R E O P E N A G A R Z A , A p p e l l a n t

v .
T H E S T A T E O F T E X A S

O N A P P E L L A N T ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W

F R O M T H E F I R S T C O U R T O F A P P E A L S

H A R R I S C O U N T Y

J O H N S O N , J
. , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h K E L L E R , P
. J
. , M E Y E R S , P R IC E , W O M A C K , K E A S L E R , H E R V E Y , a n d C O C H R A N , J J
. , j o i n e d
. A L C A L Á , J
. , d i d n o t p a r t i c i p a t e . O P I N I O N

I n a single trial, a jury found appellant gu i lty of first-deg ree -fe lony ag g reg ated theft, and
assessed punishment at seven y ear s’ confine ment and a $5,000 fine. I t al s o fo u n d h im g uilty of
second- deg ree -fel ony ag g reg ated theft and assessed punishment for that offe nse at six y ear s’
confine ment and a $10,000 fine. I n a single opinion, the court of appea ls aff irmed both judgme nts.
Garza v. State , No. 01-08-00529- CR and 01-08-00530- CR, 2010 Tex. App. L EXI S 2297 (Tex. App.

– Houston [1 Dist.] 2010) (not desig nated for publication). Appellant soug ht discretionar y revie w st
of both c onvictions, but we g rante d revie w of only the first-deg ree -fe lony case and ref used revie w2

of the sec ond-deg ree -fe lony case . We affir

m the judgme nt of the cour t of appe als. Appellant’s indictment char g ed him with unlawfully appropr iating proper ty , namely money owned by Dennis L eahy , pursuant to one scheme and conti nuing course of conduct occurr ing “on

or about J une 2, 2003 throug h Aug ust 30, 2005,” and alleg ed that “the total value of th e p roper ty

appropr iated was over two hundred thousand dollars.” The j u ry convicted appellant of “thef t of

proper ty of the total value of over two hundred thousand dollars, as char g ed in the indictment” and

sentenc ed him to seven y ear s’ imprisonment and a f ive-thousand- dollar fine.
On direc t appea l of this conviction, appellant claimed th at t h e evidence was leg ally
insufficient to support the g uilty verdic t beca use the state failed to prove an essential element of the
crime as indicted–that Dennis L eahy was the owner of the proper ty

. He also asser

ted that the state
failed to prove the amount of money stolen beca use it prese nted insufficient evidenc e to distinguish
betwee n money

obtained by

invalid warr ant claims and funds receive d throug h honest work. The

court of appea ls deter

mined that the evidenc e was leg ally sufficie nt t o s h o w t h at L eahy was the

owner and that there was leg ally sufficie nt circ umstantial evidenc e of the amount stolen. Garza v.
State , 2010 Tex. App. L EXI S 2297 at **11-13. We g rante d appellant’ s sole g round for revie w. The First Court of Appea ls err ed by holding that in an ag g reg ate theft case the State is not require d to prove that the s pecia l owner was an empl o y ee o f t he corporation at the time of e ach the ft.
We affir m the judgme nt of the cour t of appe als.
This case involved a private seconda ry school that had acquir ed laptop computers for use by
its students. For the first three y ear s of the prog ram, students purcha sed lapt ops from Hewle tt

1

T h e c h i e f a d m i n i s t r a t o r o f t h e s c h o o l i n d i c a t e d t h a t t h e s t u d e n t s ’ f a m i l i e s p u r c h a s e d t h e l a p t o p s , a l t h o u g h 1
t h r o u g h t h e s c h o o l ’ s l a r g e f i n a n c i a l

- a i d p r o g r a m t h e s c h o o l d i d p a y a l l o r p a r t o f t h e c o s t f o r s o m e s t u d e n t s , d e p e n d i n g o n t h e c i r c u m s t a n c e s
.3

Packar d, which provided a four- y ear manufa cture r’s war ranty for eac h computer that cover ed eac h
student throug h g radua tion. Garza v. St a t e , 2 0 1 0 T ex
. App. L EXI S 2297 at **1-2. The school

arr ang ed for repa irs of those laptops to be mad e a t an on-ca mpus centr alized computer- repa ir fac ility , the C.A.V.E. (Computer Audio Visual Equipment). Appellant was hired by the school to work a s

a network and softwar e technicia n and was assig ned to the C.A.V.E. to work under the supervision
of the school’s “tec hnolo g y person.” After sever al y ear s of opera tion, conce rns arose about

proce dures in the C.A.V.E. The school conducte d an i nvestig ation and deter mined that a larg e number of repla ceme nt parts for the laptops wer e being stockpiled at the C.A.V.E. School officia ls

contac ted Hewle tt Packar d, which sent Dennis L eahy , an investiga tor who wo rk ed fo r Hewle tt
Packar d Glo b al S ec u ri ty Group, to investiga te alleg ations of war ranty fra ud. After investiga tion, appellant a

nd a co-ac tor, whose company had been hi red to work as the school’ s Hewle tt Packard

war ranty -re pair provide r, we re a rre sted and indicted f

or theft. Id . at **2-4.
This appea l involves only appellant’ s convicti o n for theft from Hewle tt Packar d. The 2
indictment alleg ed that “on or about J une 2 , 2 0 0 3 t h roug h Aug ust 30, 2005,” appellant did
“unlawf ully , pursuant to one scheme and continuing course of cond u c t, a p p r o priate, by acquir ing and
otherwise exercising control over proper ty , namely , mone y , o w

n e d b y Dennis L eahy ,” with the intent

to deprive L eahy of the proper ty “and the total value of the prop er t y ap p ro p riated was over two
hundred thousand dollars.” After a trial by jury , appellant was convicted of “thef t of proper

ty of the
total value of ove r two hundre d thousand dollars, as c harg ed in the indictment.” Argum ents of the P artie s

A p p e l l a n t w a s a l s o c o n v i c t e d o f t h e f t f r o m t h e i n s u r a n c e c o m p a n y t h a t o f f e r e d o p t i o n a l s u p p l e m e n t a l 2 i n s u r a n c e c o v e r a g e f

o r c o m p u t e r r e p a i r s t h a t w e r e n o t c o v e r e d b y t h e H e w l e t t P a c k a r d w a r r a n t y
. W e r e f u s e d
a p p e l l a n t ’ s p e t i t i o n f

o r d i s c r e t i o n a r y r e v i e w o f t h e c o u r t o f a p p e a l s d e c i s i o n r e g a r d i n g t h a t c a s e
.4

Appellant asser

ts that the evidenc e was insufficient beca use the state prese nted no evidenc e
that the alleg ed owner , L eahy , “had the rig ht to car e, custody , or control of the proper ty at the time
of the theft.” He adds that L eahy “wa s not even an employ ee of the company d u ri n g t h e v ast majority of time during the alleg ed ag g reg ate thef t.”
The state responds that the co u rt of appea ls “cor rec tly aff irmed the conviction beca use an
ag g reg ated theft is considere d to be one offe nse completed on the last day of the alleg ed scheme or

course of conduct.” I t also aver s that “the evidenc e, when viewed in the light most favor able to the
verdic t, showed that the allege d owner was working for the act u al v ictim during the entire course
of the ag g reg ated theft.” The state also asser ts that “the evidenc e wa s sufficie nt to sustain the
conviction under the hy

pothetically corr ect jury ch ar ge b ec ause such a char g e would not have
included the name of the ow ner, w hich is not an eleme nt of the off ense of theft.” Appellant poin t s o u t that, at trial in J une of 2008, L eahy testified that he had worke d for
Hew l et t P ac kard for “[ a] littl e over three y ear s.” Appellant asserts that, based on that testimony , L eahy ’s employ

ment must have beg un sometime “a littl e” befor e J une of 2005. The state sug g ests
that “a littl e” is “so vag ue and undefine d that it is essentially meaning less; one juror might think that
a little means three months, while another mig ht think that a litt le means thre e y ear s.”
Since he was char g ed with appropr iating money owned by L eahy occur ring “on or about J une
2 , 2003 throug h Aug ust 30, 2005,” appellant arg ues that, for the vast majority of time during t h e commission of the ag g reg ated theft, L eahy was not e mploy ed at Hewle tt Pac kard and did not have

any rig ht of possession. Be cause L eahy “had no possessory interest in the money whatsoeve r beca use he did not even work for Hewle tt Packar d during the period of alleg ed theft,” L eahy could not have

a g rea ter rig ht to possession than did appellant. Appellant also asser ts that the state is oblige d to5

provide proof

of owne rship for a t least enoug h of the thef ts to meet the alleg ed value

. Whil e we ob s er v e t h at nowher e in the Penal Code is the name of the owner made a substantive element of

theft, we have r ece ntly

rec og nized that the Code of Criminal Procedure , as

a matter of state law, require s the state to alleg e the name of the owner of the proper ty in its char g ing
instrument. Byrd v. State , 336 S.W .3d 242, 251, No. PD-0738-10 (Tex. Crim. App. delivere d Marc h 30, 2011), 2011 Tex. Crim. App. L EXI S 415 at **24-25. Other case s have held that owner ship may be alleg ed as either the actua l or a specia l owner , wher e a specia l owner is a person who has actua l custody or control of proper ty that belong s to another person. See, e.g., Harrell v. State , 852 S.W .2d 521, 523 (Tex. Crim. App. 1993), and Freem an v. State , 707 S.W .2d 597, 602-03 (Tex. Crim. App. 1986). “Althoug h the name of the owner is not a substantive element of theft, the State is r equire d

to prove, bey ond a rea sonable doubt, that the person (or entity ) alleg ed in the indictment as the owner is the same person (or e ntity ) . . . as shown by the evidenc e.” Byrd

at 252.
“A ‘spec ial owner ’ is an individual who is in custody or control of proper t y belong ing to
another person.” Harrell v. State , 852 S.W .2d 521, 523 (Tex. Crim. App. 1993). To eliminate the
distinctions betwee n g en er al an d specia l owner s, and to g ive owner ship status to any one with a rational connec tion to the proper ty , the leg islature has g iven “owne r” an expansive meaning : any one having a possessory interest in the propert y t h ro ug h title, possession, whether lawful or not, or a
g rea ter rig ht to possession of the proper ty than the defe ndant, is an owner of the proper ty

. Freem an

v. State , 707 S.W .2d 597, 603 (Tex. Crim. Ap p
. 1 9 86); T E X

. P E N A L C O D E § 1.07(a) (35)( A).
“Possession” i s define d to mean actual care , cu s t o d y , control, or manag ement. T E X

. P E N A L C O D E § 1.07(a) (39). Thus the stat e p ro p er l y alleg ed a Hewle tt Packar d employ ee as the owner of the

proper ty

.6

The court of appea ls compar ed this ca s e, which was char g ed as an ag g reg ated theft, with
other ag g reg ated theft case s in which we held that such ag g reg ated theft is the sum of all its parts and
a part is a completed theft whose elements have all been proven. Ga r z a v. S t ate , 2010 Tex. App.
L EXI S 2297 at **9-10. The court of appea ls rea soned that, “because the State does not have to

prove eac h individual theft in an aggr ega t e t h eft case , it likewise is not require d to prove that the specia l owner w as an e mploy ee of the corporation during t he ti me of eac h individual theft.” Id

. at
*10. I t also noted t hat, “in ag g reg ate theft ca s es , t he st atute of limit ations does not beg in to [run]
until the date of the commission of the final incident of theft and there fore the entire theft is deeme d

to oc cur on the date of the most re cent theft.” Id ., citing Tita v. State , 267 S.W .3d 33, 35 n.1 (Tex.
Crim. App. 2008). The court of appea ls also cited our opinion in W eave r v. State , 982 S.W .2d 892, 3
893-95 (Te x
. C ri m
. Ap p. 1998), which held that, based upon a prosec ution of ag g reg ated theft arising out of a single scheme , venue was proper in one county even though offe nses ag ainst some
of the complainants took place outside that county

. Id

. at **10-11. I t also pointed to the T E X

. P E N A L
C O D E § 31.09 provisions for ag g reg ation of amounts involved in theft, wh i ch p rovi des that “the
conduct may be considere d as one offe nse and the amounts ag g reg ated in deter mining the g rade of
offe nse.” Id . at *10. The court of appea ls c oncluded that L eahy was a Hewle tt Packard e mploy ee with a g re at er ri gh t of control over the corpor ation’s money than appellant at some point during
commission of the ag g reg ated offe nse, there fore the ev i d en ce was leg ally sufficie nt to show that
L eahy was the ow ner. Id . at *11.

W e o b s e r v e t h a t i n T i t a , s u p r a a t n
. 1 , w e s p e c i f

i c a l l y s a i d t h a t “ t h e l i m i t a t i o n s p e r i o d f o r a g g r e g a t e d t h e f

t 3 b e g i n s t o r u n o n t h e d a t e o f t h e l a s t t h e f t , i

. e
. , t h e e n d d a t e o f t h e ‘ s c h e m e o r c o n t i n u i n g c o u r s e o f c o n d u c t ’ i n q u e s t i o n
. ” W e d i d n o t s a y t h a t t h e e n t i r e t h e f t i s d e e m e d t o o c c u r o n t h e d a t e o f t h e m o s t r e c e n t t h e f t , o n l y t h a t t h e l i m i t a t i o n s p e r i o d b e g i n s t o r u n o n t h e d a t e o f t h e l a s t t h e f t

.7

Appellant’s sole gro u n d for revie w challeng es the court of appea ls’s holding that, in an
ag g reg ated- theft ca se, the state is not require d to prove that the spe cial owne r wa s an employ ee of
the corpor ation at the ti m e o f ea ch t h eft and sug g ests that the specia l owner is require d to be an employ ee of the corpor ation at the times when proper ty of sufficie nt values to meet the indictment’s
value alleg ed was unlawfully appropr iated. Appellant arg ues that the state “is oblige d to provide full proof of owner ship for at least enoug h of the thefts to meet the alleg ed value” and that it is the state’s
burden “to provide fu ll proof bey ond a reasonable doubt of enough acts of theft t o meet the value
all eg ed in the indictment.” He sug g ests that “[b] y holding that a specia l owner need not have a
g rea ter rig ht to possession tha n the acc used except for at any one point in time dur ing a multi-y ear
ag g reg ate thef

t, the State’s burde n of proof has bee n eff

ectively whittled away

to nothing.” Analysis
Eac h individual theft is an element of the ag g reg ated theft descr ibed by § 31.09. W eave r ,
supra at 893. Whil e the name of the owner is not a substantive element of theft, the state is require d

to prove, bey ond a rea sonable doubt, that the person alleg ed in the indic tment as the owner is the

same person shown by the evidenc e prese nted at trial to be the owner by the evidenc e. Byrd, supra
at 252.
I n case s in which the actua l owner of the stolen proper ty is a single entity rathe r than a natura l

person, the better prac tice may be to alleg e the single entity , such as Hewle tt Packar d, as the actua l

owner
. An employ ee of the entity may then testify as an ag ent of the entity

. I n this case , L eahy , as

4

an employ ee of Hewle tt Packar d, was proper ly alleg ed as the specia l owner of the u nlawfully

I f t h e a g g r e g a t e d t h e f

t i s i n t h e n a t u r e o f a P o n z i s c h e m e , e a c h o w n e r , w h e t h e r a n e n t i t y o r a n a t u r a l 4 p e r s o n , m u s t b e a p p r o p r i a t e l y a l l e g e d

.8

appropr iated money
. As a proper specia l owner , he was competent to attest to the value of the stolen

proper ty , even though he was not e mploy ed by Hewle tt Pac kard at the time of many of the alleg ed
thefts. Hewle tt Packar d was the owner of the stolen proper ty at the time of eac h theft, and, althoug h alleg ed to be a specia l owner , L eahy functioned as Hewle tt Packar d’s ag ent when he testified about
the value of

the total loss.
We affir m the judgme nt of the cour t of appe als.

Deliver ed: J une 29, 2011 Publis h