AFFIRM; and Opinion Filed June 18, 2014.




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-13-00328-CR

                        CHRISTINA MARIE EMMERT, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                     On Appeal from the Criminal District Court No. 7
                                  Dallas County, Texas
                          Trial Court Cause No. F-1000776-Y

                            MEMORANDUM OPINION
                         Before Justices Lang-Miers, Myers, and Lewis
                                   Opinion by Justice Lewis
       A jury found appellant Christina Marie Emmert guilty of theft. The trial judge assessed

appellant’s punishment at eighteen months’ confinement and a fine of $500. The judge then

suspended her sentence and placed appellant on community supervision for three years. In two

issues, appellant contends (1) the evidence is insufficient to prove she committed theft, and (2)

the trial court erred by excluding testimony from appellant’s expert witness. Because the issues

in this appeal involve the application of well-settled principles of law, we issue this

memorandum opinion. See TEX. R. APP. P. 47.4. We affirm the trial court’s judgment.

                                         Background

       Appellant is a certified public accountant and an auditor. She worked as a bookkeeper

for Paul and Frances Siciliano, who owned an Italian restaurant. During the time appellant

worked for the Sicilianos, she divorced her husband Chuck Cummings. She also developed
financial problems, received a four-month advance on her salary, and declared bankruptcy. Over

time, appellant began doing more and more of her work for the Sicilianos at her home and

allowing her grown son and Cummings to help her with that work.

           At some point, discrepancies were discovered in the restaurant’s books, including

payments to five different credit accounts in appellant’s name or—in one instance—in her

father’s name. 1 The five payments totaled over $6000. Frances testified that she discovered the

transfers; appellant testified that she found the discrepancies herself and reported them to the

Sicilianos.        Regardless, it is undisputed the owners confronted appellant and subsequently

reported the series of transfers to the police. Appellant was charged with theft, found guilty by a

jury, and received a suspended sentence of three years’ probation. She appeals.

                                                  Sufficiency of the Evidence

           In her first issue, appellant argues the evidence at trial was legally insufficient to prove

beyond a reasonable doubt that she committed the offense of theft as charged in the indictment. 2

A person commits theft if she unlawfully appropriates property with the intent to deprive the

owner of that property. TEX. PENAL CODE ANN. § 31.03(a) (West Supp. 2013). Appropriation of

property is unlawful if it is without the owner’s effective consent. Id. § 31.03(b)(1). Appellant’s

indictment charged that she did:

           pursuant to one scheme and continuing course of conduct, unlawfully appropriate
           property, i.e., acquire and exercise control over property other than real property,
           to wit MONEY, the aggregate value of which was $1,500 or more, but less than
           $20,000, without the effective consent of FRANCES SICILIANO, the owner of
           said property, in that there was no consent given and with intent to deprive the
           said owner of the said property.


     1
        The record indicates appellant was a “secondary” on her father’s Bank of America credit card account, into which $2800 was transferred
from the Sicilianos’ restaurant account. Appellant conceded at trial that her father allowed her to use the card.
     2
         Appellant also contends the evidence is factually insufficient to support her conviction. The Court of Criminal Appeals has concluded
that “the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the
evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.” Brooks v.
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). We no longer conduct a separate review to adjudge the factual sufficiency of
the evidence.

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In reviewing a challenge to the sufficiency of the evidence, we examine the evidence in the light

most favorable to the judgment to determine whether any rational trier of fact could have found

the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319 (1979).

       Appellant argues specifically that the evidence is insufficient to establish that she was the

person who made the series of transfers from the Sicilianos’ account. Appellant testified at trial

and denied making any of the charged transfers from the restaurant account. She testified further

that both her son and Cummings had worked with her on the Sicilianos’ account, and both men

had access to the account numbers, user names, and passwords associated with that account.

Appellant testified to a bitter custody dispute with her ex-husband, implying he had a motive to

make transfers for which appellant would be blamed. However, Detective David Williams, a

financial crimes detective for the City of Garland, investigated the case and concluded there was

no evidence indicating anyone other than appellant had committed the theft.

       We must view the evidence in the light most favorable to the judgment. Id. Thus, as

long as there is legally sufficient evidence that appellant committed the theft, we cannot reverse

merely because she contends someone else could have done so.             We conclude Williams’s

testimony provides circumstantial evidence that appellant transferred approximately $6000 from

the Sicilianos’ restaurant account into five different credit accounts to which she had access.

Frances Siciliano’s testimony established those transfers were made without consent.           The

transfers were made secretly, beginning in June 2009 and continuing through December of that

year without repayment; we can infer the intent of the transfers was to deprive the Sicilianos of

the sums taken. Although appellant denied making the transfers, the jury exclusively determines

the weight and credibility of the evidence. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.

2012). We cannot engage in a second evaluation of a witness’s credibility; we merely ensure the

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jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).

We conclude a rational jury could have found the essential elements of theft beyond a reasonable

doubt in this case. See Jackson, 443 U.S. at 319.

           We overrule appellant’s first issue.

                                                Exclusion of Expert Testimony

           In her second issue, appellant contends the trial court erroneously excluded the testimony

of Daniel Strand, a bankruptcy and family law attorney. Appellant offered Strand as both a fact

and expert witness, to testify about the effects of appellant’s divorce and bankruptcy on her

indebtedness. Appellant initially suggested Strand’s lay testimony would show that her ex-

husband was still responsible for debt incurred during the marriage, even if the debt had been

assigned to appellant in the divorce. 3 Thus, she suggested, he had a motive to steal. The State

objected to Strand’s testimony on relevance and rule 403 grounds, and the prosecutor argued

there was no link affirmatively connecting Cummings to the theft in any way. Appellant then

argued that—even if the testimony could not directly connect Cummings to the offense—Strand

should be allowed to testify concerning the effect of the bankruptcy on appellant’s obligation to

pay on the credit accounts. Appellant contended she would have no motive to steal from the

Sicilianos to make payments if the debts were going to be extinguished and she would no longer

be liable on the accounts. The trial court concluded this was a collateral matter with only

“minimal relevance,” that would be outweighed by its unfair prejudice. The judge stated he

would not “essentially try[] a rabbit trail,” and he excluded the witness.

           In this Court, appellant argues she had the right to put on evidence showing she lacked a

motive to steal and that her husband was a likely alternative perpetrator. Both parties rely on


     3
         Appellant states in her brief that Strand was “familiar with the events of [her] divorce and bankruptcy.” We do not find such a statement
in the record. Nevertheless, the issue before us does not turn on whether Strand was offered as a lay witness or an expert witness; rule 403
applies in either instance. See, e.g., Schutz v. State, 957 S.W.2d 52, 70 (Tex. Crim. App. 1997) (expert opinion); Fairow v. State, 943 S.W.2d
895, 900 (Tex. Crim. App. 1997) (lay opinion).

                                                                      –4–
Wiley v. State, 74 S.W.3d 399 (Tex. Crim. App. 2002). The Wiley court addressed several

problems with an appellant’s efforts to cast blame on others, including the problem raised under

rule 403:

       In weighing probative value against Rule 403 counterfactors, courts must be
       sensitive to the special problems presented by “alternative perpetrator” evidence.
       Although a defendant obviously has a right to attempt to establish his innocence
       by showing that someone else committed the crime, he still must show that his
       proffered evidence regarding the alleged alternative perpetrator is sufficient, on its
       own or in combination with other evidence in the record, to show a nexus
       between the crime charged and the alleged “alternative perpetrator.”

Id. at 406. Thus, appellant was required to show the Strand testimony regarding Cummings and

the divorce would have been sufficient, on its own or in combination with other evidence in the

record, to show a nexus—an affirmative link—between Cummings and the theft from the

Sicilianos. Appellant has made no such showing in this case. The only testimony that links her

ex-husband to the theft is appellant’s unsupported testimony. Only appellant testified that

Cummings had access to the restaurant account’s user names, passwords, and account numbers.

Likewise, only appellant testified to the bitter nature of her divorce from Cummings. In the end,

appellant offered only the promise of Strand’s speculation joined with her own speculation.

With or without the Strand testimony, appellant failed to establish a nexus between Cummings

(or any other alternative perpetrator) and the theft from the Sicilianos. Strand’s testimony related

to appellant’s divorce was speculative, unfairly prejudicial, and properly excluded. See id.; see

also TEX. R. EVID. 403.

       The trial court also concluded appellant’s efforts to undermine her own motive to steal

were collateral and ancillary to the case. The judge called the issues in the Strand proffer a

“rabbit trail.” This characterization was identical to the Wiley court’s, which affirmed that rule

403 concerns arise when circumstantial evidence tends to sidetrack the jury into matters not

related to the case at hand. Just as the danger of unfair prejudice arises when evidence is


                                                –5–
speculative, the dangers of confused issues and misleading the jury arise when the evidence

guides the jury away from the issues to be decided. See id. at 407 (“In short, the evidence is a

‘rabbit trail.’”). Here, appellant argues she had no motive to pay on debts that would ultimately

be discharged in bankruptcy. However, she has not identified any evidence showing why

Cummings would have had a motive to pay on her debts.             In the end, Strand’s proposed

bankruptcy testimony would have been just as disconnected from the issues to be decided as his

proposed testimony regarding appellant’s divorce.

       We conclude the Strand testimony was speculative and, therefore, would have been more

unfairly prejudicial than probative. See TEX. R. EVID. 403. We further conclude the testimony

would have tended to confuse the issues and mislead the jury by guiding them into consideration

of ancillary matters. See id. Therefore, the trial court did not abuse its discretion in excluding

Strand’s testimony.

       We overrule appellant’s second issue as well.

                                          Conclusion

       We have decided both of appellant’s issues against her. Accordingly, we affirm the trial

court’s judgment.




                                                     /David Lewis/
                                                     DAVID LEWIS
                                                     JUSTICE



Do Not Publish
TEX. R. APP. P. 47

130328F.U05
                                               –6–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

CHRISTINA MARIE EMMERT, Appellant                     On Appeal from the Criminal District Court
                                                      No. 7, Dallas County, Texas
No. 05-13-00328-CR         V.                         Trial Court Cause No. F-1000776-Y.
                                                      Opinion delivered by Justice Lewis,
THE STATE OF TEXAS, Appellee                          Justices Lang-Miers and Myers
                                                      participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 18th day of June, 2014.




                                                      /David Lewis/
                                                      DAVID LEWIS
                                                      JUSTICE




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