Sandra Cheney v. State Texas

Appellant was convicted of the offense of felony theft under V.T.C.A., Penal Code, section 31.03 and a jury assessed punishment at five years confinement. The Amarillo Court of Appeals reversed the conviction holding that, although the evidence would support the theft conviction, there was also sufficient evidence to support a conviction under V.T.C.A., Penal Code, section 32.32, the "false statement to obtain property or credit" statute. Assuming without analysis that section 31.03, supra, is a "general" statute and that section 32.32, supra, is a "special" statute subsumed by section 31.03, the appeals court in an unpublished opinion observed that "the special statute here, in tandem with the states theory of prosecution, is more specific than the general theft statute in the three particulars: (1) the victim (a creditor); (2) the property (funds advanced as a loan), and (3) the means of theft (a false or materially misleading written statement) . . . . We . . . conclude that appellant was entitled to be prosecuted under the applicable specific statute proscribing the giving of a false written statement to obtain credit. . . Because an offense under section 32.32 of the penal code is a misdemeanor, the district court did not have jurisdiction to try the case." Cheney v. State, No. 07-83-0029-CR (Tex.App. Amarillo, September 19, 1984), citing Jones v. State, 552 S.W.2d 836 (Tex.Cr.App. 1977).