Texas Stamp


PD-0197-17 05/03/2017

  1. "In determining whether the evidence is legally sufficient to support the jury's verdicts, the court of appeals failed to measure the evidence, as the court interpreted the evidence, against a hypothetically correct jury charge that included, as the dissent pointed out, a full parties charge and a correct description of the financial instrument stolen, as required under Garza Vega v. State, 267 S.W.3d 912, 915-16 (Tex. Crim. App. 2008)."
  2. "In determining whether the evidence is legally sufficient to support the jury's verdicts, the court of appeals erred in failing to view the evidence in the light most favorable to the jury's verdicts, thereby substituting its resolution of fact issues for that of the jury's. See Adames v. State, 353 S.W.3d 854, 861 (Tex. Crim. App. 2011); see also Jackson v. Virginia, 433 U.S. 307, 319 n.12 (1979)."

Johnson was convicted of two counts of theft for failing to perform several cremations he was contractually obligated to do as an employee of a funeral home.

A majority of the court of appeals reversed on sufficiency. As to count one, it held that there was no evidence to support "appropriation" of "money" as a party because payment was by check made out to the funeral home and there was no evidence that his wife, the sole owner of the business, was involved in any wrongdoing. As to count two, despite Johnson's "deplorable behavior" for abandoning human remains in various stages of decomposition, the court held there was insufficient evidence that Johnson accepted cash with the intent to deprive—he had in fact performed part of the services. The dissent asserted that Johnson's guilt as a principle in count one was supported by the evidence; "appropriation" was satisfied because he received personal expense money from the funeral home's bank account. And on count two, giving deference to the jury's resolution, the dissent maintained that the circumstantial evidence supports its verdict. In addition to lying to and deceiving the victims, Johnson, when he entered into the contracts, knew he was unable to obtain the documents needed to perform the cremations because he was not properly licensed.

The State contends that the majority of the court of appeals failed to evaluate the evidence in count one against a hypothetically correct charge. The court should have measured it using "a document representing anything of value" or "a check" instead of "money." Additionally, under Tex. Penal Code § 7.23(a), Johnson was criminally responsible for conduct he committed in the name of or on behalf of a corporation to the same extent as if it was performed on his own behalf. Finally, contrary to the majority's conclusion based on partial performance, such performance, as the dissent observed, also supports the jury's determination that Johnson had the intent to deprive the victims when the transactions were made.

Contact Us

Mailing Address

P. O. Box 13046
Austin, Texas 78711-3046

Physical Address

209 W. 14th Street
Austin, Texas 78701


(512) 463-1660


(512) 463-5724