                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-08-00220-CR
        ______________________________


      RAYMOND WAIER WIRTH, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 336th Judicial District Court
               Fannin County, Texas
               Trial Court No. 22758




     Before Morriss, C.J., Carter and Moseley, JJ.
       Opinion on Remand by Justice Moseley
                                        OPINION ON REMAND

            On January 31, 1996, the Texas Court of Criminal Appeals issued its ruling in Clewis v.

State, 922 S.W.2d 126 (Tex. Crim. App. 1996), wherein it acknowledged that the Texas

Constitution conferred upon the courts of appeals “appellate jurisdiction, under such regulations

as may be prescribed by law. Provided, that the decision of said courts [of appeals] shall be

conclusive on all questions of fact brought before them on appeal or error”1 and ruled that the

authority to rule on the factual sufficiency of evidence extended to reviews in criminal cases. In

the Clewis case, it was announced that the proper standard of review for factual sufficiency of the

elements of the offense to be employed by the courts of appeals, “views all the evidence without

the prism of „in the light most favorable to the prosecution.‟. . . [and] sets aside the verdict only if

it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.”

Id. at 129. This factual sufficiency review standard announced at that time was contrasted with

that of the legal sufficiency review standard set out by the United States Supreme Court in Jackson

v. Virginia, 443 U.S. 307, 319 (1979): “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.” Clewis, 922 S.W.2d at 128–29.

            Based on that distinction and employing the differing standards announced in Clewis, this

Court found that although there was legally sufficient evidence to warrant the conviction of

Raymond Waier Wirth by a jury for the charged crime of theft of $20,000.00 or more but less than
1
    TEX. CONST. art. V, § 6.

                                                    2
$100,000.00, the evidence was factually insufficient to support the conviction. Wirth v. State,

296 S.W.3d 895 (Tex. App.––Texarkana 2009), vacated & remanded, 327 S.W.3d 164 (Tex.

Crim. App. 2010). Although our ruling in that case also dealt with the admissibility of certain

evidence and with complaints regarding venue, the sole issue raised by the State in its petition for

discretionary review dealt with the determination that there was factually insufficient evidence to

support the conviction.

       Subsequent to the issuance of that opinion by this Court, but before the Wirth case was

disposed of by it on appeal, the Texas Court of Criminal Appeals issued its opinion in Brooks v.

State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010). In Brooks, the Texas Court of Criminal

Appeals took its “next small step,” whereby it ended its almost fifteen-year flirtation with the

Texas Constitution‟s grant to the courts of appeals of the exclusive and conclusive duty of factual

sufficiency review, determining that there had become no meaningful distinction between the

Jackson legal sufficiency standard and the Clewis factual sufficiency standard of review,

specifically overruling Clewis. Id. at 912. It then vacated this Court‟s judgment in the Wirth

case and remanded it to us for reconsideration, this time to take into account the disintegration of

the Clewis factual sufficiency review as announced in Brooks. Wirth, 327 S.W.3d at 165.

I.     Factual Background

       A.      The Leasing Business




                                                 3
       The charges against Wirth arose from his operation of an automobile leasing business, a

trade that had been operated by him for more than twenty years. The business was operated under

the umbrella of two corporations with different functions: RW Leasing did the marketing of

vehicles and Wirth Leasing, Inc., provided the funding sources and received one-third of the

profits. Whereas Wirth was the sole owner of Wirth Leasing, Inc., he owned only half of

RW Leasing, the other half being owned by its sales manager, James Rogers. Under the business

plan, the sales force made contact with persons interested in leasing automobiles and would solicit

information from those prospective customers regarding the type of automobile they wanted to

lease and the prices they were willing to pay. Armed with this information, the company would

locate automobiles through dealerships to fill the customers‟ needs and wants and negotiate for the

purchase of the automobiles. Wirth Leasing, Inc., through its contacts with several major banking

institutions, would seek approval by the bank of the customer as lessee, arrange for the purchase of

the automobiles, arrange for the transfer of the title to the vehicle, sign the lease agreement with

the customer, and then assign the lease agreement to the financing bank. A draft (in this

circumstance, each of which was signed by Rogers in his capacity as the agent for RW Leasing)

would be drawn on the account of RW Leasing at the First State Bank of Prosper, Texas, and sent

to the automobile dealership for the purchase price of the vehicle, and the vehicle was delivered to

the customer. When the funding bank received the car title, it would electronically transfer funds

into the RW Leasing bank account at the Prosper bank; upon receipt of the funds, a check drawn on



                                                 4
the RW Leasing bank account was used to honor the draft presented by the dealership. The

customer made lease payments directly to the funding bank as the assignee of the lease contract

according to the terms of the contract. Wirth‟s agreement with the funding banks involved fees or

compensation paid to his company on the contracts that had been approved. This process had

been in place for several years until the early part of 2005, at which time the carefully-orchestrated

scheme fell apart when at least fifteen of the drafts (totaling over half a million dollars, each signed

by Rogers in his representative capacity) sent to automobile dealerships were dishonored and

Wirth closed the Prosper bank accounts. A large part of this debt was discharged by Wirth

through a bankruptcy proceeding.

        Wirth was indicted for theft of property over $200,000.00 in connection with the transfer of

title of the fifteen vehicles when the drafts for each remained unsatisfied. Allegations of theft

involved one Fannin County automobile dealership and other allegations from other dealerships

outside Fannin County, all of which were prosecuted together as a continuing conduct or scheme.2

The jury found Wirth guilty of the lesser offense of theft of $20,000.00 or more but less than

$100,000.00 and assessed punishment at ten years‟ imprisonment and a $10,000.00 fine, and




2
 The indictment alleged that pursuant to one scheme and continuing course of conduct, Wirth intentionally and
knowingly unlawfully appropriated motor vehicles of the aggregate value of $200,000.00 or more by bringing about a
transfer of title without the effective consent of Bonham Chrysler Plymouth Dodge Jeep Eagle, Inc.; Toyota of
Lewisville, Inc.; McKinney Dodge, Inc.; Lexus of Clear Lake, Inc.; and Park Place Motorcars Dallas, the owners of
the property, and with the intent to deprive the owners of the property. TEX. PENAL CODE ANN. § 31.03(a) (Vernon
Supp. 2010).


                                                        5
recommended community supervision. The trial court sentenced Wirth accordingly by placing

him on community supervision for five years and ordered that he pay restitution of $128,103.27.

         B.       Argument of Wirth

         Wirth argues there is no evidence to satisfy the mandatory criminal intent requirement of

the charged offense, maintaining that by this prosecution, the State is attempting to reinstitute the

notion of a “debtors prison” by convicting him for failing to repay debts. He further argues that if

any criminal wrongdoing occurred, it was not at his hand, but at the hand of Rogers, an employee

of the company.3

II.      Sufficiency of the Evidence

         Under the redesign of Brooks, Wirth argues that the evidence is insufficient to support the

verdict because of a lack of evidence that could support a finding of Wirth‟s intention to commit

theft, a necessary element of the charged offense.

         A.       Standard of Review

         Under the present state of the law, in evaluating legal sufficiency, we review all the

evidence in the light most favorable to the jury‟s verdict to determine whether any rational jury

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

Brooks, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson, 443 U.S. at 319 (1979));

Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.––Texarkana 2010, pet. ref‟d). Our rigorous


3
 In our first consideration of this case, Wirth also complained of certain evidentiary rulings (discussed later) and as to
venue in Fannin County (an argument we previously rejected).

                                                            6
legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at

917 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks

opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at

318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

       In this analysis, we continue to use a hypothetically-correct jury charge to evaluate the

sufficiency of the evidence. Grotti v. State, 273 S.W.3d 273 (Tex. Crim. App. 2008). Such a

charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase

the State‟s burden of proof or unnecessarily restrict the State‟s theories of liability, and adequately

describes the particular offense for which the defendant was tried. Villarreal v. State, 286 S.W.3d

321 (Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Wirth

does not argue that the charge is incorrect or not one authorized by the indictment, and it tracks the

indictment and the statute that criminalizes the conduct involved.

       B.      The Statute

       The jury was charged to determine whether Wirth, pursuant to one scheme or continuing

course of conduct, committed the offense of theft by intentionally or knowingly unlawfully

appropriating property by bringing about a transfer of title (of automobiles) without the effective

consent of the owners and with intent to deprive the owners of property. The jury was also



                                                  7
instructed that consent is not effective if it is induced by deception. TEX. PENAL CODE ANN.

§ 31.01(3) (Vernon Supp. 2010).

       “Deception” was defined in the charge as

       promising performance that is likely to affect the judgment of another in the
       transaction and that the actor does not intend to perform or knows will not be
       performed, except that failure to perform the promise in issue without other
       evidence of intent or knowledge is not sufficient proof that the actor did not intend
       to perform or knew the promise would not be performed.

TEX. PENAL CODE ANN. § 31.01(1)(E) (Vernon Supp. 2010).

       C.      Underlying Events

       The evidence was that Wirth was in charge of both businesses; Wirth Leasing had the

agreements with the funding banks. Wirth handled bills, signed the paychecks, hired and fired,

instituted sales policies, and controlled all financial aspects of the companies. The Prosper bank

account manager, Penny Acker, testified that only Wirth conducted banking on behalf of both

companies and that she dealt with no other person from either company, that he was the person

notified when a draft arrived, and that he was the only person to send payment to cover the drafts.

In January and February 2005, some drafts written to the automobile dealerships failed to be

honored. Specifically, Toyota of Lewisville received eight drafts which were dishonored; the

dates of the drafts were between January 31, 2005 through February 18, 2005. At about the same

time, Park Place Motorcars in Dallas presented three drafts within thirty days, none of which were

honored. McKinney Dodge had two unpaid drafts; Bonham Chrysler received one unpaid draft



                                                8
dated January 19, 2005; Lexus of Clear Lake had an unpaid draft and contacted Wirth, who sent a

check (also returned unpaid) on the RW Leasing account.            All of the witnesses from the

automobile dealerships testified that they transferred possession and title to the vehicles, were not

paid on the drafts, and were unable to regain possession of the vehicles. (Title had been

transferred by the dealers to the respective funding banks.) Likewise, the evidence showed that

for each of these transactions, the funding bank approved the lease contracts with the Wirth sales

force, and funds to honor the drafts were paid by those banks into the RW Leasing account at the

Prosper bank. The total amount of these fifteen unpaid drafts amounted to over $500,000.00.

Bank records were introduced, but none of the withdrawals to the Wirth companies have been

shown to be something other than ordinary business transactions. On March 5, 2005, the

RW Leasing bank account was closed by Wirth and the balance of $41,813.27 was withdrawn.

       D.      Criminal Intent

       In summary, Wirth argues that the evidence is not such as would allow a jury to infer that

he had the intent to steal, but rather his argument is that his business simply failed. There is

evidence that Wirth was a profligate spender and that when the business began its precipitous

death spiral, he first juggled funds and then ran far short of the necessary monies to satisfy the

drafts. However, although the denouement of the business was rather spectacularly unsuccessful,

it had earned a considerable amount of money over an extended multi-year period of time. There

is no doubt that the “money well” ultimately ran dry and that Wirth filed for bankruptcy. There is



                                                 9
no doubt that Wirth behaved poorly and, perhaps, illegally in his relationship with Amegy Bank

and that his conduct toward a longtime employee may have been (at best) self-serving and

dishonorable.4 However, the prosecution before this Court concerns neither of those actions, but

whether there is sufficient evidence to allow a jury to determine that he had the intent to steal at the

time that he obtained the moneys which were intended to be used to satisfy the drafts.

           As previously stated, Wirth‟s conviction is pursuant to a Texas Penal Code provision that

criminalizes taking funds from another without their effective consent. (Consent is not effective

if induced by deception. Deception includes promising performance which the promisor does not

intend to perform or knows will not be performed.) The statute also states that failure to perform,

standing alone, is not sufficient proof. TEX. PENAL CODE ANN. § 31.01 (Vernon Supp. 2010).

           The statute and the hypothetically-correct jury charge analysis require the State to prove

that Wirth did not intend to honor the drafts or knew they would not be honored when the drafts

were issued. Further, failure to honor the drafts, without other evidence of intent or knowledge, is

not sufficient proof that Wirth did not intend to perform or knew the drafts would not be honored.

The State argues that the evidence supporting the finding is:

(1)        Wirth owned Wirth Leasing and controlled RW Leasing and was solely in charge of the

banking and financial aspects of the business.

(2)        Acker, a banker at the Prosper bank, told Wirth there were insufficient funds to cover his

drafts and, yet, he continued business as usual.
4
    Wirth‟s dealings with Amegy Bank and Rogers are discussed later.

                                                         10
(3)       The automobile dealerships took measures to attempt to collect on the drafts, to no avail.

(4)       Wirth blamed others and denied involvement.

(5)       His opulent lifestyle showed he “used other people‟s money for his own personal benefit

without their permission.”

(6)       His dishonesty with Amegy Bank on an unrelated matter showed intent to steal from the

car dealers.

          This Court has previously noted that a claim of theft made in connection with a contract

requires proof of more than an intent to deprive and a subsequent appropriation of the property. If

only an intent and appropriation are present in a contractual matter, there is no criminal conduct

because under the terms of the contract, one has the right to “deprive the owner of property” in

return for consideration. Baker v. State, 986 S.W.2d 271, 274 (Tex. App.––Texarkana 1998, pet.

ref‟d).

          We recognize that criminal intent may be (indeed, typically must be) inferred from the

nature of the actions taken. Further, mental states are almost always inferred from acts and

words. The mental culpability of a defendant is of such a nature that it generally must be inferred

from the circumstances in which a prohibited act or omission occurs. A mental state is concealed

within the mind of an individual, and can only be determined from his words, acts, and conduct.

Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998). We, therefore, examine the State‟s

arguments and the surrounding circumstances for evidence from which a jury could draw the



                                                  11
conclusion that Wirth did not intend to honor the drafts or knew the drafts would not be paid when

they were issued.

                     1.       Testimony of Penny Acker

            Acker, an employee of the bank in Prosper where the company‟s checking accounts were

maintained, testified that in the early days of the account, it was flush with money to cover the

drafts, but that began changing about four or five months before Wirth closed the account in 2005.

(i.e., December 2004 through early March 2005). At that point, there began to be insufficient

funds in the account to cover the drafts, and the Prosper bank began returning some of the drafts

unpaid. Acker testified that she thought Wirth might be kiting 5 funds and, based on that

suspicion, the bank began holding some deposits until they cleared the bank on which they were

drawn. Acker‟s specific testimony was that in November 2004, the RW Leasing bank account

had twelve insufficient fund check charges. She did not speak to Wirth about this, but notified a

vice president, who she believed had a meeting with Wirth, at which time Wirth appeared to

become agitated, but she did not know if the issues she had been observing were discussed. When

asked if Wirth was aware that drafts were outstanding at the time he closed the bank account,

Acker stated, “As far as I can remember, I think we had a couple.” Later, the following exchange

occurred:

            Q.      Just two questions, Ms. Acker. Going back to the question about the
            account‟s [sic] closed and a bank is sending a draft money, and if Mr. Wirth
            instructed you as you‟ve said -- when the account‟s closed, to send those back --
5
    Kiting is the process of drawing against balances credited to uncollected checks.

                                                            12
        A.      He didn‟t instruct us to send it back. I mean --

        Q.      I‟m sorry. I misunderstood your testimony . . . .

There is no showing by this testimony that Wirth was made aware that the drafts were still

outstanding when he closed the bank account. The testimony showed that these events occurred

some time after the drafts had already been issued and the vehicles had been delivered; therefore, it

did not serve to prove up Wirth‟s intent to deceive at the time the drafts were issued and the

property was appropriated. We must reiterate that the relevant intent to deprive the owner of

property is the accused‟s intent at the time of the taking. Peterson v. State, 645 S.W.2d 807, 811

(Tex. Crim. App. 1983) (citing Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981)). “In

sum, the State must show a rational fact[-]finder could have found appellant had no intention of

fulfilling his obligation under the agreement, and his promise to perform was „merely a ruse to

accomplish theft by deception.‟” Jacobs v. State, 230 S.W.3d 225, 230 (Tex. App.––Houston

[14th Dist.] 2006, no pet.) (quoting King v. State, 17 S.W.3d 7, 15 (Tex. App.––Houston [14th

Dist.] 2000, pet. ref‟d)).

                2.      Personal Gain

        Another consideration in determining whether Wirth had criminal intent is whether he

experienced personal gain from the property obtained. Christensen v. State, 240 S.W.3d 25, 33

(Tex. App.––Houston [1st Dist.] 2007, no pet.). In this case, the State introduced Wirth‟s bank

records, but has not directed this Court to any instances in them of Wirth withdrawing funds for his


                                                 13
personal gain. No attempt was made to show that any Wirth Leasing, Inc., withdrawal was not a

proper business item. Instead, the State‟s argument proceeds from the premise that the funding

banks placed money in the RW Leasing account for each draft representing a vehicle transaction

and Wirth expended large sums of money for housing, vehicles, and recreational property and

lived an “opulent” lifestyle. Based on those two facts, the State argues that the jury could

reasonably infer that Wirth intended to deceive various automobile dealerships when he had no

intent to pay or knew the drafts would not be paid, all to support his luxurious lifestyle.

        However, the evidence also shows that Wirth‟s business had produced substantial revenue

for many years, which had apparently been sufficient to support an abundant lifestyle (according to

Wirth‟s proposal, the business had gross profits of $651,179.02 for the first nine months of 2004).

Further, such a conclusion requires a considerable stretch of logic. The fact that Wirth lived in

high style could reasonably lead to an inference that he had access to sufficient funds to support it,

not that he intentionally issued drafts with the simultaneous awareness that they would not be paid.

We must remember that Wirth was not charged with living beyond his means; if that were a crime,

a substantial part of the American populace would be subject to being firmly ensconced behind

bars.

        Both Wirth and Rogers were authorized to write checks or make withdrawals from the RW

Leasing bank account. Ultimately, Wirth lost his business of many years and declared personal

bankruptcy.



                                                 14
        E.      Extraneous Bad Acts

                1.     Amegy Bank Transaction (Testimony of James Bloodgood)

        The State also argues that evidence of Wirth‟s intent to deceive is shown by the testimony

of James Bloodgood, a vice-president of Amegy Bank, regarding a business transaction with Wirth

that is unrelated to this prosecution. Wirth complained this evidence was inadmissible, citing

Rule 404 of the Texas Rules of Evidence. See TEX. R. EVID. 404. In our previous opinion, we

ruled this evidence to have been admissible; since no appeal was taken regarding that issue, it is a

final ruling.

        Reiterating that evidence, the record shows that Bloodgood testified to a sequence of

overdrafts in two of Wirth‟s accounts with that bank and opined that he, likewise, suspected Wirth

of kiting. Bloodgood testified that he ultimately asked Wirth to liquidate securities that were

partially used as collateral on a $50,000.00 line of credit toward the end that the overage (about

$36,000.00) could be applied toward the uncollected portion of Wirth‟s accounts. Bloodgood

stated that he had released the securities for that purpose. (Wirth maintained several accounts

there: one for another of his companies, Certified Vehicle Leasing, and another for Wirth

Leasing, as well as personal accounts.) There is evidence that a form used by Bloodgood for the

release of the security interest which was signed by him February 10, 2005, was altered after it was

in Wirth‟s possession. After the securities were sold, the funds thus realized were not applied to

the debt at Amegy Bank, but were, instead, transmitted to Wirth‟s personal account and then



                                                15
deducted by him from that account via a series of cashier‟s checks from a different branch. This

occurred during the three-month time frame during which the drafts involved with this prosecution

were issued. Bloodgood testified that his bank was ultimately unable to collect on the line of

credit and lost an additional $41,000.00 as a result of the uncollected fund transfers. Evidence

showed that Wirth misled Bloodgood into thinking he would liquidate his securities to pay the loan

to Amegy Bank. Then, according to Bloodgood, Wirth managed to sell the previously secured

stocks and have the proceeds from their sale transferred to his own account without satisfying the

bank loan which had been secured by them. Logically, if this evidence is relevant on the issue of

intent, it is some evidence from which a jury could infer that Wirth did not intend to honor the

drafts at the time they were issued or that he knew they would not be honored.

       Reviewing the evidence for legal sufficiency pursuant to the plurality opinion in Brooks,

we defer to the responsibility of the jury to resolve conflicts, weigh evidence, and draw reasonable

inferences, but we are also aware that we must review the evidence rigorously in order to fulfill our

duty as a reviewing court, which (by necessity) includes a focus on the quality of the evidence

presented. Brooks, 323 S.W.3d at 917.

       As we have previously outlined, the evidence that we found that constituted “some

evidence” sufficient under Clewis to allow the jury to infer the issue of intent was the testimony

concerning the other bank transaction. However, under the rigorous review now required under

the proper sufficiency analysis, the existence of any evidence is not determinative of whether the



                                                 16
evidence is sufficient to allow a rational jury to find Wirth guilty beyond a reasonable doubt.

When we look at that transaction, we find that it is substantially dissimilar to the allegations of

deception lodged against Wirth by this indictment. In the Bloodgood testimony, it is suggested

that Wirth manipulated Bloodgood and his bank into signing a form that later was altered. Since

the document was in Wirth‟s possession, and since the document‟s alteration allowed him to

receive the funds without paying the bank loan, the implication is that he either altered it himself or

caused it to be altered. If this allegation is true, Wirth deliberately took affirmative actions which

resulted in his improperly receiving the funds. That misconduct, however, is no part of the

charges for which Wirth was on trial.

       Wirth‟s dealings with the banks and automobile dealerships in connection with the drafts

are not analogous to his dealings with Amegy Bank. As previously noted, drafts issued to the

automobile dealerships were integral to the same procedures previously followed many times in

the regular course of a business that Wirth had successfully conducted for many years. No

irregularity (such as the alteration of commercial instruments) was shown in any of the

transactions which are the heart of the State‟s case against Wirth. The drafts were signed by

Rogers, who had handled these transactions for years; the lease contracts were approved by the

funding banks; the money was sent to the leasing bank account; and, except for the fifteen drafts

executed just before the business collapsed in a heap, drafts issued in the same manner had been

honored by Wirth‟s business for a period of years. For 2004, the company was issuing and



                                                  17
honoring at least thirty to forty such drafts every month. While there is no explanation as to why

the funds to pay for the drafts dissipated over a period of time, we have not been directed to any

evidence of Wirth personally raiding the bank account to any greater extent than he had done

before, when the business was successful. We have previously concluded that the evidence of the

Bloodgood incident was admissible, albeit with some misgivings. However, there is a complete

absence of any evidence from which an inference could be drawn that might show that the Amegy

Bank incident involving Bloodgood had a place in some grand plan or scheme to steal or defraud.

In the absence of some perceptible and reasonable linkage with such, we find its probative value to

support a reasonable inference that Wirth had the necessary intent not to honor the drafts to be

weak and insubstantial.

               2.      The Rogers Insurance Policy

       Wirth also complained of the admission of testimony from Rogers about Wirth‟s

liquidation of what Rogers testified was an insurance policy that represented his retirement

account. We recount that testimony (much in the same form as our original opinion issued in this

case) to aid in understanding the issue of sufficiency. Rogers testified that Wirth had purchased a

life insurance policy designed to compensate Wirth if Rogers died while employed, with half the

benefits to Wirth and half to Rogers‟ wife. However, if Rogers retired, he was then to receive the

cash value of the policy as his retirement benefit. Rogers went on to state that Wirth cashed in the

life insurance policy and gave none of the proceeds to Rogers, this occurring at about the same



                                                18
time of the Amegy Bank transaction. As with the Bloodgood evidence about the Amegy Bank

transaction, the State also argued that this evidence showed Wirth‟s intent to deprive another of

property which he formed or possessed at or about the same time the fraudulent drafts were issued.

         In our previous opinion in this case, we ruled that Wirth‟s actions concerning the Rogers

insurance policy was not sufficiently similar to the offense with which Wirth was charged to have

been relevant to the issue of Wirth‟s mens rea with regard to the crime with which he had been

charged. Therefore, it did not meet the measure of being a similar transaction as contemplated

pursuant to Section 31.03(c)(1) of the Texas Penal Code and was, therefore, inadmissible as

evidence. TEX. PENAL CODE ANN. § 31.03(c)(1) (Vernon Supp. 2010). However, although we

determined this evidence to have been inadmissible, we also deemed it to have been harmless

error.

         F.     Closing the Account

         Finally, the State argues that Wirth‟s closing of the account and withdrawing $41,000.00

also proves his intent to deceive. But the intent to deceive must have occurred at the time the

drafts were written. Does the fact that Wirth withdrew $41,000.00 evidence his intent that when

Rogers issued drafts on approved contracts, Wirth intended that these drafts would not be

honored? Although failing to pay those drafts was a violation of his contract, it was also a

diversion from his prior business practices, which is perhaps revelatory of a character flaw and

certainly demonstrative of bad business practices; however, it does not evidence Wirth‟s intention



                                                19
to create and deliver drafts that he would then refuse to pay. There simply is no evidence when

these drafts were issued by Rogers on approved contracts, that Wirth possessed the intention at that

time to dishonor them or that he knew they would not be honored when they were issued.

III.   Conclusion

       We have discussed each of the items of evidence that the State put forward to support its

position that Wirth deceived the automobile dealers by promising a performance that he did not

then intend to keep or that he then knew would not be performed. The only connection between

the extraneous alleged bad acts and the charged offenses is that Wirth was involved in those acts,

that appropriation of money was involved, and that the alleged bad acts occurred at about the time

that the wheels of the apparently previously successful business fell off and Wirth began to

scramble for money from what he perceived as any available sources. We are likewise mindful of

the fact that the statute states that we may not consider Wirth‟s ultimate failure to repay (standing

alone) as evidence. Indeed, the State‟s argument necessarily focused almost exclusively on the

extraneous bad acts to supply the requisite felonious intent because there is no evidence associated

with the drafts to support the State‟s position. Finally, there is the obvious fact that the jury

apparently could not agree (despite essentially identical evidence existing for the issuance and

dishonor of each draft) that Wirth engaged in unlawful activities as to all of them. After

reviewing all of this evidence in detail and studying the trial record diligently, we find legally




                                                 20
insufficient evidence to support the jury‟s conclusion that Wirth intentionally or knowingly issued

the drafts without the intent to honor them.

       We reverse the conviction and render a judgment of acquittal.




                                               Bailey C. Moseley
                                               Justice

Date Submitted:        April 20, 2011
Date Decided:          April 21, 2011

Publish




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