            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD-1716-09



                        RAYMOND WAIER WIRTH, Appellant

                                               v.

                                 THE STATE OF TEXAS

         ON THE STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE SIXTH COURT OF APPEALS
                           FANNIN COUNTY

      J OHNSON, J., delivered the opinion of the Court in which K ELLER, P.J., P RICE,
W OMACK, K EASLER, H ERVEY, H OLCOMB, and C OCHRAN, JJ., joined. M EYERS, J.,
dissented.

                                        OPINION

       Appellant was indicted for the offense of theft of property over $200,000 pursuant to one

scheme and continuing course of conduct. TEX . PENAL CODE § 31.03 (a). A jury convicted

appellant of the lesser offense of theft of $20,000 or more but less than $100,000, assessed a

punishment of ten years’ imprisonment and a $10,000 fine, and recommended community

supervision. Wirth v. State, 296 S.W.3d 895, 897 (Tex. App.—Texarkana 2009). The trial court

sentenced appellant to ten years’ incarceration, probated for five years, fined him $10,000, and
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ordered him to pay restitution of $128,103.27.

       In the court of appeals, appellant argued that the evidence was legally and factually

insufficient to support the verdict because the evidence could not support a finding of intent to

commit theft. The court of appeals held that the evidence was factually insufficient to support the

verdict, pursuant to Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). Wirth v. State, 296

S.W.3d 895 (Tex. App.—Texarkana 2009)(delivered September 28, 2009).

       At the time that the court of appeals considered this case, this Court had not issued its

opinion in Brooks v. State, ___ S.W.3d ___, 2010 Tex. Crim. App. LEXIS 1240 (Tex. Crim. App.

No. PD-0210-09, delivered October 6, 2010), in which we overruled Clewis. We therefore vacate

the judgment of the court of appeals and remand the case to that court for reconsideration pursuant

to Brooks.



Delivered: December 15, 2010
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