                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

 HECTOR MARTINEZ,                                §
                                                                 No. 08-13-00363-CR
                              Appellant,         §
                                                                    Appeal from the
 v.                                              §
                                                                  409th District Court
 THE STATE OF TEXAS,                             §
                                                               of El Paso County, Texas
                              Appellee.          §
                                                                 (TC# 20100D00750)
                                                 §


                                           OPINION

       Appellant Hector Martinez was convicted of misapplication of fiduciary property and theft

of property having a value of more than $200,000 and sentenced to twenty-five years’

confinement. On appeal, Appellant contends that the evidence is insufficient to support both

convictions, that the trial court erred in charging the jury on theft, and that his counsel rendered

ineffective assistance. We affirm.

                                          BACKGROUND

       Appellant worked as the bookkeeper for Desert Rock Company, Inc., a family-owned

landscape stone business. As part of his duties, Appellant was authorized to pay himself, and

many of the Desert Rock employees, by electronically transferring the payroll payments from

Desert Rock’s bank account directly into the employees’ bank accounts. About three years after
Appellant became bookkeeper, Desert Rock began to experience financial difficulties. Desert

Rock eventually terminated Appellant after its accountant complained of continuing problems in

obtaining accounting records from Appellant. Eventually, Desert Rock discovered Appellant had

been paying himself not only his regular salary but also had been transferring additional funds

from Desert Rock’s account directly into his personal checking account. The owners of Desert

Rock testified these transactions were not authorized, and that over the years, Appellant had

wrongfully transferred $223,795.30 into his personal banking account.

                                         DISCUSSION

                  The Evidence is Sufficient to Support the Conviction for
                          Misapplication of Fiduciary Property

       In Issue One, Appellant contends the evidence is insufficient to support his conviction for

misapplication of fiduciary property. A person commits misapplication of fiduciary property if

he intentionally, knowingly, or recklessly misapplies property he holds as a fiduciary in a manner

that involves substantial risk of loss to the owner of the property. TEX. PENAL CODE ANN. §

32.45(b) (West Supp. 2015). “Misapply,” as used in this case, means to deal with property

contrary to an agreement under which the fiduciary holds the property. Id. at § 32.45(a)(2)(A)

(West Supp. 2015).

       Appellant contends the State failed to present any evidence he entered into an agreement

with Desert Rock for the handling of funds and that he acted contrary to that agreement. We

conclude there was sufficient evidence of an agreement and that Appellant dealt with the funds

contrary to that agreement.

                                      Standard of Review



                                                2
       We review sufficiency complaints under the legal sufficiency standard enunciated in

Jackson v. Virginia. Fernandez v. State, 479 S.W.3d 835, 837 (Tex.Crim.App. 2016); Brooks v.

State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010). The relevant inquiry is “whether, after

viewing the evidence in the light most favorable to the prosecution, 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, 318–19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). We

examine the evidence in the light most favorable to the verdict and ask whether any rational fact

finder could have found the elements of the charged offense beyond a reasonable doubt.

Fernandez, 479 S.W.3d 837-38; Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. If a rational fact

finder could have so found, we will not disturb the verdict on appeal. Fernandez, 479 S.W.3d at

838; see Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 (upholding conviction where evidence was

legally sufficient); Temple v. State, 390 S.W.3d 341, 363 (Tex.Crim.App. 2013) (affirming

judgment where evidence was legally sufficient to support a conviction).

       Circumstantial evidence is as probative as direct evidence in establishing guilt, and

circumstantial evidence alone may be sufficient to establish guilt. Dobbs v. State, 434 S.W.3d

166, 170 (Tex.Crim.App. 2014); Carrizales v. State, 414 S.W.3d 737, 742 (Tex.Crim.App. 2013)

(citing Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007)). The jury is the sole judge of

credibility and weight to be attached to the testimony of witnesses. Dobbs, 434 S.W.3d at 170;

see Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. When the record supports conflicting inferences,

we presume that the jury resolved the conflicts in favor of the verdict, and we defer to that

determination. Dobbs, 434 S.W.3d at 170; see Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; see

also Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007) (observing that it is the fact


                                                 3
finder’s duty “to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts”) (quoting Jackson, 443 U.S. at 319, 99 S.Ct. at 2789).

Each fact need not point directly and independently to the guilt of the appellant, as long as the

cumulative force of all the incriminating circumstances is sufficient to support the conviction.

Dobbs, 434 S.W.3d at 170; Hooper, 214 S.W.3d at 13.

                                             Analysis

       Appellant does not discuss exactly what he contends the State was required to prove to

establish an “agreement” under which he was entrusted with Desert Rock’s property. Appellant

concedes in his brief there was evidence that he was authorized by Desert Rock to make electronic

transfers for payroll purposes. And, Appellant admitted at trial that he made 118 transfers to his

personal account in excess of his normal pay. Appellant argues, however, there was no evidence

of an agreement between himself and Desert Rock that he would be allowed to make electronic

funds transfers for only one specific purpose. Appellant asserts that while evidence of payroll

transfers in amounts in excess of those authorized may form the basis for a theft conviction,

without evidence of a “specific agreement” that he violated, that evidence is insufficient to support

a conviction for misapplication of fiduciary property. We disagree.

       The misapplication of fiduciary property statute does not define the term “agreement.”

See TEX. PENAL CODE ANN. §§ 32.01, 32.45 (West 2011 & Supp. 2015); Bynum v. State, 767

S.W.2d 769, 777 (Tex.Crim.App. 1989) (“As previously noted, the Legislature did not define

‘agreement’ within § 32.45.”). The courts have consequently interpreted that term under its

common definition. Bynum, 767 S.W.2d at 777 (“Consequently, we must turn to the common

definition.”). Accordingly, they have interpreted the term broadly, holding that the agreement


                                                 4
under which the fiduciary holds property need not be written, but rather, it must merely be “a

harmonious understanding or an arrangement, as between two or more parties, as to a course of

action.” Id. at 777; see also Anderson v. State, 322 S.W.3d 401, 406 (Tex.App. – Houston [14th

Dist.] 2010, pet. ref’d) (“The agreement need not be written, but must merely be a harmonious

understanding as to a course of action.”). Nor is there any requirement that the State present

testimony from any witness that the parties expressly agreed to the arrangement for handling the

property. Bynum, 767 S.W.2d at 777 (disagreeing with the appellant that a witness must testify

that “we agreed”).

       Viewing the evidence in this light, we conclude the evidence is sufficient to show

Appellant and Desert Rock had a harmonious understanding or arrangement regarding his

handling of Desert Rock’s money as a fiduciary of that business. The evidence showed, and

Appellant acknowledged, that Appellant was hired by Desert Rock to serve as its bookkeeper, and

that his duties included performing various functions related to the entry of sales, accounts

receivable, accounts payable, payroll processing, online banking, and reconciliation of bank

statements and records. Some Desert Rock employees were paid by check and others were paid

through direct deposits made electronically to their bank accounts. There was evidence that while

Appellant was authorized to prepare payroll checks, he did not have the authority to sign them.

Likewise, there was evidence that while Appellant had access to Desert Rock’s online banking so

that he could directly deposit payroll into the employees’ accounts, this authorization was limited

as well. Appellant was not authorized to transfer funds other than payroll, and he was not

authorized to pay himself funds in excess of his normal authorized pay.

       Appellant apparently performed his bookkeeping duties without making excess transfers to


                                                5
his personal account during the initial years of his employment. However, Appellant thereafter

began to deposit excess funds, often more than $10,000 per month, from Desert Rock’s account

into his private banking account. Through the testimony of its witnesses, the State demonstrated

that although Appellant was authorized to pay vendors and employees, he was not authorized to

pay himself $223,795.30 in excess of his approved pay, nor was he authorized to transfer those

excess funds into his personal account. Moreover, there was evidence that once he began

transferring excess funds, Appellant attempted to hide the transactions from Desert Rock’s owners

and accountants, by segregating records in a locked trailer, by refusing to hand over records when

requested, and by misrepresenting that vendors had been paid when they had not, all indicating that

Appellant was making these transfers to himself in violation of his existing understanding with

Desert Rock.

         Appellant’s explanation that he made the excess payments and transfers at the direction of

one of Desert Rock’s owners as part of some secret compensation side agreement, does not render

the evidence insufficient that an agreement existed limiting his authority.1 The jury reasonably

resolved any conflicting evidence and chose to believe Desert Rock that the excess transfers were

unauthorized, a resolution to which we defer. We conclude the evidence was sufficient to show a

harmonious understanding existed under which Appellant held Desert Rock’s property and that

Appellant acted in a manner contrary to that agreement. Issue One is overruled.

                              The Evidence is Sufficient to Show Appellant
                                Misapplied or Unlawfully Appropriated
                                 Property Valued at $200,000 or more

1
  Appellant asserted that the transactions constituted a part of a “raise.” According to Appellant, one of the business
owners confided in Appellant alone that the business would soon be excavating a new rock and that Appellant would
be included in the profits through the payment of bonus amounts, if he kept this news secret. Appellant testified the
owner would periodically provide him a note with the bonus amount written on it and would tell Appellant to pay
himself the noted amount, but often would later ask Appellant to refund to him, in cash only, a portion of the bonus.
                                                          6
       In Issues Two and Three, Appellant contends the evidence is insufficient to support his

convictions for both misapplication of fiduciary property and theft because the State failed to

prove that the value of the property misapplied or unlawfully appropriated was $200,000 or more.

Appellant contends the State proved at most he misapplied or appropriated $80,700.10, not more

than $200,000 as alleged. Appellant claims the evidence is insufficient because: (1) in 11 of 118

transactions, the State failed to deduct his authorized salary from the total unauthorized amount

(totaling $8,795.81); (2) in 59 of the transactions, the State failed to include Desert Rock’s bank

statements to show a deduction from Desert Rock’s account (totaling $113,582.97); and (3) in 11

of the transactions, the State failed to include Appellant’s bank statements to show he had actually

received the money (totaling $20,716.42).

                                       The Applicable Law

       The indictment alleged that Appellant, “pursuant to one scheme and continuing course of

conduct,” misapplied or unlawfully appropriated property with a value of more than $200,000.

The value of the property misapplied or unlawfully appropriated is an aggravating element for

both misapplication of fiduciary property and theft. See TEX. PENAL CODE ANN. §§ 31.03(e),

32.45(c) (West Supp. 2015); Bowen v. State, 374 S.W.3d 427, 432 (Tex.Crim.App. 2012)

(misapplication of fiduciary property); Calton v. State, 176 S.W.3d 231, 235 (Tex.Crim.App.

2005) (theft). When the amounts are alleged to have been obtained “pursuant to one scheme or

continuing course of conduct,” the conduct is considered as one offense and the amounts are

aggregated in determining the grade of the offense. TEX. PENAL CODE ANN. §§ 31.09, 32.03

(West 2011). Under the version of the statutes in force at the time, each offense was a first-degree

felony when the aggregated property value was $200,000 or more. See TEX. PENAL CODE ANN.

                                                 7
former §§ 31.03(e)(7), 32.45(c)(7) (West 2011).2

        When a defendant is charged with theft in an aggregated amount pursuant to one scheme or

continuing course of conduct, the State is not required to prove each individual appropriation.

See Kent v. State, __S.W.3d__, 2016 WL 735813, at *3 (Tex.Crim.App. Feb. 24, 2016). Rather,

evidence of theft is sufficient when the State proves the defendant illegally appropriated enough

property to meet the aggregated value alleged. Id. Because misapplication of fiduciary property

is subject to the same aggregation rules as theft, we conclude this evidentiary standard also applies

to misapplication of fiduciary property as well. Accordingly, the issue is whether the State

proved, in the aggregate, that Appellant misapplied or unlawfully appropriated property valued

over $200,000.

                                                     Analysis

        Appellant first contends the State did not meet its burden because in 11 of the 118

transactions, the State failed to deduct his authorized salary from the total amount allegedly

transferred. Appellant claims the 11 transactions total $8,795.81, and he asserts they occurred on

various dates from January 3, 2006 to August 22, 2008. There was evidence, however, from

which the jury could conclude that Appellant was given credit for his authorized salary payments

and that no such amounts were included in determining the aggregate value of unauthorized

transactions.

        The State admitted into evidence a summary of the 118 unauthorized transactions totaling

2
  In 2015, the legislature amended the monetary values for both misapplication of fiduciary property and theft. The
value for first-degree misapplication of fiduciary property was increased from $200,000 or more to $300,000 or more.
See Act of June 19, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 32.45(c)(6), (7), 1993 Tex. Gen. Laws 3586, 3652-53,
amended by Act of June 20, 2015, 84th Leg., R.S., ch. 1251, § 21, sec. 32.45(c)(6), (7), 2015 Tex. Gen. Laws 4208,
4217 (codified at TEX. PENAL CODE ANN. § 32.45(c)(6), (7)). The value for first-degree felony theft was increased
from $200,000 or more to $300,000 or more. See Act of June 19, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 31.03,
1993 Tex. Gen. Laws 3586, 3638, amended by Act of June 20, 2015, 84th Leg., R.S., ch. 1251, § 10, sec. 31.03(e),
2015 Tex. Gen. Laws 4208, 4213 (codified at TEX. PENAL CODE ANN. § 31.03(e)(6), (7)).
                                                         8
$223,795.30, which listed separately by date the total amount Appellant electronically transferred

into his account. The summary lists 44 transactions in which unauthorized funds were bundled

with Appellant’s authorized salary. In each of those 44 transactions, the authorized amount is

deducted from the total amount of the transfer, so that only the unauthorized amount is included in

the aggregate total of unauthorized funds Appellant received. Thus, in each instance, Appellant’s

authorized pay, when bundled with unauthorized funds, was first extracted before determining the

aggregate value of unauthorized transactions. A Desert Rock representative testified regarding

the bundled transfers from Desert Rock’s account. For each of the 44 bundled transactions, the

witness specifically identified the authorized portion of the transfer, showed that it was deducted

from the total, and testified as to the unauthorized amount remaining after the deduction of the

amount representing Appellant’s salary.

        Further, of the 11 transactions in which Appellant asserts he was not given credit for his

authorized salary, only 3 were made on dates when unauthorized transfers were alleged to have

occurred. The others did not fall within the confines of the claimed illicit transactions. Of these

3, evidence was presented to show that either the authorized portion was deducted from the total

unauthorized amount, or that Appellant’s salary payments were not bundled with the unauthorized

amount.3

        In sum, the jury could have reasonably concluded from this evidence that Appellant was

given proper credit for all comingled authorized funds or that authorized funds were not comingled

3
  The first of these 3 occurred on December 15, 2006, when Appellant transferred $2,639.69 to his personal account.
His bank statement shows $2,639.69 was deposited into his account. Of this bundled amount, the Desert Rock
representative testified Appellant’s authorized pay was $439.69, and only the remaining $2,200 constituted an
unauthorized transfer. On August 17, 2007, Appellant transferred $1,743.21 into his account. The testimony
showed his authorized pay for that day was $345.79, and that amount was shown as a separate credit on his bank
statement apart from the unauthorized transfer. On January 11, 2008, $1,985.16 was transferred from Desert Rock’s
account to Appellant’s personal account. The Desert Rock representative testified this transferred amount was not
bundled with Appellant’s regular authorized pay of $377.14.
                                                        9
or considered in determining the aggregate value of the unauthorized transactions.

       Appellant also contends that in 59 of the transactions, the State failed to include Desert

Rock’s bank statements to show a deduction for Desert Rock’s account (totaling $113,582.97),

and that in 11 of the transactions, the State failed to include Appellant’s bank statements to show

he had received the money (totaling $20,716.42). Appellant acknowledges that many of the

alleged improper transactions were demonstrated to have occurred through bank statements

showing a debit from Desert Rock’s bank account and a corresponding credit in his bank account.

He asserts, however, that for those transactions missing either a bank statement showing a debit

from Desert Rock’s account or a bank statement showing a credit in his bank account, the evidence

is insufficient. In essence, Appellant is arguing that the only proof sufficient to show the value of

the property misapplied or unlawfully appropriated would be the respective bank statements

showing a deduction from Desert Rock’s account and a corresponding deposit in his account. We

disagree with Appellant that theft or misapplication could only be shown in the form of bank

statements showing a debit to Desert Rock and a corresponding credit to Appellant. We conclude

that the illicit transfers could be shown by a combination of various accounting records and

testimony, including bank statements.

       To prove the aggregate amount, the State submitted into evidence Desert Rock’s business,

payroll, and banking records, as well as Appellant’s banking records. Further, a Desert Rock

representative testified regarding each of the 118 unauthorized transactions Appellant performed

during his employment, and specifically testified that no one at Desert Rock authorized any of

these illicit payments to Appellant. This evidence showed that Appellant’s excess, unauthorized

transactions to his personal account totaled $223,795.30, with excess transfers of $93,460.28 in


                                                 10
2006, $74,469.28 in 2007, and $55,865.74 in 2008.

          In support of this amount, the State presented witness testimony, and voluminous

Automated Clearing House (ACH) records, bank statements, and bookkeeping ledgers. This

documentary and testimonial evidence showed that funds were electronically transferred from

Desert Rock’s account to Appellant’s account by an automated clearing house (ACH). The debit

and credit information showing the unauthorized transfers of Desert Rock funds was provided in

the 118 ACH records in evidence, and for some transactions, was additionally shown by Desert

Rock’s bank statements. Moreover, with few exceptions, Appellant’s own bank statements that

were admitted into evidence show the corresponding transaction amounts that were deposited into

and credited to Appellant’s account. The transactions for which Appellant’s bank statements are

not in evidence are supported by other evidence such as ledger entries and written or processed

checks.     The jury was capable of examining these exhibits and reasonably and rationally

determining that the unauthorized transfers occurred and that the aggregate value of the transferred

money exceeded $200,000.

          We also disagree with Appellant that the ACH records fail to show an actual transfer to his

account but only show that ACH fund transfers to him were “scheduled.” Initially, we note that

with only two exceptions, each wrongful debit transaction from Desert Rock’s account was

supported by Appellant’s banking records which showed the corresponding and matching credit to

his personal banking account. 4 In any event, the ACH records identify Desert Rock as the


4
  The State did not produce Appellant’s bank statements for transactions 90 and 91. In transaction 90, the ACH
record shows two transfers made from Desert Rock’s account totaling $2,674.51. Desert Rock’s bank statement also
shows that a debit was made to the business banking account in that same amount. A corresponding transfer of
$1,979.35 was made to Appellant’s bank account, and $695.16 was transferred to another employee. Appellant had
registered the transaction as a payment to Advanta Bank Corp. and had categorized the amount as relating to “travel.”
The testimony showed that Desert Rock never found any check made payable to Advanta Bank Corp. For transaction
91, the ACH record shows an electronic transfer of $1,985.16 from Desert Rock to recipient Hector Martinez, and
                                                         11
originator of the transfer, describe the transaction as payroll for Appellant, identify the routing and

account numbers for the account belonging to Desert Rock and Appellant, show a credit to

Appellant as a recipient of the specified funds, and identify a corresponding debit to Desert Rock

for the same specified sum. Each ACH record contains a unique confirmation number for the

transaction showing that the transfer between the accounts had occurred, and identify Appellant as

the recipient of the electronic funds. This was sufficient evidence to show the funds at issue were

electronically transferred to Appellant’s account.

         Viewing the evidence in the light most favorable to the verdict, we conclude a rational jury

could have reasonably determined that the value of the misapplied and unlawfully appropriated

property was more than $200,000.                Consequently, the evidence is sufficient to show that

Appellant, without authority, transferred funds totally over $200,000 in the aggregate from Desert

Rock’s account into his personal account, and thereby establishes the offenses of first-degree

felony theft and misapplication of fiduciary property. Issues Two and Three are overruled.

                      The Trial Court Properly Submitted “Effective Consent”
                                        in the Jury Charge

         In Issue Four, Appellant contends the trial court erred when it denied his request to include

an instruction on “effective consent” in the application paragraph of the theft count. Appellant

recognizes that “effective consent” was provided in the definitional portion of the charge, but

asserts that “effective consent” is both an essential element of theft as well as one his defensive

theories, requiring its placement in the application paragraph.

         We disagree and conclude “effective consent” was properly submitted in the definitional

Desert Rock’s banking statement shows that amount was debited to its account. Desert Rock’s representative
testified the electronic transfer was made in addition to Appellant’s regular authorized pay. Appellant registered a
$2,171.16 transaction as a payment to “Utility Trailer.” The check that issued to Utility Trailer, however, it was only
for the sum of $186. The difference between $2,171.16 and $186 is $1,985.16.
                                                         12
portion of the charge.

                                       Standard of Review

       Appellate review of purported error in a jury charge involves a two-step process. Kirsch

v. State, 357 S.W.3d 645, 649 (Tex.Crim.App. 2012). We first determine whether error occurred;

if error did not occur, our analysis ends. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005);

Hailey v. State, 413 S.W.3d 457, 495 (Tex.App.–Fort Worth 2012, pet. ref’d). This first step

should not be limited to a review of just one part of the charge in isolation. Selvage v. State, 680

S.W.2d 17, 20 (Tex.Crim.App. 1984). Second, if error occurred, we then evaluate whether

sufficient harm resulted from the error to require reversal. Kirsch, 357 S.W.3d at 649; Ngo, 175

S.W.3d at 743; Hailey, 413 S.W.3d at 495.

              The Indictment and Submission of Effective Consent in the Charge

       The theft count (Count II) of the indictment alleged that Appellant:

       [D]id then and there pursuant to one scheme and continuing course of conduct,
       which began on or about January 1, 2006, and continued until on or about August
       31, 2008, unlawfully appropriate, by acquiring and otherwise exercising control
       over property other than real property, to-wit: U.S. Currency of the value of more
       than $200,000 from Desert Rock Company, Inc., the owner thereof, with intent to
       deprive the said owner of said property[.]

The application paragraph of the jury charge explicitly followed the theft count (Count II) in the

indictment by stating that if the jury found beyond a reasonable doubt that Appellant:

       [D]id then and there, pursuant to one scheme and continuing course of conduct
       which began on or about January 1, 2006, and continued until on or about August
       31, 2008, unlawfully appropriate, by acquiring or otherwise exercising control over
       property other than real property, to wit: U.S. Currency of the value of more than
       $200,000 from Desert Rock Company, Inc., the owner thereof, with intent to
       deprive the said owner of said property, then you will find the [Appellant], Guilty
       as charged in Count II of the Indictment.

Immediately prior to the application paragraphs, the charge set out a section of definitions, which

                                                13
stated in relevant part:

                                          DEFINITIONS

                                                ...

        A person commits the offense of “Theft” if the person unlawfully appropriates
        property with the intent to deprive the owner of the property. Appropriat[ion of]
        property is unlawful if it is without the owner’s effective consent.

                                                ...

        “Effective Consent” includes consent by a person legally authorized to act for the
        owner. Consent is not effective if induced by deception or coercion.

                                             Analysis

        As we understand Appellant’s arguments, he does not complain about the substance of the

“effective consent” instructions, just their placement in the charge. We first reject Appellant’s

argument that “without the owner’s effective consent” was an essential element of theft in this case

and was required to be placed in the application paragraph.

        The only statutory elements for theft under the Penal Code are that the charged person

unlawfully appropriated property with intent to deprive the owner of property. TEX. PENAL CODE

ANN. § 31.03(a) (West Supp. 2015); see Geick v. State, 349 S.W.3d 542, 545-46 (Tex.Crim.App.

2011) (recognizing that unlawfully appropriating property with the intent to deprive the owner of

the property are the only statutory elements of theft). As a general rule, these statutory elements

are the only essential elements of the crime of theft. See Geick, 349 S.W.3d at 545-46; see also Ex

parte Luna, 784 S.W.2d 369, 371 (Tex.Crim.App. 1990) (recognizing that an indictment need

allege only “the elements constituting the offense of theft” that the person charged unlawfully

appropriated property with the intent to deprive the owner of the property).

        A statutory definition contained within the theft statute becomes an element of the offense

                                                14
only when it is specifically pled in the indictment. See Geick, 349 S.W.3d at 547-48; see also

Johnson v. State, 364 S.W.3d 292, 294 n.10 (Tex.Crim.App. 2012) (recognizing Geick as standing

for the proposition that when pled, a statutory definition becomes an element of the offense).

Here, the State did not allege in the indictment a more narrow theft offense than required, other

than specifying one of the two means of appropriation—that appellant acquired or otherwise

exercised control over property other than real property. See TEX. PENAL CODE ANN. § 31.01(4)

(West Supp. 2015) (defining “appropriate” to mean either bringing about a transfer of title or

acquiring or otherwise exercising control over property other than real property). In the theft

statute, “effective consent” is included in the definition of “unlawfully appropriate,” which is

defined to include three means in which one can “unlawfully appropriate” property:

       Appropriation of property is unlawful if: (1) it is without the owner’s effective
       consent; (2) the property is stolen and the actor appropriates the property knowing
       it was stolen by another; or (3) property in the custody of any law enforcement
       agency was explicitly represented by any law enforcement agent to the actor as
       being stolen and the actor appropriates the property believing it was stolen by
       another.

Id. at § 31.03(b) (West Supp. 2015). Here, the State did not specifically allege in the indictment

“effective consent,” or any of the three statutory definitions under which one can unlawfully

appropriate property. Thus, “effective consent” was not an essential element of theft in this case,

and the trial court was not required to place it in the application paragraph for that reason.

       We also reject Appellant’s argument that he raised a “defense” of consent that required an

instruction on “effective consent” be given in the application paragraph. First, appropriation

“without the owner’s effective consent” constitutes one of several methods or means by which the

unlawful appropriation element of theft may be proved. TEX. PENAL CODE ANN. §§ 31.03(a),

(b)(1) (West Supp. 2015). A defendant is not entitled to a jury instruction on a defensive theory

                                                 15
that does nothing more than negate an element of the charged offense. See Sanders v. State, 707

S.W.2d 78, 80 (Tex.Crim.App. 1986); Weaver v. State, 722 S.W.2d 143, 148 (Tex.App.—Houston

[1st Dist.] 1986, no pet.) (holding that a requested instruction, which negated the consent and

intent elements of theft, was properly denied).

       Second, even if consent were a defense, the trial court would not be required to submit it in

the application paragraph or anywhere else in the charge.         We recognize that generally, a

defendant is entitled to a jury instruction on every defensive issue raised by the evidence. Allen v.

State, 253 S.W.3d 260, 267 (Tex.Crim.App. 2008).            The Court of Criminal Appeals has

concluded, however, that “because the authority to establish what constitutes a defense rests solely

with the Legislature, this Court concludes a defense which is not recognized by the Legislature as

either a defense or as an affirmative defense does not warrant a separate instruction.” Giesberg v.

State, 984 S.W.2d 245, 250 (Tex.Crim.App. 1998); see Willis v. State, 790 S.W.2d 307, 314

(Tex.Crim.App. 1990); see also Mays v. State, 318 S.W.3d 368, 386 n.59 (Tex.Crim.App. 2010).

The Penal Code provisions for theft do not specifically recognize the lack of effective consent as a

“defense” or an “affirmative defense” to theft. See TEX. PENAL CODE ANN. §§ 31.03(b) (defining

that appropriation of property can be unlawful if it is without the owner’s effective consent);

31.01(3) (defining that “effective consent” can include consent from a person authorized to act for

the owner, and defining when consent is not effective). Accordingly, the trial court was not

required to submit the “defense” of consent in the application paragraph. Issue Four is overruled.

                                Ineffective Assistance of Counsel

       In Issue Five, Appellant contends he suffered ineffective assistance of counsel when

counsel failed to obtain admission of defense exhibits in support of his defensive theory of

                                                  16
effective consent. Appellant asserts that these exhibits would have shown various cash deposits

into the personal account of the Desert Rock owners that would have corroborated his claim that

the owners had authorized the excessive transfers to Appellant’s account as part of a scheme in

which he would kick-back a portion of the money to the owners in cash. He contends the trial

court informed his trial attorney that it would admit the records if they supported this defensive

theory, but that his counsel was unable to point out the transactions contained in the exhibits that

would have supported admission on that basis.

                                        Standard of Review

       In order to sustain a claim for ineffective assistance of counsel, the record must

demonstrate that:    (1) the trial counsel’s performance was below an objective standard of

reasonableness; and (2) the defendant was thereby prejudiced by the trial counsel’s deficient

performance. Strickland v. Washington, 466 U.S. 668, 688–89, 104 S.Ct. 2052, 2065, 80 L.Ed.2d

674 (1984); Ex parte Saenz, __S.W.3d__, 2016 WL 1359214, at *5 (Tex.Crim.App. Apr. 6, 2016).

The defendant must “prove by a preponderance of the evidence that counsel’s representation fell

below the standard of prevailing professional norms, and that there is a reasonable probability that

but for counsel’s deficiency the result of the trial would have been different.” McFarland v.

State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996); Saenz, 2016 WL 1359214, at *5 (“the question

is whether there is a reasonable probability that, absent the errors, the factfinder would have had a

reasonable doubt respecting guilt”).

       Review of counsel’s performance is highly deferential, and we must make every effort to

eliminate the distorting effects of hindsight. Saenz, 2016 WL 1359214, at *5; Wood v. State, 4

S.W.3d 85, 87 (Tex.App.–Fort Worth 1999, pet. ref’d) (citing Strickland, 466 U.S. at 689, 104


                                                 17
S.Ct. at 2065). There is a strong presumption that counsel’s conduct was reasonable, and

consequently an ineffective assistance of counsel claim must be firmly founded in the record.

Saenz, 2016 WL 1359214, at *7.

       Because of the need to ascertain trial counsel’s strategy, courts have long recognized that

the record on direct appeal is generally insufficient to show that counsel’s performance was

deficient under Strickland; consequently, ineffective assistance claims are usually best addressed

by a post-conviction writ of habeas corpus. See, e.g., Saenz, 2016 WL 1359214, at **6-7. “[I]n

the absence of evidence of counsel’s reasons for the challenged conduct, an appellate court

‘commonly will assume a strategic motivation if any can possibly be imagined,’ . . . and will not

conclude the challenged conduct constituted deficient performance unless the conduct was so

outrageous that no competent attorney would have engaged in it.” Id. at 2016 WL 1359214, at *6

(quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001)).

       As the Court of Criminal Appeals has recently stated: “A substantial risk of failure

accompanies an appellant’s claim of ineffective assistance of counsel on direct appeal. Rarely

will a reviewing court be provided the opportunity to make its determination on direct appeal with

a record capable of providing a fair evaluation of the merits of the claim involving such a serious

allegation. In the majority of instances, the record on direct appeal is simply undeveloped and

cannot adequately reflect the failings of trial counsel.” Saenz, 2016 WL 1359214, at *7 (quoting

Thompson v. State, 9 S.W.3d 808, 813–14 (Tex.Crim.App. 1999)).

       Thus, we may dispose of the claim on direct appeal only if counsel’s ineffectiveness is

apparent from the record. Robinson v. State, 16 S.W.3d 808, 813 (Tex.Crim.App. 2000). This is

a difficult burden as the record must demonstrate that counsel’s performance fell below an


                                                18
objective standard of reasonableness as a matter of law, and that no reasonable trial strategy could

justify trial counsel’s acts or omissions, regardless of his or her subjective reasoning. Strickland,

466 U.S. at 690–91, 104 S.Ct. at 2066; Lopez v. State, 343 S.W.3d 137, 143 (Tex.Crim.App.

2011).

                                                Analysis

         After Gilbert Sanchez, one of the owners of Desert Rock, testified that Appellant’s excess

appropriations “practically broke us,” Appellant’s trial counsel proffered Defense Exhibits 4-11,

which contained more than 1,000 pages of the owners’ financial records, to show how they spent

their money. The trial court denied the proffer and permitted defense counsel to make an offer of

proof. During the offer of proof, trial counsel explained that through Exhibits 4-11, he was

attempting to counter the testimony that Appellant’s actions had left the family members “broke”

by showing “they had plenty of money.” The trial court noted that, “stealing a quarter of a million

dollars from Bill Gates, who is a billionaire,” is still theft as to Bill Gates, “whether it breaks him or

not.” The trial court informed trial counsel, however, that it would reconsider its ruling if he

could show a Sanchez family member was part of “this theft” along with “numbers that

coincide[.]” The trial court later reiterated that “If you can show me . . . how some of the monies

that ended up in [Appellant’s] account eventually ended up in [the owners’ personal] account . . . I

will let those records come in.” The trial court further explained that if counsel could show that

some percentage of the transferred money ended up in the owners’ personal account “during these

time periods it absolutely does become relevant” and admissible. Appellant’s trial counsel stated,

“In candor to the Court, no, I cannot.”

         On appeal, Appellant contends that Defense Exhibits 4-11 reveal on their face “countless


                                                   19
examples of transactions” that cash deposits were made into “various Sanchez family accounts[,]”

and that those cash deposits “coincided with cash withdrawals from [Appellant’s] account[.]”

For example, Appellant attempts to align the money he took from Desert Rock’s account on

October 5, 2006, with his automatic teller machine (ATM) withdrawals between October 5, 2006

and October 7, 2006, and with cash that was “deposited into Desert Rock’s bank account in similar

amounts.” He also contends that he “received” money from Desert Rock on December 1, 2006,

and withdrew $300 from an ATM, and attempts to correlate a deposit of $290 cash into the

Sanchez personal account on the same day. Appellant also asserts that his cash withdrawal of

$100 on October 18, 2006, coincides with a cash deposit made to the Sanchez personal account,

and claims that Gilbert and his wife “deposited cash amounts suspiciously close to amounts

withdrawn” from his account, and that “[c]ountless similar examples are found throughout the

bank records contained in Defense Exhibits 4-11.”

       Appellant argues that had defense counsel thoroughly reviewed the records, he would have

been able to provide the trial court the monetary correlations it was seeking, and the records would

have been admitted into evidence. He broadly contends, without going through or explaining the

evidence in detail, that “[a] review of the documents shows the connection between Defense

[E]xhibits 4-11” and the 118 transactions. Appellant contends this is sufficient to show that trial

counsel’s representation fell below an objective standard of reasonableness under prevailing

professional norms, and his failure to “properly advocate for the admission of the records severely

hampered” Appellant’s ability to present his defense. Appellant asserts that but for trial counsel’s

deficient performance, a reasonable probability exists that the result of the proceeding would have

been different.


                                                20
        The record on appeal does not support these contentions. Our analysis of the proffered

exhibits reveals only a weak and tenuous connection between Appellant’s various cash

withdrawals and deposits into the Sanchez family account. Given the presumption that trial

counsel’s conduct was reasonable, we can reasonably assume trial counsel did not pursue

admission because he knew the limitations of what the records demonstrated and recognized the

weakness of any argument that they established a correlation between Appellant’s cash

withdrawals and the deposits into the owners’ personal account. In short, we cannot conclude

that trial counsel’s conduct was so outrageous that no competent attorney would have engaged in

it.   Further, there was the strong testimonial and documentary evidence establishing that

Appellant had for years made unauthorized transfers to his personal account, and that he attempted

to hide his actions from Desert Rock. Based on that evidence, we cannot conclude there is a

reasonable probability that the fact finder would have had a reasonable doubt respecting

Appellant’s guilt if Exhibits 4-11 had been admitted for their consideration.

        On this record, Appellant has failed to prove by a preponderance of the evidence that there

was no plausible professional reason for trial counsel’s acts.      In the absence of additional

evidence of trial counsel’s reasons for his conduct, we cannot conclude that Appellant has

demonstrated either that his counsel’s performance was inadequate or that he was prejudiced by

that performance. Consequently, Issue Five is overruled.

                                         CONCLUSION

        The trial court’s judgment is affirmed.


                                              STEVEN L. HUGHES, Justice
May 13, 2016


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Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




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