      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-04-00021-CR



                             Wilfred Warren Sheppard, Appellant


                                                v.


                                  The State of Texas, Appellee




      FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
           NO. 54845, HONORABLE GORDON ADAMS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found appellant Wilfred Warren Sheppard guilty of theft of over $20,000. See

Tex. Pen. Code Ann. § 31.03(a), (e)(5) (West Supp. 2004-05). The court assessed punishment at

imprisonment for four years, suspended imposition of sentence, and placed appellant on community

supervision. Appellant’s sole contention on appeal is that the evidence does not support the jury’s

verdict. We will affirm.

               In May 2001, appellant, doing business as The Gym, purchased a $20,000 certificate

of deposit at Extraco Bank in Killeen. The CD was assigned to the Texas Secretary of State as a

security deposit pursuant to the Health Spa Act. See Tex. Occ. Code Ann. § 702.151 (West 2004).
In September 2001, appellant requested a release of the security deposit. The request was denied by

the secretary of state in a letter to appellant dated September 20, 2001, and signed by Guy Joyner,

the chief of the legal support unit.

               On October 4, 2001, appellant presented to Mini Ayala, an employee of Extraco

Bank, a letter purporting to be from Joyner in his official capacity and stating that the $20,000

security deposit had been released to appellant in full. Based on this letter, Ayala cancelled the CD

and gave appellant a cashier’s check for $20,315.94, which he cashed that day. Joyner testified that

the letter was a forgery and that appellant’s security deposit had not been released. The theft was

discovered when the secretary of state subsequently ordered the bank to pay $16,637.75 from the CD

to reimburse customers of The Gym for their losses upon its closing.

               In his brief, appellant argues that he is not guilty of theft because he was never

determined to be personally liable for the losses suffered by customers of The Gym. He relies on

a copy of an agreed final judgment and permanent injunction ending civil litigation by the State

against the corporate entity that apparently operated the business. This document was not introduced

in evidence at appellant’s trial. Documents attached to an appellate brief but not in evidence may

not be considered on appeal. Pollan v. State, 612 S.W.2d 594, 596 (Tex. Crim. App. 1981). In any

event, appellant’s alleged lack of personal liability to his customers is not a defense to his use of a

forged document to appropriate the $20,315.94 from the bank.

               The evidence is legally sufficient to sustain the guilty verdict. See Jackson v.

Virginia, 443 U.S. 307, 324 (1979) (test for legal sufficiency); Griffin v. State, 614 S.W.2d 155, 158-


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59 (Tex. Crim. App. 1981) (same). The point of error is overruled and the judgment of conviction

is affirmed.




                                            __________________________________________

                                            Bob Pemberton, Justice

Before Chief Justice Law, Justices B. A. Smith and Pemberton

Affirmed

Filed: May 26, 2005

Do Not Publish




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