Opinion issued March 14, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00072-CR ——————————— CASSAUNDRA DAWN NICHOLS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court Galveston County, Texas Trial Court Case No. 15CR2104
MEMORANDUM OPINION
A jury convicted appellant, Cassaundra Dawn Nichols, of aggregate felony
theft in an amount greater than $200,000.001 and assessed her punishment at 20
1 See TEX. PENAL CODE §§ 31.03(a), (e)(7); 31.09. The amount required for a first- degree felony theft has since been raised to $300,000.00. See Act of May 31, 2015, 84th Leg., R.S., ch. 1251, 2015 Tex. Sess. Law Serv. 4208, 4211. years’ confinement and a $10,000.00 fine. In two related issues on appeal,
appellant contends that (1) the trial court erred in overruling her motion for
directed verdict and (2) the evidence is legally insufficient to support her
conviction. We affirm.
BACKGROUND
Appellant was the sole bookkeeper for Benno Enterprises, Inc.2 During that
time, appellant used Benno Enterprises’ business account to pay over $440,000.00
toward her own personal credit card debt.3 Appellant’s bookkeeping records show
that tax payments were being made to the IRS, but a review of Benno Enterprises’
bank records show no payments made to the IRS. Appellant does not dispute that
payments were made to her credit card accounts, that she failed to pay the payroll
taxes, or that she had access to the accounts.
Benno Deltz, Benno Enterprises’ owner, testified that he never authorized
payments to appellant’s credit cards. He never authorized payments from his
company to appellant’s Capital One credit card, her Walmart credit card, her
daughter’s TJ Maxx credit card, of any of the payments shown to her other credit
2 Benno Enterprises includes a catering business, a restaurant, a bakery, and a party rental business. 3 The evidence showed payments of $421,744.61 to Nichols’s Capital One credit card, $12,315.24 to Nichols’s Walmart credit card, $2,091.39 to Nichols’s daughter’s TJ Maxx credit card, and $3,592.87 to Nichols’s Valero credit card. 2 cards. Deltz testified, “I didn’t give [appellant] permission for $450,000.00
dollars’ worth of bills.” Deltz acknowledged that he loaned cash to appellant—
mostly from his personal account—and that she paid him back. He did not allow
her to use the company credit card for personal charges. Deltz denied that the
payments to appellant’s credit cards were “under-the-table” payments for putting
up with his “shenanigans” or an attempt to hide how much he was paying her from
his family.
At trial, appellant, testifying in her own behalf, claimed that Deltz often
loaned money to his employees. Appellant testified that she borrowed $500 from
Deltz when her daughter started college and that she paid Deltz back a little bit at a
time. She testified that she borrowed from him “15, 20 times, 30” over a period of
eight years. On another occasion, Deltz purchased a car for her, and then arranged
financing for it through Moody Bank. Nichols testified that Deltz would conceal
the amount of money that he was loaning her from his family. She claimed that
she paid her health insurance with her credit card, which Deltz then paid, but that
he did not want his family to know. Appellant said that she often bought office
supplies on her credit card, which Deltz then repaid out of the business’s account.
Appellant acknowledged that she quit paying Benno Enterprises’ payroll taxes,
alleging an issue with their computer program.
3 Appellant introduced into evidence a $10,000.00 check that she endorsed
over to Deltz but acknowledged that the amount was a lot less than the
$440,000.00 that had been paid to her credit cards from Benno Enterprises. She
testified that she considered the money going to her credit cards as part of her
salary but acknowledged that she did not report it as such to the IRS. Appellant
denied ever using Benno Enterprises’ account to pay her own bills without Deltz’s
consent. She testified that Deltz was lying when he stated that she did not have his
permission to make the payments to her credit cards. She believed that he was
pursuing theft charges against her because “he was terrified of sexual harassment
lawsuits and what [she] knew about him and Moody National Bank.”4
SUFFICIENCY OF THE EVIDENCE
In issue one, appellant contends that the trial court erred in denying her
motion for instructed verdict, and, in issue two, appellant contends that the
evidence is legally insufficient to prove theft of over $200,000.00. In both issues,
appellant claims that “the State failed to irrefutably show during the Appellant’s
testimony that all the amounts taken were not gifts.” Because we treat a trial
court’s failure to grant a motion for instructed verdict as a challenge to the legal
sufficiency of the evidence, we review these issues together. See Williams v. State,
4 Appellant testified that Deltz would cater political functions for Moody Bank but charge it as a board meeting because banks cannot give to political candidates. She also testified that Deltz sexually harassed her and other female employees for years. 4 937 S.W.2d 479, 482 (Tex. Crim. App. 1996) (citing Cook v. State, 858 S.W.2d
467, 470 (Tex. Crim. App. 1993)).
Standard of Review and Applicable Law
In reviewing the legal sufficiency of the evidence to support a criminal
conviction, a court of appeals determines whether, after viewing the evidence in
the light most favorable to the verdict, the trier of fact was rationally justified in
finding the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex.
Crim. App. 2010).
As the exclusive judge of the facts, the jury may believe or disbelieve all or
any part of a witness’s testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex.
Crim. App. 1991). We presume that the factfinder resolved any conflicting
inferences in favor of the verdict, and we defer to that resolution. See Jackson, 443
U.S. at 326. On appeal, we may not re-evaluate the weight and credibility of the
record evidence and thereby substitute our own judgment for that of the factfinder.
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). In reviewing the
evidence, circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Juries
5 are permitted to make reasonable inferences from circumstantial evidence
presented at trial. Id.
For evidence to be sufficient, the State need not disprove all reasonable
alternative hypotheses that are inconsistent with a defendant’s guilt. Cantu v. State,
395 S.W.3d 202, 207–08 (Tex.
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Opinion issued March 14, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00072-CR ——————————— CASSAUNDRA DAWN NICHOLS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court Galveston County, Texas Trial Court Case No. 15CR2104
MEMORANDUM OPINION
A jury convicted appellant, Cassaundra Dawn Nichols, of aggregate felony
theft in an amount greater than $200,000.001 and assessed her punishment at 20
1 See TEX. PENAL CODE §§ 31.03(a), (e)(7); 31.09. The amount required for a first- degree felony theft has since been raised to $300,000.00. See Act of May 31, 2015, 84th Leg., R.S., ch. 1251, 2015 Tex. Sess. Law Serv. 4208, 4211. years’ confinement and a $10,000.00 fine. In two related issues on appeal,
appellant contends that (1) the trial court erred in overruling her motion for
directed verdict and (2) the evidence is legally insufficient to support her
conviction. We affirm.
BACKGROUND
Appellant was the sole bookkeeper for Benno Enterprises, Inc.2 During that
time, appellant used Benno Enterprises’ business account to pay over $440,000.00
toward her own personal credit card debt.3 Appellant’s bookkeeping records show
that tax payments were being made to the IRS, but a review of Benno Enterprises’
bank records show no payments made to the IRS. Appellant does not dispute that
payments were made to her credit card accounts, that she failed to pay the payroll
taxes, or that she had access to the accounts.
Benno Deltz, Benno Enterprises’ owner, testified that he never authorized
payments to appellant’s credit cards. He never authorized payments from his
company to appellant’s Capital One credit card, her Walmart credit card, her
daughter’s TJ Maxx credit card, of any of the payments shown to her other credit
2 Benno Enterprises includes a catering business, a restaurant, a bakery, and a party rental business. 3 The evidence showed payments of $421,744.61 to Nichols’s Capital One credit card, $12,315.24 to Nichols’s Walmart credit card, $2,091.39 to Nichols’s daughter’s TJ Maxx credit card, and $3,592.87 to Nichols’s Valero credit card. 2 cards. Deltz testified, “I didn’t give [appellant] permission for $450,000.00
dollars’ worth of bills.” Deltz acknowledged that he loaned cash to appellant—
mostly from his personal account—and that she paid him back. He did not allow
her to use the company credit card for personal charges. Deltz denied that the
payments to appellant’s credit cards were “under-the-table” payments for putting
up with his “shenanigans” or an attempt to hide how much he was paying her from
his family.
At trial, appellant, testifying in her own behalf, claimed that Deltz often
loaned money to his employees. Appellant testified that she borrowed $500 from
Deltz when her daughter started college and that she paid Deltz back a little bit at a
time. She testified that she borrowed from him “15, 20 times, 30” over a period of
eight years. On another occasion, Deltz purchased a car for her, and then arranged
financing for it through Moody Bank. Nichols testified that Deltz would conceal
the amount of money that he was loaning her from his family. She claimed that
she paid her health insurance with her credit card, which Deltz then paid, but that
he did not want his family to know. Appellant said that she often bought office
supplies on her credit card, which Deltz then repaid out of the business’s account.
Appellant acknowledged that she quit paying Benno Enterprises’ payroll taxes,
alleging an issue with their computer program.
3 Appellant introduced into evidence a $10,000.00 check that she endorsed
over to Deltz but acknowledged that the amount was a lot less than the
$440,000.00 that had been paid to her credit cards from Benno Enterprises. She
testified that she considered the money going to her credit cards as part of her
salary but acknowledged that she did not report it as such to the IRS. Appellant
denied ever using Benno Enterprises’ account to pay her own bills without Deltz’s
consent. She testified that Deltz was lying when he stated that she did not have his
permission to make the payments to her credit cards. She believed that he was
pursuing theft charges against her because “he was terrified of sexual harassment
lawsuits and what [she] knew about him and Moody National Bank.”4
SUFFICIENCY OF THE EVIDENCE
In issue one, appellant contends that the trial court erred in denying her
motion for instructed verdict, and, in issue two, appellant contends that the
evidence is legally insufficient to prove theft of over $200,000.00. In both issues,
appellant claims that “the State failed to irrefutably show during the Appellant’s
testimony that all the amounts taken were not gifts.” Because we treat a trial
court’s failure to grant a motion for instructed verdict as a challenge to the legal
sufficiency of the evidence, we review these issues together. See Williams v. State,
4 Appellant testified that Deltz would cater political functions for Moody Bank but charge it as a board meeting because banks cannot give to political candidates. She also testified that Deltz sexually harassed her and other female employees for years. 4 937 S.W.2d 479, 482 (Tex. Crim. App. 1996) (citing Cook v. State, 858 S.W.2d
467, 470 (Tex. Crim. App. 1993)).
Standard of Review and Applicable Law
In reviewing the legal sufficiency of the evidence to support a criminal
conviction, a court of appeals determines whether, after viewing the evidence in
the light most favorable to the verdict, the trier of fact was rationally justified in
finding the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex.
Crim. App. 2010).
As the exclusive judge of the facts, the jury may believe or disbelieve all or
any part of a witness’s testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex.
Crim. App. 1991). We presume that the factfinder resolved any conflicting
inferences in favor of the verdict, and we defer to that resolution. See Jackson, 443
U.S. at 326. On appeal, we may not re-evaluate the weight and credibility of the
record evidence and thereby substitute our own judgment for that of the factfinder.
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). In reviewing the
evidence, circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Juries
5 are permitted to make reasonable inferences from circumstantial evidence
presented at trial. Id.
For evidence to be sufficient, the State need not disprove all reasonable
alternative hypotheses that are inconsistent with a defendant’s guilt. Cantu v. State,
395 S.W.3d 202, 207–08 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). Rather,
a court considers only whether the inferences necessary to establish guilt are
reasonable based upon the cumulative force of all the evidence when considered in
the light most favorable to the jury’s verdict. Wise, 364 S.W.3d at 903; Hooper,
214 S.W.3d at 13.
A person commits the offense of theft if that person unlawfully appropriates
property with intent to deprive the owner of the property. TEX. PENAL CODE §
31.03(a). As charged in this case at the time of the offense, theft was a first-degree
felony if the property unlawfully appropriated was valued at $200,000.00 or more.
Id. § 31.03(a), (e)(7) (since amended to raise limit to $300,000). Aggregation of
multiple thefts committed pursuant to one scheme or continuing course of conduct
under section 31.09 of the penal code creates a single offense for purposes of
jurisdiction, punishment, and the statute of limitations. TEX. PENAL CODE § 31.09;
Graves v. State, 795 S.W.2d 185, 187 (Tex. Crim. App. 1990); Anderson v. State,
322 S.W.3d 401, 408 (Tex. App.—Houston [14th] Dist. 2010, pet. ref’d).
6 Analysis
Appellant contends that, because Deltz testified that “he did financially help
his employees with loans,” the State was required to “irrefutably show” that all the
amounts taken by appellant were not gifts or loans. However, it is not the State’s
burden to disprove all reasonable alternative hypotheses that are inconsistent with a
defendant’s guilt. See Cantu, 395 S.W.3d at 207–08. Rather, the State needs to
prove that the inferences necessary to establish guilt are reasonable based upon the
cumulative force of all the evidence when considered in the light most favorable to
the jury’s verdict. Wise, 364 S.W.3d at 903; Hooper, 214 S.W.3d at 13.
Here, Deltz testified that, while he occasionally loaned appellant money, she
paid him back. He further testified that he never gave her permission to pay her
personal credit card debt out of Benno Enterprises’ account. While appellant
testified that she never used Benno Enterprises’ account to pay her own bills
without Deltz’s consent, the jury, as factfinder, was entitled to believe Deltz and to
disbelieve appellant. See Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App.
1986) (“The jury may believe some witnesses and refuse to believe others[.]”).
We overrule issues one and two.
7 CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack Chief Justice
Panel consists of Chief Justice Radack and Justices Goodman and Countiss.
Do not publish. TEX. R. APP. P. 37.2(b).