                                                                                  ACCEPTED
                                                                               06-15-00037-cr
                                                                   SIXTH COURT OF APPEALS
                                                                         TEXARKANA, TEXAS
                                                                          8/5/2015 1:38:01 PM
                                                                             DEBBIE AUTREY
                                                                                       CLERK

                  ORAL ARGUMENT REQUESTED

                        NO. 06-15-00037-CR              FILED IN
                                                  6th COURT OF APPEALS
__________________________________________________________________
                                                    TEXARKANA, TEXAS
                                                    8/5/2015 1:38:01 PM
                    In the Sixth Court of Appeals       DEBBIE AUTREY
                                                            Clerk
                          Texarkana, Texas
_________________________________________________________________

                  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
__________________________________________________________________

                   BRIEF OF APPELLEE
__________________________________________________________________

                                      THE MOORE LAW FIRM, L.L.P.
                                      James R. Rodgers
                                      State License #17136300
                                      Judy Hodgkiss
                                      State License # 17136525
                                      100 N. Main Street
                                      Paris, Texas 75460
                                      Telephone 903/784-4393
                                      Facsimile 903/783-0042

                                      ATTORNEYS FOR APPELLEE,
                                      ERICA LYNN FULLER
                 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
Lamar County & 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 Street
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
% The Moore Law Firm, L.L.P.
100 North Main Street
Paris, Texas 75460

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

                                       -i-
                                         TABLE OF CONTENTS

                                                                                                                 Page

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

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

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

STATEMENT REGARDING ORAL ARGUMENT ..................................                                             iv

REPLY TO ISSUES PRESENTED .............................................................                          v

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

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

SUMMARY OF THE ARGUMENT ...........................................................                              15

ARGUMENT AND AUTHORITIES ...........................................................                             19

PRAYER .......................................................................................................   32

CERTIFICATE OF COMPLIANCE ............................................................. 33

CERTIFICATE OF SERVICE ...................................................................... 34




                                                           -ii-
                                   INDEX OF AUTHORITIES
Cases                                                                                                   Page

Adelman v. State, 828 S.W.2d 418 (Tex.Crim.App. 1992).......................                            16, 29

Adames v. State, 353 S.W.3d 854 (Tex.Crim.App. 2011)..........................                          30

Bailey v. State, 855 S.W.2d 193 (Tex.App. - Dallas 1994)........................                        25

Christensen v. State, 230 S.W.3d 75 (Tex.App. - Houston [1st Dist.] 2007). 26

Cueva v. State, 339 S.W.2d 839 (Tex.App. - Corpus Christi 2011)............                             27

Freeman v. State, 707 S.w.2d 597 (Tex.Civ.App. 1986).............................                       20

Gold v. State, 736 S.W.2d 865 (Tex.Crim.App. 1987).................................                     29

Huff v. State, 897 S.W.2d 829 (Tex.App. - Dallas 1995)....................... 18, 20, 24, 25

Minter v. State, 26 Tex.App. 217, 9 S.W. 561..............................................              22

Newman v. State, 115 S.W.3d 118 (2003)..................................................... 20

Rosenbush v. State, 136 Tex.Crim.. 50 (1938).............................................               22

Stewart v. State, 44 S.W.3d 582 (Tex.Crim.App. 2001)............................... 23

Tesoro Refining & Marketing Co., LLC v. National Union Fire.................. 23
 Ins. Co. of Pittsburgh, Pennsylvania, - F.Supp. 3d - 2015 WL 152943.

 Wirtz v. State, 361 S.W.3d 694 (Tex.Crim.App. 2012)................................ 26

STATUTES

Tex.Cr.Code Ann § 31.03(a)............................................................................ 19

Tex.Penal Code § 31.01................................................................................. 19, 26

                                                      -iii-
               STATEMENT REGARDING ORAL ARGUMENT

      The Appellee, Erica Lynn Fuller requests oral argument. Oral argument would

assist in applying the law to the facts in this case.




                                           -iv-
                REPLY TO ISSUE PRESENTED

ISSUE PRESENTED IN REPLY TO SOLE ISSUE: THE TRIAL COURT DID

NOT ABUSE ITS DISCRETION IN GRANTING FULLER’S MOTION FOR

NEW TRIAL AS THE EVIDENCE WAS LEGALLY INSUFFICIENT.




                            -v-
                        NO. 06-15-00037-CR
__________________________________________________________________

                    In the Sixth Court of Appeals
                          Texarkana, Texas
_________________________________________________________________

                      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
__________________________________________________________________

                       BRIEF OF APPELLEE
__________________________________________________________________

TO THE HONORABLE SIXTH COURT OF APPEALS
AT TEXARKANA:

      COMES NOW, Erica Lynn Fuller, by and through her attorney of record,

James R. Rodgers, and files this Brief of Appellee under Rule 38.2 of the Texas Rules

of Appellate Procedure.




                                         -1-
                            STATEMENT OF FACTS

      The alleged theft occurred on December 31, 2010. The audit investigation that

is referenced throughout this case occurred in January, 2011.

      Throughout the testimony the nursing home is referred to alternatively as

Brentwood, Parkview, or Diversicare. Originally the nursing home was known as

Parkview. It later became known as Brentwood Terrace Nursing Home and Rehab.

Diversicare is the corporation that bought the facility. (RR, Vol. 4, p. 45; Vol. 5, p.

7). At the times relevant to this incident, Ruth Brown (Brown) was the administrator

of Brentwood. Melissa Neisler (Neisler) was the business office manager. (RR, Vol.

4, p. 41). Erica Fuller’s (Fuller) job was to oversee the account that Brentwood set

up which is referred to as the “trust fund”. Fuller’s duties also included sending

invoices into corporate that are properly coded for payment. Fuller had no check

writing authority on the account referred to throughout the trial as “operations”. (RR,

Vol. 5, pp. 15-16). Other than making deposits, Fuller had nothing to do with the

operations side or operations account. (RR, Vol. 5, pp. 15-16). In fact, one person

dealt with the residents’ account (Trust - Fuller) and one dealt with the operations

account (Neisler). (RR, Vol. 4, p. 140-141).

      Angie Styles (Angie Whipkey) was the receptionist. The receptionist handled

money that came into the facility that was either put into the trust fund or the

                                          -2-
operations fund. It was the receptionist who had the duty of giving the appropriate

receipt for the transaction. (RR, Vol. 4, pp. 52, 53, 114, 125).

      The system that was utilized at Brentwood had a lot of money going through

it on a daily basis. (RR, Vol. 4, p. 177). On a daily basis, money was coming in,

going out, with money moving from one account to another. (RR, Vol. 4, p. 178).

For instance, some of the residents’ room and board was paid from the trust fund and

some of the residents’ room and board was paid from the operations account. (RR,

Vol. 4, p. 178). As to some of the individuals, room and board would be paid from

one account and on other occasions, the room and board would be paid from a

different account. (RR, Vol. 4, p. 179). The accounts being referenced are generally

referred to as the trust account and the operations account. Often, Brentwood would

write itself a check from one account and deposit it into another account to reimburse

itself for room and board on a resident. (RR, Vol. 4, p. 179). In these situations, a

check would be written on the trust account and deposited into the operations

account. It was not an unusual situation for a check to move from the trust account

to the operations account so as to pay the room and board of a resident. It was

admitted that there can be discrepancies in this system. (RR, Vol. 4, pp. 179-180).

In fact, DADS conducted an audit and found some deficiencies. However, these were

common and the type of deficiencies found had happened before and have happened

                                         -3-
since this situation. (RR, Vol. 4, p. 180).

        It was learned in the trial that the receptionist Styles (Whipkey) had made many

errors in her receipting. In fact, it was acknowledged that almost all of the receipts

prepared during this time period by Whipkey were incorrect. (RR, Vol. 4, pp. 165-

166).

        Brown admitted that Whipkey in reference to the receipts had done “a lot

wrong”. One of the problems with Whipkey was that she was not always checking

whether it was cash being brought in or checks being brought in to which a receipt

was given. Brown acknowledged that this was a “big deal” in not getting it straight

whether cash or check was brought into the facility. (RR, Vol. 4, p. 187). In fact, it

was shown that Whipkey repeated this error multiple times even in regard to the same

resident. (RR, Vol. 4, pp. 188-189). Brown acknowledged that the facility never

retrieved the checks or followed up with the residents or their families to determine

if payments were made by cash or check as part of its investigation in this matter.

(RR, Vol. 4, p. 190). The facility based its audit upon Whipkey’s word that she had

turned everything over properly. (RR, Vol. 4, p. 193). Brown acknowledged that the

audit was based upon Whipkey even though almost every receipt done by Whipkey

was incorrect. (RR, Vol. 4, p. 193).

        Whipkey testified that the days were often very busy with thirty or more people

                                           -4-
making cash payments. She described the situation as “hectic”. (RR, Vol. 4, pp. 236-

237). She also described that she felt that there were “lots of distractions”. (RR, Vol.

4, p. 253).

      Whipkey described the system stating that sometimes there were distributions

out of the trust fund in which money would be going out but the receipts that she

prepared sometimes showed money coming in instead. Whipkey acknowledged that

sometimes she got the process reversed. (RR, Vol. 4, pp. 259-260).

      The system utilized by Brentwood could best be described as follows: when

money would come in, it would have to be classified as either going into the trust

fund or to the operations side. (RR, Vol. 4, pp. 178-180). Social Security checks

would come to the facility. Some of the checks went into the trust fund and some

went into the operations account. (RR, Vol. 4, p. 178). If funds were owed to the

facility, then actual data entry was made into the accounts receivable trust fund

system. (RR, Vol. 5, p. 20). Then, whatever was due the facility was paid to the

facility. This might require a check from the trust fund being paid into the operations

fund. (RR, Vol. 5, p. 21). In that situation, the facility would deposit money into the

operations account to pay various bills of the residents. (RR, Vol. 4, p. 179). The

check would be written from the trust fund to be put into the operations account, and

at that time, the check would be scanned into the operations account. (RR, Vol. 5, p.

                                          -5-
21). Fuller would write the check from the trust fund to the operations fund. (RR,

Vol. 5, p. 25). Fuller did not have the authority to write checks from the operations

fund, and therefore, once money went into the operations fund, she had no control or

access to those funds. (RR, Vol. 5, pp. 14-16).

        The trust fund would have multiple transactions that would take place.

Residents could withdraw minor amounts for personal needs. (RR, Vol. 4, p. 56). Or,

in some situations, the facility would write itself a rather large check from the trust

fund to reimburse itself for the residents whose room and board were paid for through

the trust fund. However, to complicate the situation, some residents’ room and board

was paid from the operations fund, depending upon the nature of the funds. (Vol. 4,

pp. 178-180).

        All of the cash that came into the facility was receipted by Whipkey. Whipkey

would “answer the phone, greet families, receipt trust and AR.” (RR, Vol. 4, p. 234).

Whipkey took care of three receipt books. (RR, Vol. 4, pp. 235, 259). Whipkey did

all of the receipting of all of the checks that would come to the front as well. (RR,

Vol. 4, p. 259). The three receipt books all looked identical. (RR, Vol. 4, pp. 115,

266).

        As acknowledged by the State in its brief, Whipkey “got the receipts really

mixed up in the books”. (RR, Vol. 4, p. 251). According to Fuller’s job description,

                                          -6-
she was in accounts payable. (RR, Vol. 4, p. 122). However, the accounts payable

portion of her job was limited to sending the invoices into corporate for payment.

Fuller did not have access to the operations side to make the payments. Neisler

described it as having two accounts, operations and trust. (RR, Vol. 4, p. 43). Brown

described it that Fuller did entries on the trust account side and Glenda Neisler

(Melissa Neisler’s daughter) did entries on the operations side. Brown testified, as

follows:

               “And you had one person that just dealt with the residents’ accounts, the
               residents’ trust fund and their personal accounts, and then you had the
               other person that actually dealt with the operations.

      Q.       Okay.

      A.       - account.

               (RR, Vol. 4, pp. 140-141).

      Fuller did make deposits for the trust and the operations side. (RR, Vol. 4, p.

46). Fuller handled receivables, accounts payable and payroll. However, the

accounts payable was limited to approving invoices and sending them into corporate

for payment.     (RR, Vol. 4, p. 124).

      Fuller had worked at the facility for several years prior to the incident the

subject of this allegation. In August of 2010, Brown became the administrator at

Brentwood. Brown gave Fuller poor job performance appraisals. (RR, Vol. 4, p.

                                            -7-
173).

        The job performance appraisals by Brown were markedly different than those

that Fuller had received under the previous administrator for several years. The

previous administrator, Norma Vinters, had praised Fuller’s job performance and

described her as an excellent employee. In fact, her performance appraisals were

exemplary. (RR, Vol. 4, pp. 168-171; Defendant’s exhibits 4, 5 and 6). The previous

administrator in describing Fuller’s excellent performance noted: “Even though

Erica’s new to bookkeeping, strong desire, great person to work around, still learning

but always willing to help”. (RR, Vol. 4, p. 172).

        Apparently, in January of 2011 Brown contacted corporate that the petty cash

box did not reconcile. (RR, Vol. 4, p. 149). Fuller and Whipkey were suspended

pending the investigation. (RR, Vol. 4, pp. 150-151). They were suspended because

of access to the petty cash box. (RR, Vol. 4, p. 152). Brown contacted Caryon Miller

(Miller) who was described as “regional financial specialist” from Brentwood’s

corporate office. (RR, Vol. 4, pp. 149-153). Miller conducted the investigation and

Brown deferred to Miller in all respects in regard to the accounting and/or

investigation.

        Brown acknowledged that she could not place a single dollar having been taken

by Erica Fuller but deferred to Miller in that regard. (RR, Vol. 4, p. 176).

                                          -8-
       Miller was not an accountant, certified public accountant, or auditor. Miller

had no accounting background except for several classes. (RR, vol. 5, pp. 7, 45).

Miller acknowledged that Erica Fuller had nothing to do with the accounts receivable

or the operations side other than sending invoices in for payment. (RR, Vol. 5, p. 16).

Fuller would have made the deposits into the account. (RR, Vol. 5, p. 16). The

operations account was in an out of the state bank and Erica Fuller would have

nothing to do with the computer part of that other than making deposits. (RR, Vol.

5, p. 16).

       Miller testified that if a resident’s family put $500.00 into his/her trust fund

that was to be used for the resident’s room and board. That money would be

deposited into the trust fund and then a check would be written to Brentwood from

the trust fund that would then be put into the operations fund of Brentwood. (RR,

Vol. 5, pp. 19-20). Therefore, there would be many occasions where a resident’s

room and board would be paid for out of the trust fund account. The bookkeeper,

Fuller, would write the check from the trust fund to the operations fund. Actually,

Fuller would write the check but someone else would be required to sign it. (RR,

Vol. 5, p. 25). Glenda Neisler was on the operations side. (RR, Vol. 5, p. 26). On

the disbursement sheet, each resident’s name and the amount that was to be applied

to the operations side would be noted. This would be referred to as a disbursement

                                          -9-
sheet. (RR, Vol. 5, p. 26). Therefore, there was not a specific sheet written for a

specific resident but rather an accumulation of many residents and one check being

written. The disbursement sheet would tell the operations side each individual and

the amount applied to that individual’s room and board account. Then there would

be a trust fund entry for each resident that would show any deposit or withdrawal.

(RR, Vol. 5, pp. 26-27). Therefore, there would be money coming in and out of the

trust fund. Some of it would be earmarked for room and board to be paid to the

operations side. At the same time, money would be coming in on the operations side

for various residents that would be used to pay room and board but it would be only

from the operations side. If it came in from the trust fund side, a check would be

written and signed by someone other than Fuller, and therefore, the money would be

put into the operations side. (RR, Vol. 5, pp. 25-28).

      Miller in conducting the audit, looked at the account of Thomas Hughes. Mr.

Hughes’ bill for room and board averaged $3,500.00 per month. (RR, Vol. 5, pp. 34-

35). His bill was paid by direct deposit from Medicaid into the operations side. (RR,

Vol. 5, p. 35). Glenda Neisler would have handled the computer entries of Thomas

Hughes’ Medicaid payments on the operations side. (RR, Vol. 5, p. 36). However,

Mr. Hughes received a social security disability payment that was deposited into the

trust fund. Apparently there was a payment (disbursement sheet) made from the trust

                                        -10-
fund to the operations side and it included $8,000.00 being paid on behalf of Thomas

Hughes. (RR, Vol. 5, pp. 72-73). In short, $8,000.00 was paid to the operations side

as room and board from Mr Hughes and he did not owe $8,000.00 to the facility. The

facility had the money in the operations account. (RR, Vol. 5, p. 125).

         Miller acknowledged that it was Brentwood that had the excess payment from

the trust fund to the operations fund. These funds were in the operations account of

Brentwood, an account Fuller could make deposits into but not withdraw or write

checks. (Vol. 4, pp. 140-141; RR, Vol. 5, pp. 15-16,125; RR). Glenda Neisler would

have entered this transaction on the operations side. (RR, Vol. 4, p. 103). Miller

acknowledged that there can be accounting errors in this system. (RR, Vol. 5, pp. 106

-107).

         Miller acknowledged that there was no law enforcement forensic accounting

of this situation performed. Additionally, Diversicare did not bring in a certified

public accountant nor auditor to perform this audit. (RR, Vol. 5, pp. 124-129). The

bottom line is that Brentwood got some money out of the trust fund and it was put

into Brentwood’s operations account. Brentwood had the trust account that it

administered on behalf of the residents and it had the operations account. The facility

had all of the money and Erica Fuller did not receive any. (RR, Vol. 5, p. 125).

Further, by depositing the funds into the operations account, Fuller could not access

                                         -11-
or do anything with the funds. (RR, Vol. 5, pp. 15-16). Miller acknowledged that

absolutely no money went into Erica Fuller’s possession as all of it was deposited into

Brentwood’s account. (RR, Vol. 5, p. 125). Further, this is an account (operations

side) that Fuller did not have access to and did not write checks on that account.

(RR, Vol. 5, pp. 15-16).

      Miller acknowledged that she did not find a single check nor any cash that

ended up in Erica Fuller’s possession. (RR, Vol. 5, p. 127). Brentwood, when it

discovered that the check of $8,000.00 was moved from the trust fund and deposited

onto Mr. Hughes’ room and board on the operations side simply corrected this by an

accounting correction and redeposited the funds back on the trust fund side. In short,

the money went from the trust fund to the operations account and from the operations

account back to the trust fund account. (RR, Vol. 5, pp. 125, 128-129).

      Miller, upon whom the entire audit investigation depends, admitted that her

audit was based upon her belief and assumption that Whipkey’s receipts were correct.

For instance, Miller assumed that patient Lawler always paid cash even though

Whitkey’s receipts were written such that it indicated both cash and check.

Nevertheless, Miller believed that patient Lawler’s account was really paid with cash

because, according to Miller, the Lawler account was always paid with cash. When

confronted with Defendants’s Exhibit 10, which is a check for patient Lawler in the

                                         -12-
exact amount of the receipt, Miller testified as follows:

      Q.     So would you mean to tell the jury something wrong when you said they
             always paid in cash when we’ve got right here a check?

      A.     No, sir. It —

      Q.     You’re wrong, aren’t you?

      A.     Yes.

      (RR. Vol. 5, p. 47).

      Even further when questioned about her lack of experience in conducting an

audit, Miller testified as follows:

      Q.     You don’t have the experience to make an audit like this, do you,
             because you missed the most basic thing. You based your whole audit
             that that is cash, cash, and right there in your own records is a check.

      A.     Yes, sir.

      Q.     You missed it, didn’t you? You just flat missed it, didn’t you?

      A.     That is a check from May of 2010.

      (RR, Vol. 5, pp. 47 - 48).

      When Miller was questioned about the end result of the questioned transaction,

the following testimony was provided:

      Q.     So I have been saying if for a day and a half, there’s no money going
             into her pocket. It went from one account to the other account and
             Brentwood is the one that has the money, right?



                                         -13-
      A.    It was deposited into Brentwood’s operating account.

      (RR, Vol. 5, p. 125).

      Further, Miller’s testimony was as follows:

      Q.    Did you find a single check that Erica Fuller ever took and - or maybe
            made up a stamp: “for deposit only” to Erica Fuller?

      A.    No, sir.

      Q.    Did you find anything like that?

      A.    No.

      Q.    But you are the auditor, right?

      A.    Yes.

      Q.    You can’t find one penny that went into her account, can you or name
            or anything else. Right?

      A.    I never reviewed her accounts, no.

      (RR, Vol. 5, p. 127).

      Fuller was fired by Diversicare. (RR, Vol. 5, p. 107). Fuller then filed for

unemployment benefits and a contested hearing was held before the Texas

Employment Commission who determined that “no misconduct established”. (RR,

Vol. 4, pp. 174-183). Thereafter, Fuller filed a suit that was later transferred to

federal court. (RR, Vol. 4, pp. 175-176, 217, 224, 229). Diversicare was represented

by Matt Holley, who is an employment and labor specialist with Haynes and Boone

                                        -14-
law firm. (RR, Vol. 4, pp. 211-211, 213). Fuller subjected herself to full discovery

in the federal court case. (RR, Vo. 4, p. 212). Diversicare did not file any

compulsory counter-claim against Fuller. Diversicare settled with Fuller for a total

payment of $16,000.00. (RR, Vol. 4, p. 219).

      The State argues that Brentwood did not have any problems with their trust

funds subsequent to the firing of Fuller. However, the record shows that substantial

changes were made to the system subsequent to these events.             Specifically,

Brentwood changed its receipting system after Fuller was terminated. (RR, Vol. 4,

p. 67). Additionally, Brentwood changed the posting side of the system. (RR, Vol.

4, p, 94). Further, they simply do not do receipts the way they previously did. (RR,

Vol. 4, p. 110). Administrator Brown acknowledged that the system had been

changed “quite a bit”. (RR, Vol. 4, p. 165). Further, the procedures were initiated to

take care of the problems that Whipkey had as receptionist. (RR, Vol. 4, p. 186).

Now under the system that is used, when there is a receipt given, it can be determined

from whom and by whom and the manner of the payment. (RR, Vol. 4,p. 263).



                       SUMMARY OF THE ARGUMENT

      The evidence was legally insufficient to support the jury’s verdict. The

relevant standard for judging the insufficiency of the evidence is whether after

                                         -15-
viewing the evidence in the light most favorable to the State, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.

Adelman v. State, 828 S.W.2d 418 (Tex.Crim.App. 1992). In other words, there must

be evidence of each of the essential elements of theft in the record to such a level that

a jury could have found that proof was established beyond a reasonable doubt.

      The following conclusively establish facts that make it clear that as a matter of

law, the elements of theft simply are not established by any standard, much less,

beyond a reasonable doubt:

      1.     Fuller was a bookkeeper for Brentwood and, as such, routinely made

             deposits and disbursements from the trust account into the operations

             account. (RR, Vol. 4, pp. 179-180; RR, Vol. 5, p. 25);

      2.     It was not unusual for residents to have deposits into the trust account

             which were then paid into the operations account of Brentwood. (RR,

             Vol. 4, pp. 179-180; RR, Vol. 5, p. 21);

      3.     Fuller could make deposits into the operations side but could not

             perform any other tasks with the operations account. (RR, Vol. 5, pp.

             15-16);

      4.     Fuller apparently made a disbursement from the facility’s trust account

             into the operations account and this included funds of a resident named

                                          -16-
             Thomas Hughes. (RR, Vol. 5, pp. 72-73);

      5.     The disbursement was deposited into the operations account of

             Brentwood. (RR, Vol. 5, pp. 72-73, 125);

      6.     Fuller had no control or access to the funds once deposited into the

             operations account. (RR, Vol. 4, pp. 103, 140-141; Vol. 5, pp. 15-16,

             125);

      7.     The auditor (Miller) for Brentwood admitted the Thomas Hughes’ funds

             described above were placed into the operations account and were still

             in the operations account when this controversy came about. (RR, Vol.

             5, p. 125);

      8.     These funds were not and could not be accessed by Fuller. (RR, Vol. 5,

             pp. 15-16, 125);

      9.     All of Thomas Hughes’ funds were still in the account and were returned

             to the trust account. (RR, Vol. 5, pp. 125, 128-129);

      10.    The auditor could not find any money that had ended up in Fuller’s

             possession. (RR, Vol. 5, p. 127).

      To constitute theft, there must be some fraudulent taking of the property.

Rosenbush v. State, 136 Tex.Crim. 50 (1938). The authority cited by the State in its

brief is not applicable to the present situation. Fuller, as part of her normal duties,

                                         -17-
made disbursements from the trust account to the operations account. It was routine

practice and part of her job duties to make such transfers. The complaint in this

matter is that Thomas Hughes’ money was transferred into Brentwood’s operations

account. Even if that transfer was in error, wrong, mistaken, or whatever the situation

may be, it is not a crime if Fuller did not have control over those funds after they were

deposited into the operations account. Fuller did not exercise any control once the

funds were put into the operations account and further she could not.               It is

inconsistent to accuse one of theft and then argue the artifice of theft was that she put

funds in the one place that she had absolutely no way of accessing.

      The audit and bookkeeping of Brentwood was flawed as was shown by the

testimony. The audit was based on assumptions of cash receipts when in fact they

were checks and the audit was based on records kept by the receptionist Whipkey,

which were almost universally done incorrectly. The only thing the auditor clearly

established is that the disputed funds never left the facility and were in the operations

account that was under the control of Brentwood, and not under the control of Fuller.

As such, the essential elements of theft not only were not proven by a reasonable

doubt, but were actually conclusively established otherwise.

      Huff v. State, 897 S.W.2d 829 (Tex.App. - Dallas 1995) provides the rule for

analyzing employee theft. In Huff, the company bookkeeper moved funds and

                                          -18-
exercised control for her own benefit. She used the funds to pay her personal credit

card and, at that point, she was exercising unauthorized control over the property and

was guilty of theft. No such situation exist in regard to Fuller. Fuller moved the

funds as per her job but she did not, and could not, thereafter exercise control, take

possession, or in any way personally benefit from the transaction. At most, it was a

clerical error and, at worst, negligent bookkeeping. However, such a mistake or

situation does not rise to even arguable criminal conduct. In short, there can be no

crime of theft, when you do not have the possession of the funds or even the hope of

having the possession of the funds.



                      ARGUMENT AND AUTHORITIES

      A person commits theft if he unlawfully appropriates property with the intent

to deprive the owner of the property. Tex.Cr.Code Ann § 31.03(a). Appropriate is

generally defined as meaning:

      (A)    to bring about a transfer or purported transfer of title to or other
             repossessory interest in property, whether to the actor or another; or

      (B)    acquire or otherwise exercise control over property other than real
             property. Tex.Penal Code § 31.01.

      In cases alleging theft of property by an employee, theft generally is established

by showing the employee did not have the authority to dispose of or appropriate the

                                         -19-
property in the manner alleged. Huff v. State, 897 S.W.2d 829 (Tex.App. - Dallas

1995). Therefore, theft is established by showing that the employee acted in some

way inconsistent with his lawful authority. Freeman v. State, 707 S.W.2d 597

(Tex.Civ.App. 1986). When the employee decides to unlawfully and permanently

deprive the lawful owner of the property, he is acting in an unauthorized capacity and

has committed theft. Huff v. State, supra. On the other hand, theft does not occur

until an employee acts in some way inconsistent with his or her unlawful authority.

Newman v. State, 115 S.W.3d 118 (2003). In summary, unlawful appropriation

occurs at that moment in time when the employee breaches the trust that the employer

placed in him/her. The line between lawful and unlawful activity by an employee, is

therefore, a question of the employee’s scope of authority. Newman v. State, supra.

      In the present case, Fuller was indicted for the theft of Thomas Hughes’ money.

However, the record does not demonstrate that Fuller handled his funds other than

transferring into her employer’s operations account to which she had no access. Part

of Fuller’s job including making deposits of patient’s money into the trust account.

(Vol. 4, p. 47). Fuller’s job included disbursing money from the trust account and

depositing into the operations account. Fuller made a disbursement from the trust

fund into the operations account of Brentwood. Fuller actually wrote the checks but

someone else signed. (RR, Vol. 5, pp. 25-28). Fuller could make deposits into the

                                         -20-
operations account but had nothing to do with the account thereafter. (RR, Vol. 4, p.

46; RR, Vol. 5, pp. 15-16). Fuller’s job was to deposit trust money into the

operations account from time to time. Numerous residents had money that came into

the trust account and was thereafter transferred into the operations account to pay for

items such as room and board owed to Brentwood. (RR, Vol. 4, pp. 178-179). Since

this was Fuller’s job to make such transfers she was acting within the scope of her

employment in so doing. Fuller’s job was to transfer in just this manner. Once the

funds went into the operating account, Fuller had no access whatsoever. (RR, Vol.

5, pp. 15-16) Only Neisler or a corporate representative had access to the funds in

the operations account. (RR, Vol. 4, p. 46). Hence, the funds were still there after

this controversy ensued. (Vol. 5, pp. 125, 128, 129).

      Obviously, the transfer of funds as it was being moved into the operations

account was noted to be in the name of Thomas Hughes along with many other

residents. If Hughes did not need this money to pay his room and board as was

represented during the trial, then he clearly would have had a credit in the operations

side of Brentwood’s books. Regardless, Fuller would have had no control and no

access and no means of acquiring the money once it went into the operating account.

This very act of placing the money in an account to which she had no access shows

not only a lack of appropriation but no intent to do so as well. Regardless, Fuller

                                         -21-
would have had no control and the money was not lost, and if operations did their

accounting properly, Hughes would certainly have had a credit and as such, Hughes

did not and could not have lost the money.

         Therefore, Fuller had no ability to appropriate these funds.            As the

Diversicare’s auditor acknowledged, Thomas Hughes’ funds were never taken by

Fuller. (RR, Vol. 5, p. 125). These funds were at all times in Diversicare’s

operations account and never accessed by Fuller. (RR, Vol. 5, pp. 125-128).

      The State appears to ignore the fact that it alleged that Fuller stole Thomas

Hughes’ money. Yet the Defendant had absolutely no ability to take Thomas

Hughes’ money from the operations account, and in fact, the same was never used or

taken by either Fuller or anyone else. (RR, Vol. 5, pp. 125-129).

      The State discounts the reasoning in Rosenbush v. State, 136 Tex.Crim. 50

(1938) citing Minter v. State, 26 Tex.App. 217, 9 S.W. 561 which contained the

following reasoning:

      “To constitute theft there must be a fraudulent taking of the property and while
      there may be a taking of the property without actual manual possession of it,
      still the property must in some manner have come into the possession of the
      party accused of the theft, either actually or constructively, or he cannot be said
      to have taken it...”
      We have found no authority which holds that mere wounding of an animal
      upon its range and the pursuit of it without capturing it, without bringing it in
      some way under the control and dominion of the party is sufficient to constitute
      a taking.

                                          -22-
      The State discounts the above reasoning, citing Stewart v. State, 44 S.W.3d 582

(Tex.Crim.App. 2001). In Stewart, the complainant’s ex-husband was threatening to

distribute nude pictures of her if she did not pay him. The complainant went to the

police who set up a sting operation. Money was put in an envelope and delivered to

the Defendant’s mailbox. Twenty minutes later the defendant was arrested with the

money. However, the State ignores one part of Stewart. The defendant was arrested

with the money!

      This very point of the Stewart case is discussed and made clear in Tesoro

Refining & Marketing Co., LLC v. National Union Fire Ins. Co. of Pittsburgh,

Pennsylvania, - F.Supp. 3d - 2015 WL 152943. In this case, Tesoro was suing its

insurance company for employee theft. Tesoro, an oil refiner, was selling oil to

Emmex, an oil distributor. Ennex’s debt to Tesoro continued to grow. Tesoro’s

credit manager, however, manipulated documents such that it improved. Ennex had

millions in a letter of credit. The credit manager forged a security agreement from

Ennex to Tesoro. When Tesoro attempted to act on the letter of credit for payment

of the debt, it learned that the document was forged by its credit manager. Tesoro

made a claim for employee theft on its insurance policy which was denied. The Court

found no theft citing and distinguishing the reasoning of Stewart as the credit

manager ultimately did not control the fuel. The credit manager’s forgeries did not

                                        -23-
transfer possession or control of the fuel - the fuel was transferred only upon its

subsequent sale by Tesoro to Ennex.

       Applying this reasoning to the present case, Hughes’ money came under the

control of Fuller’s employer, Brentwood. Fuller may have transferred Hughes’

money from the trust account to the operations account but at all times, it remained

under the control of Brentwood. Fuller did not remove it from Brentwood’s control.

In fact, Fuller had absolutely no control over Hughes’ money when it was deposited

into Brentwood’s operations account. Hughes’ money was not depleted or taken by

either Fuller or Brentwood but was simply transferred back to the trust account. At

all times, Brentwood maintained control of Hughes’ money.

      The significance of the defendant employees actually obtaining the funds is

demonstrated in Huff v. State, 897 S.W.2d 829 (Tex.App. - Dallas 1995). There the

defendant was her employer’s bookkeeper.        One of her jobs was to pay the

employer’s expenses. When an account became overdrawn, it was determined that

the defendant bookkeeper had written company checks to pay the defendant’s own

American Express bills. Citing the previously stated law concerning employee theft,

the Court reasoned as follows:

      “As the company bookkeeper, appellant had a right to possess and to a certain
      extent, control the company’s checks. However, once appellant decided to use
      the checks for her own benefit rather than for the benefit of the company, her

                                        -24-
      control over the checks (and the funds they represented) could no longer be
      considered consensual. As noted previously, when an employee or fiduciary
      decides, for whatever reason, to unlawfully and permanently deprive the lawful
      owner of its property, the employee/fiduciary is then acting in an unauthorized
      capacity i.e. she is then exercising unauthorized control over the property and
      has committed theft.

      Again, in Huff, the defendant actually got the money. Again, in the present

case, Fuller’s job included transferring funds from the trust account to the operations

account although she did not actually sign the check. It was within the scope of her

authority to prepare disbursement sheets. However, once the funds were disbursed,

Fuller thereafter had absolutely no control or access to the funds. Fuller had

absolutely no ability to take it from the operations account. She could not and did not

take any of Hughes’ money from the operations account. In fact, none of his funds

were ever taken. His money was always at the facility. It had merely been moved

from one account to another. Erica Fuller never took it and by placing it in the

operations account, had no control over it.

       Exercise of control was further discussed in Bailey v. State, 855 S.W.2d 193

(Tex.App. - Dallas 1994). In Bailey, the Summa Corporation, a New Mexico

corporation, was searching for investment opportunities when it came into contact

with an investment specialist. Ultimately, defendant convinced Summa to open up

an account over which the defendant did not have signature authority but his



                                         -25-
operatives did. The operatives were defendant’s wife and the wife’s best friend.

Defendant then set up a Texas corporation under the name of Summa and set up a

bank account for it. He then had his operatives transfer the money to this account.

Defendant argued that the evidence was insufficient to demonstrate appropriation.

However, the Court found appropriation as the defendant had orchestrated the

transfer of funds to his newly created Texas corporation Summa’s account and

defendant had the sole signator authority over this account.

      Evidence in a theft prosecution must further show that the accused intended to

deprive the owner of the property at the time the property was taken. Wirtz v. State,

361 S.W.3d 694 (Tex.Crim.App. 2012). In determining whether the defendant had

criminal intent to commit theft, the Court may consider whether the defendant

experienced personal gain from the property obtained from the complainants.

Christensen v. State, 230 S.W.3d 75 (Tex.App. - Houston [1st Dist.] 2007). As

previously set forth, Fuller never received any of Hughes’ money and could never

have received any of Hughes’ money. Moreover, the intent to deprive must be for so

extended a period of time that a major portion of the value or enjoyment of the

property is lost to the owner. Penal Code § 31.01. Again, Hughes never lost the

enjoyment or use of his property. It never left the Brentwood accounts. It always

remained there for his use and benefit.

                                          -26-
Consciousness of Guilt

      Finally, the State argues that Fuller’s concern that a new administrator might

fire her demonstrated consciousness of guilt. Generally, any conduct on the part of

a person accused of a crime subsequent to its commission, which indicates a

consciousness of guilt may be received as a circumstance lending to prove that he

committed the act with which he was charged. Cueva v. State, 339 S.W.2d 839

(Tex.App. - Corpus Christi 2011). [emphasis added].

      The State argues that Fuller acted figidity around administrator Brown and

inquired as to whether she was going to be terminated. First of all, for the acts to be

consciousness of guilt, they must be subsequent to the alleged offense. Brown was

hired as administrator in August 2010. (RR, Vol. 4, p. 134). Fuller’s comments and

actions were immediately after Brown started in August 2010. (RR, Vol. 4, p. 135).

Brown described the acts as follows:

      Q.     Okay. Did Ms. Fuller work at Brentwood before you started in August
             of 2010?

      A.     Yes, she did.

      Q.     So describe your first contact with her when you started working at
             Brentwood. Was there anything that stood out in your mind?

      A.     There was. I know that when I first started there, she had come into my
             office actually on a couple of occasions and asked if I was going to fire
             her. (RR, Vol. 4, p. 135).

                                         -27-
        The alleged theft was on December 31, 2010. The conduct so described by

Brown was five months before the alleged theft so it does not qualify as subsequent

conduct.

      Regardless, this is not the sort of evidence to which consciousness of guilt

typically is applied. This is not flight from a crime or things of that sort. This is

being nervous around a new supervisor. If you accept the State’s argument that Fuller

was figidity because she was aware that her wrongdoing would be exposed, then you

would have to ignore the very facts that were demonstrated in the record, not to

mention the fact that the alleged conduct had not yet occurred.

      Would a person with consciousness of guilt after being terminated file a claim

with the Texas Employment Commission and subject themselves to an unemployment

hearing? Fuller did so and the commission found no evidence of misconduct. (RR,

vol. 4, p. 174).

      Further, Fuller hired an attorney and filed a lawsuit against Diversicare.

Diversicare hired a world renowned law firm, Haynes & Boone, with a specialist in

labor and employment law, Matt Holley, to defend Diversicare. The lawsuit was

removed to federal court. Fuller was under the rigorous disclosure requirements of

federal court as well as being subject to discovery in a federal lawsuit. This sort of


                                         -28-
action would certainly fly in the face of any inference as to consciousness of guilt.

Fuller was subjecting herself and laying her situation open to an experienced labor

and employment law specialist to inquire in any way he saw fit. Rather, Diversicare

with its highly experienced lawyer, settled and paid Fuller $16,000.00. There is no

rational set of facts by which consciousness of guilt could possibly be inferred except

on the part of Diversicare.

Sufficiency of the Evidence

      The trial court found that the evidence was legally insufficient to support the

verdict of the jury. The relevant standard for judging the insufficiency of the

evidence is whether, after viewing the evidence in the light most favorable to the

State, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Adelman v. State, 828 S.W.2d 418 (Tex.Crim.App.

1992).   The evidence is sufficient under this standard only if the State has

affirmatively proven each of the essential elements of the evidence. Gold v. State,

736 S.W.2d 865 (Tex.Crim.App. 1987).

      Under this process, the appellate court recognizes the trier of fact role as the

sole judge of the weight and credibility of the evidence after drawing reasonable

inferences from the evidence, and on review, the appellate court determines whether

the necessary inferences made by the trier of fact are reasonable, based upon the

                                         -29-
cumulative force of all of the evidence.         Adames v. State, 353 S.W.3d 854

(Tex.Crim.App. 2011). An appellate court will conduct constitutional review of the

sufficiency of the evidence by measuring the evidentiary sufficiency with explicit

reference to the substantive elements of the criminal offense as defined by state law.

Adames v. State, supra. In this situation, there is absolutely no evidence or inference

upon which a rational trier of fact could have concluded that there was proof of the

essential elements of theft beyond a reasonable doubt. As shown above, Fuller, in

transferring the funds into the operations account, essentially put the funds in the one

place she had absolutely no control and absolutely no way or hope of ever receiving

control of any money that was in the operations account. Once the money went into

the operations account, she had absolutely no ability to access that account and never

would be able to do so. The very fact that the money was put into the operations

account negates that there was any intent to commit a theft. Certainly by putting it

into the operations account, both elements of intent and appropriation are not

established beyond a reasonable doubt.

      By placing the money in the operations account, any intent is negated. Fuller

had no access to the funds in the operations account. Secondly, by placing them into

the operations account, not only is intent not established but the appropriation

element of the theft cannot be established. In short, Fuller had absolutely no control

                                          -30-
of the funds.

      Secondly, there was no forensic accounting that was performed by law

enforcement in this matter. There was no audit by a trained auditor in this matter.

The entire case of the State rests upon the audit of Miller who was neither trained nor

educated to perform audits of this type. In fact, Miller admitted that she made

assumptions based upon the record keeping of Whipkey.                Whipkey, as the

receptionist, essentially made incorrect entries on almost every receipt that was made

during this time period. Miller made assumptions that payments were made in cash

when that was absolutely demonstrated not to be the case. (RR, Vol. 5, p. 45). Miller

testified as follows:

      Q.        You don’t have the experience to make an audit like this, do you,
                because you missed the most basic thing. You based your whole audit
                that that is cash, cash, and right there in your own records is a check.

      A.        Yes, sir.

      Q.        You missed it, didn’t you? You just flat missed it, didn’t you?

      A.        That is a check from May of 2010.

      (RR, Vol. 5, pp. 47 - 48).

      Q.        Did you find a single check that Erica Fuller ever took and - or maybe
                made up a stamp: “for deposit only” to Erica Fuller?

      A.        No, sir.



                                           -31-
      Q.     Did you find anything like that?

      A.     No.

      Q.     But you are the auditor, right?

      A.     Yes.

      Q.     You can’t find one penny that went into her account, can you or name
             or anything else. Right?

      A.     I never reviewed her accounts, no.

      (RR, Vol. 5, p. 127).

      The above shows the audit to be so suspect that no rational trier of fact could

have based any inference of guilt on the above.

      Miller as the financial specialist for Brentwood clearly establishes that the

funds never left the facility and that Fuller had absolutely no control over the funds

that were in the operations account. As such, as a matter of law, no rational trier of

fact could have concluded that there was evidence beyond a reasonable doubt.



                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant Erica Lynn Fuller

prays that the above-styled and numbered cause be set for oral argument, and that

upon final submission, this Court affirm the trial court’s judgment in all respects, and


                                          -32-
for such other and further relief, both at law and in equity, to which she may be justly

and legally entitled.

                                                 Respectfully submitted,

                                                 THE MOORE LAW FIRM, L.L.P.


                                            BY:/s/ James R. Rodgers
                                              James R. Rodgers
                                              State License #17136300
                                              Judy Hodgkiss
                                              State License # 17136525
                                              100 North Main Street
                                              Paris, Texas 75460-4222
                                              Telephone 903/784-4393
                                              Facsimile 903/783-0042
                                              Email: jrodgers@moorefirm.com
                                              ATTORNEYS FOR APPELLEE,
                                              ERICA LYNN FULLER


                        CERTIFICATE OF COMPLIANCE

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

of Appellee was a computer-generated document and contains 7,339 words, not

including the Appendix, if any. The undersigned attorney certifies that he relied on

the word count of the computer program, which was used to prepare this document.

                                                 s/James R. Rodgers
                                                 James R. Rodgers
                                                 jrodgers@moorefirm.




                                          -33-
                         CERTIFICATE OF SERVICE

      I certify that a true copy of the above document was delivered to all attorneys

of record/parties, in accordance with the Texas Rules of Appellate Procedure this 5th

day of August, 2015.

                                                    /s/ James R. Rodgers
                                                    James R. Rodgers
                                                    jrodgers@moorefirm.com




                                        -34-
