Cheney v. State

In Cheney v. State, 755 S.W.2d 123, 127 (Tex. Crim. App. 1988), the defendant obtained a bank loan to purchase some furniture, secured by a security agreement covering the furniture. However, the defendant did not use the loan proceeds to buy furniture and failed to repay the loan. The defendant was convicted of felony theft under Penal Code 31.03, but claimed on appeal she should have been convicted under Penal Code 32.32, the "false statement to obtain property or credit" provision. Cheney, 755 S.W.2d at 124. The Court of Appeals agreed, viewing 31.03 as a general statute which subsumed 32.32, a special statute. The appeals court concluded the defendant was entitled to be prosecuted under the statute which more particularly fit the facts presented in her case. On discretionary review, we emphasized that "the rule of pari materia is not applicable to enactments that cover different situations and that were apparently not intended to be considered together." Id. at 126. Comparing the two provisions, we noted that while they could both "conceivably cover the same general class of persons and property, . . . in object or purpose . . . a clear and marked difference exists between the two provisions." Id. at 129. The gravamen of an offense under 32.32 is the making of a false or misleading statement, while obtaining property or credit is not even a required element. By contrast, 31.03 was intended to criminalize the unlawful acquisition of property. We held the provisions were not in pari materia: The two provisions are two different legislative acts having different elements of proof, different penalties and obviously designed to serve different purposes and objectives. Section 32.32, supra, proscribes the intentional or knowing making of materially false or deceptively misleading statements in order to obtain property or credit, while Section 31.03, supra, contemplates the actual wrongful appropriation of property. The key distinction between the offense of theft under . . . Section 31.03, and the offense of making a false statement to obtain property or credit under Section 32.32, supra, is whether the perpetrator in fact receives any property. Receipt of property and proof of its value are critical factors in the offense of theft but are not factors required to prove an offense under Section 32.32, supra. Sections 31.03 and 32.32, supra, are not in pari materia. It follows that Section 32.32 is not a "special" statute that encompasses all theft by false pretext type offenses. However, Section 32.32 may under some circumstances be a lesser included offense of theft when the State fails to prove that a defendant obtained property or fails to prove the value of such property. Id. at 130.