Opinion by Justice Burgess.
Erica Lynn Fuller was convicted by a jury of theft of property having a value of $1,500.00 or more but less than $20,000.00 from Thomas Hughes. See Act of May 29, 2011, 82d Leg., R.S., ch. 1234, § 21, sec. 31.03(e)(4)(A), 2011 Tex. Gen. Laws 3302, 3310-11 (amended 2015) (current version at TEX. PENAL CODE ANN. § 31.03(e)(4)(A)) (West Supp.2015)). On Fuller's motion, the trial court entered a judgment notwithstanding the verdict, finding Fuller not guilty of the charged offense.
Brentwood Terrace (Brentwood) is a nursing and rehabilitation center in Paris, Texas. Fuller was Brentwood's bookkeeper. As part of its operation, Brentwood maintained two bank accounts, a trust account and an operating account. The two accounts were maintained and accounted for separately by separate employees. Brentwood maintained and accounted for the trust account on behalf of its residents, and it maintained and accounted for the operating account on its own behalf.
Fuller was responsible for making deposits into both accounts. Brentwood required funds intended for payment of residents' room and board expenses to be deposited into the trust account and then
The State's theory of liability was simple: Fuller stole cash intended for deposit into the trust account for transfer to the operating account, and she covered up that theft by transferring resident Hughes' money from the trust account to the operating account.
As noted previously, Brentwood utilized two bank accounts. The trust account was maintained at a local bank in Paris, Texas.
The majority of deposits into the trust account were made to provide residents funds to spend on personal items such as refreshments, haircuts, and miscellaneous items. Yet, the residents and their family members did not deposit funds directly into the trust account. Instead, all trust account deposits were delivered to Brentwood receptionist Angie Whipkey. Whipkey would provide the depositor with a receipt indicating the date received and whether the funds were received by cash or check. Whipkey would then place checks and cash she received into a deposit bag she kept under her desk. She would deliver the deposit bag to Fuller during her lunch hour to be placed in a locked filing cabinet located behind Fuller's desk. At the end of the day, Fuller was responsible for depositing trust account monies into Brentwood's locally maintained trust account.
The majority of deposits by or on behalf of residents into the operating account were to cover room and board expenses. Fuller deposited these items into the operating account for payment of room and board expenses in different ways, depending upon the form of payments. Some residents' room and board payments were directly deposited into the Brentwood operating account by agencies of either the State or federal government. Other residents (or their family members) would deliver
When room and board payments were made in person, Fuller deposited the funds into the operating account in one of two ways. In some instances, Fuller deposited the funds into the operating account electronically. To accomplish the electronic deposits, Fuller converted the cash into money orders, scanned the checks and money orders, and then electronically deposited the scanned images into the operating account. In other instances, Fuller deposited the cash or checks into the trust account and then transferred that money from the trust account to the operating account in payment of the residents' room and board.
The procedure for transferring funds for room and board from the trust account to the operating account involved several steps. First, Fuller deposited funds into the trust account as described above. She then prepared a trust account check disbursement form reflecting trust account deposits made on behalf of each resident, with a total of all such payments listed at the bottom of the sheet. Then, she issued one trust account check, for the total of all trust account deposits for room and board fees (or other accounts receivable) to Brentwood. After having been signed by the proper party,
The Brentwood accounting system contained two sets of records. One set of records was kept for the trust account and another was kept for the operating account. The two sets of records were kept on the same computer system, but were accessed by separate log-in identifications and passwords. Fuller was in charge of maintaining the trust account records, and Neisler was responsible for maintaining the operating account records. Brentwood kept responsibility for each account separate so that there would be no overlap. Thus, although Fuller could make deposits into both accounts, she could not transfer funds from the trust account to the operating account by herself because she could not sign the trust account check that was deposited into the operating account. Moreover, once the funds were transferred to the operating account, Fuller no longer had access to them.
During a December 2010 audit, the Texas Department of Aging and Disability Services (the Department) discovered that the petty cash fund was short.
As part of her investigation, Miller audited Hughes' account. Hughes' bill for room and board — which averaged $3,500.00 per month — was paid in full each month by Medicaid. These funds were electronically deposited directly into the operating account by the state comptroller. Consequently, no transfers from the trust account to the operating account were necessary to pay Hughes' room and board. In June 2010, Hughes received a lump-sum, retroactive payment for social security disability benefits in the amount of $8,346.82. Because Hughes' room and board fee was paid monthly by Medicaid, this disability check was appropriately deposited into the trust account for Hughes' personal use.
In July 2010, two cash payments were received on behalf of two other residents for room and board. Whipkey issued a receipt dated July 6, 2010, reflecting a $2,031.00 cash payment from resident Boswell for rent. Whipkey issued a second receipt dated July 9, 2010, reflecting a $1,416.84 cash payment from resident D. Lawler for rent. Because each of these payments were for room and board, they were ultimately intended for deposit into the operating account.
Yet, Miller discovered that the Lawler payment of $1,416.18 and the Boswell payment of $2,031.00 were not listed on any of the trust account deposit slips completed by Fuller for the month of July 2010. Based on Miller's audit, there was no indication that the Lawler and Boswell payments were ever deposited, either by cash or by check, into the Brentwood trust account at the local bank. Likewise, there is no record reflecting that either of these payments was converted into a money order for direct electronic deposit into the operating account, and the operating account does not reflect any deposits of the Boswell and Lawler payments. Consequently, while the records established receipt of the Boswell and Lawler payments, no record shows that those funds were deposited in either the trust account or the operating account.
Despite the absence of any records showing that the Lawler and Boswell funds were deposited into the operating account, the trust account check disbursement log created by Fuller, dated July 16, 2010, nevertheless reflects a payment by Boswell in the amount of $2,031.00 and a payment by Lawler in the amount of $1,416.84. The disbursement log also reflects
Thus, while there was no record of any deposit of funds into the trust account reflecting the Lawler and Boswell payments, the disbursement log's total of $23,278.81 included these amounts. Consequently, Lawler and Boswell were credited for their July room and board payments, even though the funds delivered to make these payments were never deposited into the trust account. Miller testified that when a trust account check includes money that was never deposited, there is a loss of funds in the trust account.
The trust account transactions list, created by Fuller, also reflects a room and board payment by Hughes on July 16, 2010, in the amount of $3,447.84. The July 16, 2010, Hughes payment and the corresponding deduction from Hughes' trust account are suspect because (1) Hughes did not owe a room and board payment at that time, (2) Hughes had a large amount of discretionary funds in his trust account, and (3) the total amount debited from Hughes' account — $3,447.84 — equals the sum of the Lawler payment of $1,416.84 and the Boswell payment of $2,031.00. Miller testified that she believes Fuller accounted for the missing trust account deposits by transferring an equal amount of funds from Hughes' trust account to the operating account for fees he did not owe.
Miller also identified a cash deposit made on behalf of resident Ballard in the amount of $137.50. The receipt drawn by Whipkey is dated December 6, 2010. The quality of the receipt is poor, and there was no testimony regarding the intended use of that money. Yet, the December 27, 2010, trust account check disbursement log created by Fuller reflects a payment by Ballard in the amount of $137.50. The disbursement log likewise reflects various payments made on behalf of other residents. The total of all such payments, as reflected on the disbursement log, was $4,155.35. Fuller wrote a check in that amount to Brentwood, dated December 27, 2010, for deposit into the operating account. Accordingly, although there was no record of any deposit of funds reflecting Ballard's payment, the disbursement log's total of $4,155.35 included the $137.50, as did the deposit to the operating account.
The trust account transactions list, created by Fuller, reflects a "personal spending" deduction from Hughes' trust account on December 27, 2010, in the amount of $137.50. So, on December 27, 2010, Fuller directed the transfer of $137.50 from the trust account to the operating account, and on that same day, a deduction in that same amount was made by Fuller from Hughes' personal funds. Yet, there was no deduction made from Ballard's trust account for this amount.
After hearing all the evidence at trial, the jury found Fuller guilty of theft of more than $1,500.00 and less than $20,000.00 as charged in the indictment. The trial court then entered its judgment notwithstanding the verdict acquitting Fuller of the charges. The State timely filed this appeal.
"Where the trial court, as in this case, enters a judgment notwithstanding the verdict, we treat it as the functional equivalent of an order granting a motion for new trial for insufficient evidence." In re State, 2015 WL 545838, at *1 (citing Savage, 933 S.W.2d at 499). "A motion for new trial based on insufficiency of the evidence presents a legal rather than a factual question, and the trial court must apply the same legal test as that employed by the appellate court." State v. Savage, 905 S.W.2d 272, 274 (Tex.App.-San Antonio 1995), aff'd, 933 S.W.2d 497; see also State v. Chavera, 386 S.W.3d 334, 336 (Tex.App.-San Antonio 2012, no pet.). "The trial court must decide, after viewing the evidence in the light most favorable to the verdict, whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt." Savage, 905 S.W.2d at 274; see also Chavera, 386 S.W.3d at 336. "If the evidence meets the standard, it is an abuse of discretion for the trial court to grant the motion for new trial." Savage, 905 S.W.2d at 274.
In evaluating legal sufficiency in this case, we must review all the evidence in the light most favorable to the jury's verdict to determine whether any rational jury could have found, beyond a reasonable doubt, that Fuller committed the offense. See Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex.App.-Texarkana 2010, pet. ref'd) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007)). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007) (citing Jackson, 443 U.S. at 318-19, 99 S.Ct. 2781).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). The hypothetically correct jury charge "sets out the law,
Under the general theft statute Fuller was charged with violating, the State had the burden to establish that (1) Fuller, (2) with intent to deprive Hughes of property, (3) unlawfully appropriated property (4) without the effective consent of Hughes. See Act of May 29, 2011, 82d Leg., R.S., ch. 1234, § 21, sec. 31.03(e)(4)(A), 2011 Tex. Gen. Laws 3302, 3310-11 (amended 2015).
Fuller first maintains that the record fails to demonstrate that she appropriated funds belonging to Hughes. Fuller reasons that because she merely transferred funds from the trust account into the operating account and because she had no access to the funds after the transfer, she could not have appropriated funds belonging to Hughes. Indeed, the testimony developed at trial established the fact that once Fuller transferred funds from the trust account to the operating account, she had no further access to the funds. Only Neisler or a corporate representative had access to the funds in the operating account. Moreover, the funds Fuller transferred from Hughes' trust account to the operating account were still intact in the operating account when the audit was conducted. Ultimately, Brentwood paid the missing funds back into Hughes' trust account. Fuller thus maintains that "Hughes' funds were never taken by Fuller. These funds were at all times in [Brentwood's] operating account and never accessed by Fuller."
The issue, however, is not whether Fuller physically pocketed Hughes' funds. The issue is whether Fuller unlawfully appropriated those funds. "Appropriate" means "to acquire or otherwise exercise control over property other than real property," TEX. PENAL CODE ANN. § 31.01(4)(B) (West Supp.2014), and has been interpreted to mean "any `exercise of control over' the personalty in question." McClain v. State, 687 S.W.2d 350, 353 n. 7 (Tex.Crim.App.1985) (quoting Act of June 2, 1975, 64th Leg., R.S., ch. 342, § 9, 1975 Tex. Gen. Laws 912, 914 (amended 1985, 1993, 1997, 2003, 2011) (current version at TEX. PENAL CODE ANN. § 31.01(4)(B))). Consequently, appropriation encompasses conduct that does not involve possession. Gorman v. State, 634 S.W.2d 681, 683 (Tex.Crim.App.1982). "[T]he crucial element of theft is the deprivation of property from the rightful owner, without the owner's consent, regardless of whether the defendant at that moment has taken possession of the property." Stewart v. State, 44 S.W.3d 582, 588 (Tex.Crim.App.2001) (en banc).
In Stewart, the defendant threatened to release nude photographs of the complainant unless she paid him $5,000.00 within forty-eight hours. Id. at 584. As a part of a sting operation, the complainant delivered money to a detective in the Conroe Police Department, who then had the funds delivered to the defendant at his home. Stewart was arrested as he was leaving his home with the money in hand. Id. The issue before the court was the time at which the theft was complete: the time the complainant transferred the money to the authorities because of Stewart's threats or the time at which Stewart received the funds. Id. at 585. The Court of Criminal Appeals held that even though
Here, Fuller exercised control over Hughes' funds by transferring those funds to the operating account to conceal her actions in failing to deposit cash delivered to Brentwood on behalf of residents Lawler, Boswell, and Ballard. Miller testified that the sums of $1,416.84, $2,031.00, and $137.50 were never deposited into the trust account at the local bank. Fuller was the person responsible for making those deposits. Miller further testified that money from Hughes' trust account was used to pay Brentwood's operating account for the missing deposits and that, as a result, the funds were not available for use by Hughes.
The documentary evidence substantiates Miller's testimony. The State produced copies of resident receipts for the missing sums of money. Bank deposit records for the months of July and December 2010 — the months the funds at issue were received by Brentwood — do not reflect deposits of the money documented as having been received by Brentwood. Yet, trust fund check disbursement records created by Fuller and checks written by Fuller indicate that the missing sums were paid into the operating account and were allocated to the residents on whose behalf they were delivered to Brentwood.
Finally, and key to our determination that Fuller exercised control over Hughes' funds, are trust fund transaction list entries — also created by Fuller — which reflect deductions from Hughes' trust account for the non-deposited funds. The date of each deduction coincides with the date that Fuller created the trust fund check disbursement records. Consequently, Hughes' trust fund account records indicate that his trust account balance was $8,864.52 on July 7, 2010. The account balance dropped to $5,416.68 on July 16, 2010, after a deduction by Fuller of $3,447.84 for a room and board payment Hughes did not owe.
Fuller also points out a number of flaws in the receipting system as well as apparent flaws in Miller's audit. The jury was presented with detailed testimony regarding those matters, and we must defer to their weighing of the evidence and resolution of any conflicts in the testimony. Hooper, 214 S.W.3d at 13. We find that the evidence was legally sufficient to establish that Fuller unlawfully appropriated Hughes' property.
Fuller further contends that because she merely transferred funds from one account to another and because Hughes' trust account was appropriately credited in the end, she could not have intended
The evidence is that Fuller failed to deposit cash funds delivered to her on behalf of residents Lawler, Boswell, and Ballard. She then attempted to hide this fact by diverting funds from Hughes' trust account and crediting those funds to Lawler, Boswell, and Ballard. This was done on more than one occasion. Hughes' trust account balance dropped each time Fuller deducted funds not owed by Hughes from that account. A rational fact-finder could have inferred that Fuller acted with intent to deprive Hughes of his trust account funds.
After considering the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have concluded beyond a reasonable doubt that Fuller appropriated the funds from Hughes' account with the intent to deprive Hughes of those funds. Accordingly, we find that the evidence is legally sufficient to support Fuller's conviction of theft.
State v. Savage, 933 S.W.2d 497, 499 (Tex. Crim.App.1996) (citations omitted). We thus determined that "although the trial court mislabeled its order, it was within its authority to enter the judgment of acquittal." In re State, 2015 WL 545838, at *1. Accordingly, the State had an adequate appellate remedy. "Since the trial court's order is a post-judgment ruling, appellate review of its legal sufficiency evaluation is constitutionally permissible." Id. at *2 (citing Savage, 933 S.W.2d at 500). Further, the time for a direct appeal by the State had not expired when we issued that opinion. Id.; see TEX. CODE CRIM. PROC. ANN. art. 44.01(d) (West Supp.2014).
