NO. 1840-02






Keller, P.J., filed a concurring opinion in which KEASLER, and HERVEY, JJ., joined.



In a challenge to the sufficiency of the evidence the issue is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (1) The pertinent question in this kind of theft case, then, is whether a rational trier of fact could determine the value of a check on the basis of its face value alone.

In this day and age, checks are widely recognized as payment instruments in commercial transactions. People expect - and have a right to expect - that a check written for a certain amount will be honored for that amount. In rare circumstances a check may not be honored, such as when a check "bounces" due to insufficient funds, when a check is not honored due to a stop payment, or as in this case, when the intended victim successfully prevents the perpetrator from delivering the check to a financial institution for cash or deposit. By distinguishing Brown rather than overruling it, the Court draws a distinction between the first situation and the latter two. (2) In my opinion, the value of a check in each of these three situations is the face value of the check.

The outcome of the three exceptional situations is the same: the perpetrator is prevented from successfully cashing or depositing the check. Either the check has its face value or it has no value - there is no in-between. One cannot distinguish these situations by saying that, in the first, the check writer had no intention of paying. The same could be said of GEICO, in the present case, and could be true in a stop payment case as well. And such a statement would not necessarily be accurate. A check writer might believe he would have sufficient funds to cover the check at the time it was written, even though that may later turn out not to be the case. Nor can a distinction be drawn based upon whether there presently exist sufficient funds to cover the check. A check writer who has insufficient funds may intend to deposit sufficient funds to cover the check shortly after it is written. If such funds are in fact deposited before the check clears (which, for example, can ordinarily be accomplished by depositing the funds later in the day), then the recipient of the check will be able to cash the check, and no one would argue that the check was worth anything less than the face value. On the other hand, a check writer may have sufficient funds in his account when the check is written, but the check could still bounce if the account has been depleted by the time the check is presented to the bank.

Moreover, even if the check writer's account contains insufficient funds, the bank may honor the check anyway, either because it has an overdraft protection agreement with the account holder or because the bank simply has a policy of cashing checks up to a certain amount and seeking reimbursement (plus service fees) from the account holder. Are we prepared to distinguish between checks that have value and those that do not based solely upon the insufficient funds policy of a particular bank? And what if a bank's decision to honor or not honor a particular check is arbitrary?

All of these factors have nothing to do with the intent, or the reasonable expectations, of someone who accepts a check. Instead of developing an intricate set of rules for determining a check's value, we should recognize what our economic system generally presupposes: the face value of the check is the value of the check. I would overrule cases holding to the contrary.

With these comments, I concur in the Court's judgment.

Date filed: July 2, 2003


1. Jackson v. Virginia, 443 U.S. 307 (1979).

2. Brown v. State, 97 Tex. Crim. 452 (1924).