                                 MEMORANDUM OPINION
                                         No. 04-10-00092-CR

                                          Mary O. GARCIA,
                                              Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 187th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2006-CR-2486
                           Honorable Raymond Angelini, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: December 29, 2010

AFFIRMED

           Mary O. Garcia appeals the trial court’s judgment of conviction for felony theft. Garcia

contends the evidence is insufficient to establish that she intended to deprive the owner of the

property. We affirm the trial court’s judgment.

                                              BACKGROUND

           Garcia and her husband Vincent were parishioners of Saint Edward the Confessor Church

where Father Arthur Barrymore was the rector. The church belonged to the Western Rite of the
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Catholic Church, and its financial affairs were overseen by the Vestry of the church. Garcia and

her husband were members of the church Vestry, with Garcia serving as the treasurer. She was

appointed treasurer in May 2005. Father Barrymore testified that in September 2005, he began

to receive phone calls and notices that the church bills were not being paid. He also received

information from parishioners that they had not received cancelled checks from donations made

to the church. Father Barrymore and one other member of the Vestry attempted to contact

Garcia but had no success.

       Father Barrymore and another Vestry member went to the bank to review the church’s

account. They discovered that Garcia had withdrawn $2,000 from the church’s building fund

bank account. During his testimony, Father Barrymore identified a withdrawal slip, authorizing

a withdrawal for $2,000, which contained Garcia’s signature.         The State also placed into

evidence photos from the bank’s surveillance cameras showing Garcia engaging in a bank

transaction at the time the withdrawal was made. Father Barrymore testified that Garcia was not

authorized to withdraw the money or make any expenditure from the building fund account

without the Vestry’s approval. Leo Ukleya, another member of the Vestry at the time of the

withdrawal, also testified that the procedures of the church required approval from the Vestry for

any church expenditure. However, he also testified that he was aware of expenditures Father

Barrymore made without Vestry approval.

       Garcia testified and admitted she made the withdrawal, but claimed she did so at the

request of Father Barrymore. She claimed that after withdrawing the money she went to the

church and gave the cash to Father Barrymore. Garcia’s husband testified he drove Garcia to the

church where Garcia gave the money to Father Barrymore; however, he admitted he remained in

the car and did not personally witness the transfer of cash.



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          Garcia was charged with felony theft and misapplication of funds by a fiduciary. The

jury was charged regarding both offenses, but returned a verdict of guilty only on the theft

charge.

                                            DISCUSSION

          Garcia contends the evidence is factually insufficient to support the jury’s verdict under

the analysis outlined by the Texas Court of Criminal Appeals in Clewis v. State, 922 S.W.2d 126

(Tex. Crim. App. 1996). However, after the briefs were submitted in this case, the Court of

Criminal Appeals issued its opinion in Brooks v. State, 323 S.W.3d 893 (Tex. 2010). Although

only four judges joined in the plurality opinion, a majority of the judges agreed it is no longer

appropriate to conduct a separate review for factual sufficiency as previously announced by the

court in Clewis v. State, 922 S.W. 2d 126 (Tex. Crim. App. 1996). See id, at 912; id, at 926 (J.

Cochran concurring). Accordingly, we will review the evidence to determine whether it is

legally sufficient under the Jackson v. Virginia standard. Id. at 926. Under that standard, we

review the evidence for legal sufficiency by looking at all of the evidence in the light most

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

essential elements of the offense beyond a reasonable doubt. Prible v. State, 175 S.W.3d 724,

729-30 (Tex. Crim. App.), cert. denied, 546 U.S. 962 (2005). We resolve any inconsistencies in

the testimony in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App.

2000).     We defer to the jury’s determination of the weight to be given to contradictory

testimonial evidence because resolution of the conflict is often determined by the jurors’

evaluation of the witnesses’ credibility and demeanor. Johnson v. State, 23 S.W.3d 1, 9 (Tex.

Crim. App. 2000); see also Brooks, 323 S.W.3d at 912 (“direct-appeal courts should review a

jury’s verdict under deferential standards”).



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       The essential elements of theft are (1) a person (2) with intent to deprive the owner of

property (3) unlawfully appropriates the property. Ex parte Luna, 784 S.W.2d 369, 371 (Tex.

Crim. App. 1990). The indictment here alleged that Garcia unlawfully appropriated the property

because it was done without the effective consent of the owner.          See TEX. PENAL CODE

§ 31.03(b)(1) (West 2010) (appropriation of property is unlawful if it is without the owner’s

effective consent). Therefore, we review the evidence to determine whether a rational jury could

have found that Garcia, with intent to deprive the owner of property, appropriated the property

without the owner’s effective consent.

       Father Barrymore testified he did not authorize Garcia to withdraw the $2,000, and he

never asked her to get him $2,000. He also testified he never handled cash in connection with

his duties at the church. Father Barrymore and Ukleya testified that only the Vestry could

authorize the expenditure of money. Garcia admitted she withdrew $2,000 from the church’s

bank account, but did so at the direction of Barrymore and gave him the money. It is the

province of the jury to determine the credibility of the witnesses. Johnson, 23 S.W.3d at 9. By

their verdict, the jury apparently resolved the contradictory testimony against Garcia. Based on

the record and viewing the evidence in the light most favorable to the jury, a rational could have

found the essential elements of the offense of theft beyond a reasonable doubt.

       The judgment of the trial court is affirmed.


                                                 Steven C. Hilbig, Justice

Do Not Publish




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