Underwood v. State

Full title: KELLI LEA UNDERWOOD, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 7, 2008

No. 05-06-01589-CR (Tex. App. Aug. 7, 2008)

Opinion

No. 05-06-01589-CR

Opinion issued August 7, 2008. DO NOT PUBLISH Tex. R. App. P. 47

On Appeal from the 363rd Judicial District Court Dallas County, Texas, Trial Court Cause No. F06-00329-VW.

Before Justices MORRIS, WRIGHT, and MOSELEY.

OPINION

Opinion By Justice MOSELEY.

A jury convicted Kelli Lea Underwood of aggregated theft of property of the value of $20,000 or more but less than $100,000. The trial court assessed punishment of ten years' confinement and an $800 fine, and also ordered restitution of $63,000 as a condition of parole. Underwood brings eleven issues on appeal: the evidence is legally and factually insufficient to support the verdict; the trial court erred in denying her motion to quash the indictment because she was denied notice as to consent and aggravated acts; the trial court improperly denied her requested charge defining "effective consent"; the trial court erroneously denied her motion for mistrial when the State elicited testimony regarding an extraneous offense; certain evidence was erroneously admitted; the trial court erred in certain rulings regarding closing arguments; the restitution is excessive; and the cumulative effect of the trial court's errors warrants reversal. For the reasons that follow, we resolve Underwood's issues against her and affirm the trial court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

The indictment alleged that Underwood:

on or about and between the 16th day of August, A.D., 2004 and the 4th day of November, A.D., 2005, . . . did, pursuant to one scheme and continuing course of conduct, unlawfully, knowingly and intentionally, appropriate property, namely, acquire and exercise control over property other than real property, to wit: money, the aggregate value of which was $20,000 or more but less than $100,000, without the effective consent of Complete Tire, Inc., the owner of the said property, in that there was no consent given and with intent to deprive the said owner of the said property.

Underwood moved to quash the indictment on grounds that specific dates and detailed amounts were not set forth and that, based on the likely assertion of consent by the defendant, the indictment should have alleged which of the statutory negatives rendered consent ineffective.¹ The trial court denied Underwood's motion. Samuel P. Jolley III, the owner and operator of Complete Tire, Inc., testified he hired Underwood as the company's office manager in June or July 2004. She was responsible for accounts payable, accounts receivable, bank deposits, and some collections, or, as Jolley described it: "the total office clerical portions of running the business." She prepared checks for Jolley's signature, but she did not have any signing authority on the business accounts. Jolley testified he never gave Underwood permission to sign any Complete Tire, Inc. checks. Jolley fired her in November 2005 for tardiness, absences, and not keeping up with the work. After a new office manager was hired, neither she nor Jolley could find bank statements and other paperwork, including checks and invoices. Jolley obtained some of these missing items from the bank, and eventually others were found in Underwood's home and returned to Jolley. Jolley testified Underwood forged his signature on checks drawn on the company's bank account that were made out to him, Underwood, and petty cash, cashed the checks, and kept the money. There were also company checks to Office Depot Credit Plan; Jolley testified Underwood forged his signature on these checks without his consent or knowledge. Cancelled checks were introduced into evidence. Exhibit 87 was a spreadsheet listing eighty-two checks made out to Jolley, Underwood, petty cash, and Office Depot Credit Plan, totaling $61,741.20. The first check on Exhibit 87 is dated August 16, 2004, and the last one is dated November 4, 2005. In addition, there was evidence of automated clearing house (ACH) funds transfers from the business's bank account to Office Depot that Jolley had not authorized, totaling $1212.21. Statements of Complete Tire, Inc.'s credit account with Office Depot showed purchase of a computer and a cash register that Jolley had not authorized, were not used at the business, and were recovered from Underwood's home. Jolley also testified that, charged to the company account at Office Depot, were other items that were found in and recovered from Underwood's home. Also, a negotiated check and the company's check register showed a check to Underwood for the purchase of truck tires in the amount of $1120, a sale Jolley testified never happened. In sum, this evidence indicates just over $64,000 in funds and items were taken. Jolley testified Underwood balanced his personal checkbook part of the time. He also testified that, on at least one occasion, he gave his driver's license to Underwood and asked her to deposit his payroll check in his personal account. On another occasion, he may have asked her to deliver $100 from petty cash to him away from the office. Underwood did not testify. The jury convicted Underwood, and her motion for new trial was overruled by operation of law. This appeal followed.

II. EFFECTIVE CONSENT

Three of Underwood's issues concern effective consent.

A.

Motion to Quash Indictment In her first issue, Underwood argues the trial court erred in denying her motion to quash the indictment because the indictment failed to specify one of the negatives to consent, depriving her of notice.

1.

Standards of Review and Applicable Law The adequacy of an indictment is a question of law, and thus is subject to de novo review. See Lawrence v. State, 240 S.W.3d 912, 915 (Tex.Crim.App. 2007), cert. denied, 128 S. Ct. 2056 (2008); State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App. 2004). A motion to quash should be granted only where the language concerning the defendant's conduct is so vague or indefinite as to deny the defendant notice of the acts he allegedly committed. Mungin v. State, 192 S.W.3d 793, 795 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (citing DeVaughn v. State, 749 S.W.2d 62, 67 (Tex.Crim.App. 1988)). Ordinarily, an indictment is of legally sufficient specificity if it tracks the words of the statute defining the offense. Moff, 154 S.W.3d at 602. A person commits theft if she unlawfully appropriates property with intent to deprive the owner of property. Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2008). As relevant here, "appropriate" means "to acquire or otherwise exercise control over property other than real property." Id. § 31.01(4) (Vernon Supp. 2008). Appropriation is unlawful if it is without the owner's effective consent. Id. § 31.03(b)(1).

2.

Discussion Underwood argues the indictment failed to specify, pursuant to penal code section 31.01(3), which of the negatives to effective consent listed therein rendered consent ineffective.² Underwood relies on Geter v. State, 779 S.W.2d 403 (Tex.Crim.App. 1989), in which the indictment alleged the defendant unlawfully appropriated currency "without the effective consent" of the owner. Id. at 405. The court of criminal appeals said that when the statutory term "effective consent" goes to an act or omission of the defendant and the definition provides for more than one manner or means to commit that act or omission, the State must allege the particular manner or means it seeks to establish. Id. Unlike in Geter, the indictment here alleged "there was no consent given." Thus the State did not allege, or indicate it would prove, that Underwood's appropriation from Complete Tire, Inc. was based on consent that was not effective because of one of the provisions in section 31.03(3). Therefore, the State did not need to allege that consent was ineffective in any of the situations specified in section 31.01(3). Because the trial court did not err in denying Underwood's motion to quash, we resolve her first issue against her.

B. Charge Error

The jury charge included the following definition of effective consent:

"Effective consent" includes consent by a person legally authorized to act for the owner. Consent is not effective if induced by deception or coercion or given by a person the actor knows is not legally authorized to act for the owner.

Underwood requested the submission of the following definition of effective consent in the charge: "assent in fact whether express or apparent and includes consent by a person legally authorized to act for the owner." The second part of Underwood's requested definition was included in the jury charge. In her third issue, Underwood argues the trial court erred in refusing to submit her requested charge defining effective consent.

1.

Applicable Law and Standard of Review In reviewing a charge error complaint, we determine whether error exists in the jury charge, and, if so, whether it harmed the defendant. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g). When an appellant objects, we reverse when we find "any actual harm, regardless of the degree." Anderson v. State, 11 S.W.3d 369, 374 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd).

2.

Discussion The first part of the requested definition comes from the "General Provisions" chapter of the "Introductory Provisions" of the penal code. See Tex. Penal Code Ann. § 1.07(a)(11) (Vernon Supp. 2008) (defining "consent" as "assent in fact, whether express or apparent"). This definition is not specific to any offense. The definition given by the trial court came directly from penal code section 31.01(3)(A) and (B), two of the provisions in the theft statute, as set out in footnote 2 above. See id. § 31.01(3)(A), (B). Usually, a more specific statutory definition controls over a more general one, if the two definitions have a similar purpose and cannot be reconciled. See Johnson v. State, 227 S.W.3d 180, 183 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd). Because Underwood's requested definition included a broader, rather than a more specific, definition of consent and a definition already in the charge, we conclude the trial court did not err in refusing it. See id. We resolve Underwood's third issue against her.

C.

Jury Argument During closing argument, Underwood's counsel said, "The issue here in contention is consent, effective consent. Did Mr. Jolley give [Underwood] express or apparent consent to cash those checks?" The State objected, "That is not what the law states and is not what they're charged-." The trial court sustained the objection, and, at the State's request, instructed the jury to disregard the last comment. Underwood's counsel then said, "You know what consent is. Use your common sense." The State objected, "There is a definition of consent in the [c]harge they are supposed to follow." The trial court instructed the jury, in part, "Members of the jury, I have given you the law, and that's what you're bound by. . . ." The trial court told the jury "there's no argument about what the law is" and they were held to the law in the charge. In her ninth issue, Underwood argues the trial court erred in sustaining the State's objection to her closing argument that "the issue here in contention is consent, effective consent."

1.

Applicable Law and Standard of Review The defendant in a criminal trial should be allowed to argue any defensive theory supported by the evidence admitted at trial. Arnold v. State, 68 S.W.3d 93, 102 (Tex.App.-Dallas 2001, pet. ref'd). Counsel may draw all reasonable inferences from the facts in evidence that are "reasonable, fair, and legitimate." Id. (citation omitted). However, an argument that misstates the law or is contrary to the court's charge is improper. Id. 2. Discussion There was no evidence that Jolley consented to Underwood's conduct as to the business checks and accounts. In addition, counsel argued a definition of consent that was not included in the jury charge. For these reasons, counsel's argument was improper. See id. Therefore, the trial court did not err is sustaining the State's objections. We resolve Underwood's ninth issue against her.

III. MOTION TO QUASH INDICTMENT: AGGRAVATED ACTS

In her second issue, Underwood contends the trial court erred in denying her motion to quash the indictment because it did not allege the specific acts of theft that were aggregated, and thus she was denied notice of the charge.

A.

Standard of Review and Applicable Law The adequacy of an indictment is a question of law, which we review de novo. Lawrence, 240 S.W.3d at 915; Moff, 154 S.W.3d at 601. "When amounts are obtained in violation [of chapter 31] 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." Tex. Penal Code Ann. § 31.09 (Vernon 2003). In a case of aggregated theft under section 31.09, the indictment must allege the "continuing course of conduct" element, but there is no pleading requirement that it include the specific acts of theft that are aggregated. Kellar v. State, 108 S.W.3d 311, 313 (Tex.Crim.App. 2003).

B.

Discussion Underwood's complaint is similar to the one made in Kellar: she lacked notice sufficient to prepare an adequate defense because the indictment failed to state "specifically each separate alleged offense of theft, by date, . . ., [and] amount,. . . ." Id. at 312. Under section 31.09, each separate theft need not be alleged if the amounts are obtained pursuant to one scheme or continuing course of conduct. Id. at 313. In that case, the condition that amounts were obtained pursuant to one scheme or continuing course of conduct is an element of the offense under section 31.09, and the State must allege in the indictment that the property was so taken. Id. The indictment here properly alleged Underwood unlawfully appropriated property "pursuant to one scheme and continuing course of conduct." See Tex. Penal Code Ann. § 31.09; Kellar, 108 S.W.3d at 313. Further, Underwood was indicted for thefts in the same category, that is, those for which no consent was given. Moreover, means other than the indictment may satisfy the constitutional right to sufficient notice so as to prepare a defense. See Kellar, 108 S.W.3d at 313. As in Kellar, the record shows the trial court granted Underwood's motion for discovery of the evidence the State intended to offer at trial, and Underwood does not contend she was denied such pretrial discovery. See id. at 313-14 (stating defendant suffers no harm when motion to quash is overruled unless she did not, in fact, receive notice of State's theory against which she would have to defend, and giving discovery history of such notice). Accordingly, we cannot say Underwood was denied sufficient notice to prepare her defense. We resolve Underwood's second issue against her.

IV. SUFFICIENCY OF THE EVIDENCE

A.

Legal Sufficiency In her fourth issue, Underwood contends the evidence is legally insufficient to support her conviction because it is premised on "incompetent evidence."

1.

Standard of Review and Applicable Law When conducting a legal sufficiency review, we consider all of the record evidence in the light most favorable to the jury's verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found the accused guilty of all of the elements of the offense beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We measure the sufficiency of the evidence against the hypothetically correct jury charge authorized by the indictment. See Fuller v. State, 73 S.W.3d 250, 254 (Tex.Crim.App. 2002) (state law measures evidentiary sufficiency against hypothetically correct jury charge encompassing statutory elements of offense as modified by charging instrument); Gollihar v. State, 46 S.W.3d 243, 255-56 (Tex.Crim.App. 2001); Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S. Ct. 87 (2007). Further, we consider all evidence, whether properly or improperly admitted, in our legal sufficiency review. Garza v. State, 213 S.W.3d 338, 344 (Tex.Crim.App. 2007). We have set forth above the applicable law on theft. See Tex. Penal Code Ann. §§ 31.01(4), .03(a), .03(b)(1), .09. If the value of the property stolen is $20,000 or more but less than $100,000, the offense is a third degree felony. Id. § 31.03(e)(5) (Vernon Supp. 2008).

2.

Discussion The record includes evidence that, between August 2004 and November 2005, Complete Tire, Inc. suffered a loss of over $64,000 due to Underwood's forging Jolley's signature on eight-two company checks (summarized by Exhibit 87) without Jolley's consent, cashing the checks, and keeping the money. There is also evidence she signed Jolley's name on a check to herself for a nonexistent sale and charged items not used at the business to the business account at Office Depot. Underwood argues the evidence is legally insufficient because Jolley testified he was "unaware of" the transactions underlying Exhibit 87 and thus had no personal knowledge of them. She argues his testimony was therefore speculative and incompetent. We disagree. In the context of the evidence, Jolley's testimony he was unaware of these checks was evidence of his lack of consent rather than being speculative or incompetent. See id. § 31.03(b)(1) (appropriation is unlawful if it is without owner's effective consent); Mueshler v. State, 178 S.W.3d 151, 156 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd) (evidence legally sufficient to support conviction for aggregate theft when complainant testified he did not give defendant consent to write checks on business account for personal needs). Having considered all of the evidence in the record including the above 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 the third degree felony offense of theft beyond a reasonable doubt. See Jackson, 443 U.S. at 319. We resolve Underwood's fourth issue against her.

B.

Factual Sufficiency In her fifth issue, Underwood contends the evidence is factually insufficient to support her conviction.

1.

Standard of Review In a factual sufficiency review, the evidence is reviewed in a neutral light rather than (as in a legal sufficiency review) in the light most favorable to the verdict. Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, and (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts, 220 S.W.3d at 524; Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). A reversal for factual insufficiency cannot occur when "the greater weight and preponderance of the evidence actually favors conviction." Roberts, 220 S.W.3d at 524 (quoting Watson, 204 S.W.3d at 417). Although an appellate court reviewing factual sufficiency has the ability to second-guess the jury to a limited degree, the review should still be deferential, with a high level of skepticism about the jury's verdict required before a reversal can occur. Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417; Cain v. State, 958 S.W.2d 404, 407, 410 (Tex.Crim.App. 1997).

2.

Discussion Underwood argues there was evidence she occasionally "took care of Jolley's personal checkbook" with his consent. However, Underwood was indicted for theft from Complete Tire, Inc., not Jolley personally. The evidence was undisputed that Jolley never gave Underwood consent to forge his signature on business checks or to charge items for her personal use to the Complete Tire, Inc. credit account at Office Depot. Underwood also argues the evidence is factually insufficient because there was evidence that a business downturn caused Jolley to make a loan to the company and Jolley was dissatisfied with the work of outside accountants. Underwood contends this evidence constitutes evidence of alternative reasonable hypotheses. The existence of an alternative reasonable hypothesis may be relevant to a factual sufficiency review, but the mere existence of such hypothesis is not determinative. See Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). It was undisputed that Underwood's forgery cost Complete Tire, Co. over $64,000 in losses. Jolley's loan would make up such a loss, not cause it. And the testimony about outside accountants suggested they did not audit Underwood's work properly, not that they appropriated any money from the business. Evaluating all of the evidence under the factual sufficiency standard, we cannot say that the verdict is clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. See Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417; Cain, 958 S.W.2d at 407, 410. We resolve Underwood's fifth issue against her.

V. EXTRANEOUS OFFENSE

The following exchange occurred as defense counsel cross-examined Jolley about what Underwood said to him when he told her she was terminated:

Q:

She threatened you, didn't she?

A:

For what? No, sir. She told me that she would probably go have a problem with prison or something like that if she — if I terminated her or a problem that she'd had in her past that I wasn't aware of. I felt terribly sorry for her.

STATE:

Excuse me, your Honor. May we approach?

DEFENSE:

May we approach?

THE COURT:

I sustain. Disregard, members of the jury.

DEFENSE:

Move for a mistrial, Judge.

THE COURT:

Denied.

In her sixth issue, Underwood contends the trial court erred in denying her motion for mistrial when the State elicited testimony regarding an extraneous offense.

A.

Standard of Review and Applicable Law We review the denial of a motion for mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). We do not reverse the trial court's ruling unless it falls outside the zone of reasonable agreement. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001). The general rule is that a prompt instruction to disregard will cure the prejudicial effect associated with an improper question and answer concerning an extraneous offense. Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000). When objectionable testimony is elicited, inadvertently or deliberately, an appellate court presumes the jury will follow instructions to disregard the evidence. Ladd, 3 S.W.3d at 567. It is well settled that testimony referring to or implying extraneous offenses can be rendered harmless by an instruction to disregard by the trial judge, unless it appears the evidence was so clearly calculated to inflame the minds of the jury or is of such damning character as to suggest it would be impossible to remove the harmful impression from the jury's mind. Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App. 1992).

B.

Discussion Underwood argues the instruction was ineffective because it was "overwhelmed" by the nature of the error. However, Underwood did not object to the instruction that was given or ask for a more specific instruction. See, e.g., Dukes v. State, 239 S.W.3d 444, 451 (Tex.App.-Dallas 2007, pet. ref'd). We cannot conclude Jolley's statement was so clearly calculated to inflame the minds of the jury or was of such damning character as to suggest it would be impossible to remove the harmful impression from the jury's mind in light of the undisputed evidence of the forgeries. See Ladd, 3 S.W.3d at 567; Kemp, 846 S.W.2d at 308. The trial court instructed the jury to disregard the testimony, and we presume the jury followed the trial court's instruction. See Ladd, 3 S.W.3d at 567. We resolve Underwood's sixth issue against her.

VI. ADMISSION OF EVIDENCE

Jolley identified Exhibits 105 and 106, two Office Depot statements showing a computer and a cash register were charged to Complete Tire, Inc., as part of the business paperwork that had been recovered from Underwood's home and returned to him. He said they were business records from Office Depot of purchases charged to Complete Tire, Inc. On voir dire, he admitted that he never saw them "personally." Underwood objected on grounds of hearsay and lack of authentication. The State then attempted to clarify its predicate. The State established through cross-examination that it was the normal, ordinary course of business for Complete Tire, Inc. to keep these records; they were sent to Complete Tire, Inc.'s post office box and received at the business; Jolly never personally saw them until they were recovered; Jolly had care, custody, and control over the records; and they were the originals. Underwood offered the "same objection," which the trial court overruled. In her seventh and eighth issues, Underwood contends the trial court erred in admitting exhibits 105 and 106.

A.

Standard of Review and Applicable Law We review the trial court's decision to exclude evidence under an abuse of discretion standard. McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005); Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002). We do not reverse the trial court's ruling unless it falls outside the zone of reasonable agreement. Burden, 55 S.W.3d at 615. Hearsay is "a statement, other than one made by the defendant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex. R. Evid. 801(d). Hearsay is generally inadmissible. Tex. R. Evid. 802. The "business records exception" to the hearsay rule provides:

(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. "Business" as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.

Tex. R. Evid. 803(6).

B.

Discussion We agree that the State failed to lay a proper predicate for admission of Exhibits 105 and 106 under rule 803(6) because there is no evidence that the information contained in the exhibits came from a "person with knowledge" of that information. See Knox v. Taylor, 992 S.W.2d 40, 64 (Tex.App.-Houston [14th Dist.] 1999, no pet.); Sholdra v. Bluebonnet Sav. Bank, FSB, 858 S.W.2d 533, 535 (Tex.App.-Fort Worth 1993, writ denied); cf. King v. State, 953 S.W.2d 266, 270 (Tex.Crim.App. 1997) (motel manager testified hotel registration card was filled out by guest and motel employee, showing information in exhibit was entered by person with knowledge of that information). Under rule of civil procedure 44.2(b), any non-constitutional error "that does not affect substantial rights must be disregarded." Tex. R. App. P. 44.2(b). In applying this test, we examine the entire record, not just the error in isolation. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). If the error had only a slight influence on the verdict, the error is harmless. Id. One of the factors we consider is whether the erroneously admitted evidence was cumulative. See Anderson v. State, 717 S.W.2d 622, 628 (Tex.Crim.App. 1986). Exhibits 105 and 106 show a computer and a cash register, respectively, were charged to Complete Tire, Inc. in the total amount of approximately $900. This evidence was cumulative of other testimony that: items were charged to Complete Tire, Inc.'s account; unauthorized ACH funds transfers were made to Office Depot; and checks payable to Office Depot Credit Plan were forged. We conclude that this error had only a slight effect on the verdict and was therefore harmless. See Johnson, 967 S.W.2d at 417. We need not address Underwood's two arguments that there was no showing of circumstances indicating trustworthiness or these exhibits were created in view of future litigation because these arguments were not presented below. See Tex. R. App. P. 33.1(a). We resolve Underwood's seventh and eighth issues against her.

VII. STATE'S CLOSING ARGUMENT

Underwood contends the trial court had previously instructed the jury to disregard certain evidence, but the State improperly referred to it in closing argument. When she objected to the argument, the trial court overruled her objection. In her tenth issue, Underwood contends the trial court erred in overruling her objection to the State's closing argument.

A.

Applicable Law and Standard of Review Proper jury argument includes four areas: (1) summation of the evidence presented at trial; (2) reasonable deduction drawn from that evidence; (3) answer to the opposing counsel's argument; or (4) a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App. 2000). To constitute reversible error, the argument must be manifestly improper or inject new, harmful facts into the case. Id.

B.

Discussion We turn our attention first to the testimony to which the complained-of jury argument referred-Exhibits 97 through 99. Jolley identified Exhibits 97 and 98 as "checks that never went through, that looks like somebody was practicing my signature on." Underwood's objection "to speculation" was sustained. Underwood then moved to instruct the jury to disregard, which the trial court did. The trial court then denied Underwood's motion for mistrial. Exhibits 97 and 98 were admitted and published to the jury. Both are made out to "Kelli Underwood" in the amount of $1120. "S.P. Jolley" is written on the signature lines. On Exhibit 97, the signature is smudged and part of "Jolley" is clearly traced over. On Exhibit 98 the "S" is clearly traced over; the check is marked "VOID." Exhibit 99 is a negotiated check, made out to "Kelli Underwood" in the amount of $1120, and signed by "S.P. Jolley." Underwood directs our attention to three statements in the State's closing argument. First, the State said Underwood was "practicing" Jolley's signatures. Underwood objected there was no such testimony, and the trial court instructed the jury to remember the evidence they were bound by. Second, the State then said, "Mr. Jolley actually said something about looks like she was practicing his signature." Underwood objected on the ground she was speculating and the objection had been sustained. The trial court instructed the jury to remember the evidence it was bound by. Third, the State then showed the jury Exhibits 97, 98, and 99, and, after further argument, the State said, "Let me sum it up for you. . . . She practiced. She practiced the signature on those checks. Look at those checks." Underwood objected to "facts not in evidence." The State responded it was a reasonable deduction from the evidence. The trial court overruled the objection and instructed the jury to remember the evidence. Underwood argues the State's argument was "a three-fold intentional reiteration of stricken evidence." Although the jury was instructed to disregard Jolley's trial testimony about practicing his signature, exhibits 97, 98, and 99 were admitted show tracing as though the signature was being practiced. The jury could have so observed and drawn this conclusion from these exhibits. Thus, we conclude the State's argument was a reasonable deduction from the evidence. See id. Because the trial court did not abuse its discretion in overruling Underwood's objection to this argument, we resolve her tenth issue against her.

VIII. RESTITUTION

In her eleventh issue, Underwood contends the trial court erroneously ordered excessive restitution. Underwood argues the record shows the amount was uncertain because it was arrived at by "supposition, estimation, and approximation."

A.

Applicable Law and Standard of Review "In addition to any fine authorized by law, the court that sentences a defendant convicted of an offense may order the defendant to make restitution to any victim of the offense. . . ." Tex. Crim. Proc. Ann. art. 42.037(a) (Vernon Supp. 2008). We review a challenge to a restitution order under an abuse of discretion standard. Campbell v. State, 5 S.W.3d 693, 696 (Tex.Crim.App. 1999). Among the limits of a trial court's discretion in ordering restitution as set out in Campbell are that the amount of restitution must be just, and it must have a factual basis within the loss of the victim. Id.

B.

Discussion The State first replies that Underwood failed to preserve this issue for review by failing to object at trial. See Tex. R. App. P. 33.1(a). We disagree because the record recited as follows shows Underwood alerted the trial court to her objection that the amount of restitution was not supported by the evidence. See Thompson v. State, 557 S.W.2d 521, 525-26 n. 1 (Tex.Crim.App. 1977) (no evidence supported amount of restitution ordered). At the end of the punishment phase, the court said it would order Underwood to pay restitution as a condition of parole and said, "What is that amount?" The State replied she did not have the exact figure, but she believed it was "about 63,000." The court then ordered restitution in the amount of $63,000. Underwood's counsel then said, "Your Honor, my understanding is some of that money is not up to six — that amount of money. It's less than that, based on the testimony of the victim." The court then questioned Jolley, who repeated earlier testimony that the bank had paid him some money. Jolley's counsel stated that "the bank is still out the money that they paid." After Jolley stated that the total amount was "either the low 60s or low 50s," the trial court again ordered restitution of $63,000. The State presented documentary evidence, as outlined above, detailing business losses of about $64,000. We conclude that the restitution amount of $63,000 had a factual basis within Complete Tire, Inc.'s loss. See Campbell, 5 S.W.3d at 696. Thus, it was not uncertain, speculative, or excessive. Discerning no abuse of discretion in the amount of restitution ordered, we resolve Underwood's eleventh issue against her.

IX. CUMULATIVE ERROR

In her twelfth issue, Underwood contends the cumulative effect of the foregoing errors warrants reversal. Because we have found either no error or no harm in resolving Underwood's issues against her, we reject the basis of her twelfth issue and resolve it against her as well. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App. 1999) ("But, we are aware of no authority holding that non-errors may in their cumulative effect cause error.").

X. CONCLUSION

Having resolved Underwood's twelve issues against her, we affirm the trial court's judgment.