Opinion filed October 13, 2011




                                            In The


   Eleventh Court of Appeals
                                          __________

                                    No. 11-10-00001-CR
                                        __________

                                  JEINA HOGAN, Appellant
                                           V.
                                 STATE OF TEXAS, Appellee


                           On Appeal from the 35th District Court
                                    Brown County, Texas
                              Trial Court Cause No. CR18025


                           MEMORANDUM OPINION

       Jeina Hogan was a bank teller at the Walmart branch of Citizens National Bank in
Brownwood, Texas. She was indicted for the offense of theft of over $1,500 and under $20,000,
a state jail felony. TEX. PENAL CODE ANN. § 31.03 (Vernon 2011). The indictment alleged that
she unlawfully appropriated various amounts of currency between April 19 and May 25, 2005,
pursuant to one scheme and continuing course of conduct. Id. § 31.09. The jury convicted
Hogan of the offense and assessed her punishment at one year confinement in the Texas
Department of Criminal Justice, State Jail Division. Pursuant to the jury’s recommendation that
imposition of the sentence be suspended and that appellant be placed on community supervision,
the trial court sentenced appellant to five years community supervision and ordered restitution of
$18,829.
       Appellant raises two issues on appeal: (1) the evidence was insufficient to support her
conviction and (2) the trial court abused its discretion in denying her motion for mistrial when
the sole investigator for the State violated her motion in limine. We affirm.
                                                  Standard of Review
       The Texas Court of Criminal Appeals concluded in Brooks v. State, 323 S.W.3d 893
(Tex. Crim. App. 2010), that there is “no meaningful distinction between the Jackson v.
Virginia1 legal-sufficiency standard and the Clewis2 factual-sufficiency standard.” Brooks, 323
S.W.3d at 902. The Brooks court held that the Jackson v. Virginia standard is the “only standard
that a reviewing court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the State is required to prove beyond a reasonable doubt.”
Id. at 912. Under this standard, we must review all of the evidence in the light most favorable to
the verdict and determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319.
       The jury, as the finder of fact, is the sole judge of the weight and credibility of the
witnesses’ testimony.           TEX. CODE CRIM. PROC. ANN. art. 36.13 (Vernon 2007), art. 38.04
(Vernon 1979). The jury has the responsibility to resolve conflicts in the testimony and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In our review, we must determine whether
the necessary inferences are reasonable based upon the combined and cumulative force of all the
evidence when viewed in the light most favorable to the verdict. Hooper v. State, 214 S.W.3d 9,
16-17 (Tex. Crim. App. 2007). The standard of review is the same for direct and circumstantial
evidence. Circumstantial evidence is as probative as direct evidence in establishing the guilt of a
defendant. Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13.
                                                    Background Facts
       Appellant began her employment as a part-time teller at the branch bank on February 28,
2005, and she was terminated on June 2, 2005. During her period of employment, the branch
bank experienced a series of missing cash amounts, which we summarize as follows:
                Three tellers checked out (“bought”) straps of cash from the vault that
       were missing cash: $1,000 from one strap, $2,000 from another, and $400 from a
       third strap.
       1
        Jackson v. Virginia, 443 U.S. 307 (1979).
       2
           Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).

                                                              2
               Appellant had written $7,000 on her balancing sheet for June 1, but a
       surprise cash count of appellant’s drawer revealed that there was only $2,000 in
       her drawer.

               A number of appellant’s daily teller tapes had been cut and spliced,
       leaving out a transaction, and the transaction was written in at the end of the tape
       as a cash-out (purported transaction with a customer). On May 23, for example,
       the tape had been cut and then spliced together, omitting Transaction No. 95 that
       was listed at the end of the tape as a $4,000 check that was cashed. On May 4,
       there was an unexplained cash-out of $2,000, and on April 26, an unexplained
       cash-out of $1,000. The bank was unable to verify the listed cash-outs as valid
       transactions.

              The bank was unable to verify a number of cash-outs on other daily tapes
       of appellant.

              The executive vice president of operations for the bank found a strap of
       $2,000 in one hundred dollar bills behind a box holding appellant’s teller tickets.
       According to him, there was no reason for that cash to be hidden there.

Brenda Hicks, the branch manager, testified that the branch had not had straps with missing
amounts of cash before the period of appellant’s employment nor had the branch had so many
problems of missing cash. Troy Keith Clark, the executive vice president, testified that the bank
had not had any further major losses since appellant was terminated.
       Debra Dawson, a teller at the branch bank, testified that appellant was still in high school
when she worked part-time at the branch. Dawson described appellant as being very intelligent,
learning the job quickly, and working well with the customers. Carol Byerly, another full-time
teller, also testified that appellant was a very fast learner and a nice person.
       Dawson described the teller’s job. A teller would have $15,000 in his or her drawer at
the beginning and end of each day. The teller would get stacks of additional cash out of the vault
at the beginning of the day for handling the day’s transactions. When the teller checked out a
stack (referred to as a “strap”) of bills from the vault, the term was that the teller “bought” that
strap to put in the teller’s drawer. The amount of bills in a strap would not vary. For example, a
strap of $50 bills would have twenty $50 bills or $1,000. At closing, the teller would “sell”
excess cash back to the vault. The teller’s machine would reflect the straps that were bought and
sold during the day, recording on a tape the in-and-out system of checking out (buying) and
returning (selling) straps of cash.

                                                   3
       According to Dawson, newer employees were very cautious about the money they got
from the vault to put into their drawer, and they would never get enough to handle transactions
during the day. When appellant was new, she would not buy enough from the vault. But during
the month that Dawson was in charge of the vault, Dawson noticed that appellant was “buying a
tremendous amount of money and then at the end of the night selling a tremendous amount of
money back.” Byerly also noticed the change over time in appellant’s transactions with the
vault. When appellant first started as a teller, appellant would buy very little cash from the vault.
But toward the end of her employment, appellant would buy large sums of money even on days
when the tellers were not busy, and then appellant would say that she had not meant to buy that
much cash and would sell straps back to the vault. Appellant would buy large sums in the
afternoon that were more than sufficient for her needs as a teller.
       Dawson testified that, at first, it did not take appellant very long to balance her drawer
and then leave at the closing time of 7:00 p.m. But toward the end of her employment, appellant
took a lot more time to balance out her drawer. Dawson acknowledged that, at times, all the
tellers might have a problem, and if it was getting too late, a teller would wait until the next
morning to find the mistake. Appellant had the teller station to the right of Dawson, and Dawson
recalled that appellant’s station was not one of the busier stations. Yet, it took appellant more
time to check out the longer she worked there.
       Dawson testified that one day she bought a strap of bills from the vault that was short
some bills. Dawson said that she always verified the amount in a strap before putting the strap
into her drawer, as the bank’s policy required. She immediately reported the shortage to the
tellers’ supervisor, Hicks. The strap was short $400. Dawson explained that the shortage of
such an amount had never happened during the time she had been working as a teller. She said
that a strap might have been a dollar over or there might have been a $20 bill mixed in for a $50
bill but that there was never a shortage in a large amount such as $400.
       Dawson stated that the vault had a combination lock, a key, and a timer. There was one
vault at the branch. Two persons were required to open the vault: one person had a key and the
other person knew the combination. When a teller went to work at the branch bank, the teller
was assigned a key or a combination. The two-person vault team was changed every month.
Dawson had been assigned a key that she kept the entire time she was employed. Because she
was a part-time teller, appellant was never a member of the vault team.

                                                 4
       Dawson was one of two people in charge of the vault when she bought the strap that was
missing $400 in May. She said that a courier would bring cash from the main bank to the branch
bank if additional cash was needed and that the courier might bring up to $400,000 to the branch.
There were usually four or five tellers working at the branch bank, and the hours of business
were from 10:00 a.m. to 7:00 p.m.
       Dawson testified that the two tellers who were in charge of the vault did not take the
straps apart and count the bills in the strap when they were received from the main bank. The
straps had already been counted and initialed twice verifying that two people had counted the
bills before the straps had left the main bank to be delivered to the branch bank. Dawson
acknowledged, however, that the vault was left unlocked from 9:00 a.m. until 7:00 p.m. and that
anyone could have gone into the vault during that time. Dawson also said that there were video
cameras on the vault and in the teller area.
       At the end of the day, a teller would count the money in that teller’s drawer. If the
money was over or under the amount that teller was supposed to have, the teller would ask
another teller or the supervisor, Hicks, to also count the money in the drawer. The teller would
fill out a cash-over or a cash-under ticket and then put the teller’s initials or teller number on the
ticket. Each teller had a drawer in the vault that only that teller had a key to, and the teller would
put her drawer into the vault drawer and lock it in the vault drawer. Hicks was the only other
person who could unlock the vault drawer to take out a teller’s drawer.
       Dawson described the teller machine that generates a teller tape reflecting the
transactions during the day. The paper tape in the teller machine is a little wider than an adding
machine tape and is in duplicate form of a white tape and a yellow tape. At the end of the day,
the teller would tear her tape off, roll it up, and place the tape in a drawer that was then locked.
Each tape was numbered with a particular teller’s number. Appellant was Teller No. 44.
       If a teller’s drawer was in balance or only slightly out of balance at the end of the day, the
teller normally would not ask another teller to also count the first teller’s drawer. Often, a teller
would find the error and reconcile the balance in the drawer the next morning. It was in the
cases of a large discrepancy that a teller would ask another teller to count the cash in the drawer.
       Dawson testified that there was another time when a teller might have their drawer
checked by another teller: a surprise cash count. On occasion, Hicks would tell the tellers at the
beginning of the day that they were going to do a surprise cash count of another teller’s drawer.

                                                  5
Byerly testified that she assisted Hicks in performing a surprise cash count of appellant’s drawer
on June 2 and that they found the drawer was short $5,000 in cash. Hicks counted it first, and
then Byerly recounted the cash.
        Byerly identified State’s Exhibit No. 25 as being appellant’s teller tape for June 1.
Appellant had written down $7,000 on her balancing sheet, but there was only $2,000 in the
drawer. Therefore, the tape did not show that appellant’s drawer was out of balance. Dawson
testified that, as long as a teller reported that the drawer was in balance, that teller’s drawer
would not be counted by another person until there was a surprise cash count.
        Clark, executive vice president of Citizens National Bank, was in charge of operations for
the bank. He confirmed the duties of a teller as Dawson had related. Each teller was responsible
for the cash in her drawer. The teller had sole access to the drawer, and the teller had to go
through certain balancing procedures every day. Each day the teller would buy money from the
vault for the day’s transactions with customers. The teller had a certain limit on how much
money the teller was supposed to keep in the drawer, and if the drawer had more than that
amount at the end of the day, the teller had to sell that overage back to the vault. Tellers received
on-the-job training by sitting with an experienced teller and watching the experienced teller at
first. The new teller would then be given a drawer and begin handling transactions under the
watchful eye of an experienced teller. The bank has a teller manual that gives the rules and
procedures for tellers. Clark testified that appellant was given a copy of the manual when she
started work at the Walmart branch.
        Clark began his banking career in 1969 and joined Citizens National Bank in 1985. His
opinion was that the accountability procedures at the bank were at least as stringent as they were
in the other banks where he had worked. However, he acknowledged that no system was perfect
and that there were always weaknesses and need for improvement. At the time of trial, the bank
no longer used the paper tape system on teller machines. The bank had changed to an automated
teller operation that tied into the bank’s computer system. Except for his comment that the bank
had changed systems, Clark’s testimony related to the situation at the time that appellant worked
as a teller.
        Clark explained that, even under the new system, a teller still uses an in-ticket for cash
coming in from a customer and an out-ticket for cash given to a customer. There is an original
and one copy of each ticket. The original goes to the proof department where that department

                                                 6
can actually prove every transaction that goes through the bank, such as a loan payment, a
deposit, or cash for a check. The copy is kept by the teller for reconciling the cash in the drawer
at the end of the day. The teller begins with the cash at the start of the day, adds the cash that
came in, subtracts the cash that went out according to the tickets, obtains an amount that should
be in the drawer, and then counts the cash in the drawer to see if it balances to that amount.
       Clark described how the teller machine made a top copy that would be torn off and might
go with the transaction, but the bottom yellow copy was a continuous tape of every transaction,
recording all cash taken in and paid out. He said that there was not any reason for the underlying
tape to be cut. The tape was torn off at the end of the day, rolled up, and kept as a permanent
record of the bank. The top copy was white, and the continuous copy was yellow. A customer
might be handed a white copy as a receipt for a deposit, for example. Clark stated that it was not
uncommon for the teller to tear off a white copy on a frequent basis. Clark testified that, in
addition to the teller machine tape reflecting all the cash transactions during the day, there would
also be cash tickets for the cash transactions. The cash tickets and the tape should always be in
balance.
       Clark described how a teller’s drawer could show it was in balance if the teller created
false tickets for the same amount of money stolen by a teller; however, the error would
ultimately be caught on the bank’s general ledger.
       Clark and Hicks identified a number of the State’s exhibits as being appellant’s balancing
sheets and transaction sheets and part of the bank’s business records.            The odd-numbered
exhibits were the full-sized balancing sheets for a particular day and the even-numbered exhibits
were the transaction tapes for each day.
       Clark admitted that, during the period that appellant was a teller, a teller could check out
(buy) a strap and then later return it, saying that he or she had never opened the strap despite a
bank policy to the contrary. That strap could still have the initials of the two people who had
verified the strap earlier and not be recounted when it was returned to the vault. After appellant
was no longer a teller, the bank started enforcing its procedure of requiring that a teller initial and
date a strap that the teller returned to the vault, thereby taking responsibility for the accuracy of
the amount of cash in the strap. Clark stated that the policy was in place during the time that
appellant was a teller; however, the procedure was not always followed. He also explained that



                                                  7
the vault was not a walk-in vault; it was a locked cabinet about four feet wide, two feet deep, and
four feet high.
       In response to a telephone call from Hicks, Clark went to the branch. He and Hicks
determined that several straps contained less cash than they should have; the shortage was
$3,400. Clark recalled that they then counted appellant’s drawer and found that more money
was missing. Clark said that he then contacted Bobby Duvall with the Brown County Sheriff’s
Department.
       Clark testified that they then researched the records trying to rebuild each transaction that
was in question. That included pulling all of the teller tapes and looking at all the general
ledgers and supporting documents. He found that there was a pattern in the teller tapes. Clark
found that there were tapes of appellant that had pieces cut out of them and had been taped back
together, “which [was] highly unusual.” Clark also said that there were exceptions noted on the
general ledger and the balancing sheets. There were transactions that had not cleared and
required further research.
       Clark was questioned about a number of appellant’s teller tapes for different days. For
the date May 23, the tape had been torn and then spliced back. Transaction No. 94 was
immediately before the splice, and Transaction No. 96 was immediately after the splice;
Transaction No. 95 was missing. Clark said there was no legitimate reason for a teller to remove
a transaction from the tape. Transaction No. 95 did show up at the end of the tape in the total for
the day as a $4,000 check that was supposedly cashed. Clark said that the bank was not able to
substantiate the $4,000 cash-out for appellant reflected as Transaction No. 95.
       Clark also testified about appellant’s teller tape dated May 4. Again, the teller tape had
been cut and then pasted back together. In State’s Exhibit No. 18, Transaction No. 59 was
missing where the tape was spliced but was listed as a $2,000 cash-out on the day’s totals.
Appellant’s teller tape for April 26 had been cut with Transaction No. 75 being eliminated and
then listed in the day’s totals as a cash-out of $2,000. Appellant’s teller tape for April 25 had
been cut with Transaction No. 97 being eliminated and then listed in the day’s totals as a cash-
out of $1,000. Clark also testified as to an additional number of cut tapes where transactions
were missing and then listed as cash-outs at the end of the day.
       Clark stated that the tape cuts and the listing of the missing transactions as cash-outs at
the end of the tape was a method of creating a false transaction in order to conceal money that

                                                 8
was actually missing from the drawer’s balance.           He could not think of another possible
explanation. The tape would appear to be in balance at the end of the day, but the missing
money would show up on the general ledger.
       Clark testified as to a number of appellant’s teller tapes where the tapes were not cut and
transactions were listed but where the cash-outs could not be verified. Clark pointed out that
appellant’s teller tapes reflected a pattern of the amounts of missing money starting small and
increasingly getting larger. In addition to the amounts reflected on the cut tapes and cash-outs
that could not be verified, there also was the $5,000 amount that was missing when the surprise
cash count was made of the cash in appellant’s drawer.
       Clark testified that the bank’s loss was approximately $18,400, which included the
$3,400 missing from the straps in the vault, the $5,000 missing from appellant’s drawer when the
surprise cash count was done, and the questionable transactions on appellant’s teller tapes. Clark
also stated that, when he looked through appellant’s work area, he found a strap of $2,000 in one
hundred dollar bills behind a box holding appellant’s teller tickets. According to Clark, there
was no reason for that cash to be hidden there. The cash should have been placed in appellant’s
drawer.
       Clark testified that there were three cameras focused on the tellers and one camera
focused on the vault. However, during the period that appellant was a teller, the camera system
was not working. The cameras were running, but they fed into a recorder, which was not
working.
       When Hicks learned that $5,000 was missing from appellant’s drawer on June 2, she
called Kim Campbell in addition to her call to Clark. Because of a shortage of tellers, Hicks had
not been able to research shortages and review appellant’s teller tapes. Hicks testified that she,
Campbell, and Margaret Pritchard examined all of appellant’s teller tapes and then prepared a
report that was given to Chief Deputy Bobby Duvall in the course of the bank’s investigation.
The report contained a list of transactions that had been cut from appellant’s teller tapes or that
were unreconciled. The total dollar amount of those items exactly matched the deficiencies that
Hicks had been carrying on the general ledger until she had time to research them.
       Hicks stated that she prepared a cash balancing sheet for the branch each day. To prepare
a cash balancing sheet, Hicks would add all the cash-ins of all the tellers, all the cash-outs of all
the tellers, and all the ending cash of all the tellers. Hicks testified that, with the employees other

                                                  9
than appellant, she did not have any major missing amounts of cash or shortages that were not
resolved.
         Campbell was the operations officer and assistant cashier at Citizens National Bank. She
was hired in the main bank in 1981 and had been in banking twenty-eight years. Campbell’s
duties included balancing what tellers do back to the general ledger; taking care of the cash vault;
ordering cash; shipping cash; and handling wire transfers, safety deposit boxes, and savings
bonds.      Campbell confirmed that everything a teller did during the day was on the tape.
Customers’ account numbers and what the teller did for them – took a deposit, cashed a check,
gave change, took a loan payment, or anything else the customer needed – would be on the tape.
She explained the process of the teller making two-part tickets with the teller keeping one copy
and the other going through the proof department with the transaction. She also explained how
she compared the teller tapes to the tickets to the general ledger.
         Campbell testified that she discovered discrepancies on appellant’s tapes. Most were
pink slips that appellant made, indicating that she gave cash out to a customer. However, the
hard copy of that ticket never went through the proof department. Therefore, there was no proof
of an actual transaction with a customer. As Campbell stated, “[Appellant] just took the cash
out, made a ticket so that her cash drawer will balance; but it’s not going to balance with the
general ledger.”
         Campbell also expressed her opinion that there was no legitimate reason for transactions
having been cut out of appellant’s teller tapes and the tapes then taped back together. Campbell
testified that Transaction No. 97, a cash-out ticket for $1,000 that was cut from appellant’s
April 25 tape, had never been proved as a transaction with a customer. On appellant’s May 23
tape, Transaction No. 95 was missing where the tape had been cut and then listed as a cash-out of
$4,000. Campbell concluded by stating that the bank had filed a loss report with the Federal
Reserve and that the bank’s loss was $18,829.
         Chief Deputy Duvall testified that he was asked by Sheriff Bobby Grubbs to conduct an
investigation for the bank. Chief Deputy Duvall reviewed his experience as an investigator. He
worked with the Department of Public Safety for over thirty years: eight and one-half years on
highway patrol, ten years as a narcotics agent in San Antonio, seven years as a field supervisor in
Texarkana, three years as a district captain in Midland, and the last three years as a commander
in the headquarters in Austin for the narcotics service. He stated that he had interviewed

                                                 10
hundreds and perhaps thousands of witnesses. As to financial investigations, he had assisted the
Internal Revenue Service in working on financial crimes in San Antonio. They would review
ledger books, bank receipts, credit card receipts, and other financial records.
       Chief Deputy Duvall stated that he took notes during his investigation for the bank but
that he destroyed his notes after he incorporated them in his report to the bank. He said that he
interviewed Clark, Campbell, Hicks, Byerly, Dawson, and appellant.
       Chief Deputy Duvall contacted appellant on June 2, and she agreed to come in for an
interview that day. She was accompanied by her grandmother. Chief Deputy Duvall told her
that $8,400 was missing from the bank and that that included $5,000 from her cash drawer and
$3,400 from the straps. Chief Deputy Duvall said that appellant denied any knowledge of the
missing currency.
       Chief Deputy Duvall stated that he asked appellant questions about her job, including
how she got money from the vault, how she worked with customers, how she kept her balance
correct during the day, and how she reconciled the records if she was short of money at the end
of the day. When he asked her about how shortages were handled, appellant said, “[T]hey just
make it happen where it all came out okay.” She then added that she did not take any money and
that “[t]hey must have their problem somewhere else.” Appellant claimed that she was not
aware how things worked out when her drawer was short. She stated that the shortage was
adjusted in the proof department but that she did not know what the proof department was.
       Chief Deputy Duvall testified that, at one point, appellant offered to pay the money back.
The only figure that he had discussed with her was $8,400. He stated that appellant offered to
pay the money back another time during the interview. When he asked appellant about the
$5,000 that was missing from her cash drawer, she could not explain the shortages. She only
said that a customer had come in to cash a $5,000 check and perhaps that was when the shortage
occurred.
       On June 3, appellant came in for a second interview with her mother and her
grandmother. Chief Deputy Duvall informed appellant that this was a criminal investigation,
that she was free to come and go as she liked, that she was free to have an attorney, but that he
wanted to interview her alone. She refused and left. But, a few minutes later, she came back and
asked to be reconsidered for the interview. Chief Deputy Duvall said that he allowed the family
members to be with her during the interview.

                                                 11
        Appellant began the second interview by saying that she thought she knew where the
money went. She stated that there was a new teller named Jennifer that had worked appellant’s
drawer on May 27 and that perhaps the money was taken at that time. Chief Deputy Duvall
stated that he developed Jennifer as a suspect at that point but that, ultimately, he concluded that
Jennifer was not a valid suspect.
        Chief Deputy Duvall said that appellant also suggested that Hicks might have taken the
money when appellant had to go to the restroom. Appellant claimed that she was not required or
trained to report inconsistencies to her supervisor; however, Chief Deputy Duvall knew that that
was inconsistent with the bank’s policy manual for tellers. It was also inconsistent with some of
appellant’s earlier answers. Chief Deputy Duvall said that appellant took no responsibility for
the shortages or for reconciling the balance in her drawer. Chief Deputy Duvall said that he told
appellant that “it was clear to [him] that she was not at all truthful in her responses.” At that
point, appellant’s attorney made an objection, which the court sustained, and then he requested
an instruction, which the court gave.      However, the court denied appellant’s motion for a
mistrial.
        Chief Deputy Duvall said that his investigation did not end with the second interview.
He continued to examine the teller tapes, review the bank’s policies, and conduct additional
interviews with Hicks, Byerly, and Campbell. Chief Deputy Duvall said that he looked at the
teller tapes and balancing sheets of appellant for the period of April 1, 2005, through May 31,
2005. Chief Deputy Duvall concluded his investigation within a week of June 6. As to his
interviews, Chief Deputy Duvall stated that “Brenda Hicks’[s] demeanor was professional and
informative fully. [Appellant’s] demeanor was courteous and evasive completely.”
                                    Sufficiency of the Evidence
        In challenging the sufficiency of the evidence, appellant points out that bank straps were
handled by any number of people who could have taken currency from the straps: those who
counted and strapped the cash when it came from the Federal Reserve, the people who gave the
cash to couriers for delivery to the branch bank, the couriers who took the cash straps to the
branch, and the receiving branch tellers who did not count the currency in the straps when it
arrived at the branch. Appellant argues that no one saw her cut her teller tapes despite her
working within a short distance of other tellers. Appellant also characterizes Chief Deputy
Duvall’s investigation as being “woefully inadequate.”

                                                12
       In effect, appellant attempts to resurrect the “reasonable hypothesis analytical construct”
that was used in circumstantial evidence cases prior to Geesa v. State, 820 S.W.2d 154 (Tex.
Crim. App. 1991).       Under the reasonable hypothesis analytical construct, the State, in
circumstantial evidence cases, had to exclude all reasonable hypotheses, other than the
defendant’s guilt, in order for the evidence to be legally sufficient. Geesa, however, brought to
an end the requirement that, in circumstantial evidence cases, appellate courts must utilize the
“reasonable hypothesis analytical construct.” 820 S.W.2d at 155.
       The court in Geesa explained, however, that the abrogation of the reasonable hypothesis
analytical construct necessitated a jury instruction on reasonable doubt. Id. at 161. In Paulson v.
State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000), the Court of Criminal Appeals overruled that
portion of Geesa that required trial courts to instruct juries on the definition of “beyond a
reasonable doubt.”    Since Paulson, the Court of Criminal Appeals has confirmed Geesa’s
rejection of the analytical construct and reiterated that the correct standard of review for legal
sufficiency review is the same in both direct and circumstantial evidence cases. The appellate
court is to use the Jackson v. Virginia standard and examine all the evidence in the light most
favorable to the verdict in order to determine whether any rational trier of fact could have found
the essential elements of the offense beyond a reasonable doubt.
       Appellant was indicted for the offense of theft of over $1,500 and under $20,000, a state
jail felony, in violation of Sections 31.03 and 31.09 of the Texas Penal Code. The offense was
alleged to have occurred, pursuant to one scheme and continuing course of conduct, on various
dates between April 19, 2005, and May 25, 2005. Viewed in a light most favorable to the
verdict, the evidence was legally sufficient for the jury, as a rational trier of fact, to find that
appellant committed theft of over $1,500 and under $20,000 as alleged in the indictment.
       Hicks, the branch manager, testified that the branch had not had straps with missing
amounts of cash before the period of appellant’s employment nor had the branch had so many
problems of missing cash. Clark testified that the major losses stopped when appellant was
terminated. Dawson testified that she had never taken a strap of cash from the vault that was
missing more than a minor amount; yet, on that day in May, the strap she took was missing $400.
Other tellers then found that straps they received from the vault were missing another $3,000.
       On June 2, the surprise cash count by Hicks and Byerly of appellant’s drawer revealed a
missing $5,000. Appellant had written $7,000 on her balancing sheet for June 1, but there was

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only $2,000 in her drawer. Appellant’s teller tapes were the only ones that had been cut or torn
and then spliced back together, omitting transactions, even though the omitted transactions were
listed as cash-outs at the end of the tape. The bank investigated but was unable to confirm that
appellant’s listed cash-outs (that had been cut from the tape) were valid transactions with a
customer. The bank was also unable to verify a number of cash-outs on other daily tapes of
appellant.
        Campbell testified that there were a number of discrepancies on appellant’s teller tapes.
Appellant had prepared pink slips indicating that she gave cash to a customer; however, the hard
copy of that ticket never went through the bank’s proof department. The conclusion had to be
that there was not an actual transaction with a customer. Campbell testified that the missing
currency totaled $18,829.
        The evidence was sufficient to support the verdict. The jury took one and one-half hours
to render its verdict of guilt. Appellant’s first issue is overruled.
                                   Appellant’s Motion for Mistrial
        In appellant’s second issue, she argues that the trial court abused its discretion in denying
her motion for mistrial when the lead and sole investigator for the State, Chief Deputy Duvall,
violated her motion in limine. Prior to trial, appellant was granted a motion in limine prohibiting
the State from eliciting testimony “as to the truthfulness or untruthfulness of a witness, or an
opinion as to the guilt or innocence of the [accused].”
        During Chief Deputy Duvall’s testimony concerning one of his interviews with appellant,
he testified that he told appellant that “it was clear to [him] that she was not at all truthful in her
responses.” Appellant objected, asked for an instruction that the jury disregard the answer, and
moved for a mistrial. The trial court sustained the objection, instructed the jury to disregard
Chief Deputy Duvall’s statement, but denied the motion for mistrial.
        The trial court was correct in agreeing that the motion in limine was violated, in
sustaining appellant’s objection, and in instructing the jury to disregard the testimony. We
disagree with the State’s characterization that Chief Deputy Duvall was simply describing an
interview technique.
        We find, however, that the trial court did not abuse its discretion in denying appellant’s
motion for a mistrial. The granting of a mistrial is an extreme remedy for curing prejudice
occurring at trial. Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996). A mistrial is

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required only when the improper evidence or testimony is “clearly calculated to inflame the
minds of the jury and is of such a character as to suggest the impossibility of withdrawing the
impression produced on the minds of the jury.” Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.
Crim. App. 1999). A trial court does not abuse its discretion when its decision is within the zone
of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).
       After reviewing Chief Deputy Duvall’s testimony in the context of all the testimony and
evidence in the case, we find that the trial court’s instruction to disregard cured any prejudicial
effect associated with the improper answer. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim.
App. 2000). We presume that the jury followed the trial court’s instructions to disregard the
improper testimony.     Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998).
Appellant’s second issue is overruled.
                                         This Court’s Ruling
       The judgment of the trial court is affirmed.




                                                               TERRY McCALL
                                                               JUSTICE


October 13, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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