¶1concurring.
¶2The opinion of the Court is correct in concluding that where the “act” part of “conduct” is acquisitive in nature §§ 31.03 (theft) and 32.32 (false statement) are not in pari materia: because the latter offense does not require actual acquisition at all, it is not merely a “specific instance” of unlawful acquisitive conduct denounced in the former.
¶3In this connection, the Court relies rather heavily on Mills v. State, 722 S.W.2d 411 (Tex.Cr.App.1986). Having written the opinion in that cause, I have reflected on the manner in which the Court now analogizes from the excerpt at page 5, Slip Opinion, and I believe that in Millsinstead of what was said, we could have stated certain particulars in our analysis more precisely, viz:
“_ When relevant at all in a prosecution for theft, however, ‘deception’ goes to ‘nature of conduct’ and operates to render otherwise apparent consent ‘ineffective,’ thereby creating a ‘circumstance surrounding the conduct.’ Sec. 31.-01(4)(A), supra.... But the deception is not in itself the ultimate ‘forbidden conduct’ under Sec. 31.03, supra.
By contrast, in Sec. 32.46, supra, the ‘nature of conduct’ is ‘deception’ with intent to defraud or harm any person, and as such the offense is complete when it ‘causes another’ to sign or execute any prescribed document. … ”
¶4Accordingly, in my reflective view, “similar analogy” drawn by the Court in the instant cause would more accurately read:
“_ In Section 31.03, supra, the deception in theft by false pretext, while going to ‘nature of conduct,’ becomes part and parcel of ‘circumstances surrounding the conduct’ of the accused so as to render consent to the particular appropriation of property ineffective and to provide his knowledge that it was, in fact, ineffective. The false pretext is the method of proving ineffective consent to the appropriation of property, but the false or misleading statement vitiating effective consent is not the ultimate ‘forbidden conduct’ under Section 31.03.
By contrast, the ‘nature of conduct’ in Section 32.32, supra, is intentionally or knowingly making a materially false or misleading written statement, and when made to obtain property or credit becomes the ultimate ‘forbidden conduct.’ In other words, the offense is complete once the written, deceptive statement relevant to obtaining property or credit is made, even if the perpetrator is not successful in obtaining the property or credit as a result of his written deception. That the ‘nature of conduct’ in Section 32.32 may be similar to that which contributes to ‘circumstances surrounding the conduct’ in Section 31.03 does not make them in pari materia because in the latter property must be actually ‘acquired.’ ”
¶5With those observations and suggestions, I join the judgment of the Court.