Raymond Waier Wirth v. State ( 2011 )

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
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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
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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).
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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).
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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
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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
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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
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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.
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(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
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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.
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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
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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.
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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
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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
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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
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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
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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
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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
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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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