Fernandez v. State
PD-0123-15
Case Summary written by Jack Fulgham, Staff Member.
PRESIDING JUDGE KELLER delivered the opinion of the court. JUDGE JOHNSON filed a concurring opinion.
Issue: “Whether a public servant commits theft by deception when he purchases an airline ticket for county-approved travel with a county credit card but later uses the voucher resulting from the cancellation of the ticket for personal travel, without correcting the impression that the ticket would be used for county-approved business.”
On February 6, 2012, Justice of the Peace James Fernandez directed his chief deputy clerk, Veronica Mojica, to book a flight to Orlando so that he could attend a work related conference that June. Using the county-owned credit card, Mojica booked a non-refundable flight for Fernandez. The county had a policy of booking non-refundable flights because they are typically cheaper. The price of the ticket was $381.60. On June 11, 2012, nine days before the scheduled flight, Fernandez fell ill and instructed Mojica to cancel the flight. Because the ticket was non-refundable, when Mojica canceled the flight, the purchase price was not refunded and instead converted into a Southwest travel voucher for the purchase price of the ticket.
In August 2012, Fernandez asked Mojica for the voucher reservation number from the canceled flight. Fernandez then directed Mojica to give the number to his son. A few weeks later, County Auditor Frank Lowe noticed the county was nearing its travel budget limit for 2012. In response, he contacted Southwest Airlines to inquire about the funds from the cancelled ticket. Southwest informed Lowe that a voucher had been issued and later used for a flight to Phoenix on August 8, 2012. Lowe had received no documentation for the Phoenix flight, which was customary for all county-related air travel. The County has a policy that prohibits using county property or funds for personal travel.
Thinking the voucher had been used for personal travel, Lowe contacted the Val Verde County Attorney to conduct an investigation. In response, the Attorney General initiated an investigation into the matter. Shortly after, Fernandez attempted to pay back the county for using the voucher, but his payment was refused. Fernandez’s son, James Fernandez Jr., testified that he was the one who suggested that he use the voucher, and that they had every intent of paying the county back. Fernandez was convicted of theft by a public servant by way of deception. The Fourth Court of Appeals affirmed the conviction.
The appellant, Fernandez, appealled his conviction on the grounds that the State failed to prove that he induced consent to use the voucher by deception. The Court of Criminal Appeals reviewed the complaint under the legal-sufficiency standard set forth in Jackson v. Virginia. The court examined “the evidence in the light most favorable to the verdict and ask whether any rational fact-finder could have found the elements of the charged offense beyond a reasonable doubt.
The real issue on appeal was whether or not Fernandez had received the county’s apparent consent to use the voucher by means of deception. The Texas Penal Code defines consent as “assent in fact, whether express or apparent”, and deception as “failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true.” To meet its burden for theft by deception, the State must show that the owner of the stolen property (the County) consented to transfer the property because of a deceptive act of the accused. Therefore, the deception must precede the consent.
The appellant argued that consent only occurred when the County approved his purchase of the original plane ticket. The court disagreed, finding that “consent” can occur more than once, and the consent pertinent to the case actually occurred when appellant directed Mojica to give the voucher number to his son. The court found that the conveyance of the voucher to appellant’s son was enough to constitute apparent consent.
Next, the court had to decide whether the apparent consent was obtained by deception. The court found that deception did take place before the county consented to giving the voucher number to the appellant’s son. By remaining silent about what the voucher was being used for, appellant failed to correct the impression that the funds were for county-approved travel. The court held that the appellant’s silence constituted deception, and affirmed the lower court’s holding that Fernandez committed theft by deception against Val Verde County.
In his concurrence, Judge Johnson agreed with the conclusion of the majority, but did not agree that Mojica or Fernandez had the capacity to consent on behalf of the county.