AUDREY ANN WHITE, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed October 16, 2008.
 
 
                                                                  
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01265-CR
............................
AUDREY ANN WHITE, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F04-00346-VW
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MEMORANDUM OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice Lang
        After a jury trial, appellant Audrey Ann White was found guilty of theft of $200,000 or more and sentenced to eight years' confinement. White raises three issues on appeal. In her first and second issues she contends the evidence was legally and factually insufficient to prove she committed theft by appropriating funds without the complainant's consent. In her third issue, White asserts the trial court erred by defining reasonable doubt in the jury charge. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        The testimony at trial described White's personal life, her relationship with her employer, and the evidence regarding the alleged theft. White met her employer, John Carmichael, in 1982, while working as an assistant controller at Trammel Crow Residential Companies. One of Carmichael's friends, Tom Teague, hired White to do his personal accounting and Carmichael did the same. Carmichael gave White signatory authority on his bank accounts. In 1992, Teague and Carmichael went into business together and hired White as the controller and secretary-treasurer of their company. White also managed a separate, personal account for Carmichael's “high risk projects” where he constructed and managed apartment buildings. The account was created to reduce Carmichael's personal risk against cost overruns and other high risk losses. It was designated as Carmichael's separate property to divide his assets from his wife's assets and ensure the couple would not lose everything if the business suffered a catastrophic loss.
        One of White's sons was diagnosed with autism and required additional supervision. Carmichael allowed White to work from home in order to care for her son. She stopped by the office almost daily to drop off and pick up paperwork, but performed the rest of her duties from home. She continued to handle all of Carmichael's personal accounting. Carmichael had such complete trust in White that he did not open his bank statements when they arrived in the mail. He focused completely on the business, left all accounting matters to her, and told his office manager to put all checks and statements in White's box.
        In 2000, White started a school, known as the “Noah Project.” It was designed specifically to meet the needs of autistic children. She devoted most of her time to running the school. White worked on grants, managed teachers, and handled a problem with a dietician at the school who allegedly harmed some of the children. The school charged tuition, but it did not cover all the operational costs. White's grant applications were unsuccessful and funding became a problem.
        White was over-committed. She did not perform her accounting work in a timely manner and could not provide current financial statements to Carmichael for more than a year. Carmichael told her she did not have to continue working for him, but she insisted everything was fine, telling him they had “been together too long.” Carmichael's wife told him “something is going on with Audrey,” but he ignored her comment because he knew White was having “problems” at the school. In the spring of 2003, Carmichael asked White for the financial statements several times and indicated the need was urgent. She did not produce them. At this point, Carmichael was involved in a divorce and needed the financial documents for the proceedings. Without telling White, he made arrangements for his office manager, Pam Harvey, to handle his personal accounting.
        On October 8, 2003, Harvey opened Carmichael's bank statement and discovered two checks payable to the Noah Project, one for $50,000 and one for $100,000. Harvey took the opened statement to Carmichael and asked him if he wanted it sent to White. When Carmichael said “yeah,” she told him he might want to look at it. According to Harvey, Carmichael glanced at the statement, turned pale, looked sick, and said “what is this?” He called White, who allegedly apologized and explained she used the money to keep the school going. White explained she expected to be able to pay him back after the grants came through, but her fund-raising efforts had failed. Then, White allegedly admitted to Carmichael that she had taken $1,000,000. Carmichael notified his wife about the theft, telling her to close any accounts White was managing for her. He then asked Harvey to contact the bank and she closed his accounts the same day. After Carmichael reviewed all of his records, he discovered twenty-nine transactions where White had drawn funds. The checks ranged from $10,000 to $500,000 each, totaled $3,775,000, and were written and cashed over a two-year period from December 27, 2001 to October 2, 2003.
        Carmichael asked his partner Teague to interact with White to recover the funds. Teague worked with White to obtain records for the business and White allegedly expressed regret for what she had done. She also allegedly admitted she took more than $2,000,000. As partial restitution, White gave Teague a check for $10,000 made out to Carmichael and signed a bill of sale to Carmichael for the school's assets. Carmichael then asked his current comptroller, Brad Hall, to go to the school and coordinate moving the school's assets. When White met Hall at the school, White told him it was all “a big mistake,” there was no forgiveness when the mistake was “this big,” and that she had considered suicide, running, or leaving the state. White said she planned on staying to “do right” by her sons, but told Hall she thought she was going to jail.
        White also returned the computer she used to manage Carmichael's financials and allegedly gave Teague a letter for Carmichael where she apologized for her behavior. In the letter, she expressed regret for her actions and asked for time to say good-bye to her parents and arrange for someone to care for her sons before turning herself in to the police. She also attempted to explain her actions while recognizing that what she did was wrong.
        After an indictment was rendered against White, a Dallas detective began looking for her. He located her in New Mexico and called her to arrange a meeting so she could surrender. He claimed White apologized for her actions during the phone conversation, but he did not note such a conversation in his police report. White refused to voluntarily return to Texas. In April 2004, White was arrested and brought back to Texas for trial.
        At trial, White admitted to writing and cashing all twenty-nine checks. She testified Carmichael approved every check she wrote and claimed he donated the money to the school. She explained her belief that Carmichael was motivated to donate the money to reduce the funds in his separate property account because of a marital dispute with his wife about the rapid growth of his separate property over hers. White denied writing the confession letter, contradicted some specific points, and stated she “assumed” Teague wrote it because he was “the only person who could have written it.” She then explained how Teague tricked her into writing the $10,000 check and signing the bill of sale.
        White produced one witness, Gregory Greenman, a former co-worker, who testified White told him Carmichael was her largest donor, but he indicated White may have told him about Carmichael's donations after Carmichael accused her of theft. Teague, Carmichael's wife, Hall, and the detective investigating the theft testified White had never claimed until trial that Carmichael donated the money or consented to her writing any of the twenty-nine checks.
II. LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE
 
        In her first two issues, White argues the evidence is legally and factually insufficient to prove theft of $200,000 or more based on unlawful appropriation without the owner's effective consent. The State responds the evidence is legally and factually sufficient to support White's conviction for theft.
A. Standard of Review
 
1. Legal Sufficiency
 
        The legal sufficiency of the evidence will be viewed 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. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighed as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000). Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Marshall, 210 S.W.3d at 625; Chaddock v. State, 203 S.W.3d 916, 920 (Tex. Crim. App. 2006); Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004); Johnson v. State, 967 S.W.2d 410, 411 (Tex. Crim. App. 1998).
 
 
2. Factual Sufficiency
 
        In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 282 (2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Evidence that is legally sufficient to support a verdict of guilt may still be factually insufficient when the verdict seems clearly wrong or manifestly unjust, or it is against the great weight and preponderance of the evidence. See Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007); Rollerson, 227 S.W.3d at 724; Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 417.
        When conducting a factual sufficiency review, an appellate court considers all of the evidence, both direct and circumstantial, whether properly or improperly admitted. See Berry, 233 S.W.3d at 854; Marshall, 210 S.W.3d at 625; see also King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999); Obigbo v. State, 6 S.W.3d 299, 304 (Tex. App.-Dallas 1999, no pet.); Morales v. State, 95 S.W.3d 561, 563 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd). Also, an appellate court gives due deference to the findings of the fact-finder, but the appellate court may substitute its judgment for the jury's credibility and weight determinations to a very limited degree. See Roberts, 220 S.W.3d at 524; Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 416-17; see also Johnson, 23 S.W.3d at 9 (factual sufficiency review requires reviewing court to afford “'due deference'” to jury's determinations); Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996) (factual sufficiency review requires “'deferential standards of review applied'” to jury verdicts). However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.-Dallas 2006, pet. ref'd). An appellate court cannot declare a conflict in the evidence justifies a new trial simply because it disagrees with the jury's resolution of that conflict. See Watson, 204 S.W.3d at 417. An appellate court must give deference to a jury's decision regarding what weight to give contradictory testimonial evidence because the decision is most likely based on an evaluation of credibility and demeanor, which the jury is in a better position to judge. Lancon, 253 S.W.3d at 706. Reversal for factual insufficiency occurs only when: (1) the evidence supporting the verdict is so weak the verdict seems clearly wrong and manifestly unjust; or (2) there is some objective basis in the record that shows the great weight and preponderance of the evidence contradict the jury's verdict. See Berry, 233 S.W.3d at 854; Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417; see also Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129. A clearly wrong and unjust verdict occurs when the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Berry, 233 S.W.3d at 854.
B. Applicable Law
        Section 31.03 of the Texas Penal Code provides in relevant part:
        (a)
 
A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.
 
        (b)
 
Appropriation of property is unlawful if:         
 
                (1) it is without the owner's effective consent.
 
Tex. Penal Code Ann. § 31.03(a)-(b)(1) (Vernon 2007).
C. Application of Law to Facts        
        First, we address the question of whether the evidence is legally sufficient to support the conviction. The record indicates White admitted she committed the crime to several witnesses. Carmichael specifically denied he consented to White writing or cashing any of the twenty-nine checks. See § 31.03(b)(1) (appropriation is unlawful if it is without the owner's effective consent). Harvey testified Carmichael never opened his bank statements. Rather, he directed her to put them in White's box unopened, including the day Harvey discovered the theft. Harvey also testified that on the day the theft was discovered, Carmichael turned pale, looked sick, and immediately called White after he looked in the statement envelope and saw the two checks written to the Noah Project. He then called his wife, and told her to close any accounts White was managing for her, and directed Harvey to close his accounts the day the theft was discovered. Then, Carmichael asked Teague to handle recovering the money from White.
        Teague asked White to write Carmichael a $10,000 check and sign a bill of sale conveying the school's assets to Carmichael as partial reimbursement for the theft. Also, according to Teague, White admitted to taking more than $2,000,000 from Carmichael and expressed regret for what she had done. White gave Teague a letter admitting she took the funds. It was passed on to Carmichael. Additionally, Hall testified White admitted she took the funds and said she expected to go to jail for what she had done. The detective also testified White apologized for her actions.
         The only defense testimony contradicting the State's witnesses came from White. White testified Carmichael consented to every check she wrote and that he donated the money to the school. She claimed Carmichael needed to reduce his personal account balance because of a dispute with his wife about the rapid growth of his separate property over hers. White accused Teague of writing the confession letter himself. She also claimed Teague tricked her into giving him the $10,000 check for Carmichael and into signing the bill of sale. She denied confessing to anyone.
        White contends there is insufficient evidence to sustain her conviction because her testimony contradicted several witnesses and was plausible enough to create reasonable doubt. White did offer contradicting testimony. However, the jury is the exclusive judge of witness's credibility and the weight to be given to their testimony. See Jones, 944 S.W.2d at 648. Viewing the evidence in the light most favorable to the State, we conclude the evidence is legally sufficient for a reasonable fact finder to determine that White wrote and cashed checks to the Noah Project without Carmichael's consent. See Huff v. State, 897 S.W.2d 829, 834 (Tex. App.-Dallas 1995, pet. ref'd); Mueshler v. State, 178 S.W.3d 151, 156-57 (Tex. App.-Houston [1st Dist.] 2005, no pet.).
        In her second issue, White contends the evidence is factually insufficient to support her conviction for theft based on the same testimony. The existence of White's contrary evidence is not enough to support a finding of factual insufficiency. See Goodman, 66 S.W.3d at 287. Carmichael specifically denied giving White consent to write or cash any of the checks. Several witnesses stated White admitted her guilt, expected to go to jail for her actions, and did not claim Carmichael donated the money at any point prior to trial. White wrote Carmichael a check, signed a bill of sale to Carmichael for the school's assets, and wrote a confession letter. We must give due deference to the determinations of the jury. See Lancon, 253 S.W.3d at 705. The evidence is neither too weak to support the verdict nor against the great weight and preponderance of the evidence. See id.
        Having reviewed all of the evidence under the proper standards, we conclude the evidence is legally and factually sufficient to support White's theft conviction. Accordingly, White's first and second issues are decided against her.
III. ALLEGED JURY CHARGE ERROR
 
        In her third issue White argues the trial court committed a “structural error” by including the definition of reasonable doubt in the jury charge. The State responds the instruction was proper, but even assuming any error, White failed to preserve this point by not objecting when the instruction was read to the jury. The State also notes we have previously concluded inclusion of this instruction is not error.
A. Standard of Review
        In reviewing an appellant's claim of jury charge error, an appellate court's first duty is to determine whether error exists. See Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim. App.), cert. denied, 128 S. Ct. 627 (2007).
B. Application of Law to Facts
        We conclude the trial court did not err in submitting the charge. The relevant part of the charge read: “The prosecution is not required to prove guilt beyond all reasonable doubt. It is required that the prosecution's proof excludes all reasonable doubt concerning the defendant's guilt.” We have previously held that this instruction does not define reasonable doubt; therefore, including it in the jury charge is not error. See Bates v. State, 164 S.W.3d 928, 931 (Tex. App.-Dallas 2005, no pet.); O'Canas v. State, 140 S.W.3d 695, 702 (Tex. App.-Dallas 2003, pet. ref'd). White's third issue is resolved against her.
IV. CONCLUSION
 
        The evidence is legally and factually sufficient to support White's conviction. Also, the trial court did not err when it included the instruction in its jury charge. The trial court's judgment is affirmed.
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 47
071265F.U05