Summary
upholding aggregation of thefts when evidence showed that defendant had sole access to bank deposit slips necessary to commit 148 instances of theft from his employer
Summary of this case from Agbeze v. StateOpinion
No. 14-07-00933-CR
Opinion filed April 2, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 339th District Court Harris County, Texas, Trial Court Cause No. 1048824.
Panel consists of Justices FROST, BROWN, and BOYCE.
MEMORANDUM OPINION
Appellant Paula Keck appeals her conviction for aggregate theft of $200,000 or more, challenging the sufficiency of the evidence and claiming ineffective assistance of counsel at trial. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant worked for American Residential Services in the accounting department. Money flowed into the company in the following manner: technicians with the company would return from a repair job and log information about the repair. The technicians slipped sealed, tamper-proof envelopes containing money and customer invoices into a locked vault located in the accounting department. Accounting personnel then inventoried the envelopes to verify that the amount of money and checks within each envelope matched the invoices. Upon verification that the money (currency and checks) matched the invoices, accounting personnel generated a batch report, which could not be altered after it was generated. Accounting personnel then took the money and batch report to appellant, who used the batch report, money, and checks to prepare bank deposits in sealed bags. A deposit slip for each deposit itemized the contents of the deposit. The total on the batch report had to match the bank deposit slip total. The bank deposits were stored in a locked cabinet to which appellant and several others had a key. Daily, an armored car courier would retrieve the deposits and sign the company's receipt book, acknowledging the pick-up. The courier then would deliver the deposit to the bank, where the deposit would be verified. If the bank discovered an error, the bank would notify the company. Appellant handled the bank reconciliations and entered the information in the company's general ledger. Three people, including appellant, had authority to take corrective action and make journal entries in the general ledger to reconcile the cash balance between accounting records and the bank balance. In late 2002, the company conducted an internal audit of the Houston office accounting records. The auditors initially uncovered problems with incomplete bank reconciliations. In the company's investigation, auditors researched forty-eight months of bank statements and every itemized detail of every deposit made for four years, from April 1999 to February 2003. Auditors researched the bank statements, batch reports, deposit slips, and journal entries to compare the information to the bank reconciliation and general ledger. The examination revealed that the company was missing $930,000. The company reported the loss to the State for prosecution. In preparation for prosecution, the company ordered copies of every check deposited and compared every check to every batch report. The auditors uncovered several theft schemes which involved inaccurate deposit slips. The audit revealed that numerous bank deposit slips had been altered and, on a regular basis, cash had been removed from the deposits in a "lapping" scheme. Over the course of 148 transactions, deposits were made using deposit slips denoting the correct amount of the deposit; however, the corresponding items within the deposit did not match items listed on the deposit slip. Rather, the cash was removed from the deposit and replaced with checks to cover the amount of missing cash. By tracking the "revenue flow" to the company after the batch reports were generated, auditors ruled out other potential suspects. Investigators determined that only appellant had access to the deposits. A fraud examiner with the Harris Count District Attorney's Office investigated the case. Based on appellant's bank records, the fraud examiner believed appellant may have paid her bills with cash, because the records did not reflect regular activity at regular intervals. According to the examiner, between December 1998 through July 2003, appellant deposited more than $68,435 in cash to her bank account; the deposits appeared to coincide with large expenditures. The examiner believed the large deposits were not consistent conduct for someone who received income from a legitimate job with payments at regular intervals. At trial, the examiner confirmed that no evidence of the technician's invoices was necessary to track the scheme because the scheme dealt only with money received by the company after the batch reports were generated. In following the flow of revenue, the examiner ruled out other suspects because of the batch report and deposit slips: once a deposit ticket is made that matches the amount on a batch report, the deposit is then entered into the company's records and no one other than appellant had access to the money. According to the examiner, if money had been taken after the deposit slip was made, the checks from other various deposits could not have been pulled from the lockbox where appellant kept the money and deposit slips. Ultimately, the examiner determined three ways that money was missing: (1) whole deposits did not go to the bank; (2) deposits were made where checks replaced removed currency; and (3) deposits were made without currency. Appellant was charged with aggregate theft, to which she pleaded "not guilty." A jury trial followed in which the jury found appellant guilty. The trial court sentenced appellant to thirty-five years' confinement and levied a $10,000 fine. Appellant now challenges her conviction.II. ISSUES AND ANALYSIS
A. Is the evidence legally and factually sufficient to support appellant's conviction? In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). The issue on appeal is not whether we, as a court, believe the State's evidence or believe that appellant's evidence outweighs the State's evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App. 1991). The jury, as the trier of fact, "is the sole judge of the credibility of the witnesses and of the strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether we are able to say, with some objective basis in the record, that a conviction is "clearly wrong" or "manifestly unjust" because the great weight and preponderance of the evidence contradicts the jury's verdict. Watson v. State, 204 S.W.3d 404, 414-17 (Tex.Crim.App. 2006). It is not enough that this court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence, and this court cannot declare that a conflict in the evidence justifies a new trial simply because it disagrees with the jury's resolution of that conflict. Id. at 417. If this court determines the evidence is factually insufficient, it must explain in exactly what way it perceives the conflicting evidence greatly to preponderate against conviction. Id. at 414-17. Our evaluation should not intrude upon the fact finder's role as the sole judge of the weight and credibility given to any witness's testimony. See Fuentes, 991 S.W.2d at 271. A person commits the offense of theft if that person "unlawfully appropriates property with intent to deprive the owner of the property." TEX. PENAL CODE ANN. § 31.03(a) (Vernon Supp. 2008). Appropriation of property is unlawful if it is "without the owner's effective consent." Id. § 31.03(b)(1). A theft is a first-degree felony offense if the value of the property stolen is $200,000 or more. Id. § 31.03(e)(7). When, as in this case, the amounts are obtained by theft "pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense." Id. § 31.09 (Vernon 2003) (governing aggregation of amounts involved in theft). In this case, the incidents of theft were well-documented over several hundred transactions, showing how the bank deposits did not correspond to items listed in the deposit slips. See Green v. State, 880 S.W.2d 797, 800 (Tex.App.-Houston [1st Dist.] 1994, no pet.); see also Harrell v. State, 834 S.W.2d 540, 543 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd) (connecting the accused to eighty-three incidents). Between April 1999 and February 2003, the company suffered a loss of $930,000 as a result of numerous altered bank deposit slips without the company's consent. Multiple witnesses testified that only appellant had the access to the bank deposits necessary to effect the theft, sufficiently connecting appellant to each transaction. See Green, 880 S.W.2d at 800 (connecting the accused to each incident in some way); see also Reuter v. State, No. 01-04-00936-CR, 2006 WL 348146, at *3 (Tex.App.-Houston [1st Dist.] Feb. 16, 2006, no pet.) (mem. op., not designated for publication). The fraud examiner explained how she foreclosed the possibility of other potential suspects by focusing on the batch report amount and the bank deposit slips. The fraud examiner testified that even if someone else had access to the bank deposits, if money were taken out, checks from various other deposits could not have been placed in the deposit because they were locked in a box. Appellant points to the following conflicting evidence that she claims renders the evidence legally and factually insufficient because she argues this evidence cannot be reconciled with a "guilty" verdict:$ Testimony from the defense expert who opined that the scheme involved revenue fraud arising from inflated invoices, fraudulent invoices, fraudulent entries in the computer system, and the underlying records that were purposefully destroyed
$ Testimony from Gary Leuck, an assistant comptroller, that no "tech log" documentation exists to support a claim for missing cash
$ Leuck's testimony that from 1999 to 2003, the bank reported no significant discrepancies in bank reconciliation that raised concern
$ Leuck's testimony that he never conversed with Wayne Mardis, appellant's supervisor, about appellant's reconciliation work
$ No handwriting expert testified regarding the handwriting on the bank deposit slips, and the acknowledgment that the company did not hire a handwriting expert
$ None of the missing funds were traced to appellant, coupled with undisputed evidence that she had no "undisclosed assets," accordingly, there was no "smoking gun"
$ The defense expert's testimony of another compelling alternative theory of another thief, Wayne Mardis, who had control over all of the necessary accounting functions to perpetrate fraud
$ Undisputed evidence of nine alterations of accounting records by Mardis after appellant left the company
$ Thefts from the bank deposits occurred on days when appellant was not in the office, according to the company's own time recordsAppellant points to evidence of an alternative hypothesis that Mardis committed the theft as "revenue fraud," but the existence of an alternate hypothesis is not determinative. See Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999); Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Although appellant's expert testified to his belief that Mardis committed the theft, the fraud examiner explained how she ruled out Mardis and others as suspects. Moreover, the examiner uncovered the theft schemes by following the revenue flow from the batch reports and deposits, and the defense expert agreed that a "lapping" scheme existed. It is the jury's role as factfinder to consider the credibility of the witnesses and determine the weight to give their testimony. Cain v. State, 958 S.W.2d 404, 407 n. 4(Tex.Crim.App. 1997). Similarly, it is within the jury's province to accept or reject an alternative hypothesis. See Goodman, 66 S.W.3d at 287. We presume the jury resolved conflicts in the evidence in favor of the prevailing party. See Turro, 867 S.W.2d at 47. Appellant complains that no "tech log" documentation supports a theory of missing cash and her supervisors did not present concerns about her work between 1999 and 2003. However, the tech logs were not necessary to support appellant's conviction in light of (1) evidence of altered deposit slips and bank deposits, which were based on the batch report amount, and (2) testimony that once the technicians turned in money, the amount was applied to each batch report and given to appellant along with the cash. Furthermore, the fraud examiner explained that any missing "tech logs" were not an obstruction to her investigation. The jury was free to believe or disbelieve this testimony. See Sharp, 707 S.W.2d at 614. Appellant has not demonstrated how any of this evidence affects the sufficiency of the evidence presented. See Wilson, 7 S.W.3d at 141. As for appellant's complaint that no handwriting expert verified the handwriting on the deposit slips, appellant's long-time supervisor confirmed that the handwriting on the deposit slips belonged to appellant. Handwriting may be properly authenticated by way of non-expert testimony as to its genuineness based upon the non-expert's familiarity of the handwriting acquired independently of the litigation. See TEX. R. EVID. 901(b)(2). Furthermore, authorship may be established circumstantially, as in this case, with testimony that only appellant had access to the bank deposits. See Soria v. State, 933 S.W.2d 46, 60 (Tex.Crim.App. 1996) (requiring only a sufficient connection to establish that a drawing without a signature found in the accused's cell proved the accused was the author or creator); see also Reuter, 2006 WL 348146, at *3 (providing that circumstantial evidence is enough to support the jury's verdict even absent handwriting analysis). Although appellant complains that some of the thefts occurred on days when she was not at the company, the jury heard testimony that appellant may have initiated a transaction on one day, but the deposit at the bank may have occurred on a different day for a number of reasons, such as the courier was late picking up the deposits. Furthermore, appellant's own expert explained that appellant often signed courier slips before a pick-up to save time. As a result, the jury was free to determine the weight and credibility such testimony held. See Cain, 958 S.W.2d at 407. Finally, even though appellant claims there was no "smoking gun" in that none of the funds were traced to her, lack of direct evidence does not render the evidence insufficient. See Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999). Other evidence suggested that large cash deposits in appellant's bank account coincided with large expenditures and that she may have paid her personal bills in cash. Appellant's own son testified that appellant gambled and he was unsure how much she gambled. Having reviewed the record evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found appellant guilty of the elements of aggregate theft beyond a reasonable doubt. See McDuff, 939 S.W.2d at 614; Green, 880 S.W.2d at 800; see also Reuter, 2006 WL 348146, at *4. Furthermore, in evaluating the evidence in a neutral light, we cannot say with some objective basis in the record, that appellant's conviction is "clearly wrong" or "manifestly unjust" or that the great weight and preponderance of the evidence contradicts the verdict. See Watson, 204 S.W.3d at 414-17; see also De la Fuente v. State, 264 S.W.3d 302, 319-20 (Tex.App.-San Antonio 2008, pet. ref'd) (concluding evidence was factually sufficient to support aggregate theft conviction). Therefore, we conclude the evidence is legally and factually sufficient to support the conviction, and we overrule appellant's first issue. B. Did appellant receive ineffective assistance of counsel? In her second issue, appellant complains she received ineffective assistance of counsel, alleging numerous errors committed by her trial counsel in the guilt-innocence phase and the punishment phase of trial. Appellant stated in her appellate brief that the record is "only slightly developed which might go to show any deficient performance on the part of trial counsel." As such, appellant indicates that based on the record presented, she is unable to meet the first prong of the Strickland standard, stating "the first prong of the Strickland standard test has clearly not been met." See Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984) (setting forth two-pronged standard to prove ineffective assistance of counsel). Appellant has informed this court of her intention to seek recourse via an application for writ of habeas corpus. The State argues that this issue should be overruled, "[b]ecause Appellant admits she has no grounds for her ineffective assistance of counsel claim." To the extent appellant is urging any ineffective-assistance claim in this appeal, appellant has failed to adequately brief the issue. To present an issue for appellate review "the brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(h). Appellant has not cited any authority in support of her complaints of deficient counsel. See Cardenas v. State, 30 S.W.3d 384, 393 (Tex.Crim.App. 2000). In her brief, appellant sets forth the standard of review and classifies her counsel's conduct as erroneous in numerous instances at trial, but conclusory statements containing no citations to authority present nothing for appellate review. King v. State, 17 S.W.3d 7, 23 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd); see also Vuong v. State, 830 S.W.2d 929, 940 (Tex.Crim.App. 1992). Accordingly, we hold that to the extent appellant is urging an ineffective-assistance claim in this appeal, she has waived error. We overrule appellant's second issue. Having overruled appellant's two issues on appeal, we affirm the trial court's judgment.