RAYMOND WAIER WIRTH v. THE STATE OF TEXAS

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. PD-1716-09
RAYMOND WAIER WIRTH, Appellant
v. 
THE STATE OF TEXAS 
ON THE STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SIXTH COURT OF APPEALS

FANNIN COUNTY

Johnson, J., delivered the opinion of the Court in which Keller, P.J., Price, Womack, Keasler, Hervey, Holcomb, and Cochran, JJ., joined. Meyers, J., dissented. 
O P I N I O N

Appellant was indicted for the offense of theft of property over $200,000 pursuant to one scheme and continuing course of conduct. Tex. Penal Code 31.03 (a). A jury convicted appellant of the lesser offense of theft of $20,000 or more but less than $100,000, assessed a punishment of ten years' imprisonment and a $10,000 fine, and recommended community supervision. Wirth v. State, 296 S.W.3d 895, 897 (Tex. App.--Texarkana 2009). The trial court sentenced appellant to ten years' incarceration, probated for five years, fined him $10,000, and ordered him to pay restitution of $128,103.27.

In the court of appeals, appellant argued that the evidence was legally and factually insufficient to support the verdict because the evidence could not support a finding of intent to commit theft. The court of appeals held that the evidence was factually insufficient to support the verdict, pursuant to Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). Wirth v. State, 296 S.W.3d 895 (Tex. App.--Texarkana 2009)(delivered September 28, 2009).

At the time that the court of appeals considered this case, this Court had not issued its opinion in Brooks v. State, ___ S.W.3d ___, 2010 Tex. Crim. App. LEXIS 1240 (Tex. Crim. App. No. PD-0210-09, delivered October 6, 2010), in which we overruled Clewis. We therefore vacate the judgment of the court of appeals and remand the case to that court for reconsideration pursuant to Brooks.

Delivered: December 15, 2010

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