Electronic Bank Transfer Case Venue (Jurisdiction)
In Bailey v. State, 885 S.W.2d 193 (Tex. App.--Dallas 1994, pet. ref'd), Bailey contested the sufficiency of the evidence to establish he appropriated property as alleged in the indictment. Id. at 198.
Bailey argued appropriation was not shown because the transfer of funds from the Dallas bank to the Houston bank was accomplished by means of a wire transfer. Id. at 199.
According to Bailey, such a transfer does not contemplate any actual possession by either the sending or receiving party, and therefore does not constitute a "possessory" appropriation. Id.
The court noted that under Coats v. State, an electronic bank transfer does not involve physical possession of cash money, but is "a so-called 'possessory' appropriation." Id. (citing Coats v. State, 712 S.W.2d 520, 522 (Tex. Crim. App. 1986)).
The court held "that intangible property such as a bank balance can be appropriated by the exercise of control over that property." Id.
The court found that Bailey orchestrated a wire transfer from the Dallas account to the Houston account. Id.
Therefore, the record established Bailey was able to control the transfer of funds from the Dallas account. Id.
Regarding venue, Bailey contended the evidence established an appropriation in Harris County, rather than Dallas County, because the wire transfer was completed in Harris County. Bailey, 885 S.W.2d at 200.
Bailey relied on Coats for the proposition that a theft by wire transfer is completed only upon the crediting of an accused's account. Id. (citing Coats, 712 S.W.2d at 523.)
The Dallas Court found Bailey's reliance misplaced upon the basis that Bailey was a fiduciary with respect to the funds in the Dallas account. Id.
Because Bailey manifested an intent to permanently deprive Summa of its funds while those funds were in the Dallas account, his exercise of control over the funds was unauthorized at its inception. Id.
Accordingly, venue in Dallas County was proper. Id.