Denise Wilnell Dirden v. State

• Court: Court of Appeals of Texas
• Decided: August 24, 2016
• Docket: 09-14-00330-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-14-00330-CR ____________________

DENISE WILNELL DIRDEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 12-01-00323 CR

MEMORANDUM OPINION

The State initially charged Denise Wilnell Dirden (Denise or Appellant)

with aggregate theft of money over $200,000, “from Ike Martin and/or Martin

Wood Company and/or Stoneham Mill Company, the owner, . . . pursuant to one

scheme or continuing course of conduct which began on January 28, 2008, and

continued until on or about December 16, 2008[.]” See Tex. Penal Code Ann.

§§ 31.03, 31.09 (West 2011 and Supp. 2015). The State amended the indictment.

In the Amended Indictment, the State amended the defendant’s name, the owners’ 1 names, and added language specifying that the money came from “account

number(s) 1003706 and 1047786 at First Bank of Conroe, N.A[.]” Denise pleaded

“not guilty.” A jury found Denise guilty “of theft, as charged in the indictment.”

Denise elected to have the trial court assess punishment, and the court sentenced

Denise to fifty years in prison. Denise timely appealed, raising six issues. We

affirm the trial court judgment as reformed to correct a clerical error.

EVIDENCE AT TRIAL

Isaac Martin III (Ike) owned two timber-related businesses: Stoneham Mill,

Inc. (Stoneham Mill), a hardwood sawmill, and Martin Wood Company, Inc.

(Martin Wood), a factoring company. Upon delivering timber to a sawmill

(including, but not limited to, Stoneham Mill), loggers would receive a scale ticket

that recorded the date of delivery, the name of the logger, and the weight of the

timber. Martin Wood purchased scale tickets from loggers at a discounted rate, and

by paying loggers a discounted rate for their scale tickets, Martin Wood made a

four percent profit. Ike explained the Martin Wood business model at trial:

Q. . . . Do you have a lot of expenses with Martin Wood?

A. No.

Q. Any reason why Martin Wood should lose money?

2 Q. Why do you laugh?

A. Because there is no way to lose money.

Q. Why do you say that?

A. Because the expenses are so -- the expenses are so low. All you’re paying is basically a light bill and someone to sit there and write the checks and pay for the timber. A $1,000 a week maybe.

Q. In expenses?

A. At the most, yes.

Q. So your profit is four percent. What’s the risk for you?

A. Loaning money I suppose, stealing money, loaning money. There really is no risk.

Q. Okay. There is no risk because it’s just a profit business?

A. Unless you start loaning people money, there’s basically no way to lose.

In addition to paying loggers on a factored basis, Martin Wood paid landowners

for stumpage and advanced loggers funds for certain business expenses, both of

which were to be later deducted from the amount paid to the loggers. Denise and

Patricia Brown (Patricia), who also worked in the Martin Wood office, completed

“settlement sheets” that were supposed to itemize the amount due to each logger,

based on the quantity and type of wood delivered, and reflect deductions necessary

for stumpage or for advances previously made to the logger.

3 Denise worked as the office manager for Ike’s companies from 2002 until

March or April of 2009. Her job duties included buying log tickets from loggers,

paying bills, depositing money in the bank, and bookkeeping. As office manager,

she also supervised two office employees: her son Trinity Howard (Trinity) and

Patricia. During the relevant time period, Martin Wood utilized accounting

software called QuickBooks to electronically maintain checkbook records. Denise

was authorized to advance up to $1000 to loggers.

When she started working for Ike, Denise was married to Donald Ray

Howard (Ray), who also worked for Ike at Stoneham Mill. Denise filed for a

divorce from Ray in July of 2008 and received a decree of divorce on October 1,

2008. Denise began seeing Lawrence Dirden1 (Lawrence) in 2008 and married

Lawrence in 2010.

Ike testified that bounced checks were not “uncommon” for Martin Wood,

and Ike was not concerned about the Martin Wood bounced checks because he felt

they merely reflected a “cash flow problem” and a “cost of doing business.”

However, at some point in mid-2008, Ike noticed that the Stoneham Mill bank

account also had problems with bounced checks and insufficient funds. Ike

1 Lawrence Dirden was tried and convicted as a co-defendant in the same trial with Appellant. Lawrence is not a party to this appeal. 4 explained that, in early 2009, he asked Patricia to do an internal audit to reconcile

“receivables or the wood we bought with the wood that was being paid for.”

Ike explained that he had first perceived Lawrence to be a part-time logger,

but later perceived him to be a full-time logger based on the value of the scale

tickets Martin Wood was purchasing from Lawrence and from Lawrence’s logging

company, L2, Inc. (L2). The scale tickets indicated that L2 was selling large

quantities of lumber to sawmills. At trial, Ike recognized Denise’s handwriting on

Stoneham Mill lumber tickets written to L2. Ike testified that it was not part of

Denise’s job to write lumber tickets on behalf of Stoneham Mill. Trinity also

testified that he recognized Denise’s handwriting on Stoneham Mill scale tickets

issued to L2, that Denise was not supposed to be filling out any scale tickets for

Stoneham Mill, and that Trinity was responsible for completing Stoneham Mill

scale tickets. Erin Smith (Smith), a forensic examiner with the Montgomery

County district attorney’s office, testified that during this time period, L2’s bank

accounts did not reflect any increased payments to L2’s workers despite the L2

scale tickets showing an increase in logging activity.

Ultimately, Ike approached law enforcement alleging Denise was

misappropriating funds from him or his companies, and he presented certain

checks to back up his claim. Ike believed the primary way Denise took money

5 from him was by writing checks. Ike agreed that “most of the theft in this case

occurred [] in September and October[,] in the fall of 2008[.]” Due in part to “trust

issues” Ike had concerning Denise, on October 24, 2008, Ike opened an account at

Woodforest National Bank for Martin Wood, and he instructed Denise that she

should no longer use the First Bank of Conroe account for Martin Wood. He also

deleted Denise as an authorized signer on the First Bank of Conroe account for

Martin Wood. Ike estimated that ultimately Martin Wood lost about seventy-five

percent of its business as a result of loggers getting bounced checks.

At trial, Ike recognized numerous checks Denise had written for expenses

related to the construction of Denise and Lawrence’s home, and Ike testified that

he did not authorize any such checks. Trinity testified that he was with Denise at

Home Depot on an occasion when Denise picked up home construction items for

Denise and Lawrence’s home and paid for the items with a Stoneham Mill check.

Patricia also testified that she was with Denise on an occasion when Denise picked

up faucet fixtures and paid using a Stoneham Mill check.

The State offered a summary of fifty-five checks written on Stoneham Mill

or Martin Wood First Bank of Conroe accounts that had been made payable to

Trinity, totaling $55,161. Trinity testified at trial that Denise had written the checks

payable to him, he cashed the checks, and he gave the cash to Denise. Ike testified

6 that none of the fifty-five checks written to Trinity were authorized. Leah Howard

(Leah), who is married to Denise’s son Dennis Howard (Dennis), also testified at

trial. Leah worked at Martin Wood, and she testified that Denise also wrote checks

payable to Leah, Leah would cash the checks, and Leah would take the cash to

Denise.

According to Trinity, at one point in 2008, Denise was “never at the office

anymore. She just hardly was ever there.” Trinity told Denise he knew she was

seeing someone, and that

I didn’t want to tell her who I thought it was. I wanted to wait and find out who it was. So I told her -- I said, I know. I just don’t know who it is. She told me, well, it’s Lawrence. And I said, Lawrence Dirden? She said, yeah, Lawrence Dirden. And she told me I couldn’t tell anyone. No matter what, to not tell anyone. I asked her why. She said because Ike thinks I’m stealing money from him. If he finds out that me and Lawrence are together, he’s going to think I’m stealing it for Lawrence.

....

I asked her if she was stealing money for Lawrence. She said, no. All she did was loan Lawrence money. And I said, well, then it don’t matter if y’all are together and they find out. If you’ve loaned him money, you are -- she was at a position at her job where she could loan money to people, you know, and get money back without having to ask for permission.

Trinity also testified that Denise and Lawrence had asked him to take the blame:

. . . Denise and Lawrence had stated to me if I took the blame for the money that was in my name, for the checks that are in my 7 name, that I wouldn’t get in trouble for them because I was a minor at the time. I was under the age. And the most I would get for was probation, and they couldn’t send me to jail for it or anything.

And then that’s when we kind of had our falling out. Not right then, but afterwards I quit talking to her because I didn’t want to take blame for something that I didn’t do and end up going to jail or getting probation for it.

. . . Denise was telling me that if I took the blame for the checks that were in my name that I wouldn’t get in any trouble. And then that’s when I told them I will get in trouble, you know, because it was still stealing. And Lawrence said, well, you was under the age at the time that it happened. Nothing can happen to you. And then that’s when Denise told me all that would happen is I would get probation.

Patricia also testified that Denise would miss work because Denise was with

Lawrence. According to Patricia, it was common knowledge that Denise and

Lawrence were together, but Patricia also explained that she kept this secret for

Denise. Ike testified that Denise was out of the office a lot, but he gave her “[l]ots

of slack” because she had told him she had cancer.

Smith testified about her forensic analysis. According to Smith, phone

records showed 11,811 calls or texts between Denise and Lawrence between

October 2007 and June 2009. Smith’s analysis indicated that Denise wrote

unauthorized checks totaling $203,291 on the First Bank of Conroe accounts, and

8 Denise made overpayments to Lawrence or L2 totaling $38,506 from the First

Bank of Conroe accounts. Smith concluded from her analysis that sometimes

payments by Martin Wood or Stoneham Mill to L2’s employees were not properly

deducted from payments to Lawrence or L2, and if such deductions were not made,

the result would be an overpayment to Lawrence or L2. She reported that she

discovered three ways in which Lawrence or L2 was paid incorrectly: by paying at

the wrong price for the lumber that was delivered, by paying for the wrong weight,

or by failing to apply the proper deductions. Smith identified occasions when

accounts for Martin Wood or Stoneham Mill were used to make home construction

purchases, the purchase was returned and Denise received a refund check, but no

corresponding deposit was made back into one of Ike’s accounts for either Martin

Wood or Stoneham Mill. Smith also testified that numerous settlement sheets were

missing. Smith’s examination of Lawrence’s and L2’s banking records enabled her

to identify only $81,746 that Lawrence had spent towards the construction of his

house.

Lawrence testified at trial that his house appraised in 2009 for $208,000. He

agreed his house was almost 5000 square feet, it has windows and doors that were

purchased for about $7000, and the house has a $7000 stereo system and a $9000

air conditioner. He also agreed the house was insured for $700,000 but he could

9 not explain why it was insured for more than the appraised value. He denied ever

taking any money from Martin Wood or Stoneham Mill to which he was not

entitled. Lawrence stated “Ike Martin didn’t pay for it. I worked. My timber went

in there. My lumber trucks hauled their money. I had funds coming and that was

my money and I built my home.”

Denise denied ever taking money from Ike, and she denied giving Lawrence

any money from Martin Wood or Stoneham Mill. According to Denise, Lawrence

had “committed contracts” for lumber that entitled him to be paid at a rate higher

than the market rate at the time of delivery. Denise testified that “all the problems

for Martin Wood Company[]” were due to Ike’s construction of a new sawmill.

Denise stated that Trinity had lied about bringing her receipts or cash and that “I

don’t know what Trinity [did] with the money. I know he didn’t give it to me.”

Denise acknowledged that she had problems with QuickBooks but that she had not

been given any training on the system, although she had requested assistance.

Denise also acknowledged that numerous receipts and settlement statements that

would back-up her testimony were missing. Denise also testified that she now lives

in Lawrence’s home, which has five bedrooms and five bathrooms, and that an

insurance policy valued the house at $741,000 and its contents at $450,000, but she

denied the house is worth that amount.

10 Ike testified that his office suffered water and storm damage from a

hurricane in September 2008, and that he lost many business records as a result,

but no accounting exists of exactly what records were thrown away. In Ike’s

opinion, Denise threw away more records than she needed to. Dennis and Trinity

testified that Denise directed them to throw away papers and records after the

hurricane. Ike also testified that two break-ins occurred at the Martin Wood office

in 2009, and as a result, he lost two computers and more business records,

including a file that contained settlement sheets for L2.

The jury found Denise “guilty of the offense of theft, as charged in the

indictment.” The court sentenced Denise to fifty years confinement in the Texas

Department of Criminal Justice. Denise filed a Motion for New Trial and Motion

in Arrest of Judgment, which was denied by operation of law. See Tex. R. App. P.

21.8(a), (c). Denise timely appealed.

SUFFICIENCY OF THE EVIDENCE

In her first issue, Appellant argues that the evidence is legally and factually

insufficient to support her conviction for aggregate theft in the amount of $200,000

or more. Appellant’s brief admits that the evidence was sufficient to show that

“[t]he total amount of theft parts supported by the evidence is $146,039.62.”

Appellant’s brief also concedes that the record includes sufficient evidence to

11 support $37,876.21 in overpayments to Lawrence made by Denise. However, she

argues that the State failed to present evidence as to several specific transactions or

checks upon which it relied, and that the complaining witness, Ike Martin, did not

testify that certain checks were misappropriations or unauthorized. As to the

checks made payable to Trinity upon which the State relied, Appellant argues that,

although Trinity testified he cashed these checks and gave the money to Appellant,

Trinity did not testify regarding Appellant’s use of such money, so that the

evidence did not support a conclusion that the checks to Trinity were unlawful

appropriations. Appellant also argues that one of the checks the State relied on was

written to Lowe’s, and that the evidence showed the bank did not honor this check.

Appellant concludes that, therefore, the evidence does not show any loss of money

to Ike Martin, Martin Wood, or Stoneham Mill as a result of the check to Lowe’s.

Appellant also argues that the evidence at trial does not support a conviction

for aggregate theft pursuant to one scheme or common course of conduct:

There are two main categories of theft for which Appellant is convicted: (1) writing checks to vendors for non-business purposes and writing fraudulent checks for reimbursements; and, (2) paying too high of a price for lumber receivables and paying for lumber that isn’t delivered. There are inherently different schemes involved in each category. There is no easier way to show that the schemes are different than to identify the steps which need to be taken in order to discover that a theft has occurred.

12 The State argues that “[A]ppellant’s conduct in committing both the

overpayment of timber and the unauthorized check transactions involved

substantial overlap and were committed to achieve the primary goal of funding the

construction of a house.” Citing to Johnson v. State, 187 S.W.3d 591 (Tex. App.—

Houston [14th Dist.] 2006, pet. ref’d), the State argues that all the overpayments

and unauthorized transactions constituted a single offense “[b]ecause the general

scheme was similar in nature and was calculated to achieve a primary goal[.]”

More specifically, the State argues that as to both the overpayments and

unauthorized transactions,

. . . the appellant utilized her position of employment to steal from her employer over the same time period, she did so by issuing unauthorized payments via check issued on the employer’s behalf, those payments often included overpayment for legitimate purchases, and she did so for the benefit of herself and Lawrence. Although, as the appellant suggests, the mechanics of analyzing the paper trail to prove each theft are somewhat different, the conduct itself is extremely similar in nature. Any rational juror could have found that each type of theft was pursuant to the same scheme or continuing course of conduct.

When an appellant challenges the sufficiency of the evidence supporting a

conviction in a criminal case, appellate courts consider all of the evidence in a light

most favorable to the verdict and decide, after reviewing the evidence in that light,

whether a rational trier of fact could have found the appellant guilty of the essential

elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 13 U.S. 307, 318-19 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). In reviewing sufficiency challenges, we are required to give the jury’s

findings and its conclusions deference, as it was the jury’s responsibility to fairly

resolve all conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from the basic facts to resolve whether the defendant is

guilty of violating the criminal provision that is at issue at trial. See Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

Direct evidence and circumstantial evidence are equally probative, and

circumstantial evidence alone may be sufficient to uphold a conviction so long as

the cumulative force of all the incriminating circumstances is sufficient to support

the conviction. Ramsey v. State, 473 S.W.3d 805, 808-09 (Tex. Crim. App. 2015)

(citing Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013); Hooper,

214 S.W.3d at 13). “‘When the record supports conflicting inferences, we presume

that the jury resolved the conflicts in favor of the verdict, and we defer to that

determination.’” Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016) (quoting

Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014)). The jury, as the

judge of the facts and credibility of the evidence, may choose to believe or not

believe the witnesses, or any portion of their testimony, despite contradictory

14 evidence. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (citing

Esquivel v. State, 506 S.W.2d 613 (Tex. Crim. App. 1974)).

One Scheme or Continuing Course of Conduct

Section 31.09 of the Penal Code provides that

[w]hen amounts are obtained in violation of this chapter pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense.

Tex. Penal Code Ann. § 31.09. In drafting section 31.09, the legislature did not

attach any technical or particular meaning to “scheme” or “continuing course of

conduct”; therefore, we must give these words their common meaning. See Tex.

Penal Code Ann. §§ 31.01, 31.09; Sendejo v. State, 676 S.W.2d 454, 456 (Tex.

App.—Fort Worth 1984, no writ). “Scheme” and “continuing course of conduct”

are terms of common understanding and need not be defined by the trial court.

Sendejo, 676 S.W.2d at 456.

Smith, a certified fraud examiner, testified that Denise unlawfully

appropriated a total of $242,798.03 from two designated First Bank of Conroe

accounts for Stoneham Mill and Martin Wood. Of this total, Smith testified that

$203,291.04 was theft by unauthorized checks and $38,506.99 was theft by

15 overpayments to L2, Inc.2 Ike testified that the primary way Denise obtained

money out of his bank accounts was from writing checks.

Ike believed that Denise and Lawrence then used the money they stole from

Ike, Stoneham Mill, and Martin Wood to pay for the construction of a house in

which Denise and Lawrence lived at the time of the trial. Ike also testified that

many of the checks upon which the State was relying pertained to construction of

Lawrence’s home, which is now also Denise’s home, and Ike expressly testified

that Ike never authorized Denise to write checks for this purpose. Trinity testified

that “Lawrence used [Denise] to get cash in order to build him a home[.]” Ike

further testified that Denise wrote checks to pay for logging expenses (e.g., fuel,

tires, and parts) incurred by Lawrence or by L2, and that such payments were not

deducted on later settlements or payments to Lawrence or to L2. Ike also testified

that the checks did not represent a business expense on behalf of himself, Martin

Wood, or Stoneham Mill. Ike agreed that Denise’s thefts escalated about the time

she filed for divorce from Ray. Patricia testified that, in her audit of the finances,

she found settlement sheets showing Lawrence was paid for more wood than he

actually dropped off or he was paid for a higher grade of wood (and at a higher pay

2 We take judicial notice that $203,291.04 plus $38,506.99 equals $241,798.03. See Tex. R. Evid. 201. Smith did not address this $1000 discrepancy in her testimony. 16 rate) than what he actually delivered. Smith testified that her forensic analysis

showed that sometimes advances to L2 employees were properly deducted from

settlements to L2 or Lawrence, but that sometimes they were not. Smith also

testified that the records show Lawrence was overpaid in three ways: by applying

the wrong price, by applying the wrong weight, or by failing to deduct previous

payments or advances.

Viewing the evidence in the light most favorable to the verdict, we find that

a rational jury could have found that Appellant’s acts constituted one scheme or a

continuing course of conduct. See Johnson, 187 S.W.3d at 603-04. Although some

misappropriations consisted of overpayments to Lawrence or to L2, Inc. and other

misappropriations consisted of unauthorized checks or payments, a rational jury

could have concluded that all such misappropriations were “pursuant to one

scheme or continuing course of conduct[.]” See Tex. Penal Code Ann. § 31.09. We

overrule Appellant’s argument that the transactions on which the State relied were

not pursuant to one scheme or a continuing course of conduct.

Sufficiency Analysis

In her appellate brief, Appellant concedes that the evidence is sufficient to

support theft in the amount of $146,039.62, as itemized in various checks that

appellant wrote, and that the evidence was sufficient to establish that Appellant

17 made unauthorized payments (or overpayments) to Lawrence or L2 for timber

totaling $37,876.21. Accordingly, the disputed amount would encompass an

additional $16,084.17 of misappropriations that would be required to support the

jury’s finding of aggregate theft over $200,000.3

Appellant’s brief itemizes twenty-seven checks she disputes. The State also

addresses the disputed checks or transactions in its brief. On the record before us,

we conclude that the evidence is legally and factually sufficient to support the

jury’s finding that Denise misappropriated more than $200,000 from Ike, Martin

Wood, or Stoneham Mill from the designated First Bank of Conroe accounts

pursuant to a single scheme or a continuing course of conduct.

a. Disputed Checks Payable to Trinity or Leah.

Of the twenty-seven checks Appellant disputes on appeal, thirteen were

made payable to Trinity and three were made payable to Leah, and both the State

and the defense entered copies of these checks into evidence. All of the disputed

checks made payable to Trinity or Leah were written on one of the First Bank of

Conroe accounts identified in the amended indictment and in the jury charge. A

summary of First Bank of Conroe “Checks Made Payable To Trinity To Rely On 3 $200,000.00 (amount to be proven by the State) - $146,039.62 (undisputed amount of unauthorized checks) - $37,876.21(undisputed amount of overpayments to Lawrence Dirden) = $16,084.17.

18 In Trial” was also admitted into evidence as a summary of voluminous records,

and it itemizes fifty-five checks written in 2008 to Trinity totaling $55,161.42. All

thirteen of the disputed checks to Trinity are listed on this summary exhibit.

The thirteen disputed checks made payable to Trinity total $11,843.47. The

three disputed checks made payable to Leah total $15,300. Together, all the

disputed checks to Trinity and Leah total $27,143.97. Both Trinity and Leah

testified that Denise wrote the checks made payable to them, that Trinity and Leah

then cashed the checks, and then Trinity and Leah gave the cash to Denise.

However, Trinity also testified that on two or three occasions, Denise directed him

to use the cash to cover a check that had bounced. All but one of the disputed

checks made to Trinity appear to have been signed with Ike’s signature stamp;

however, Ike testified that the checks listed in “Checks Made Payable To Trinity

To Rely On In Trial” were all unauthorized. Two of the three checks made to Leah

were signed by Denise.

b. Disputed Checks Written After October 24, 2008.

The State argues that the checks written after October 24, 2008, were all

unauthorized because Ike testified that after he opened the Woodforest bank

account, the First Bank of Conroe accounts should not have been used. The

disputed checks include five checks written after October 24, 2008. The State

19 offered into evidence a business record showing that Ike opened an account with

Woodforest National Bank for Stoneham Mill on October 24, 2008. Ike testified

that, after he opened the Woodforest bank account in 2008, all moneys coming into

Stoneham Mill should have been deposited into the Woodforest account. More

specifically he agreed he let Denise know “we’re not using First Bank of Conroe

anymore[.]” Smith also testified that Ike opened the Woodforest account on

October 24, 2008, and she agreed that the First Bank of Conroe account for

Stoneham Mill was not to be used thereafter.

For purposes of our review we note that, even if we consider only the

Stoneham Mill checks written after October 24, 2008, of which there are four, the

evidence establishes the following: one of those four checks was made out to Leah,

and we have already addressed checks made out to Leah; the three remaining

checks written after October 24, 2008, were made out to Home Depot, Denise, and

Lowe’s, and they total $11,370.51. Accordingly, the evidence reflects that three

additional disputed checks totaling $11,370.51 were written after Ike opened the

Woodforest bank account and after he instructed Denise not to use Stoneham’s

First Bank of Conroe account.

In addition to the evidence summarized above, the jury also heard testimony

from Denise about her explanation regarding the financial problems of the

20 businesses, that some of the financial problems suffered by Martin Wood and

Stoneham Mill resulted from the construction of a new sawmill, that it was

common practice for Martin Wood to advance funds to loggers and that Denise

was authorized to do so, that Trinity told “a lot of untruths[,]” that there were

problems with the QuickBooks records because she never received any training on

the system, and that Denise did not take any money from Ike nor did she give

Lawrence any money that was not due to him. Regarding the disputed check to

Lowe’s, Denise testified that Lawrence actually paid for a cashier’s check that they

used to cover the Stoneham Mill bounced check so that neither Martin Wood nor

Stoneham Mill would have lost any money on this transaction. Smith testified that

she could not determine the source of funds that Lawrence or Denise used to cover

the Lowe’s check. And, Lawrence denied that he took any money from Ike or from

Stoneham Mill to which he was not entitled.

We defer to the jury’s assessment of the credibility of the witnesses and the

weight to be given their testimony, and we presume that the jury resolved any

conflicts in favor of the verdict. See Blea, 483 S.W.3d at 33; Brooks v. State, 323

S.W.3d 893, 899 (Tex. Crim. App. 2010). Accordingly, on the record before us, we

conclude that a rational jury could have found that at least $27,143.97 of disputed

checks made out to Trinity and Leah were unauthorized. A rational jury could also

21 have found that additional disputed checks totaling $11,370.51 were written after

Ike opened the Woodforest account and after he directed Denise not to use the First

Bank of Conroe account for Stoneham Mill, and that such checks were

unauthorized. And, as we have noted, Smith testified that her forensic analysis

showed $203,291.04 in theft by unauthorized checks. Therefore, the jury could

have concluded, based upon the cumulative evidence and reasonable inferences

therefrom, the evidence was legally and factually sufficient to support the jury’s

conviction for aggregate theft in the amount of at least $200,000 pursuant to a

single scheme or a continuing course of conduct. The record is sufficient to show

that at least $16,084.17 among the checks disputed on appeal represented

misappropriations from one of the First Bank of Conroe accounts specified in the

amended indictment. Together with the $183,915.83 in unauthorized checks and

overpayments that Appellant does not dispute on appeal, the evidence was legally

and factually sufficient to support the jury’s conviction for aggregate theft in the

amount of at least $200,000 pursuant to a common scheme or a continuing course

of conduct. We overrule Appellant’s first issue.

JURY CHARGE

In her second issue on appeal, Appellant argues that the charge was

erroneous because it did not instruct the jurors “that they need to unanimously

22 agree about what property was stolen from which owners[]” and the instruction

“allows for the jury to convict Appellant with less than a unanimous verdict as to

the property stolen and owner.” In her third issue, Appellant argues the jury charge

was erroneous because “it [did] not inform the jury which transactions are to be

considered.” Appellant argues that although the State had filed a list of the

transactions it relied on, the list was not provided to the jury. According to

Appellant, both errors resulted in egregious harm because they deprived her of

Constitutional protections and because the resulting punishment is greater than

what would be probable had the jury charge not been erroneous. The State argues

on appeal that Appellant did not object to potential error in the jury charge and that

Appellant’s brief on appeal does not state where she made any such objection at

trial.

Our first duty in analyzing a jury-charge issue is to determine whether error

exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Preservation of

charge error does not become an issue until we assess harm. Id. When the

defendant failed to object to potential error in the jury charge, if error occurred,

reversal is only required if the appellant suffered egregious harm. Id. at 749.

Jury unanimity is required in felony and misdemeanor jury trials. Young v.

State, 341 S.W.3d 417, 422 (Tex. Crim. App. 2011). “‘[U]nanimity is required on

23 the essential elements of the offense’ but is ‘generally not required on the alternate

modes or means of commission.’” Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim.

App. 2007) (quoting Jefferson v. State, 189 S.W.3d 305, 311 (Tex. Crim. App.

2006)); see also Lehman v. State, 792 S.W.2d 82, 85 (Tex. Crim. App. 1990) (A

defendant who has received proper notice of allegations of theft of a certain

“bundle” of property should not be acquitted if there is sufficient evidence to show

him guilty of stealing enough of the “bundle” to make him guilty of the offense

alleged.); Stafford v. State, 248 S.W.3d 400, 406 (Tex. App.—Beaumont 2008, pet.

ref’d) (jury unanimity is not required as to the manner and means by which the

defendant committed the crime charged).

In support of her argument on appeal that the jury was required “to

unanimously agree about what property was stolen from which owners,” Appellant

cites to the Houston Court of Appeals opinion in Kent v. State, 447 S.W.3d 408,

419 (Tex. App.—Houston [14th Dist.] 2014), which held that “when an aggregate

theft offense is predicated on Section 31.03, the jury must unanimously agree

about what property was unlawfully appropriated and who owned it.” After

Appellant filed her appellate brief in this case, the Court of Criminal Appeals

reversed the Houston Court of Appeals, holding that, as to a charge of aggregated

theft,

24 . . . unanimity requires that the jurors agree that the threshold amount has been reached and that all the elements are proven for each specific instance of theft that the individual juror believes to have occurred. Every instance of theft need not be unanimously agreed upon by the jury.

Kent v. State, 483 S.W.3d 557, 562 (Tex. Crim. App. 2016); see also Johnson v.

State, 364 S.W.3d 292, 296 (Tex. Crim. App. 2012) (“The Supreme Court has

explained that a ‘jury need not always decide unanimously which of several

possible sets of underlying brute facts make up a particular element, [for instance],

which of several possible means the defendant used to commit an element of the

crime.’”) (quoting United States v. Richardson, 526 U.S. 813, 817 (1999)). When a

defendant is charged with aggregated theft of an amount pursuant to one scheme or

continuing course of conduct, the State is not required to prove each individual

appropriation. Eastep v. State, 941 S.W.2d 130, 135 (Tex. Crim. App. 1997),

overruled on other grounds by Gollihar v. State, 46 S.W.3d 243, 256-57 (Tex.

Crim. App. 2001) and Riney v. State, 28 S.W.3d 561, 565-66 (Tex. Crim. App.

2000); Lehman, 792 S.W.2d at 84-85. The evidence will be sufficient if the State

proves that the defendant “illegally appropriated enough property to meet the

aggregated value alleged.” Eastep, 941 S.W.2d at 135. Accordingly, jury

unanimity was not required as to each appropriation that the State alleged Denise

committed.

25 A hypothetically correct jury charge is one that “‘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.’” Thomas v.

State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (quoting Malik v. State, 953 S.W.2d

234, 240 (Tex. Crim. App. 1997)).

In the case at bar, the jury charge specified the aggregate amount of

misappropriation, the victims, the two specific First Bank of Conroe, N.A.

accounts affected, and the period of time over which the “scheme or continuing

course of conduct” was alleged to have occurred. Appellant cites no authority for

the proposition that the jury charge must also itemize each specific transaction, and

we find no legal support for her argument. See Tex. R. App. P. 38.1(i) (an appellate

brief must cite to applicable authority); see also Kent, 483 S.W.3d at 561 (under

section 31.09, the indictment need not allege the specific acts of theft and a jury

charge that tracks the indictment is proper) (citing Kellar v. State, 108 S.W.3d 311,

313 (Tex. Crim. App. 2003)). We reject Appellant’s arguments and conclude that

the jury charge was not erroneous. We need not determine whether any egregious

harm resulted. We overrule issues two and three on appeal.

26 JURY ARGUMENT

In issue four, Appellant argues that the trial court abused its discretion in

allowing improper jury argument wherein the State urged the jury to consider

evidence of thefts that were outside the scope of the indictment in determining

guilt. Appellant’s brief refers to closing argument, during which the prosecutor

mentioned “where from 11-21-07, until the time she wrote that check, she was

taking hundreds and hundreds and thousands of dollars out of Prosperity [Bank].”

Denise’s attorney objected to that statement at trial by stating the prosecutor was

“arguing outside of the evidence” in referring to transactions that occurred in 2007.

The court overruled the objection, explaining “This is just argument.”

Appellant’s brief also complains that the prosecutor “urge[d] the jury to

consider checks written on the Prosperity bank account as probative evidence[.]”

Appellant contends that

[i]t is obvious that all of the discussion about Prosperity checks, and the State’s jury argument, confuses the jury. The jury’s first question during deliberations specifically requests instructions as to whether they can consider checks from the Prosperity account in determining the aggregate amount of the thefts.

Proper jury argument generally falls within one of four general areas:

(1) summation of the evidence; (2) reasonable deduction from the evidence;

(3) answer to argument of opposing counsel; and (4) plea for law enforcement.

27 Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). Error exists when

the argument includes facts not supported by the record, but such error is not

reversible unless, in light of the record, the argument is extreme or manifestly

improper. Id. (citing Allridge v. State, 762 S.W.2d 146, 155 (Tex. Crim. App.

1988)).

In this matter, the jury trial included testimony and other evidence

concerning Prosperity Bank transactions. During the State’s examination of Ike,

the prosecutor asked him about certain checks written out of a Prosperity Bank

account. The defense objected, arguing that any Prosperity Bank checks “go

beyond the context of what’s being alleged in this case[.]” The court allowed the

evidence but gave the following limiting instruction:

Ladies and gentlemen, the evidence you’re about to hear, if I understand where [the prosecutor] is going with this case, is going to involve allegations in another bank. You’re only to use those allegations to rebut any mistake in the testimony, any proof of motive, opportunity, design, plan, scheme, anything that would go to show and support that is the only reason you are supposed to use this evidence.

Later in the trial, when the State sought to admit evidence pertaining to a

Prosperity Bank account, the defense objected, and the trial court overruled the

objections and gave another limiting instruction:

Ladies and gentlemen of the jury, the next exhibit, State’s [Exhibits] 24 and 25, you’re not to consider them for any purpose 28 other than to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In other words, the State is not relying on these as the body of evidence in this case, only to show those things I just listed.

Certain exhibits admitted into evidence—including some of the defendants’

exhibits—also pertained to transactions that occurred in 2007. Therefore, the trial

court could reasonably have determined that the prosecutor’s argument concerning

Prosperity Bank transactions or transactions that occurred in 2007 was proper as a

summation of the evidence. See Tex. R. Evid. 1006; Johnson v. State, 208 S.W.3d

478, 507-10 (Tex. App.—Austin, 2006, pet. ref’d) (spreadsheets summarizing

thousands of phone calls were properly admitted as summaries of voluminous

records where the phone records on which the spreadsheets were based were

“voluminous, admissible, and made available to appellant for examination and

copying[]”); Alarid v. State, 762 S.W.2d 659, 662 (Tex. App.—Houston [14th

Dist.] 1988, pet. ref’d) (in a prosecution for theft of property valued at $20,000 or

more pursuant to a common scheme or continuing course of conduct, no error to

admit summary of the transactions in which defendant was involved where

certified records of the individual transactions were available in court). According

to the appellate record, when the jury asked whether it could consider checks from

the Prosperity Bank account, the court responded: “Please refer to the charge and

continue your deliberations.” The relevant portion of the jury charge instructed that 29 . . . if you find from the evidence beyond a reasonable doubt that in Montgomery County, Texas, the defendant, Denise Dirden (aka Denise Pressley and/or Denise Howard), either acting alone or together as a party with Lawrence Dirden, and/or Trinity Howard and/or Leah Howard and/or Patricia Brown, did then and there unlawfully appropriate property, by acquiring or otherwise exercising control over the property, to wit: money, in the aggregate value of $200,000 or more, from Isaac Martin III, and/or Martin Wood Company, Inc. and/or Stoneham Mill, Inc[.], the owner, from account number(s)1003706 and 1047786 at First Bank of Conroe, N.A, with the intent to deprive the owner of property, and said property was obtained pursuant to one scheme or continuing course of conduct that began on or about January 28, 2008 and continuing through on or about December 16, 2008, then you will find the defendant guilty as charged in the indictment.

We assume the jury followed the court’s instruction. See Miles v. State, 204

S.W.3d 822, 827-28 (Tex. Crim. App. 2006) (“[I]n the absence of evidence to the

contrary, we will assume that the jury followed its written instructions.”). Because

the jury instruction limited the scope of evidence the jury could consider as

probative of guilt, the prosecutor’s remarks of which Dirden now complains were

not extreme or manifestly improper and do not require reversal. See Brown, 270

S.W.3d at 570. We overrule Appellant’s fourth issue on appeal.

DOUBLE JEOPARDY

In her fifth issue, Appellant raises a double-jeopardy claim, arguing that her

prosecution for aggregate theft in Montgomery County is barred by double

jeopardy because she had been previously tried for aggregate theft in Liberty

30 County for conduct that was part of the same scheme or continuing course of

conduct. Based on her double-jeopardy claim, Appellant requests this Court to

“abate the appeal and remand the case for a hearing to supplement the record with

the relevant details of Appellant’s trial in Liberty County[.]”

The Double Jeopardy Clause of the United States Constitution is applicable

to the states through the Fourteenth Amendment, and it protects an accused from

impermissible multiple punishments or successive prosecutions for the same

offense after an acquittal or conviction. U.S. Const. amend. V; see Ex parte

Amador, 326 S.W.3d 202, 205 (Tex. Crim. App. 2010). The constitutional

proscription against double jeopardy protects against (1) a second prosecution for

the same offense after an acquittal, (2) a second prosecution for the same offense

following a conviction, and (3) multiple punishments for the same offense.

Speights v. State, 464 S.W.3d 719, 722 (Tex. Crim. App. 2015) (citing Garfias v.

State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014)); Ex parte Chaddock, 369

S.W.3d 880, 883 (Tex. Crim. App. 2012). Here, Appellant claims she was

prosecuted a second time for conduct that was “part of the same scheme or course

of conduct” and that “[s]ince it is all part of the same unit of prosecution,

Appellant’s prosecution in this case (the second case tried) violates Appellant’s

constitutional right not to be put in Jeopardy twice for the same conduct.”

31 “For offenses to be the ‘same’ for double-jeopardy purposes, they must be

the same both in ‘law’ and in ‘fact.’” Aekins v. State, 447 S.W.3d 270, 283 (Tex.

Crim. App. 2014) (Keller, P.J., concurring) (citing Ex parte Hawkins, 6 S.W.3d

554, 557 n.8) (Tex. Crim. App. 1999)). Under the Blockburger same-elements test,

we inquire as to whether each offense contains an element not contained in the

other; if not, they are the same offense and double jeopardy bars additional

punishment and successive prosecution. United States v. Dixon, 509 U.S. 688, 696

(1993) (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)). When the

offenses in question are proscribed by a single statute or are otherwise the same

under an “elements” analysis, the protection against double jeopardy is not violated

if the offenses constitute separate allowable units of prosecution. Ex parte Benson,

459 S.W.3d 67, 73 (Tex. Crim. App. 2015). “A ‘units’ analysis consists of two

parts: (1) what the allowable unit of prosecution is, and (2) how many units have

been shown.” Id. (footnote omitted). “The allowable unit of prosecution of an

offense turns on statutory construction and usually requires ascertaining the

gravamen, or gravamina, of the offense.” Ex parte Castillo, 469 S.W.3d 165, 169

(Tex. Crim. App. 2015). “Theft has two gravamina: the property and ownership.”

Johnson, 364 S.W.3d at 297; Byrd v. State, 336 S.W.3d 242, 250-51 (Tex. Crim.

App. 2011) (“[T]he gravamen of theft is two-pronged—taking certain specified

32 property away from its rightful owner or depriving that owner of its use or

enjoyment.”). In determining units of prosecution for theft, “property” means “the

identity of the property that was appropriated, not the method by which the

property was appropriated.” Johnson, 364 S.W.3d at 297 n.32 (citing Byrd, 336

S.W.3d at 250-51 & 250 n.40).

Appellate Rule 33.1 provides that as a prerequisite to presenting a complaint

for appellate review, the record must show that the party “stated the grounds for

the ruling that the complaining party sought from the trial court with sufficient

specificity to make the trial court aware of the complaint[.]” Tex. R. App. P. 33.1;

see also Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005). To

determine preservation of error under Rule 33.1, the issue is whether the

“complaining party on appeal brought to the trial court’s attention the very

complaint that party is now making on appeal.” Martinez v. State, 91 S.W.3d 331,

336 (Tex. Crim. App. 2002) (citing State v. Mercado, 972 S.W.2d 75, 78 (Tex.

Crim. App. 1998)); see also Reyna, 168 S.W.3d at 177. Although an imprecise

objection may preserve error when the specific grounds were apparent from the

context, in certain circumstances more precision is required to adequately preserve

a complaint for review on appeal. See Tex. R. App. P. 33.1(a)(1)(A); Reyna, 168

S.W.3d at 179; Taylor v. State, 939 S.W.2d 148, 155 (Tex. Crim. App. 1996).

33 A criminal defendant has the burden to preserve her double-jeopardy

complaint by objecting at or before the time the charge is submitted to the jury.

Gonzalez v. State, 8 S.W.3d 640, 647 (Tex. Crim. App. 2000). And a defendant

may forfeit a potential double-jeopardy claim if she fails to properly preserve the

claim. See Langs v. State, 183 S.W.3d 680, 686 (Tex. Crim. App. 2006) (citing

Gonzalez, 8 S.W.3d at 642-43). The Texas Court of Criminal Appeals has

explained that generally a defendant bringing a double-jeopardy “multiple

prosecutions claim” should file a petition for a pretrial writ of habeas corpus.

Gonzalez, 8 S.W.3d at 643 n.9. A pretrial writ is the preferred method of bringing a

multiple prosecutions claim because the defendant may immediately appeal if the

trial court denies the petition. See id.; Kelson v. State, 167 S.W.3d 587, 591 (Tex.

App.—Beaumont 2005, no pet.). By contrast, a special plea of former jeopardy is

the method available to a defendant when the double-jeopardy claim is based on

“multiple punishments” (as distinguished from multiple prosecutions), and when

timely raised, a special plea of former jeopardy must be submitted to the jury along

with a plea of not guilty. Bailey v. State, 87 S.W.3d 122, 123 n.2 (Tex. Crim. App.

2002) (citing Apolinar v. State, 820 S.W.2d 792, 793 (Tex. Crim. App. 1991) (en

banc)); Kelson, 167 S.W.3d at 592; see Tex. Code Crim. Proc. Ann. arts. 27.05,

27.07 (West 2005) (all fact issues “presented by a special plea shall be tried by the

34 trier of the facts on the trial of the merits”).4 In the case at bar, Appellant did not

file a pretrial writ of habeas corpus nor did she make a special plea of former

jeopardy.

An appellant may also raise a double-jeopardy claim for the first time on

appeal if two conditions are met: (1) the undisputed facts show the double-

jeopardy violation is clearly apparent from the face of the record, and

(2) enforcement of usual rules of procedural default serves no legitimate state

interest. See Gonzales, 8 S.W.3d at 643; see also Bigon v. State, 252 S.W.3d 360,

369 (Tex. Crim. App. 2008).

In her brief, Appellant acknowledges that “the record in this case does not

contain the indictment or judgment from the Liberty County case,” but argues that

“the record has many references to the fact that Appellant has previously been tried 4 Article 27.05 of the Texas Code of Criminal Procedure provides: A defendant’s only special plea is that he has already been prosecuted for the same or a different offense arising out of the same criminal episode that was or should have been consolidated into one trial, and that the former prosecution: (1) resulted in acquittal; (2) resulted in conviction; (3) was improperly terminated; or (4) was terminated by a final order or judgment for the defendant that has not been reversed, set aside, or vacated and that necessarily required a determination inconsistent with a fact that must be established to secure conviction in the subsequent prosecution. Tex. Code Crim. Proc. art. 27.05 (West 2006). 35 in Liberty County.” At trial, Denise’s attorney objected to the introduction of

certain exhibits and testimony arguing “this stuff is double jeopardy. This is the

case that was presented in Liberty County, therefore it’s double jeopardy.” The

trial court overruled the objection. Later in the trial, the defense again objected to

the admission of certain evidence pertaining to a bank account other than one of

the accounts specified in the amended indictment, arguing “This is Liberty County

stuff. This has already been tried.” The court responded, “The door’s open.

Objection is overruled.” Appellant’s objections at trial to the admissibility of

evidence are insufficient to preserve or notify the trial court that she was asserting

a double-jeopardy challenge to the prosecution as a whole. Cf. Reyna, 168 S.W.3d

at 179.

Because Appellant failed to raise a double-jeopardy claim during trial, it is

her burden on appeal to prove that the undisputed facts “show the double jeopardy

violation is clearly apparent on the face of the record[.]” Gonzalez, 8 S.W.3d at

643. Appellant claims that her prior conviction in Liberty County bars her

prosecution in Montgomery County for the “same scheme or course of conduct[.]”

The appellate record includes neither the Liberty County indictment nor the

judgment. However, our examination of the clerk’s record reveals that the State

36 made the following argument to the trial court in its Motion for Joint Trial of Two

Separately Charged Defendants:

On or about April 26, 2013, Denise Dirden (also known as Denise Pressley and Denise Howard) was tried in the 75th District Court of Liberty County, Texas, for the felony charge of aggregate theft in an amount over $200,000 from Isaac Martin, III and/or Martin Wood Company from account number 3876571 at Prosperity Bank. The [sic] Denise Dirden was convicted of aggregate theft in an amount greater than $20,000 but less than $100,000 and was sentenced to 5 years in the Texas Department of Criminal Justice - Institutional Division.

Additionally, in the State’s Notice of Extraneous Acts that was filed by the State

prior to trial, the State alleged that:

Denise Dirden and Lawrence Dirden, II, were charged in Liberty County with Aggregate theft in an amount greater than $200,000 in cause numbers CR29833 and CR2983. Specifically the Defendants were charged with the following: “. . .did then and there pursuant to one scheme or continuing course of conduct that began on the [sic] or about the 1st day of November 2007, and continued until on or about the 31st day of March 2009, unlawfully appropriate, by acquiring or otherwise exercising control over the property, to-wit: money, from Isaac Martin III, and/or Martin Wood Company, Inc. the owner thereof, from account number 3876571 at Prosperity Bank, with intent to deprive the owner of the property, and the aggregate value of the property obtained was $200,000 or more. . .”

Denise did not put any evidence into the record during her Montgomery County

trial regarding the Liberty County indictment or judgment. Although Denise filed

an objection to the Motion for Joint Trial, she did not dispute the State’s

characterization of her Liberty County indictment or conviction. 37 As we have already noted, the jury charge in this case asked the jury to

decide whether Denise unlawfully appropriated property, by acquiring or

exercising control over “the property, to wit: money, in the aggregate value of

$200,000 or more, from Isaac Martin III, and/or Martin Wood Company, Inc.

and/or Stoneham Mill, Inc[.], the owner, from account number(s)1003706 and

1047786 at First Bank of Conroe, N.A[.]” While the ownership of the property

may have been similar in both the Liberty County and Montgomery County cases,

we cannot say on the record before us that all of the owners were the same or that

all of the property was the same. The record suggests only that Denise’s prior

conviction in Liberty County pertains to thefts of money from a Prosperity Bank

account. Furthermore, the record suggests that the Liberty County indictment only

identified Ike and Martin Wood as theft victims, while the indictment and amended

indictment in the case at bar identified Ike, Martin Wood, and Stoneham Mill as

the owners of the property. Consequently, we cannot conclude from the face of the

record in this case that Denise’s trial in Montgomery County was for the “same

offense” or was the same “unit of prosecution” as in her prior prosecution and

conviction in Liberty County. We overrule Appellant’s fifth issue on appeal

38 because nothing on the face of the record shows a double-jeopardy violation.5 See

Gonzalez, 8 S.W.3d at 643.

INEFFECTIVE ASSISTANCE OF COUNSEL

In her sixth and final issue, Appellant argues that she did not obtain the

effective assistance of counsel at trial because her trial counsel failed to file a

motion to quash the indictment based on double jeopardy. Appellant argues that

“the indictment is based on an improper theory of law[]” and no valid trial strategy

would support failing to file a motion to quash indictment based on double

To prevail on an ineffective assistance claim, Appellant must show

(1) counsel’s representation fell below an objective standard of reasonableness, and

(2) the deficient performance prejudiced the defense. Strickland v. Washington,

466 U.S. 668, 688 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App.

2011). A failure to make either the required showing of deficient performance or

5 On appeal, Appellant requested that this Court grant her an abatement of this appeal in order to supplement the record with evidence regarding the Liberty County case. Texas Rule of Appellate Procedure 34.6(d) pertains to the supplementation of the appellate record with items that were otherwise part of the trial but does not permit a party to supplement the record with evidence that was not offered or admitted during the proceedings in the trial court. See id.; see also Carver v. State, No. 08-12-00298-CR, 2015 Tex. App. LEXIS 922, at **29-30 (Tex. App.—El Paso Jan. 28, 2015, pet. ref’d) (mem. op., not designated for publication). 39 sufficient prejudice defeats the claim of ineffective assistance. Rylander v. State,

101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Williams v. State, 301

S.W.3d 675, 687 (Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one

prong of the Strickland test negates a court’s need to consider the other prong.”).

Our review of counsel’s representation is highly deferential, and we will find

ineffective assistance only if Appellant rebuts the strong presumption that her

counsel’s conduct fell within the wide range of reasonable professional assistance.

See Strickland, 466 U.S. at 689; Lopez, 343 S.W.3d at 142. The record must

contain evidence of counsel’s reasoning, or lack thereof, to rebut the presumption.

See Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007). We review the

totality of the representation rather than isolated instances in determining whether

counsel was ineffective. See Lopez, 343 S.W.3d at 143; Robertson v. State, 187

S.W.3d 475, 483 (Tex. Crim. App. 2006). In some cases a “single egregious error”

may constitute ineffective assistance of counsel. See Villa v. State, 417 S.W.3d

455, 463 (Tex. Crim. App. 2013) (citing Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999)). However, an isolated failure to object generally does not

constitute ineffective assistance. See Ingham v. State, 679 S.W.2d 503, 509 (Tex.

Crim. App. 1984); see also Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim.

40 App. 2004) (analysis an ineffective assistance claim considers the “totality of the

representation” rather than isolated acts or omissions of trial counsel).

In this matter, the record is silent on trial counsel’s reasons for not filing a

motion to quash the indictment or some other pretrial pleading to raise a double

jeopardy challenge. Appellant did not file a motion for new trial alleging

ineffective assistance of counsel or otherwise develop a record of trial counsel’s

reasons for his actions. Without testimony from trial counsel, the court must

presume counsel had a plausible reason for his actions. Gibbs v. State, 7 S.W.3d

175, 179 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). We have already

determined, a double jeopardy violation is not clearly apparent on the face of the

record before us. We conclude that Appellant has failed to rebut the presumption

that counsel acted reasonably. See, e.g., Thompson, 9 S.W.3d at 814; Stephenson v.

State, 255 S.W.3d 652, 660 (Tex. App.—Fort Worth 2008, pet. ref’d). The second

part of the Strickland test requires an appellant to show that there is a reasonable

probability that the outcome of her case would have been different but for

counsel’s errors. Strickland, 466 U.S. at 694. Having concluded that Appellant

failed to satisfy the requirements of the first Strickland prong, we need not address

the second prong. See Williams, 301 S.W.3d at 687. We overrule Appellant’s sixth

issue. See Tex. R. App. P. 47.1.

41 REFORMATION OF JUDGMENT

We note that the section of the judgment entitled “Statute for Offense”

recites only “31.03[.]” Section 31.03 of the Texas Penal Code defines the offense

of theft, whereas Denise’s indictment and amended indictment indicate she was

indicted under section 31.09 of the Texas Penal Code, which defines the offense of

aggregate theft. See Tex. Penal Code. Ann. §§ 31.03, 31.09. The jury charge also

tracks the statute for aggregate theft. This Court has the authority to reform the trial

court’s judgment to correct clerical errors. See Tex. R. App. P. 43.2(b); Bigley v.

State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993). We therefore reform the

judgment to add a citation to “31.09” to that section of the judgment stating the

statutory references for the offense.

Having overruled all of Appellant’s issues on appeal, we affirm the

judgment of the trial court as reformed. As explained herein, we also deny

Appellant’s motion to abate the appeal.

AFFIRMED AS REFORMED.

_________________________ LEANNE JOHNSON Justice Submitted on December 1, 2015 Opinion Delivered August 24, 2016 Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ. 42