                                                                                 ACCEPTED
                                                                              06-15-00037-cr
                                                                  SIXTH COURT OF APPEALS
                                                                        TEXARKANA, TEXAS
                                                                        6/5/2015 11:36:22 AM
                                                                            DEBBIE AUTREY
                                                                                      CLERK




                ORAL ARGUMENT REQUESTED
                                                            FILED IN
                                                     6th COURT OF APPEALS
                    CAUSE NO. 06-15-00037-CR           TEXARKANA, TEXAS
                                                     6/5/2015 11:36:22 AM
                              IN THE                     DEBBIE AUTREY
                                                             Clerk

                       COURT OF APPEALS

  SIXTH JUDICIAL DISTRICT COURT OF TEXAS AT TEXARKANA
_____________________________________________________________

                  THE STATE OF TEXAS, Appellant

                                 V.

                ERICA LYNN FULLER, Appellee
_____________________________________________________________

      ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT
    LAMAR COUNTY, TEXAS; TRIAL COURT CAUSE NO. 25545;
             HONORABLE ERIC CLIFFORD, JUDGE
_____________________________________________________________


APPELLANT’S (STATE’S) BRIEF
_____________________________________________________________
Jeffrey W. Shell                Gary D. Young, County/District Atty.
Attorney Pro Tem                County and District Attorney
Attorney & Counselor at Law     Lamar County Courthouse
2085 Berkdale Lane             119 North Main Street
Rockwall, Texas 75087          Paris, Texas 75460
(214) 244-8480                 (903) 737-2470
(972) 204-6809 (fax)           (903) 737-2455 (fax)


                         ATTORNEYS FOR THE STATE OF TEXAS
               IDENTITY OF PARTIES AND COUNSEL


      Pursuant to Tex. R. App. P. 38.1(a), the identity of parties, along with
the names and addresses of all counsel, is the following:

The State of Texas                        Appellant
Lamar County & District Attorney’s Office
Lamar County Courthouse
119 North Main Street
Paris, Texas 75460

Jill Drake and Laurie Pollard                 Attorneys for The State of Texas
County and District Attorney’s Office
Lamar County Courthouse
119 North Main Street
Paris, Texas 75460

Gary D. Young                                 County and District Attorney
County and District Attorney
Lamar County Courthouse
119 North Main
Paris, Texas 75460

Jeffrey W. Shell, Attorney Pro Tem            Attorney for The State of Texas
Attorney & Counselor at Law
2085 Berkdale Lane
Rockwall, Texas 75087

Erica Lynn Fuller                             Appellee
c/o The Moore Law Firm, L.L.P.
100 North Main Street
Paris, Texas 75460

James R. Rodgers                              Attorney for Appellee
The Moore Law Firm, L.L.P.
100 North Main Street
Paris, Texas 75460

                                      -i-
                                    TABLE OF CONTENTS

                                                                                         PAGE NO.:

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . .                                           i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . .                          ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . .                            iii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . .                               vi

STATEMENT REGARDING ORAL ARGUMENT . . . . .                                                    viii

ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                       ix

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . .                           2

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . .                                     18

ARGUMENT AND AUTHORITIES

         SOLE ISSUE PRESENTED FOR RELIEF: THE TRIAL
         COURT ABUSED ITS DISCRETION IN GRANTING
         FULLER’S MOTION FOR DIRECTED VERDICT
         BECAUSE THE STATE ADDUCED LEGALLY-SUFFICIENT
         EVIDENCE FOR A LAMAR COUNTY JURY TO
         REASONABLY FIND THE ELEMENTS OF THE
         OFFENSE OF THEFT BEYOND A REASONABLE
         DOUBT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          33

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . .                                  34

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . .                            35

                                                      -ii-
                                 INDEX OF AUTHORITIES

CASES:                                                                                  PAGE:

Bailey v. State, 885 S.W.2d 193 (Tex. App.--Dallas 1994,
      pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      25

Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.
     App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        23,31

Ex parte Serna, 957 S.W.2d 598, 601 (Tex. App.--Fort
      Worth 1997, orig. proceeding) . . . . . . . . . . . . .. . . . .                     26

Gorman v. State, 634 S.W.2d 681, 683 (Tex. Crim.
    App. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           24

Hill v. State, 633 S.W.2d 520, 521 (Tex. Crim.
        App. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       25

In re The State of Texas, No. 06-15-00018-CR (Tex.
       App.--Texarkana February 11, 2015, orig.
       proceeding) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        vi

In re The State of Texas, No. 06-15-00018-CR, 2015 WL
       545838 *2, 2015 Tex. App. LEXIS 1277 *4 (Tex. App.--
       Texarkana February 11, 2015, orig. proceeding) (mem. op.,
       not designated for publication) . . . . . . . . . . . . . . . . . . 17,20,21

Landers v. State, 256 S.W.3d 295, 298 (Tex. Crim.
      App. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         22

Pennington v. State, 416 S.W.2d 815, 816 (Tex. Crim.
     App. 1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          26

Rosenbush v. State, 136 Tex. Crim. 50, 122 S.W.2d
     1071 (1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         26


                                                    -iii-
CASES:                                                                                       PAGE:

Stacy v. State, 819 S.W.2d 860, 861 (Tex. Crim. App.
       1991) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . .                   20

State ex rel. Young v. Sixth Judicial Dist., 236 S.W.3d 207,
       208-09 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . .                            22

State v. Chavera, 386 S.W.3d 334, 336, 337 (Tex. App.--San
       Antonio 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . . .           22-23,23,31

State v. Moreno, 297 S.W.3d 512, 520 (Tex. App.--Houston
       [14th Dist.] 2009, pet. ref’d) . . . . . . . . . . . . . . . . . . . .                  23,31

State v. Muller, 829 S.W.2d 805, 811-12 (Tex. Crim.
       App. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .               21

State v. Redus, 445 S.W.3d 151, 153 (Tex. Crim.
       App. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            19-20

State v. Savage, 933 S.W.2d 497, 499 (Tex. Crim.
       App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .               22

State v. Savage, 905 S.W.2d 272, 274 (Tex. App.--San
       Antonio 1994), aff’d, 933 S.W.2d 497, 499 (Tex. Crim.
        App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        22,23,31

Stewart v. State, 44 S.W.3d 582, 588, 589 (Tex. Crim.
      App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     24, 25, 26, 27

United States v. Wilson, 420 U.S. 332, 344-45 (1975) . . . . .                                    32

Whitney Ladell Blake v. The State of Texas, No. 06-11-00097-CR,
     2012 Tex. App. LEXIS 926, at * 18, 2012 WL 361730,
     at * 4 (Tex. App.--Texarkana February 2, 2012, pet. ref’d)
     (mem. op., not designated for publication). . . . . . . . .                                  30



                                                   -iv-
STATUTES:                                                                            PAGE:

TEX. CODE CRIM. PROC. ANN. ART. 44.01(a)(3)
     (West Supp. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . .            20

TEX. CODE CRIM. PROC. ANN. ART. 44.01(d)
     (West Supp. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . .            21

TEX. PENAL CODE ANN. § 31.03(a) (West
     Supp. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      24

TEX. PENAL CODE ANN. § 31.03(4)(B) (West
     Supp. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      24

TEX. PENAL CODE ANN. § 31.03(a)-(b), (e)(4)(A) (West
     Supp. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      vi

TEX. R. APP. P. 33.1(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       26

TEX. R. APP. P. 38.1(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      viii




                                                   -v-
                       STATEMENT OF THE CASE

      This is a theft case.

      A grand jury in Lamar County returned an original indictment (CR,

pg. 30) against Fuller that charged her with the state-jail felony offense of

theft of property in the value of $1,500.00 or more but less than $20,000.00.

See Tex. Penal Code Ann. § 31.03(a)-(b), (e)(4)(A) (West Supp. 2014).

After a jury trial, a petit jury in Lamar County found Fuller guilty, as

charged in the indictment. See RR, Vol. 5, pg. 173; CR, pg. 117.

      After the jury’s verdict, defense counsel re-urged a motion for

directed verdict, which the trial judge granted. See RR, Vol. 5, pgs. 178-

179. Later, the trial court signed a judgment notwithstanding the verdict.

See CR, pg. 126.

      The State of Texas, through the County and District Attorney of

Lamar County, filed a petition for writ of mandamus, asking this Court for

mandamus relief from the judgment entered by the trial court. This Court

denied the petition. See In re The State of Texas, No. 06-15-00018-CR (Tex.

App.--Texarkana February 11, 2015, orig. proceeding).




                                    -vi-
      The State then timely perfected this appeal from the trial court’s

judgment notwithstanding the verdict (CR, pg. 126) by filing its notice of

appeal. See CR, pgs. 127-129.




                                   -vii-
           STATEMENT REGARDING ORAL ARGUMENT

      The State of Texas will request oral argument. See Tex. R. App. P.

38.1(e).

      Oral argument should be permitted in this case and this Court’s

decisional process would be aided by oral argument, see id, because legal

sufficiency should be judged by the quality of the evidence and the level of

certainty it engenders in the fact-finder’s mind. That quality of evidence and

level of certainty should be articulated to this Court during oral argument.




                                     -viii-
                 ISSUE PRESENTED

SOLE ISSUE PRESENTED FOR RELIEF: THE TRIAL COURT
ABUSED ITS DISCRETION IN GRANTING FULLER’S MOTION
FOR DIRECTED VERDICT BECAUSE THE STATE ADDUCED
LEGALLY-SUFFICIENT EVIDENCE FOR A LAMAR COUNTY
JURY TO REASONABLY FIND THE ELEMENTS OF THE
OFFENSE OF THEFT BEYOND A REASONABLE DOUBT.




                       -ix-
                       CAUSE NO. 06-15-00037-CR

                                  IN THE

                          COURT OF APPEALS

  SIXTH JUDICIAL DISTRICT COURT OF TEXAS AT TEXARKANA
_____________________________________________________________

                    THE STATE OF TEXAS, Appellant

                                     V.

                ERICA LYNN FULLER, Appellee
_____________________________________________________________

      ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT
    LAMAR COUNTY, TEXAS; TRIAL COURT CAUSE NO. 25545;
             HONORABLE ERIC CLIFFORD, JUDGE
_____________________________________________________________


APPELLANT’S (STATE’S) BRIEF
_____________________________________________________________

TO THE HONORABLE SIXTH COURT OF APPEALS AT
TEXARKANA:

      COMES NOW, The State of Texas, by and through the elected

County and District Attorney of Lamar County, Gary D. Young, and the

Lamar County and District Attorney’s Office, files this Appellant’s (State’s)

Brief under Rule 38.1 of the Texas Rules of Appellate Procedure.

      Unless otherwise indicated, the State of Texas will be referred to as


                                     -1-
“the State.” Erica Lynn Fuller will be referred to as “Fuller.”

                         STATEMENT OF FACTS

      Factual Background.

      From September of 2009 to April of 2012 (RR, Vol. 4, pgs. 41, 43,

116), Melissa Neisler (Neisler) was the business office manager at

Brentwood Terrace Nursing and Rehab (RR, Vol. 4, pg. 41), which was

previously called “Parkview.” See RR, Vol. 4, pg. 45. At some point,

another corporation, Diversicare, bought “Parkview,” rebuilt the facility and

renamed it “Brentwood.” See RR, Vol. 4, pg. 45; Vol. 5, pg. 7.             The

“Brentwood” facility was inside the city limits of Paris, Lamar County,

Texas. See RR, Vol. 4, pg. 52.

      Neisler started working at “Brentwood” a few months after they

opened the building. See RR, Vol. 4, pg. 45. Neisler did the “trust posting”

and account receivable: “the money that goes straight into the operations.”

See RR, Vol. 4, pg. 42. The operations account, an actual business account,

paid bills that “would be the payroll, [the] vendors, the day-to-day

operations” like electric bills. See RR, Vol. 4, pg. 138. See also RR, Vol. 5,

pg. 22 (nursing care, salaries, food, electricity, water). Neisler made the

entries into the set of books for the operations side. See RR, Vol. 4, pg. 140.


                                      -2-
      “Brentwood” had two (2) bank accounts: “operations and trust.” See

RR, Vol. 4, pg. 43. See also RR, Vol. 4, pgs. 47-48, 137, 140. It’s even

required to have a separate title and naming of the account. See RR, Vol. 5,

pg. 15. In May of 2010, there were literally two different bank accounts.

See RR, Vol. 4, pg. 48. The “trust” account was a “local bank” at Lamar

National Bank. See RR, Vol. 4, pgs. 119, 269; Vol. 5, pgs. 13, 15, 19. The

operations fund was handled through the electronic scanning system. See

RR, Vol. 5, pg. 15. “That [was] in a out-of-state bank.” See RR, Vol. 5, pg.

15.

      The “Brentwood” bookkeeping system was divided into the trust fund

side and the operations side. See RR, Vol. 4, pg. 51. There’s two separate

books that were marked clearly on the front, operations and trust. See RR,

Vol. 4, pg. 97. See also RR, Vol. 4, pg. 140.

      By law, all nursing homes were required to have a trust fund. See RR,

Vol. 4, pg. 137. See also Vol. 5, pg. 14 (“It is a state regulation that we offer

this service to the residents.”), pg. 20. “It works just like a bank.” See RR,

Vol. 4, pg. 137. See also RR, Vol. 4, pg. 179. The “trust fund” was

basically “Brentwood” serving as a bank for the residents. See RR, Vol. 4,

pg. 56.


                                       -3-
       Also, “[t]he petty cash fund is actually cash from that resident trust

fund.” See RR, Vol. 4, pg. 145. See also RR, Vol. 4, pg. 147. The resident

would sign a petty cash receipt book when he or she wanted to withdraw

funds from the petty cash. See RR, Vol. 4, pg. 145. The petty cash fund was

kept in the business office and was locked in a drawer. See RR, Vol. 4, pg.

146. It was in Fuller’s office, and Fuller was supposed to manage the money

that’s coming in and going out of that petty cash fund. See RR, Vol. 4, pg.

146. It would be included with the trust fund records. See RR, Vol. 4, pg.

147.

       When money would come in, like checks from Social Security, either

in the mail or by person, it went to the “trust fund.” See RR, Vol. 4, pg. 255.

The actual data entry was into the accounts receivable trust fund system. See

RR, Vol. 5, pg. 20. “What is due to the facility is paid to the facility.” See

RR, Vol. 4, pg. 56. See also RR, Vol. 4, pg. 179 (“You deposit it into the

operations account to pay their bill.”). The check was written from the trust

fund account to the operations account, and that that check was scanned into

the operations account. See RR, Vol. 5, pg. 21. That was to pay resident’s

room and board in the nursing facility. See RR, Vol. 5, pg. 21. Fuller would

write the check from the trust fund to the operations fund. See RR, Vol. 5,


                                      -4-
pg. 25.

      “[T]he rest of it is for the residents to get whatever they want, beauty

shop, going to Walmart, whatever it is, go buy a Coke.” See RR, Vol. 4, pg.

56. See also RR, Vol. 4, pg. 200. It was “their personal spending, their free

money.” See RR, Vol. 4, pg. 255.

      Neisler knew Fuller and Angie Whipkey (Whipkey), the receptionist.

See RR, Vol. 4, pgs. 44-45, 159, 234; Vol. 5, pg. 17. See also Defendant’s

Exhibit 3. Whipkey started working for “Brentwood” in August of 2009.

See RR, Vol. 4, pgs. 233, 237. Whipkey would “answer the phone, greet

families, receipt trust and AR.” See RR, Vol. 4, pg. 234. Whipkey took care

of three receipt books. See RR, Vol. 4, pgs. 235, 259. Whipkey “did all the

receipting of all the checks that would come in to the front.” See RR, Vol. 4,

pg. 259. See also RR, Vol. 5, pg. 24.

      In the very beginning, Whipkey got the receipts really mixed up in the

books. See RR, Vol. 4, pg. 251. Whipkey could’ve made a mistake on a

receipt due to “a lot of distraction.” See RR, Vol. 4, pgs. 253, 259; State’s

Exhibit 3.

      Whipkey had bank bags and “was receipting the money and holding

onto it until it went to the business office and was taken care of.” See RR,


                                        -5-
Vol. 4, pgs. 235-236. See also RR, Vol. 4, pgs. 239, 273. Any deposit for

the “trust fund” was put into a bag until Neisler, Whipkey or Ms. Millsap

went to lunch. See RR, Vol. 4, pg. 57; Vol. 5, pg. 18. The bank bags “had

to be locked up in the business office -- for lunch.” See RR, Vol. 4, pg. 239.

Then, it was taken to Fuller. See RR, Vol. 4, pg. 57. See also RR, Vol. 4,

pgs. 118, 239, 274.

      According to company policy, “it had to be locked up in the filing

cabinet.” See RR, Vol. 4, pg. 57. See also RR, Vol. 4, pg. 58. The filing

cabinet was behind Fuller’s desk in the business office. See RR, Vol. 4, pg.

57. Fuller had the keys. See RR, Vol. 4, pg. 58. Fuller was the person

responsible for filling out the paperwork to account for how much money

was taken in for that day. See RR, Vol. 4, pg. 58. See also RR, Vol. 4, pgs.

192, 239-240.

      Fuller was in the position of payroll and human resources (“HR”).

See RR, Vol. 4, pgs. 44-45, 124. According to her job description, Fuller

was in accounts payable. See RR, Vol. 4, pg. 122; Defendant’s Exhibit 2.

The “other half” was HR. See RR, Vol. 4, pg. 124.

      Neisler saw Fuller “every day.” See RR, Vol. 4, pg. 52. Neisler was

“Fuller’s backup.” See RR, Vol. 4, pgs. 50, 58-59.


                                     -6-
      Neisler maintained the payroll and could put people into the system,

new hires; she could fill out change forms if somebody quit or had a change

in rate. See RR, Vol. 4, pg. 59. If Neisler had a question, she could also call

corporate if there was an insurance question, or to log in for access to

programs. See RR, Vol. 4, pg. 59.

      Along with “paying employees,” Fuller “made all the deposits for

trust and the operations side, the “AR side.” See RR, Vol. 4, pg. 46; Vol. 5,

pgs. 15, 25. “AR” meant accounts receivable. See RR, Vol. 5, pg. 14.

      Fuller was the bookkeeper that handled accounts receivable, accounts

payable and payroll. See RR, Vol. 5, pg. 7. In 2007 and 2008 (RR, Vol. 5,

pg. 9), Fuller did not handle money. See RR, Vol. 5, pg. 7. At that time, the

administrator was Norma Vinters (Vinters). See RR, Vol. 5, pgs. 8, 9 11.

Vinters would have handled any cash disbursements or deposits. See RR,

Vol. 5, pgs. 8-9.

      By 2010 however, Fuller was in charge of the trust funds. Fuller was

responsible for filling out the deposit slips (RR, Vol. 4, pg. 46) for the trust

fund, which were handwritten at that time. See RR, Vol. 4, pg. 47; Vol. 5,

pg. 19. According to Brown, Fuller “entered into the system how much

money, the deposits and the withdrawals from the trust fund.” See RR, Vol.


                                      -7-
4, pg. 139.

      Neisler was never given access to the trust. See RR, Vol. 4, pg. 60.

She just thought “that was corporate policy.” See RR, Vol. 4, pg. 61.

      The deposit slips on the operations side were “electronic.” See RR,

Vol. 4, pg. 47. Fuller scanned the checks, which went into the corporate

bank and the deposit slip was faxed “to corporate of how much it was.” See

RR, Vol. 4, pg. 47.

     May and December (2010) Audits by the Texas Department on
Aging and Disability.

      Pam Thompson (Thompson) monitored trust funds at the Department

of Aging and Disability Services (“DADS”) with the State of Texas. See

RR, Vol. 4, pg. 195. Thompson was required to do periodic audits in

northeast Texas (from Tyler to Texarkana and up to the Paris/Bonham area),

including “Brentwood” in Paris since 2008. See RR, Vol. 4, pgs. 196-197.

      In May of 2010, Thompson and “DADS” came in, and did its audit.

See RR, Vol. 4, pgs. 49, 141, 198. In May of 2010, “there were problems.”

See RR, Vol. 4, pg. 199.      “There were a lot of disbursements without

signatures.” See RR, Vol. 4, pg. 200. In May, the audit was limited to 30

residents. See RR, Vol. 4, pg. 205. The audit in May had “excessive

errors.” See RR, Vol. 4, pg. 207.

                                     -8-
       Brown was not there then, but “DADS” did an audit at that time. See

RR, Vol. 4, pg. 141. Although she “was not there during that time,” Brown

identified a check that came from “Brentwood” to “clear state audit.” See

RR, Vol. 4, pgs. 142-143; State’s Exhibit 1.

       Arrival of Administrator, Ruth Brown.

       In August of 2010, Ruth Brown (Brown), an administrator, began

working at “Brentwood” where she met Fuller. See RR, Vol. 4, pgs. 131,

134. Fuller had worked at “Brentwood” before Brown started in August of

2010. See RR, Vol. 4, pg. 135. Fuller was “the HR, human resources” and

handled payroll, accounts payable and the “trust fund.” See RR, Vol. 4, pg.

134.

       When Brown first started working at “Brentwood,” Fuller came into

her office on a couple of occasions and asked if she was going to fire her.

See RR, Vol. 4, pg. 135. Brown told her “no.” See RR, Vol. 4, pg. 135.

Brown told her that she “wasn’t there to fire anybody” and that she was

there as the new administrator. See RR, Vol. 4, pg. 135. Brown described

Fuller as “fidgety” and “very inquisitive” on why she was there. See RR,

Vol. 4, pg. 136. See also RR, Vol. 4, pg. 168. Yet, Fuller had exemplary

performance appraisals by the previous administrator, Ms. Vinters. See RR,


                                     -9-
Vol. 4, pgs. 168-169; Defendant’s Exhibits 4, 5, 6 and 7.

      Audit in November or December of 2010.

      During the first week of December of 2010, “it was much better” (RR,

Vol. 4, pg. 204) because “the petty cash had signatures next to it.” See RR,

Vol. 4, pg. 205. As in May, the audit was limited to 30 residents. See RR,

Vol. 4, pg. 205.

      But, the auditor with “DADS” could not get the account to balance.

See RR, Vol. 4, pgs. 147-148. Brown had the regional business office

manager come in and teach her how to use the reconciliation form, which

she went over with Fuller. See RR, Vol. 4, pg. 148. They were not able to

reconcile the petty cash box. See RR, Vol. 4, pg. 149. “It was off.” See RR,

Vol. 4, pg. 149.

      At that time, Brown suspended Fuller and Angie Whipkey while it

was investigated further, according to normal industry practice. See RR,

Vol. 4, pgs. 150, 151. These two people “had access to the actual petty cash

box.” See RR, Vol. 4, pg. 152. Whipkey’s suspension had to do with “the

trust fund money missing.” See RR, Vol. 4, pg. 242. Fuller was suspended

at the same time. See RR, Vol. 4, pgs. 243-244.

      To further the investigation, Brown contacted Caryon Miller (Miller),


                                     -10-
a “regional financial specialist” from Brentwood’s “corporate office.” See

RR, Vol. 4, pgs. 149, 152-153. Diversicare had hired Miller in September of

2007 (RR, Vol. 5, pgs. 6-7), as the original “business office consultant.” See

RR, Vol. 5, pg. 6. In June of 2013, Miller became the Medicaid billing

manager for Diversicare. See RR, Vol. 5, pgs. 5-6. Miller did not have an

accounting degree. See RR, Vol. 5, pgs. 45, 124.

      In January of 2011, Brown contacted Miller because “something

seemed off in the cash receipt box.” See RR, Vol. 5, pg. 34. As part of the

investigation and audit, Miller looked at Thomas Hughes’ account. See RR,

Vol. 5, pg. 34.   Thomas Hughes was considered “full vendor” because

Medicaid covered his bill in full and he did not owe any funds personally.

See RR, Vol. 5, pg. 34. His room and board would vary by his level of care

and his clinical assessments, but was based on the standard state

reimbursement rate. See RR, Vol. 5, pg. 35. The amount of $3,500 a month

would be an average. See RR, Vol. 5, pg. 35. Miller looked at this account

by starting in May and stopping on 12/31/2010 with an ending balance of

$978.75. See RR, Vol. 5, pgs. 74, 101; State’s Exhibits 20, 21, 22.

      As required by regulatory statutes (RR, Vol. 4, pg. 153), Brown made

a report to “DADS” on January 3, 2011. See RR, Vol. 4, pgs. 153, 156.


                                     -11-
Brown did the report and that “there were some other discrepancies noted in

the trust fund, which -- which showed that there were other amounts of

money that we could not account for.” See RR, Vol. 4, pg. 154. At that

time, Brown reported that Fuller and Whipkey were both still suspended.

See RR, Vol. 4, pg. 155. Brown “couldn’t single out either one.” See RR,

Vol. 4, pg. 155. Later, Whipkey was allowed to return to work (RR, Vol. 4,

pgs. 158, 162), after two or three days. See RR, Vol. 4, pg. 245. Brown was

“required to report it to the police” and called the “state hotline number.”

See RR, Vol. 4, pg. 155.

      Brown continued the investigation but did not complete a report to

“DADS” within a five-day deadline because it took longer to do the

investigation. See RR, Vol. 4, pgs. 156-157.

      Miller came to the facility, and she actually headed the audit, with

Brown assisting her with it by “looking up stuff.” See RR, Vol. 4, pgs. 157,

177. Miller was the “lead investigator” and Brown “helped her pull things

and copy things.” See RR, Vol. 4, pg. 180. It was discovered that it was not

actual cash missing from the petty cash box. See RR, Vol. 4, pgs. 158-159.

      At some point in time, Fuller was fired (RR, Vol. 4, pgs. 65, 162)

“because there was money that was missing.” See RR, Vol. 4, pg. 164.


                                    -12-
Fuller was terminated.       See RR, Vol. 5, pg. 107.         Fuller filed for

unemployment and had an unemployment claim hearing over the phone

(RR, Vol. 4, pgs. 182-183), that the employer lost. See RR, Vol. 4, pg. 174.

The Texas Employment Commission (“TEC”) determined, “no misconduct

established.” See RR, Vol. 4, pgs. 174, 183.

       Also, Fuller filed a lawsuit that was later settled in federal court. See

RR, Vol. 4, pgs. 175-176, 217, 224, 229. In this lawsuit, Fuller never made

a claim related to her actual termination. See RR, Vol. 4, pgs. 222, 226.

Matt Holley, an attorney with Haynes and Boone, was hired to represent and

defend “Brentwood” in the lawsuit filed by Fuller. See RR, Vol. 4, pgs. 210-

211, 213. The settlement was a “business decision.” See RR, Vol. 4, pgs.

218, 220, 223, 231. The amount was for $16,000.00. See RR, Vol. 4, pg.

219.

       Niesler was the next person, who took over Fuller’s job duties. See

RR, Vol. 4, pgs. 66, 162, 246. In April of 2010, Niesler left to go to another

facility. See RR, Vol. 4, pg. 66. About four months after her suspension

(RR, Vol. 4, pg. 245), Whipkey took over for Niesler in doing Fuller’s job.

See RR, Vol. 4, pgs. 66, 163, 238, 245. Whipkey had the business office

position for “about two years.” See RR, Vol. 4, pg. 246.


                                      -13-
       “Brentwood” did not have problems with their trust funds or their

accounting, after Fuller was gone.      See RR, Vol. 4, pgs. 68, 163, 246.

“We’ve had no trust fund errors since.”       See RR, Vol. 4, pg. 99.      In

September of 2011, Thompson went back and passed all the rest of their

audits. See RR, Vol. 4, pgs. 206-207.

       The bookkeeping system did not change. See RR, Vol. 4, pg. 68.

“Brentwood” got a new “trust fund” in July of 2013. See RR, Vol. 4, pg. 68;

Vol. 5, pg. 108. “It was just a change company-wide.” See RR, Vol. 5, pg.

108.

       Brown left in August of 2013. See RR, Vol. 4, pg. 165. “Brentwood”

was in good standing at the time that Brown left. See RR, Vol. 4, pg. 165.

Whipkey went from accounts payable to marketing, and she stepped down

from marketing into a position that was eliminated shortly thereafter due to

budget cuts. See RR, Vol. 4, pg. 247. Whipkey was asked to come back as

the activity director, but she did not take that job because of “the pay.” See

RR, Vol. 4, pg. 247.

      Indictment for a 3rd Degree Felony Theft, Later Reduced; and
Jury Trial.

       On December 12, 2013, a grand jury in Lamar County returned an

original indictment that charged Fuller with the felony offense of theft of

                                     -14-
property, to-wit: United States currency of the value of $1,500 or more but

less than $20,000. See CR, pg. 30. The original indictment also alleged that

the owner of the property was Thomas Hughes, an elderly individual. See

CR, pg. 30.

      In due course, the trial court called cause number 25545 to trial, and

the guilt-innocence phase began on January 28, 2015. See RR, Vol. 4, pg. 5.

The jurors were sworn in (RR, Vol. 4, pg. 15), and were provided additional

instructions. See RR, Vol. 4, pgs. 15-22. The State invoked the Rule. See

RR, Vol. 4, pg. 22.

      Before presenting the indictment (RR, Vol. 4, pgs. 24-25), the State

abandoned the allegation that the victim was over 65. See RR, Vol. 4, pg.

24. Fuller entered a plea of “not guilty.” See RR, Vol. 4, pg. 25.

      Following opening statements (RR, Vol. 4, pgs. 25-41), the State

called Neisler as its first witness of Fuller’s three former co-workers. See

RR, Vol. 4, pg. 41. Neisler identified the defendant, Fuller, in open court.

See RR, Vol. 4, pg. 53. Two other former co-workers (Whipkey and Miller)

identified Fuller in open court. See RR, Vol. 4, pg. 244; Vol. 5, pg. 42.

      During the direct-examination of Neisler, the State introduced several

exhibits, which the trial court admitted as business records. See RR, Vol. 4,


                                      -15-
pg. 95; State’s Exhibits 1, 2, 3A, 4, 4A, 5, 6, 7 and 9-19. At that time, the

State withdrew exhibits 3 and 8 from admission into evidence, but later

defense counsel for Fuller withdrew his objections and the trial court

admitted exhibits 3 and 8. See RR, Vol. 4, pgs. 106-107, 113. The exhibits

were deposits from “Brentwood’s” records that were in Fuller’s handwriting.

See RR, Vol. 4, pgs. 96, 119.

      Upon the conclusion of testimony from Miller, the State rested. See

RR, Vol. 5, pg. 135. Fuller made a motion for a directed verdict. See RR,

Vol. 5, pgs. 135-136. The State responded to that motion (RR, Vol. 5, pgs.

136-142), and the trial court denied the motion. See RR, Vol. 5, pg. 142.

      After the trial court denied the motion, Fuller rested without putting

on any witnesses or other evidence. See RR, Vol. 5, pgs. 142-143. The

respective parties rested and closed. See RR, Vol. 5, pg. 143.

      Neither side objected to, and the trial court read, its charge to the jury.

See RR, Vol. 5, pgs. 144-152; CR, pgs. 112-116. After closing arguments

(RR, Vol. 5, pgs. 153-171), the jury retired to begin its deliberations. See

RR, Vol. 5, pgs. 171-172.

      Verdict: Guilt-Innocence Phase.

      On January 29, 2015, the jury returned a verdict that found Fuller


                                      -16-
guilty of the offense of theft of property more than $1,500.00 but less than

20,000.00, as charged in the indictment. See RR, Vol. 5, pg. 173; CR, pg.

117. The verdict was signed by the presiding juror, Greg Raper. See CR,

pg. 117.

      Afterwards, defense counsel re-urged a motion for directed verdict.

See RR, Vol. 5, pgs. 173, 174.       Following brief argument outside the

presence of the jury, the trial judge pronounced, “I’m going to grant Mr.

Rodgers’ motion.” See RR, Vol. 5, pg. 178. The trial court then discharged

the jury. See RR, Vol. 5, pgs. 179-180. On January 29, 2015, the trial court

signed a judgment notwithstanding the verdict. See CR, pg. 126.

      Prior Proceedings in this Court of Appeals.

      1.     Petition for Writ of Mandamus.

      On February 3, 2015, the State of Texas, through the County and

District Attorney of Lamar County, filed a petition for writ of mandamus,

asking this Court for mandamus relief from the judgment entered by the trial

court. This Court denied the petition. See In re The State of Texas, No. 06-

15-00018-CR, 2015 WL 545838, 2015 Tex. App. LEXIS 1277 (Tex. App.--

Texarkana February 11, 2015, orig. proceeding) (mem. op., not designated

for publication).


                                     -17-
       2.     Perfection of Appeal by the State.

       The State timely perfected this appeal from the trial court’s judgment

notwithstanding the verdict (CR, pg. 126) by filing its notice of appeal on

February 17, 2015. See CR, pgs. 127-129.

       On or about February 19, 2015, the State filed its notice of appeal in

this Court. The District Clerk of Lamar County filed the Clerk’s Record on

or about March 19, 2015. The official court reporter filed the Reporter’s

Record on or about April 6, 2015.

       On or about May 6, 2015, the State filed its motion to extend time for

filing its brief. On May 12th, this Court granted the motion, which extended

the time to file for the State to file its motion until June 5, 2015. The State

will be filing its brief on June 5th.

                     SUMMARY OF THE ARGUMENT

       By this timely appeal, the State seeks to uphold the jury’s guilty

verdict in a theft case. See RR, Vol. 5, pgs. 173; CR, pg. 117. After the jury

returned its guilty verdict, Fuller re-urged a motion for directed verdict,

which the trial court granted. See RR, Vol. 5, pg. 178. By this appeal, the

State asks this Court to reinstate the verdict, reverse the trial court’s

judgment of January 29, 2015 (CR, pg. 126), and remand.


                                        -18-
      In the present case, the trial court initially denied Fuller’s motion for

directed verdict, after the State rested its case-in-chief. See RR, Vol. 5, pg.

142. During the defense’s case-in-chief, Fuller presented no witnesses or

other evidence. After the guilty verdict, the trial court then inexplicably

granted Fuller’s motion for directed verdict based on the same evidence.

That evidence was legally-sufficient, and this Court should find accordingly.

      In summary, the evidence was legally-sufficient for a rational Lamar

County jury to reasonably find the elements of theft beyond a reasonable

doubt; and therefore, the trial court abused its discretion in signing its

judgment of January 29, 2015. See CR, pg. 126. Thus, this Court should

reinstate the verdict, reverse the trial court’s judgment, and remand.

                   ARGUMENT AND AUTHORITIES

SOLE ISSUE PRESENTED FOR RELIEF: THE TRIAL COURT
ABUSED ITS DISCRETION IN GRANTING FULLER’S MOTION
FOR DIRECTED VERDICT BECAUSE THE STATE ADDUCED
LEGALLY-SUFFICIENT EVIDENCE FOR A LAMAR COUNTY
JURY TO REASONABLY FIND THE ELEMENTS OF THE
OFFENSE OF THEFT BEYOND A REASONABLE DOUBT.

      A.   The State’s Right of Appeal Under Article 44.01 of the
Texas Code of Criminal Procedure.

      It was not until 1987 that the State had any right to appeal an adverse

legal ruling in a Texas criminal case. See State v. Redus, 445 S.W.3d 151,


                                      -19-
153 (Tex. Crim. App. 2014). By enacting article 44.01 of the Code of

Criminal Procedure, the Texas Legislature recognized the need to balance

the rights of the defendant to a fair and speedy trial with the legitimate rights

of the State and public to accurate legal rulings. See id.

      1.    The State Had the Right to Appeal the Trial Court’s Grant
of a New Trial Based on Insufficient Evidence and Article 44.01(a)(3).

      Where the trial court, as in the present case, entered a judgment

notwithstanding the verdict, this Court’s previous opinion established “the

law of the case” by treating it as “the functional equivalent of an order

granting a motion for new trial for insufficient evidence.” See In re The

State of Texas, No. 06-15-00018-CR, 2015 WL 545838, at * 1, 2015 Tex.

App. LEXIS 1277, at * 3 (Tex. App.--Texarkana February 11, 2015, orig.

proceeding) (mem. op., not designated for publication). “The State has the

right to appeal a trial court’s grant of a new trial based on insufficient

evidence.” See id (citing Stacy v. State, 819 S.W.2d 860, 861 (Tex. Crim.

App. 1991) (per curiam); Tex. Code Crim. Proc. Ann. Art. 44.01(a)(3) (West

Supp. 2014)). Article 44.01(a)(3) of the Texas Code of Criminal Procedure

provided that “[t]he state is entitled to appeal an order of a court in a

criminal case if the order: (3) grants a new trial.” See Tex. Code Crim.

Proc. Ann. Art. 44.01(a)(3) (West Supp. 2014).

                                      -20-
      2.     The State Timely Filed its Notice of Appeal.

      Again, this Court’s previous opinion established that “the time for a

normal appeal by the State ha[d] not expired.” See In re The State of Texas,

2015 WL 545838, at * 2, 2015 Tex. App. LEXIS 1277, at * 4 (citing Tex.

Code Crim. Proc. Ann. Art. 44.01(d) (West Supp. 2014)). Article 44.01(d)

provided that “[t]he prosecuting attorney may not make an appeal under

Subsection (a) or (b) of this article later than the 20th day after the date on

which the order, ruling, or sentence to be appealed is entered by the court.”

See Tex. Code Crim. Proc. Ann. Art. 44.01(d) (West Supp. 2014).

      In the present case, the State timely filed its notice of appeal on

February 17, 2015 (CR, pg. 127), which was not later than the 20th day after

the date on which the trial court entered its judgment notwithstanding the

verdict on January 29, 2015. See CR, pg. 126. See Tex. Code Crim. Proc.

Ann. art. 44.01(d) (West Supp. 2014). The State’s notice of appeal was

“made” by the elected “prosecuting attorney” of Lamar County (CR, pgs.

128-129). See State v. Muller, 829 S.W.2d 805, 811-12 (Tex. Crim. App.

1992) (holding the Article 44.01 requires the elected “prosecuting attorney”

and not his assistant to “make” the State’s notice of appeal within the

prescribed time period, either through the physical act of signing the notice


                                     -21-
or by personally and expressly authorizing an assistant to file a specific

notice of appeal on his behalf). The State’s notice of appeal was signed by

Gary D. Young (CR, pgs. 128-129), the elected County and District

Attorney of Lamar County. See Landers v. State, 256 S.W.3d 295, 298

(Tex. Crim. App. 2008); State ex rel. Young v. Sixth Judicial Dist., 236

S.W.3d 207, 208-09 (Tex. Crim. App. 2007).

      B.    Standard of Appellate Review: Granting a New Trial for
Legally-Insufficient Evidence.

      “A trial court’s JNOV after a jury determination of criminal guilt

accomplishes exactly the same effect as granting the defendant a new trial

for insufficient evidence--a functional acquittal.” See State v. Savage, 933

S.W.2d 497, 499 (Tex. Crim. App. 1996). Because the effect of the trial

court granting Fuller’s judgment non obstante veredicto was the same as if it

had granted a motion for new trial based on insufficiency of the evidence,

this Court should review the order as if the trial court had granted a motion

for new trial. See State v. Savage, 905 S.W.2d 272, 274 (Tex. App.--San

Antonio 1994), aff’d, 933 S.W.2d 497, 499 (Tex. Crim. App. 1996).

      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 employed on appeal. See State v. Chavera, 386 S.W.3d 334, 336

                                     -22-
(Tex. App.--San Antonio 2012, no pet.); Savage, 905 S.W.2d at 274; State v.

Moreno, 297 S.W.3d 512, 520 (Tex. App.--Houston [14th Dist.] 2009, pet.

ref’d). 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. See

Chavera, 386 S.W.3d at 336; Savage, 905 S.W.2d at 274; Moreno, 297

S.W.3d at 520.      If the evidence meets the standard, it is an abuse of

discretion for the trial court to grant the motion for new trial. See id.

      Viewing the evidence in the light most favorable to the verdict under a

legal-sufficiency standard means the reviewing court is required to defer to

the jury’s credibility and weight determinations because the jury is

the sole judge of the witnesses’ credibility and the weight to be given their

testimony. See Chavera, 386 S.W.3d at 337 (citing Brooks v. State, 323

S.W.3d 893, 899 (Tex. Crim. App. 2010)). When reviewing the evidence,

the trial court may not sit as the thirteenth juror and may not substitute its

beliefs for those of the jury. See Chavera, 386 S.W.3d at 337; Moreno, 297

S.W.3d at 520.

      C.     The Law: Theft of Property.

      A person commits an offense if he unlawfully appropriates property


                                       -23-
with intent to deprive the owner of property. See Tex. Penal Code Ann. §

31.03(a) (West Supp. 2014). “Appropriate” means to “acquire or otherwise

exercise control over property other than real property.” See Tex. Penal

Code Ann. § 31.01(4)(B) (West Supp. 2014).

        In Stewart v. State, 44 S.W.3d 582 (Tex. Crim. App. 2001), a theft

case involving money, the Texas Court of Criminal Appeals reasoned that

the statutory definition of “appropriate” encompassed more than one method

of appropriation, and that each of those methods comprised more than one

way of meeting the definition. See id. at 588 (citing Gorman v. State, 634

S.W.2d 681 (Tex. Crim. App. 1982)). In Stewart, the Court further reasoned

that although exercising control was primarily directed at those thefts that

involve only possession, it also encompassed conduct that did not involve

possession. See Stewart, 44 S.W.3d at 588 (citing Gorman, 634 S.W.2d at

683).

        Although the Gorman case did not elaborate on the type of conduct

which would qualify as “exercising control” without involving possession,

the Court of Criminal Appeals in Stewart determined that “[a]nyone who is

in a position to take some action that deprives the owner of property is in a

position to exercise control.” See Stewart, 44 S.W.3d at 588-89. In Stewart,


                                    -24-
the Court held that “the 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.” See id.

at 589. In Stewart, the appellant “exercised control” over the property and

committed theft when, by his threats, he caused the complainant to release

the money to the police in Montgomery County.            See id (reference to

footnote omitted).

      It was not essential that the property be taken off the premises; it was

instead only essential that the evidence showed an “exercise of control over

the property,” coupled with an “intent to deprive the owner of the property.”

See Hill v. State, 633 S.W.2d 520, 521 (Tex. Crim. App. 1981). In Bailey v.

State, 885 S.W.2d 193 (Tex. App.--Dallas 1994, pet. ref’d), the court of

appeals reasoned that control was sufficient to establish possession under the

Texas Penal Code. See id. at 198.

      D.     Application of Law to the Present Case.

      1.     Fuller’s Argument in the Trial Court Below.

      After the jury’s verdict of guilty in the present case (RR, Vol. 5, pg.




                                      -25-
173), Fuller re-urged her motion for a directed or instructed verdict.1 Fuller

had a case on point, “Rosenbush versus State.” See RR, Vol. 5, pgs. 173-

174. In Rosenbush v. State, 136 Tex. Crim. 50, 122 S.W.2d 1071 (1938), the

proof showed no more than an intention to steal, as the accused never got

control or possession of the calf that got away with the accuser’s rope while

the accused was in the act of trying to steal the calf. See Pennington v. State,

416 S.W.2d 815, 816 (Tex. Crim. App. 1967).

      2.    The Element of “Appropriate” and Applying the Statutory
Definition of “Exercising Control” Without Involving Possession.

       Contrary to the defensive theory in this case, the Stewart Court

analyzed the type of conduct, which would qualify as “exercising control”

without involving possession.            See Stewart, 44 S.W.3d at 588-89.                In

Stewart, the Court held that anyone, who was in a position to take some

action that deprived the owner of property, was in a position to exercise

control. See id. In the present case, that person was Fuller. See id.

       a.      Fuller Was in a Position to Take Some Action, To Exercise
1
  At that time, Fuller’s motion did not re-submit her previous argument based on the civil
lawsuit with Diversicare that “we believe there’s collateral estoppel issues there.” By not
re-submitting the argument, Fuller waived that issue. See Tex. R. App. P. 33.1(a). Even
assuming error preservation, collateral estoppel did not apply. See, e.g., Ex parte Serna,
957 S.W.2d 598, 601 (Tex. App.--Fort Worth 1997, orig. proceeding) (collateral estoppel
applies in criminal cases but an appellate court should conduct a painstaking review of
the initial action only where the initial action resulted in a general verdict of acquittal).
Here, the initial action allegedly resulted in a settlement of the civil case, not a general
verdict of acquittal.

                                            -26-
Control.

      As defined in Stewart, Fuller was in a position to take some action and

to exercise control because she was the person responsible for filling out the

paperwork to account for how much money was taken in for any day. See

RR, Vol. 4, pgs. 58, 192, 239-240. Fuller made all the deposits for the “AR

side” (accounts receivable). See RR, Vol. 4, pgs. 46-47; Vol. 5, pgs. 7, 14-

15, 25. Not coincidentally, the evidence established that “Brentwood” did

not have problems with their trust funds or their accounting, after Fuller was

gone. See RR, Vol. 4, pgs. 99 (“We’ve had no trust fund errors since.”); 68,

163, 246. From that evidence, and the reasonable inference or inferences to

be drawn from that evidence, the jury could have reasonably found that

Fuller was in a position to take some action that deprived the owner of

property and was in a position to exercise control. See Stewart, 44 S.W.3d

at 588-89.

      b.   Miller’s Testimony Provided Sufficient Evidence to Prove
this Element: “Appropriate” Property.

      Then, the State adduced sufficient evidence to prove the remaining

elements of theft through the testimony of Miller, the regional financial

specialist, whose testimony can be summarized from re-direct examination:

             Q.    Okay. One more time. How many years have you

                                     -27-
been doing this?

      A.    Since June of 1990.

      Q.    How many years is that?

      A.    Almost 25.

      Q.     Okay. One more time for the record, Mr. Rodgers
cross-examined you to the effect that Erica Fuller didn’t take
anything from Brentwood. The money was transferred from
one to the other account. One more time, is there a deposit of
$1,416.84 pictured in State’s 3 anywhere in the books for either
bank account for Brentwood?

      A.    No.

      Q.    Who is responsible for taking the money collected,
cash or check, and depositing it?

      A.    Erica Fuller.

        Q.   Is there anywhere in the bank records, the deposit
slips, a sum of money, $2,031 for Mr. Boswell in July?

      A.    No.

       Q.     And who would have been responsible for taking
that deposit to the bank and depositing it?

      A.    Erica Fuller.

      Q.    October 4th, 2010. Is there anywhere a deposit of
$775.00 for McFadden in the bank account records?

      A.    No.

      Q.    For either side?

                               -28-
      A.     No.

      Q.     December 6th, State’s Exhibit 14, is there anywhere
in the bank records of the deposits for either side, either
account, a deposit of $137.00 in cash?

      A.     No.

      Q,     The bookkeeping -- and who would’ve been
responsible for taking that 137.50 to the bank and depositing it?

      A.     Erica Fuller.

    Q.     Who would’ve been responsible for taking
McFadden’s $775.00 check to the bank?

      A.     Erica Fuller.

      Q.     Now, so Brentwood never got that money that’s
represented by those four deposits?

      A.     Correct.

      Q.     Whose money was used to pay Brentwood’s
operations fund?

      A.     Mr. Hughes’ account.

      Q.     And so, who is out the money --

      A.     Mr. Hughes.

      Q.     -- as of December 2010?

      A.     Mr. Hughes.

      Q.     And how much money is Mr. Hughes out?


                              -29-
             A.    Approximately $8,000.

             Q.    Now, did Brentwood pay him back?

             A.    Yes, they did.

RR, Vol. 5, pgs. 132-134. This testimony proved theft of U.S. currency.

       c.    Fuller’s Consciousness of Guilt.

       In addition to Miller’s testimony above, the State established Fuller’s

consciousness of guilt through the testimony of administrator Brown, who

testified that when she first started working at “Brentwood,” Fuller came

into her office on a couple of occasions and asked if she was going to fire

her. See RR, Vol. 4, pg. 135. Brown testified that she told Fuller “no,” and

that she “wasn’t there to fire anybody” as the new administrator. See RR,

Vol. 4, pg. 135. Brown described Fuller as “fidgety” and “very inquisitive”

on why she was there. See RR, Vol. 4, pg. 136. See also RR, Vol. 4, pg.

168.

       Whether Fuller’s acts towards Brown were the result of, or based on a

consciousness of guilt, was an issue for the jury. See Whitney Ladell Blake

v. The State of Texas, No. 06-11-00097-CR, 2012 Tex. App. LEXIS 926, at

* 18, 2012 WL 361730, at * 4 (Tex. App.--Texarkana February 2, 2012, pet.

ref’d) (mem. op., not designated for publication).         As in Blake, an


                                     -30-
unpublished opinion and previous appeal from Lamar County, a rational jury

could have reasonably concluded that Fuller acted towards Brown in that

way because she knew she was committing theft. See id.

      E.    Conclusion.

      Viewing the evidence in the light most favorable to the jury’s verdict

under the legal-sufficiency standard, this Court should defer to the jury’s

credibility and weight determinations because the jury was the sole judge of

the witnesses’ credibility and the weight to be given their testimony. See

Chavera, 386 S.W.3d at 337 (citing Brooks, 323 S.W.3d at 899). Here, the

jury could have reasonably found the elements of theft beyond a reasonable

doubt, and the trial court erred in sitting as the thirteenth juror and in

substituting its beliefs for those of the jury. See Chavera, 386 S.W.3d at

337; Moreno, 297 S.W.3d at 520. Because the evidence was sufficient and

met the Brooks standard of legal-sufficiency, it was an abuse of discretion

for the trial court to grant the motion for new trial. See Chavera, 386

S.W.3d at 336; Savage, 905 S.W.2d at 274; Moreno, 297 S.W.3d at 520.

      Even further, of significance, the trial court denied Fuller’s motion for

directed verdict at first (RR, Vol. 5, pg. 142), and the defense rested and

closed without presenting any witnesses or other evidence. See RR, Vol. 5,


                                     -31-
pgs. 142-143. By later granting Fuller’s motion, the trial court granted a

judgment notwithstanding the verdict based on the exact same evidence that

the State had presented when it rested its case-in-chief. By granting Fuller’s

motion, that ruling by the trial court, based on the evidence, was outside the

zone of reasonable disagreement because there was no conflicting evidence

presented. On this additional basis, the trial court abused its discretion.

      Accordingly, this Court should reverse the trial court’s judgment

notwithstanding the verdict, reinstate the jury’s verdict, and remand. See

United States v. Wilson, 420 U.S. 332, 344-45 (1975) (since reversal on

appeal would merely reinstate the jury’s verdict, review of such an order

does not offend the policy against multiple prosecution).

      On remand, for the punishment phase, the trial court could recall the

jurors that previously found Fuller guilty, since she elected for the jury to

assess punishment. See CR, pg. 83. Presumably, the trial court could recall

the jurors by issuing summons or, alternatively, by issuing writs of

attachment for the jurors, if necessary. In the further alternative, Fuller

could waive her previous election (CR, pg. 83), and have the trial judge

decide punishment. Regardless of her election, the punishment phase could

proceed on remand for further proceedings in a manner to be designated by


                                      -32-
this Court.

         In the further alternative, this Court could reverse and remand cause

number 25545 for a new trial of guilt-innocence and punishment.

Regardless, the trial court’s judgment notwithstanding the verdict cannot

stand.

                                   PRAYER

         WHEREFORE PREMISES CONSIDERED, the State of Texas prays

that this Court set the above-styled and numbered appellate cause for oral

argument, and that upon final submission with oral argument, this Court

reverse the trial court’s judgment and remand the case for further

proceedings; or, in the alternative, for a new trial; and for such other and

further relief, both at law and in equity, to which it may be legally entitled.

                           Respectfully submitted,

                           Jeffrey W. Shell, Attorney Pro Tem
                           Attorney & Counselor at Law
                           2085 Berkdale Lane
                           Rockwall, Texas 75087
                           (214) 244-8480
                           (972) 204-6809

                           By:      s/s jeffrey w. shell
                                  Jeffrey W. Shell, Attorney Pro Tem
                                  SBN# 18191660
                                  jws0566@yahoo.com


                                      -33-
                         Gary D. Young, County and District Attorney
                         Lamar County and District Attorney’s Office
                         Lamar County Courthouse
                         119 North Main
                         Paris, Texas 75460
                         (903) 737-2470
                         (903) 737-2455 (fax)

                         By:_____________________________________
                              Gary D. Young, County & District Attorney
                              SBN# 00785298
                              gyoung@co.lamar.tx.us

                         ATTORNEYS FOR THE STATE OF TEXAS

                  CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

the “Appellant’s (State’s) Brief” was a computer-generated document and

contained 8413 words--not including the Appendix, if any. The undersigned

attorney certified that he relied on the word count of the computer program,

which was used to prepare this document.


                                      ______________________________
                                      GARY D. YOUNG
                                      gyoung@co.lamar.tx.us




                                    -34-
                     CERTIFICATE OF SERVICE

      This is to certify that in accordance with Tex. R. App. P. 9.5, a true

copy of the “Appellant’s (State’s) Brief” has been served on the 5th day of

June, 2015 upon the following:

      James R. Rodgers
      The Moore Law Firm, L.L.P.
      100 North Main Street
      Paris, Texas 75460


                                      ______________________________
                                      GARY D. YOUNG
                                      gyoung@co.lamar.tx.us




                                    -35-
