No. PD-0123-15

IN THE TEXAS COURT OF CRIMINAL APPEALS

AT AUSTIN, TEXAS

 

JAMES FERNANDEZ,

 Appellant

v.

THE STATE OF TEXAS,

 Appellee

 

From the Fourth Court of Appeals in San Antonio, Texas 

Cause 04-14-00039-CR 

and 

the 83rd Judicial District Court 

of Val Verde County, Texas 

Cause No. 12716CR

 

BRIEF ON THE MERITS

 

 James Gerard McDermott, II 

 8140 N. Mopac

 Westpark 4, Suite 250

 Austin TX 78759

 512.201.4083

 512.298.1129 (facsimile)

james@centraltexaslawyers.com

Attorney for Appellant

PD-0123-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 6/8/2015 12:24:07 PM

Accepted 6/8/2015 1:35:35 PM

ABEL ACOSTA

CLERK
LIST OF PARTIES

TRIAL COURT JUDGE

Hon. Stephen Ables 

Kerr County Courthouse 

700 Main Street, Second Floor 

Kerrville, Texas 78028

APPELLANT

James Fernandez

APPELLANT’S ATTORNEYS AT TRIAL

Daniel A. Sanchez Robert Garza

 State Bar No. 24004064 State Bar No. 07742800

 Law Offices of Daniel A. Sanchez Law Offices of Robert Garza

 501 E. Tyler Avenue 2116 Avenue F, Suite 5

 Harlingen TX 78550 Del Rio TX 78840

APPELLANT’S ATTORNEY ON APPEAL

James Gerard McDermott, II

 State Bar No. 24041438

 Thompson Salinas Rickers & McDermott, LLP

 8140 N. Mopac

 Westpark 4, Suite 250

 Austin TX 78759

APPELLEE

The State of Texas

 

APPELLEE’S ATTORNEY AT TRIAL APPELLEE’S ATTORNEY AT THE

& AT THE COURT OF APPEALS COURT OF CRIMINAL APPEALS

Lance Kutnick Melissa Hargis 

State Bar No. 00791058 State Bar No. 24055766 

Assistant Attorney General Assistant Attorney General 

District Attorney Pro Tem District Attorney Pro Tem 

Office of the Attorney General Office of the Attorney General 

PO Box 12548 PO Box 12548 

Austin TX 78711 Austin TX 78711 

ii
TABLE OF CONTENTS

LIST OF PARTIES ii

TABLE OF CONTENTS iii

TABLE OF AUTHORITIES iv

STATEMENT REGARDING ORAL ARGUMENT 1

STATEMENT OF THE CASE 1

STATEMENT OF PROCEDURAL HISTORY 1

QUESTION PRESENTED FOR REVIEW 2

STATEMENT OF FACTS 2

ARGUMENT 5

PRAYER 9

CERTIFICATE OF COMPLIANCE 10

CERTIFICATE OF SERVICE 10

iii
TABLE OF AUTHORITIES

CASES

Daugherty v. State, 387 S.W.3d 654 (Tex. Crim. 

App. 2013) 6, 8

Ehrhardt v. State, 334 S.W.3d 849 (Tex. App.—

Texarkana 2011, pet. ref’d) 5

Fernandez v. State, 2014 Tex. App. LEXIS 

13868 (Tex. App.—San Antonio Dec. 31, 2014) 6-7

Geick v. State, 349 S.W.3d 542 (Tex. Crim. App. 

2011) 5

In re Fernandez, 2015 Tex. Crim. App. LEXIS 

581 (Tex. Crim. App. May 13, 2015) 1, 2

Merryman v. State, 391 S.W.3d 261(Tex. App.—

San Antonio 2012, no pet.) 6

CODES AND RULES

TEX. PEN. CODE § 12.21 1

TEX. PEN. CODE § 31.01(1) 1, 7

TEX. PEN. CODE § 31.01(1)(B) 7

TEX. PEN. CODE § 31.01(3)(A) 1, 6, 8

TEX. PEN. CODE § 31.03(a) 1, 6

TEX. PEN. CODE § 31.03(b)(1) 1, 6

TEX. PEN. CODE § 31.03(e)(2) 1

TEX. PEN. CODE § 31.03(f)(1) 1

iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

 COMES NOW Appellant, James Fernandez, and submits this brief on the 

granted petition for discretionary review from an opinion and judgment from the 

Fourth Court of Appeals that affirmed a judgment of conviction in the 83rd Judicial 

District Court of Val Verde County, Stephen B. Ables, presiding.

STATEMENT REGARDING ORAL ARGUMENT

The Court has denied Appellant’s request for oral argument. 

STATEMENT OF THE CASE

 At the conclusion of a jury trial, Appellant was convicted of the offense of 

theft by deception by a public servant. CR 6-7, 156, 166; RR5: 72; see TEX. PEN. 

CODE §§ 31.01(1), (3)(A); 31.03(a), (b)(1), (f)(1). The trial court sentenced 

Appellant to 90 days’ confinement in the county jail, suspended the sentence, 

placed him on community supervision for 90 days, and ordered payment of 

restitution. CR 166; RR5: 112. See TEX. PEN. CODE §§ 12.21, 31.03(e)(2), (f)(1). 

On appeal, the Fourth Court of Appeals affirmed the conviction. Appellant filed a 

petition for discretionary review, raising two issues. This Court granted review on 

one issue. In re Fernandez, 2015 Tex. Crim. App. LEXIS 581 (Tex. Crim. App. 

May 13, 2015). 
STATEMENT OF PROCEDURAL HISTORY

This case arises from Cause 04-14-00039-CR from the Fourth Court of Appeals in San Antonio, Texas. The Court of Appeals issued its opinion on December 

31, 2014, and affirmed the conviction. Appellant filed no motion for rehearing. 

Appellant filed the petition for discretion on March 2, 2015, which this Court 

granted on his first question only. In re Fernandez, 2015 Tex. Crim. App. LEXIS 

581 (Tex. Crim. App. May 13, 2015).

QUESTION PRESENTED FOR REVIEW

In affirming a conviction for theft by deception, did the Court of 

Appeals err in finding evidence of deception when the record 

shows only lack of actual consent? In other words, and consistent 

with the language of the statute, may deception only be proven 

when the record shows actual consent that was induced by 

deception but not when the record shows lack of actual consent?

STATEMENT OF FACTS

The Statement of Facts contained in the opinion of the Court of Appeals 

omitted some important details. Thus, Appellant presents a more complete 

recitation here. 

 Appellant was Justice of the Peace for Precinct 4 in Val Verde County. RR4: 

25, 65. Appellant and another Val Verde justice of the peace, Joey Gonzalez, 

planned to attend a conference in Orlando, Florida from June 20 to June 24, 2012. 

RR4: 26; SX 1, 2. On February 6, 2012, Veronica Mojica, Appellant’s chief deputy 

clerk, bought tickets on Southwest Airlines for Appellant to travel to the 

2
conference. RR4: 24-27, 159; SX 2. She used a county credit card issued to 

Appellant to pay the $381.60 cost. RR4: 29-30, 49; SX 2. 

 In June, Appellant and Judge Gonzalez both fell ill. RR4: 30-31, 42-43, 161. 

Appellant instructed Mojica to cancel the trip. RR4: 30-31. She cancelled the flight 

on June 11 and the conference registration on June 12. RR4: 31, 46, 159. The 

conference registration fee was refunded. RR4: 31. The Southwest Airlines ticket 

and the funds used to purchase it were nonrefundable and nontransferable, 

purchased in accordance with County procedure to purchase such lower-cost 

tickets to save County money. RR4: 42-43, 61, 62, 107, 159, 309; SX 2. Southwest 

Airlines did not refund the ticket but issued a credit to Appellant for use in a future 

purchase, which could not be redeemed by anyone except Appellant. RR4: 42-43, 

160, 311-19; SX 2. That credit was set to expire on February 4, 2013, if left unused 

by Appellant. RR4: 62, 160; SX 2. Mojica informed the County Auditor’s office of 

the cancellation and credit. RR4: 161.

 About two months later, in August 2012, Appellant asked Mojica for the 

reservation number for the Southwest Airlines flight. RR4: 32. He requested that 

she call his son to give him the number, which she did. RR4: 33. On August 8, 

Appellant booked a ticket to Phoenix on Southwest Airlines using the previous 

reservation number. RR4: 91; SX 2. He also traveled on that ticket on the same 

day. RR4: 47, 91; SX 2. The new itinerary cost $129.00 more than the Orlando 

ticket, and Appellant paid the difference from his own credit card. RR4: 47-48; SX 

3
2. No county business was scheduled in Phoenix for August 2012, and Appellant 

did not claim he was conducting any County business in Phoenix through a new 

purchase order to the County. RR4: 47-48, 51. He did not request or receive 

approval from any other County official to use the voucher. RR4: 148.

 Frank Lowe, the county auditor, knew in June 2012 that (1) Appellant and 

Judge Gonzalez bought airplane tickets to go to Orlando, (2) both cancelled the trip 

when Judge Gonzalez had gotten ill, and (3) the tickets were nontransferable and 

nonrefundable. RR4: 42-43, 87, 95-96, 161, 309; SX 2. Two months later, in 

August, Lowe was reviewing each county office’s past fiscal-year expenses in 

preparation for the County budget process. RR4: 35, 41. He noticed that travel 

expenses were reaching the budget limit, and so he reviewed expenditures more 

closely. RR4: 42. He directed a member of his staff to contact Southwest Airlines 

to ask that, because Val Verde County is a local government entity, they make an 

exception to the nonrefundable-ticket policy. RR4: 44, 92, 95, 96. He then found 

out that the credit had been used. RR4: 96.

 Lowe then spoke to the Val Verde County Attorney, who then contacted the 

Office of the Attorney General. RR4: 51-52, 54, 91, 98, 103-04, 151, 184, 202, 

280, 321, 322-23. On August 27, he informed the Val Verde County 

Commissioners Court of his investigation. RR4: 54, 99, 176, 324-26. Appellant 

attempted to make restitution through both the Auditor and the County Attorney, 

which was refused. RR4: 51-52, 64-65, 74-76, 89, 276-77, 280-88; DX1, 4. 

4
ARGUMENT

QUESTION PRESENTED

In affirming a conviction for theft by deception, did the Court of 

Appeals err in finding evidence of deception when the record 

shows only lack of actual consent? In other words, and consistent 

with the language of the statute, may deception only be proven 

when the record shows actual consent that was induced by 

deception but not when the record shows lack of actual consent?

Here, the indictment alleged theft by deception. CR 6. Thus, the State’s 1

burden in this case was to prove that Appellant used the Southwest Airlines credit 

without effective consent and that the lack of “effective consent” was due to 

Appellant’s deception. However, the record in this case establishes that Appellant 2

did not obtain consent to use the credit. He could not have used any deception to 3

induce a consent that was never given. 

 Theft is an unlawful appropriation. TEX. PEN. CODE § 31.03(a). An 

appropriation is unlawful if it is without the owner’s effective consent. Id. 

§31.03(b)(1). Consent is not effective if it induced by deception. Id. §31.03(3)(A).

 To “induce” means “to bring about, produce, or cause.” Ehrhardt v. State, 

334 S.W.3d 849, 853 (Tex. App.—Texarkana 2011, pet. ref’d). That consent is 

5

Because the State alleged deception in the indictment, deception is an essential element of the 1

offense. See Geick v. State, 349 S.W.3d 542, 548 (Tex. Crim. App. 2011).

Appellant’s Brief to Court of Appeals, 19. 2

Appellant’s issue at the Court of Appeals was the sufficiency of the evidence for the element of 3

deception. Appellant’s Brief to Court of Appeals, 2, 15-20.
induced by deception means “that the victim relied on the defendant’s deceptive 

act when giving his consent.” Daugherty v. State, 387 S.W.3d 654, 659 n.18 (Tex. 

Crim. App. 2013) (internal citations omitted). The reliance “must be a substantial 

or material factor in the decision-making process.” Id. n.18 (internal citations 

omitted). “The distinguishing feature between lawful acquisitive conduct from 

theft is the intent to acquire without effective consent at the time of the 

deprivation.” Merryman v. State, 391 S.W.3d 261, 271 (Tex. App.—San Antonio 

2012, no pet.). Thus, the timing is of vital importance. For deception to be relevant 

for a conviction of theft, the deception must be committed before or in conjunction 

with the consent. Otherwise, the deception cannot be “a substantial or material 

factor” in the decision to give consent. 

 In this case, Appellant received consent to appropriate the County funds on 

Feb. 6, 2012. RR4: 24-30, 159; SX 2. The Court of Appeals found that Appellant 

“created an impression of fact that the tickets would be used to go to Orlando on 

approved county business.” Fernandez v. State, 2014 Tex. App. LEXIS 13868 at 

*13 (Tex. App.—San Antonio Dec. 31, 2014). That was true at the time; Appellant 

received consent to buy the tickets to attend the conference. There is no evidence 

that Appellant deceived the County when the County consented to the purchase of 

the ticket. The Court of Appeals noted that Appellant “later caused those tickets to 

be cancelled, resulting in a credit.” Id. at *13-14. This is also correct. There is no 

evidence that Appellant deceived the County at that time. Appellant informed the 

6
County of the cancellation, and there is no issue in this case about the need to 

obtain any consent to cancel. See RR4: 42-43, 87, 95-96, 161, 309; SX 2.

 According to the Court of Appeals, Appellant committed deception in 

August. Fernandez, 2014 Tex. App. LEXIS 13868, at *13. The Court reasoned that 

Appellant made a (correct, non-deceptive) impression of fact in February that the 

ticket would be used for County business, which induced consent; that in August 

Appellant used the ticket for a personal trip; and that the failure to inform the 

County beforehand was a failure “to correct the false impression that he previously 

created that the tickets would be used for county business.” Id. 4

 Notably, the Court of Appeals never used the word “induce” in its opinion. 

The Court found what it considered to be deception but failed to connect the 

deception it found to any inducement to consent. Appellant’s failure to 

communicate with the County in August, if it was indeed deception, was 5

irrelevant. Appellant only sought consent in February, at which point there was no 

7

In drawing this conclusion, the Court of Appeals failed to utilize a significant factor in the defi 4 -

nition of deception: “that is likely to affect the judgment of another in the transaction.” See TEX. 

PEN. CODE § 31.01(1)(B). This factor is present in each of the definitions of deception. See id. § 

31.01(1). In August, there was no transaction with the County when Appellant used the credit, 

and so the judgment of the County was not implicated at all. This is just another way of stating 

the argument of this brief: there was no transaction; there was no deception against the County; 

there was no consent; thus, there was no inducement of consent by deception.

5 Again, it does not matter if Appellant’s actions in August were deceptive according to a common meaning of the term. As noted in footnote 4, the Legislature has defined deception for purposes of theft and decided that an action is deceptive only when it “is likely to affect the judgment of another in the transaction.” See TEX. PEN. CODE § 31.01(1)(B). 
deception. In August, Appellant did not seek or receive consent. His court 

coordinator gave the reservation number to his son. RR4: 32-33. Appellant booked 

the ticket himself. RR4: 91; SX 2. He did not inform anyone that he would be 

conducting any County business in Phoenix. RR4: 47-48, 51. He did not request or 

receive approval or consent from any other County official to use the voucher. 

RR4: 148. He did not inform the County upon his return that he had used the 

voucher. RR4: 92-96. The Court of Appeals emphasized this point as well: 

“Fernandez did not inform the county auditor’s office that he used the credit to 

obtain these tickets for his personal use, nor did he reimburse the County for the 

credit when he returned.” Id. At no point did the County rely in a substantial or 

material way on a deception when giving Appellant consent. See Daugherty, 387 

S.W.3d at 659 n.18. In February, there was no deception; in August, there was no 

consent. 

 Deception only occurs in a theft-by-deception case when consent has been 

induced. See TEX. PEN. CODE §31.03(3)(A); Daugherty, 387 S.W.3d at 659 n.18. 

Alternatively, when there is no consent there can be no deception. A theft 

conviction may still be found, but not on an indictment charging theft by 

deception. The Court of Appeals erred in finding otherwise. This Court should 

reverse Court of Appeals, reverse the judgment of conviction, and order an 

acquittal.

8
PRAYER

 WHEREFORE, PREMISES CONSIDERED, Appellant prays that the Court 

reverse the judgment and opinion of the Court of Appeals and render a judgment of 

acquittal. 

Appellant prays for any such further relief to which he may be entitled. 

Respectfully submitted,

/s/ James Gerard McDermott, II

James Gerard McDermott, II 

Thompson Salinas Rickers & McDermott, LLP

8140 N. Mopac

Westpark 4, Suite 250

Austin TX 78759

512.201.4099

512.298.1129 (facsimile)

james@centraltexaslawyers.com

Attorney for Appellant

9
CERTIFICATE OF COMPLIANCE

 I hereby certify that this brief complies with Texas Rule of Appellate 

Procedure 9.4. The computer-generated word count for this document is 1936 

words, including headers and footnotes.

 

 /s/ James Gerard McDermott, II 

 James Gerard McDermott

CERTIFICATE OF SERVICE

 I hereby certify that a true copy of the foregoing document was served by 

electronic service on June 8, 2015 to:

 

 Melissa Hargis Lisa C. McMinn

 Assistant Attorney General State Prosecuting Attorney

 District Attorney Pro Tem 209 W. 14th Street

 Office of the Attorney General Austin, Texas 78701

 PO Box 12548 information@spa.texas.gov

 Austin TX 78711 

 /s/ James Gerard McDermott, II 

 James Gerard McDermott 

10