


NUMBER 13-98-629-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI
___________________________________________________________________


NORMA HERRERA RODRIGUEZ,	Appellant,


v.

THE STATE OF TEXAS,	Appellee.

___________________________________________________________________


On appeal from the 92nd District Court
of Hidalgo County, Texas.
____________________________________________________________________


O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and

Rodriguez

Opinion by Chief Justice Seerden

	Appellant Norma Herrera Rodriguez was tried and found guilty of
state jail felony theft.  She was sentenced by the court to two years
imprisonment in the Texas Department of Criminal Justice and ordered
to make restitution in the amount of $19,281.53.  The court suspended
her sentence and placed Rodriguez on community supervision for five
years.  Rodriguez appeals her conviction by two issues.  We affirm.

Factual Background
	Norma Herrera Rodriguez worked as a receptionist and bookkeeper
for Bob Gaston Realty, a real estate sales and development company
which also sold and financed residential lots.  During the relevant time
period, Rodriguez was Bob Gaston Realty's sole employee. 

	Rodriguez accepted payments from customers and handled the
bookkeeping on their accounts.  Payments were usually made in cash,
and the money was put in the office cashbox.  When Rodriguez
received a payment, she made out a sequentially numbered, duplicate
receipt, and gave one copy to the customer.  The receipt showed the
date, account number, amount paid, and the signature or initials of the
person receiving the money.  Approximately once a week, Rodriguez
prepared "tally sheets" showing payments and amounts, and posted
the payments made to a computer accounting program.  She would
then give Bob Gaston the tally sheet, a computer printout of payments,
and the cash, and Gaston would deposit the payments.  

	On one of Rodriguez's days off,  Gaston was preparing the weekly
deposit and noticed a customer's name on the tally sheet without
reference to a corresponding amount paid by that customer.  He looked
in the receipt book to determine the amount paid, and then discovered
that there was no money in the cashbox to cover that payment.  On
further checking, he noticed other receipts that had been written had
not been listed on the tally sheets, nor had the money received been
turned over to Gaston for deposit.

	Gaston asked Rodriguez to explain this discrepancy, but she was
unable to do so.  Gaston told Rodriguez to take two week's vacation,
and not to return to work until he had completed an audit.  Rodriguez
never returned to work.

	Gaston's audit disclosed over fifty accounts for which receipts had
been completed, but corresponding payments had not been credited to
the customers' accounts.  Gaston testified that he did not give
Rodriguez his consent to keep these payments.  The amount missing
was "close to twenty thousand dollars."  

	Appellant was charged with theft under section 31.03(a) of the
Texas Penal Code, which provides that a person commits an offense if
she unlawfully appropriates property with intent to deprive the owner
of property.  See Tex. Pen. Code Ann. §31.03(a) (Vernon Supp. 2000). 
Appropriation is unlawful if it is without the owner's effective consent. 
Tex. Pen. Code Ann. §31.03(b) (Vernon Supp. 2000).  Further, where
amounts are obtained by theft pursuant to one scheme or continuing
course of conduct, whether from the same or several sources, the
conduct may be considered as one offense and the amounts aggregated
in determining the grade of the offense.  Tex. Pen. Code Ann. §31.09
(Vernon 1994).  A theft offense is a state jail felony if the value of the
property stolen is more than $1,500 but less than $20,000.  See Tex.
Pen. Code Ann. §31.03(e)(4) (Vernon Supp. 2000).

Fatal Variance
	By her first issue, Rodriguez contends that the trial court erred in
denying her motion for instructed verdict.  She contends that the State
failed to prove that the grand jury used due diligence in attempting to
ascertain elements and facts alleged in the indictment to be unknown
to the grand jury, and that this failure created a fatal variance between
what was charged and what was proved at trial.  

	The indictment provided:

		THE GRAND JURY . . . present in and to said court that
NORMA HERRERA RODRIGUEZ hereinafter styled Defendant,
between the dates of on or about the 7th day of June A.D.,
1995 and March 5, 1996, the exact dates being unknown to
the Grand Jury, and before the presentment of this
indictment, in Hidalgo County, Texas, did unlawfully, then
and there, intentionally and knowingly, appropriate, to wit:
acquire and otherwise exercise control over property other
than real property, to wit: United States currency, with the
exact amount of money appropriated on any given day
during that time period also being unknown to the Grand
Jury, the owner of said property being Bob A. Gaston; 


	. . .


		And all of said amounts were obtained, as alleged; in
one scheme and continuing course of conduct, and the
aggregate value of the property so appropriated was
$1,500.00 or more but less than $20,000.00.


Rodriguez argues that the grand jury failed to use reasonable diligence
to determine the exact amount of money alleged to have been
appropriated and the exact dates when these amounts were alleged to
have been appropriated.

	When the indictment alleges an element or a fact is unknown to
the grand jury, the State may prove the element or the fact at trial.  See,
e.g., Huffman v. State, 775 S.W.2d. 653, 62 (Tex.App.--El Paso 1989,
pet. ref'd); Ishmael v. State, 688 S.W.2d 252, 258 (Tex.App.--Fort
Worth 1985, pet. ref'd).  When the indictment alleges an element or a
fact is unknown to the grand jury, and at trial the State proves that
element or fact, the State has the burden of showing that the grand jury
used due diligence in trying to ascertain the fact or element which was
alleged to be unknown.  Hicks v. State, 860 S.W.2d 419, 424 (Tex.
Crim. App. 1993); Matson v. State, 819 S.W.2d 839, 847 (Tex. Crim.
App. 1991); Ishmael, 688 S.W.2d at 257.  

	However, if the evidence adduced at trial fails to establish the
unknown element or fact, a prima facie showing is made that the
element or fact was unknown to the grand jury.  Hicks v. State, 860
S.W.2d at 424.  Further, where the facts as developed at trial suggest
that an investigation by the grand jury could not have helped in
ascertaining the unknown fact, there is a prima facie showing of due
diligence.  Ishmael, 688 S.W.2d at 257.  

	The State has the burden of proving whether the fact or element
was unknown and whether the grand jury utilized due diligence. 
Matson, 819 S.W.2d at 847 n.5.   As appellant suggests in her brief, if
the State is unable to meet its burden of proof, the trial court must find
a fatal variance between the indictment and the proof.  See Coleman v.
State, 918 S.W.2d 39, 41 n.1 (Tex.App.--Houston [1st Dist.] 1996),
aff'd, Ex Parte Coleman, 940 S.W.2d 96 (Tex. Crim. App. 1996);
Cunningham v. State, 484 S.W.2d 906, 911 (Tex. Crim. App. 1972).

	The parties to this appeal have not raised an issue regarding
whether the Matson and Hicks line of cases is still valid law.  In Rosales
v. State, 4 S.W.3d 22, 230-31 (Tex. Crim. App. 1999), the appellant
argued that he was entitled to an acquittal because the indictment
alleged that he killed the victim by stabbing her with a knife and by
striking her with a hard object, "the exact nature of which is unknown
to the grand jury," and the prosecution failed to prove the grand jury
used due diligence in determining the exact nature of the hard object. 
See Rosales, 4 S.W.3d at 230-31.  In the majority's opinion, the court
of criminal appeals held that: (1) the prosecution satisfied the "due
diligence" requirement when it proved through one of the grand juror's
testimony that the grand jury was unable to find out what caused the
various injuries to the victim; (2) the jury was charged in the disjunctive,
which was permissible even though the indictment charged in the
conjunctive, and therefore, proof that the victim was stabbed was
sufficient; and (3) in light of the court's decision in Malik v. State, 953
S.W.2d 234 (Tex. Crim. App. 1997), which held that the legal
sufficiency of the evidence to support a conviction should be measured
by the elements of the offense as defined by a hypothetically correct
jury charge, "the rule in cases like Hicks is no longer viable."  Rosales,
4 S.W.3d at 231.  

	Justice Meyers, in his concurring opinion in Rosales, points out
that either of the first two reasons were sufficient to decide the case on
appeal, and therefore, that portion of the opinion purporting to overrule
Hicks was merely dicta.  Id. at 234 (Meyers, J., concurring). 
Subsequent cases construing Rosales have not addressed the effect of
the Rosales opinion on the continuing viability of the Matson and Hicks
line of cases.  See, e.g., Wheeler v. State, No. 06-99-00057-CR, 2000
Tex. App. LEXIS 6445, *15 (Texarkana September 22, 2000, no pet.). 
In view of our disposition of this issue, we also express no opinion as
to the effect of Rosales. 

	In this case, the evidence adduced at trial fails to establish either
the total amount of money taken or the dates on which Rodriguez took
the money.  There is nothing in the record indicating the exact dates the
funds were taken, nor the exact amount of money appropriated on any
given day during the time period alleged, thus a prima facie showing
was made that this information was unknown to the grand jury.  Hicks,
860 S.W.2d at 424.  Further, the evidence showed that the wrongful
appropriations could have occurred on any date from the date that the
customer made the payment until the date of the next deposit.  An
investigation by the grand jury could not have helped in ascertaining the
exact dates of the appropriations, thus there was a prima facie showing
of due diligence.  Ishmael, 688 S.W.2d at 257.  We overrule appellant's
first issue.

Legal Insufficiency 
	In her second issue, Rodriguez argues that the trial court erred in
denying her motion for instructed verdict because the evidence was
legally insufficient to prove an essential element of theft, specifically,
that the evidence was insufficient to show that any property was
appropriated.

	A legal sufficiency review calls upon the reviewing court to view
the relevant 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 v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979);
Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000).  In a legal
sufficiency review, the fact finder remains the exclusive judge of the
credibility of the witnesses and of the weight to be given their
testimony.  See Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App.
1994).  The appellate court serves to ensure the rationality of the fact
finder, but does not disregard, realign, or weigh the evidence.  Moreno
v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).  These standards
for review apply equally to direct and circumstantial evidence cases. 
Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App.1991).

	Rodriguez contends that the evidence is legally insufficient to
show that any amount of money was stolen or illegally appropriated
from Bob Gaston.   Rodriguez argues that the evidence shows only that
there was a discrepancy in her bookkeeping insofar as the receipts and
the tally sheets failed to correspond.  We disagree.

	The evidence adduced at trial showed that Rodriguez had access
to the missing money and that receipt of and accounting for the money
was primarily her responsibility.  Over eighty receipts issued by
Rodriguez for cash payments were neither entered into the tally sheets
routinely kept by the business nor posted to the computer accounting
program.  The missing payments involved over fifty separate accounts. 
Nearly all of the accounts that paid in cash were missing at least one
payment, but no account had payments missing more than three times. 
The missing payments occurred for an extended period of time between
June 7, 1995, and March 5, 1996.  Bob Gaston testified that payments
of "close to twenty thousand dollars" received by Rodriguez in cash
were missing, and that he had not given Rodriguez permission to take
the money.

	Moreover, the jury heard other evidence suggesting that the
missing money was more than a mere bookkeeping error.  When a
customer missed a payment, Gaston sent a letter advising the customer
of the delinquent payment.  Letters written and signed by Gaston
advising customers of such delinquencies, which he had asked
Rodriguez to mail, were found unsent in the bottom of a filing cabinet
after Rodriguez left Gaston's employment.

	In the instant case, taking all of the evidence in the light most
favorable to the verdict, any rational trier of fact could have found that
Rodriguez appropriated the money from Gaston without his consent. 
We overrule Rodriguez's second issue.   

	We affirm the judgment of the trial court. 



  
	ROBERT J. SEERDEN, Chief Justice


Publish.

Tex. R. App. P. 47.3.


Opinion delivered and filed

this 16th day of November, 2000.



