Gerald Wayne Stockman v. State Texas

Appellant, Gerald Wayne Stockman, appeals from a conviction for the lesser included offense of theft over $750.00, but less than $20,000.00. Although the jury determined guilt, the trial court assessed punishment at ten years confinement, probated for a period of ten years. In his sole point of error, appellant contends that the evidence is insufficient to support the verdict. We agree. We conclude that the evidence is insufficient to show a crime of theft in that the evidence shows at most a civil dispute arising out of a home building contract between complainant, as owner, and appellant, as builder. Because the evidence is insufficient to show theft, we conclude that appellant was sentenced to ten years in the penitentiary as the result of this civil dispute. In a theft case of personalty, a conviction cannot be upheld if ownership of the property is disputed between the complaining witness and the defendant. Hann v. State, 771 S.W.2d 731, 733 (Tex. App.--Fort Worth 1989, no pet.). The present case is a theft case of personalty, and ownership of the money is disputed between the complaining homeowner and the defendant homebuilder. Accordingly, we sustain appellants sole point of error, reverse the trial courts judgment and render a judgment of acquittal.