Rebecca Ann Graham v. State of Texas

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-01-232 CR ____________________ REBECCA ANN GRAHAM, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 260th District Court Orange County, Texas Trial Cause No. D-990090-R OPINION Appellant stands convicted of theft as a consequence of her signing and cashing a check drawn on the account of another. She raises four issues on appeal: (1) the trial court committed reversible error by excusing a potential juror, (2) the State was permitted to improperly attempt to elicit testimony from Appellant accusing a witness of lying, (3) and (4) the evidence was legally and factually insufficient to prove intent. We overrule each of her issues because: (1) Appellant has not demonstrated that she was deprived of a lawfully constituted jury, (2) her appellate complaint about cross-examination does not comport with her trial objection, and (3) and (4) the evidence as measured against the appropriate standards of review was both legally and factually sufficient. Appellant first complains that the trial court erred by improperly excusing a potential juror upon the State's challenge for cause. The erroneous excusing of a member of the venire will be reversed only if the record shows the error deprived the defendant of a lawfully constituted jury. See Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998). As there is no such showing in this case Appellant's first issue is overruled. Appellant next complains that the State was permitted to ask her if she thought another witness was lying. But at trial Appellant objected that the State had mischaracterized earlier testimony. As her appellate complaint does not comport with her trial objection, we overrule Appellant's second issue. See Tex. R. App. P. 33.1(a)(1). The standards of review applicable to Appellant's last two issues are well known. Jackson v. Virginia provides the standard for measuring Appellant's challenge to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). And our review of Appellant's factual sufficiency challenge begins with Clewis. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). In issues three and four Appellant challenges the proof of criminal intent. The intent to deprive the owner of property must exist at the time of the taking. See Peterson v. State, 645 S.W.2d 807, 811 (Tex. Crim. App. 1983). But specific intent to commit theft can be inferred from the surrounding circumstances. See Coronado v. State, 508 S.W.2d 373, 374 (Tex. Crim. App. 1974). Also, under issues three and four, Appellant characterizes the matter as a dispute between a complaining witness and an accused and contends that a conviction cannot be upheld if ownership of the property is disputed between the complaining witness and the accused. The authorities she cites, Bryant v. State, 627 S.W.2d 180 (Tex. Crim. App. [Panel Op.] 1982), and Cox v. State, 658 S.W.2d 668 (Tex. App.-Dallas 1983, pet. ref'd), do not support her contention. But Appellant's contention is significant because it reveals how she misconstrues the facts of the case. Appellant's argument assumes that the complaining witness is one of her business associates, but the allegation and the proof is that Appellant deprived a bank (and its branch manager named in the indictment) of property. (1) Appellant and two associates formed a limited liability company, Double Eagle Transport Company, L.L.C. One of her associates, Lori Kennon, became the Finance Manager. Acting as Finance Manager Kennon opened a checking account with the Community Bank at Vidor, Texas. The signature card on file at the bank bore only Kennon's signature. Only Kennon was authorized to sign checks drawn on the Double Eagle account. Appellant was convicted of theft as a consequence of her unauthorized cashing of a check on the Double Eagle account. Appellant twice withdrew money from the Double Eagle account using temporary checks provided her by bank employees. According to the testimony of State's witnesses Appellant first approached a teller and requested three temporary checks on the account. Appellant presented the teller with a photo identification and a bank signature card with two signatures, those of Kennon and Appellant. The teller assumed the signature card was valid and cashed the three checks for Appellant. Each of the checks were written out and signed by Appellant. Appellant had noted on the checks that they were for "cash advance," "company car expense," and "telephone expense reimbursement." Two days later Appellant returned to the bank, from a different teller she obtained another temporary check and cashed a check for $6,000.00 bearing the notation "salary." That teller discovered that Appellant was not shown in the computer as one authorized to withdraw money from the Double Eagle account. But the teller who had waited on Appellant two days earlier recalled seeing Appellant's signature on the signature card that Appellant had presented her and authorized the $6,000.00 withdrawal. Afterward the bank's branch manager determined that Appellant was not authorized to sign checks on the Double Eagle account, and the bank reimbursed Double Eagle for the wrongful withdrawals. Appellant stands convicted of theft of the $6,000.00 from the bank manager. Circumstances supporting Appellant's conviction begin with testimony describing how she appeared at the bank with a bogus signature card and executed checks unlawfully. Appellant's testimony and her theory of the case were refuted by testimony of the bank employees and Lori Kennon. In addition to that summarized above the testimony of the bank's employees described what would be required to give Appellant authority to write checks on the account, procedures absent in this case. Kennon denied that Appellant had executed a signature card authorizing her to withdraw money from the Double Eagle account and contradicted Appellant's testimony about going to the bank and jointly signing a bank signature card. Appellant's own testimony refuted any claim to the $6,000.00 as salary. And according to the testimony of the attorney who prepared the documents creating Double Eagle Transportation Company, L.L.C., only Kennon was authorized to deal with financial matters. In sum, the evidence was such that any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. See McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). And, after viewing all of the evidence, we are unable to conclude that the evidence supporting the verdict was so weak as to render the verdict clearly wrong and manifestly unjust, or that the verdict was against the great weight and preponderance of the available evidence. See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Appellant also contends that the evidence failed because the bank did not take any action to determine whether or not she was authorized to sign checks on the account. Appellant's argument relies upon the law applicable to the former offense of defrauding with a worthless check and the opinion in Deitle v. State, 363 S.W.2d 939 (Tex. Crim. App. 1963), addressing proof necessary for conviction of that offense. Appellant cites no authority that the holding in Deitle should apply in a theft case brought under Tex. Pen. Code Ann. § 31.03 (Vernon Supp. 2002). The judgment is AFFIRMED. __________________________ DAVID FARRIS (2) Justice Submitted on July 1, 2002 Opinion Delivered August 14, 2002 Do Not Publish Before Burgess, Gaultney and Farris, JJ. 1. Money deposited in a bank, absent a special agreement, becomes the property of the bank creating a relationship where the depositor is a creditor and the bank a debtor. See Hudnall v. Tyler Bank & Trust Co. 458 S.W.2d 183, 186 (Tex. 1970). 2. The Honorable David Farris, sitting by assignment pursuant to Tex. Gov't Code Ann. § 74.003(b) (Vernon 1998).