Kenneth Garrett Beatty v. State

Opinion issued May 27, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00335-CR

KENNETH GARRETT BEATTY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1122696

MEMORANDUM OPINION

A

jury convicted Kenneth Garrett Beatty of theft of property valued, in the

aggregate, between $20,000 and $100,000, assessed punishment at ten years’

confinement and a $10,000 fine, and recommended community supervision. See

Tex. Penal Code Ann. § 31.03(e)(5)

(Vernon Supp. 2009). As a condition of

Beatty’s community supervision, the trial court required Beatty to serve 180

days in the Harris County jail. On

appeal, Beatty contends that: (1)

article 42.12, section 12 of the Code of Criminal Procedure, which allows a

trial judge to impose a 180 day confinement period as a condition of community

supervision, violates Apprendi v. New

Jersey and Blakely v. Washington ;

(2) the trial court erred by including an instruction on conspiracy in the

written charge because the State presented no evidence that Beatty agreed with

another person to commit theft; and (3) the trial court erred by denying

Beatty’s motion for instructed verdict because the State presented no evidence

that Beatty committed theft. We hold

that (1) the State presented legally sufficient evidence that Beatty committed

theft; (2) the trial court appropriately included an instruction on

conspiracy in the charge because the State presented some evidence that Beatty

entered into an agreement to commit theft; and (3) Beatty waived his challenge

to the terms of his community supervision because he did not object at the time

the trial court imposed the conditions.

We therefore affirm.

Background

In early 2000, Kenneth Beatty became

the executive director of the Sickle Cell Association of the Texas Gulf Coast

(“SCA”), a small charity which, among other functions, raises funds to educate

members of the public and to help prevent and treat sickle cell disease. Formerly employed at the United Way, Beatty

in turn hired Carlean Cruse, who had formerly worked for him at the United Way,

as financial secretary, to replace the existing financial secretary, who he

fired. SCA is an affiliate of the United

Way, and former SCA board members testified that the United Way provides

approximately fifty to sixty percent of SCA’s annual budget of $600,000, with

the remainder of the budget coming from various fund-raising events such as an

annual gala, golf tournament, and fashion show.

SCA had an accountant, Selwyn Blanchard, and the United Way required SCA

to undergo an annual financial audit. At

the SCA board meetings, board members received financial reports, usually a

spreadsheet describing income and expenses, prepared by an SCA employee. According to former SCA board president Dr.

John Codwell, before Beatty’s tenure as executive director, board members would

co-sign large checks; however, after Beatty took over the position, either

Beatty or Cruse signed all checks, with no signatures by the board

members. Blanchard testified that,

before Beatty, SCA employees always kept backup data for unusual expenditures

and he received the original bank statements and copies of cancelled checks for

his monthly reports. After Beatty became

executive director, Blanchard merely received copies of bank statements and

check stubs, pre-coded by Cruse to indicate the purpose for the

expenditure. Codwell and former board

member Rhondal Jenkins testified that, in late 2003, the board began to discuss

financial problems of the agency, including concerns that bills were not being

paid.

The board considered the 2004 gala,

which netted around $100,000, to be a success; however, shortly after the gala,

Beatty informed the board that SCA was having financial problems, which

jeopardized payroll and the ability to finance the annual summer camp program

for children with sickle cell disease.

Codwell, Jenkins, and former board members Tamla Wilson and Anthony West

all testified that, at this point, they began requesting more detailed

financial reports and asked to see the actual financial records and not merely

summaries prepared by SCA employees. For

a period of several months, board members requested financial documents, but

Beatty never provided any documents, even though he promised on at least two

occasions that he would bring the documents with him to meetings. The board scheduled its annual retreat and

strategic planning session for Saturday, November 13, 2004. On Friday, Beatty, who promised to bring

SCA’s financial records to the retreat, faxed his resignation letter to

Codwell. Cruse testified that she gathered

the relevant financial records and left them in a box on her desk on Thursday,

but when she arrived for the retreat on Saturday morning, the box had

disappeared. Codwell and West testified

that they both searched the SCA office and could not find any bank records,

board minutes, or any kind of financial records for 2000 through 2004.

Jennifer Browning took over the

position of executive director in February 2005 and she could not find any

organized financial records. She

testified that, almost immediately, she began receiving phone calls from bill

collectors regarding past due bills and large delinquencies on credit cards

issued to SCA. According to Browning,

she also could not find any credit card records or board minutes at the SCA

office.

David Pilant, a fraud examiner with

the Harris County District Attorney’s Office, testified on behalf of the State

regarding SCA’s financial records. During

Beatty’s tenure as executive director, SCA issued almost $182,000 in

“over-payroll” checks, checks written outside the official payroll system, to

Beatty, Cruse, and the other employees. Beatty

personally received $18,063.18 from over-payroll checks. According to Pilant, no reimbursement records

existed, and he was therefore unable to determine the percentage of

over-payroll checks that were actually written for the appropriate purpose of

reimbursement for personal funds spent on SCA-related matters. Further, although most checks did not indicate

their purpose, Pilant found that, for the checks that did have an indication,

that indication “did not necessarily relate to how the check was actually used.” For example, Pilant traced a check payable to

petty cash directly into an employee’s bank account.

Pilant also testified that four

employees, Beatty, Cruse, Adrian LeBlanc, and Carolyn Hayes, all possessed

credit cards issued to SCA, and these four employees charged over $186,000 on

these credit cards. Beatty, in

particular, charged approximately $124,000.

Based on his review of the credit card records, Pilant determined that

SCA actually paid $89,877 of Beatty’s credit card charges. Pilant stated that another source paid $5600

to the credit card company on Beatty’s card. Additionally, SCA’s bank records demonstrated

that Beatty deposited $4000 into SCA’s account, although Pilant could not

identify the purpose of this payment. Pilant

estimated that, after considering the over-payroll checks issued to Beatty, his

charges on the SCA credit cards, and the amount Beatty paid to SCA, Beatty’s

net gain from these transactions was $134,982.

Codwell and Jenkins were unaware that

Beatty procured credit cards in SCA’s name for the staff, and that they had used

these cards for personal expenses, until Browning started receiving the bills

for these cards. Codwell stated that

Beatty did not have board permission to use agency credit cards for personal

use, and Beatty never sought permission from the board. Codwell was also unaware that Beatty and

Cruse wrote checks to themselves and the other employees for amounts over their

regular paychecks. Beatty never

discussed these expenditures with the board either, and the employees did not

have permission to receive over-payroll checks, although, with proper

documentation, they could be reimbursed if they used personal funds for small

SCA-related expenses. Wilson and West

both testified that they were unaware that SCA had any credit card accounts and

Beatty never discussed employees using the credit cards with the board,

especially not for personal expenses.

Beatty testified on his own behalf

and admitted that he used SCA credit cards to make personal expenses. At first, Beatty admitted making $52,055.61

worth of personal charges on SCA’s credit cards, though he later revised that

estimate to $37,130.16, which he felt was a “more accurate reflection” of his

personal charges. Beatty also claimed

that he was a personal guarantor on the credit cards, was currently negotiating

with the credit card companies and SCA to determine his balance and “work

something out” regarding payment, and he always had the expectation that he

would be responsible for the amount of his personal charges. When asked by the prosecutor why he had not

made any payments on the credit cards, even though the last charge was more

than three years before trial, Beatty stated that he was waiting to confirm his

balance in the civil lawsuit with SCA.

Beatty also admitted that the board knew of at least one credit card,

but he never informed the board of any additional credit cards, or that he

allowed the employees to use SCA credit cards to make personal purchases.

Beatty also admitted that he signed a

letter to Whitney Bank, asking for credit cards for Cruse and LeBlanc and

stating that the board approved adding Cruse and LeBlanc as staff members

eligible for credit cards, even though the board minutes did not reflect that

the board ever approved these cards. Beatty

also stated that employees could receive emergency loans or salary advances, in

the form of an over-payroll check, and employees had to properly document the

request and take a deduction from their paycheck. The over-payroll checks issued to Beatty, for

example, were for “legitimate expenses or monies owed to him.” Beatty did not authorize any over-payroll

checks that were not owed to or earned by the employee, and, to his knowledge,

proper documentation existed for these payments. Beatty denied committing theft and testified

that, at the time he made the personal charges, he intended to reimburse SCA.

Carlean Cruse testified that, as a

result of her conduct while she was financial secretary of SCA, she pleaded

guilty to first degree felony theft and owed SCA $78,681.21 in

restitution. Cruse regularly used an SCA

credit card for personal expenses, including casino trips to Louisiana,

clothing stores, and bills. Cruse stated

that Beatty informed the staff that they could use their SCA credit cards for

personal charges, but they needed to reimburse SCA for these expenses. Cruse attended board meetings, and never

heard the board and Beatty discuss the additional credit cards and the

over-payroll checks. Although she paid

SCA’s bills, and had authorization to sign Beatty’s name on checks, Beatty

decided how much to pay on each SCA credit card in a given month.

Cruse further testified that Beatty

instructed her to miscode financial information given to SCA accountant

Blanchard to keep him from ascertaining the purpose of the over-payroll checks

and the use of SCA credit cards for personal expenses. At Beatty’s direction, Cruse falsified a

report to the board to make it appear as though SCA received a $5000 to $10,000

grant, when they had not received such funding.

Beatty also instructed Cruse to falsify information in the board minutes

given to SCA auditors Grant Thornton and the United Way to remove negative

information about Beatty. Cruse

acknowledged that, at Beatty’s request, she misrepresented SCA’s financial

condition to the board. Cruse also

stated that she wrote checks payable to petty cash or reimbursements, even

though she knew the checks were intended for other purposes, and she discussed

almost every check she wrote with Beatty.

At the close of the State’s case in

chief, Beatty moved for an instructed verdict, contending that: (1) although the indictment alleged that

Beatty stole a vehicle from SCA, the State presented no evidence of this theft;

(2) the State failed to prove which transactions were impermissible, and

therefore failed to prove that Beatty acted with intent to deprive SCA of its

property; (3) the State failed to prove that Beatty acted pursuant to a scheme

or course of conduct; (4) the State failed to prove that Beatty made an

agreement with another person to commit theft; and (5) the State failed to

prove the aggregate nature of the offense, and thus limitations barred consideration

of any actions taken by Beatty from 2000 to the early part of 2002. The trial court denied this motion. At the close of the evidence, Beatty re-urged

his instructed verdict motion, contending that, because he established that

some credit card charges and over-payroll checks were legitimate, the State failed

to prove that Beatty stole over $100,000 from SCA, which is the minimum

aggregate amount for second degree theft.

Defense counsel also stated:

I guess because Mr. Beatty stood up and admitted in

one document, I think, about $50,000, another document around $30,000 in credit

card charges, I guess the argument could be made at this point in time that

there might be some evidence to go to this jury on a third degree felony

offense.

The trial court again denied Beatty’s

motion. Beatty also objected to the

inclusion of an instruction on conspiracy in the written charge, arguing that

the State had produced no evidence that Beatty agreed with another person to

commit theft. The trial court overruled

this objection and included the instruction in the charge.

The jury assessed punishment at ten years’

confinement and a $10,000 fine, and recommended that the trial judge place

Beatty on community supervision and probate the fine. The trial court adopted the jury’s

recommendation, probated the fine, and placed Beatty on community supervision

for ten years. On March 25, 2008, Beatty

and the trial court both signed the conditions of community supervision, one of

which required Beatty to serve 180 days in the Harris County Jail. Beatty did not object at the time the trial

court imposed the conditions and he agreed to them. On April 23, within the time period for

filing a motion for new trial, Beatty filed a written objection to this

condition, contending that article 42.12, section 12 of the Code of Criminal

Procedure, which authorizes a trial court to require up to 180 days’

confinement as a condition of community supervision, violates Apprendi v. New Jersey and Blakely v. Washington , because it

impermissibly allows a trial court to increase a defendant’s sentence beyond

the jury’s punishment finding. The trial

court overruled this motion.

Discussion

Sufficiency of Evidence of Theft

Beatty

contends that the trial court erred by denying his motion for an instructed

verdict because the State failed to prove which of Beatty’s actions were illegal

and presented no evidence that Beatty stole “cash money” belonging to SCA. We treat an issue challenging the trial

court’s denial of an instructed verdict as a challenge to the legal sufficiency

of the evidence. Williams v. State , 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). In a legal sufficiency review, we view the

evidence in the light most favorable to the verdict to determine whether any

rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Salinas v. State , 163 S.W.3d 734, 737

(Tex. Crim. App. 2005). The fact-finder

is the sole judge of the weight and credibility of the evidence. Margraves

v. State , 34 S.W.3d 912, 919 (Tex. Crim. App. 2000), overruled on other grounds by Laster v. State , 275 S.W.3d 512 (Tex.

Crim. App. 2009). The fact-finder may

choose to believe a witness even if contradictory evidence is introduced, and

may believe some or all of a witness’s testimony. See

Sharp v. State , 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). We may not reevaluate the weight and

credibility of the evidence and substitute our judgment for that of the

fact-finder. Dewberry v. State , 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We resolve any inconsistencies in the

evidence in favor of the verdict. Curry v. State , 30 S.W.3d 394, 406 (Tex.

Crim. App. 2000).

The

grand jury indicted Beatty for first degree felony theft, and the written

charge contained lesser-included offense instructions for second degree, third

degree, and state jail felony theft of property. The jury convicted Beatty of third degree

felony theft of property. A person

commits the offense of third degree felony theft of property if, with the

intent to deprive the owner of property, he unlawfully appropriates property

with an aggregate value between $20,000 and $100,000. See

Tex. Penal Code Ann.

§§ 31.03(a), (e)(5) (Vernon Supp. 2009); see also id. § 31.09 (Vernon 2003) (allowing aggregation of

amounts when obtained pursuant to “one scheme or continuing course of

conduct”). The Penal Code defines “deprive”

as “withhold[ing] property from the owner permanently or for so extended a

period of time that a major portion of the value or enjoyment of the property

is lost to the owner” or “dispos[ing] of property in a manner that makes

recovery of the property by the owner unlikely.” Id.

§§ 31.01(2)(A), (C) (Vernon Supp. 2009).

Appropriation of property is unlawful if it is done “without the owner’s

effective consent.” Id. § 31.03(b)(1); see

also id. § 31.01(3) (defining “effective consent”). The State is not required to present evidence

that the defendant stole every piece of property alleged in the indictment, as

long as the State presents sufficient evidence to satisfy the aggregate’s

minimum value. See Dickens v. State , 981 S.W.2d 186 , 188 n.4 (Tex. Crim. App.

1998) (“[T]he State need not prove each constituent theft as long as it

demonstrates that enough of the property described in the indictment was stolen

to satisfy the aggregated value allegation.”); Lehman v. State , 792 S.W.2d 82 , 83–88 (Tex. Crim. App. 1990).

Beatty

specifically contends that the State did not prove that Beatty stole property

from SCA because: (1) the State failed

to prove which over-payroll checks and credit card charges were impermissible;

(2) some SCA board members testified that the Beatty did not need the Board’s

approval to write over-payroll checks or checks for reimbursement; and (3)

Beatty’s credit card charges were not “money,” as alleged in the

indictment. Beatty points to testimony from

three board members, Jenkins, West, and Wilson, which indicated that Beatty did

not need board approval to issue reimbursement checks and that some of the

credit card charges and checks were for legitimate business purposes. In determining whether the trial court

properly denied Beatty’s instructed verdict motion, our focus is not on whether

the evidence indicates that Beatty had permission to write over-payroll checks

and use SCA credit cards for personal purposes.

Rather, we review the evidence to determine whether the State produced

some evidence from which a rational jury could determine beyond a reasonable

doubt that Beatty unlawfully appropriated between $20,000 and $100,000 worth of

SCA’s property, with the intent to permanently deprive SCA of that

property. See Williams , 937 S.W.2d at 482 ; Salinas , 163 S.W.3d at 737 ; Tex.

Penal Code Ann. §§ 31.03(a), (e)(5). According to Codwell, Jenkins and Wilson, the

board never discussed the additional credit cards or over-payroll checks at any

meetings, and Beatty and the employees did not have board permission to use SCA

credit cards for personal use or to issue over-payroll checks.

The

trial court admitted the credit card records for SCA, which indicated

approximately $186,000 in charges from 2000 to 2004. The charges included expenditures at clothing

stores, restaurants, and trips to Mexico, where SCA had no offices,

conferences, or clients. Codwell

conceded that the credit card records could include some legitimate SCA-related

expenses, but based on his review of the records, the majority of the charges

“could not have been legitimate expense[s]” for SCA. When defense counsel asked Wilson if the

records included legitimate SCA expenses, she stated that she was surprised SCA

even had credit cards, as credit cards were never discussed during board

meetings, so “it would be very hard for [her] to say that [the charges] were

Sickle Cell related charges.” According

to Wilson, for the charges to be legitimate, Beatty or Cruse would have to

present the charges to the board for approval, which never happened. Similarly, Wilson testified that any

over-payroll checks were “not appropriate in that they were not approved by the

board,” although she acknowledged that small business-related reimbursements would

not need board approval if the employee submitted proper documentation.

Beatty

testified on his own behalf and acknowledged that he used SCA credit cards for

personal purchases. According to Beatty,

he was the personal guarantor on the credit cards and was, at the time of

trial, in contact with the credit card companies regarding the outstanding

balance. Beatty acknowledged that he

should have reimbursed SCA, and he submitted a summary of personal charges for

which he felt responsible. This summary

reflected that Beatty charged $52,055.61 in personal expenses on SCA’s credit

cards. Beatty later offered a revised

summary, which he felt “more accurately reflect[ed]” his personal charges. According to this second summary, Beatty

admitted charging $37,130.16 in personal expenses on SCA’s credit cards. He admitted that the board minutes did not

include any discussions of the additional credit cards and over-payroll

checks. Beatty also admitted writing a

letter to Whitney Bank, stating that the board approved adding Cruse and

LeBlanc as staff eligible for credit card accounts, even though the board

minutes did not reflect that such approval took place and Beatty did not recall

ever discussing credit cards with the board.

Beatty

contends that, because he was a personal guarantor on the credit cards, the

debt he incurred was not theft of SCA’s property. We have previously held that “[t]heft

convictions resulting from otherwise contractual civil disputes may warrant

reversal for insufficient evidence where there is no evidence supporting the requisite

criminal intent.” Ellis v. State , 877 S.W.2d 380, 383 (Tex. App.—Houston [1st Dist.]

1994, pet. ref’d) (citing Peterson v.

State , 645 S.W.2d 807, 811 (Tex. Crim. App. 1983)). We noted that criminal intent may be inferred

from the surrounding circumstances, and in Ellis ,

which involved payments made to Ellis so he could assist individuals with

credit problems in finding vehicles, a rational jury “could have found that

[Ellis] had no intention of fulfilling his contractual obligations, since he

never did so, and that his promises to the complainants were merely a ruse to

accomplish theft by deception.” Id.

Similarly, here, although Beatty testified that he was personal

guarantor on the credit cards and he knew that he was ultimately responsible for

his personal charges, the State presented evidence that Beatty charged a large

amount of personal expenses on SCA’s credit cards and did not pay his balance. Beatty continually failed to produce financial

records, including credit card records, and when requested by the board to do

so, the records disappeared. Moreover, he

instructed Cruse to falsify financial information given to SCA accountant Blanchard

so he would not know that Beatty and the other employees were using the SCA

credit cards for personal charges. Based

upon this evidence, a jury reasonably could conclude that Beatty had no

intention of “fulfilling his contractual obligation” by paying the credit card

companies or reimbursing SCA for his personal charges. See id.

Beatty

additionally contends that the purchases made with SCA’s credit cards and the

debt he incurred were not “money” as the State alleged in the indictment. According to Beatty, because of this variance,

the State did not prove that Beatty stole “cash money” belonging to SCA. The indictment alleged that:

KENNETH GARRETT BEATTY . . . on or about VARIOUS DATES BETWEEN JANUARY 4, 2000 AND

DECEMBER 31, 2004 , did then and there unlawfully, pursuant to one scheme

and continuing course of conduct acquire and otherwise exercise control over

property other than real property, namely money and/or one automobile, of an

aggregate amount and value of two hundred thousand dollars or more, which

property was owned by the Sickle Cell Association of the Texas Gulf

Coast . . . .

A “variance” occurs when there is a

discrepancy between the allegations in the indictment and the evidence offered

at trial. Gollihar v. State , 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). We treat variance claims as insufficiency of

evidence problems. Id. at 247 . Only a material

variance renders the evidence insufficient.

Id. at 257 .

We have held that no variance exists

between an indictment “alleging conversion of cash and proof showing conversion

of a check.” Mueshler v. State , 178 S.W.3d 151, 154 (Tex. App.—Houston [1st

Dist.] 2005, pet. ref’d); Grogen v. State ,

745 S.W.2d 450 , 450–51 (Tex. App.—Houston [1st Dist.] 1988, no pet.). We relied on the Court of Criminal Appeals’

decision in Kirkpatrick v. State ,

which held that no variance existed when the indictment alleged conversion of

cash and the evidence at trial showed conversion of checks because “money was

obtained by a false pretext, through the instrumentality of the check.” 515 S.W.2d 289, 293 (Tex. Crim. App. 1974)

(quoting Rick v. State , 207 S.W.2d

629, 630 (Tex. Crim. App. 1947)). Here,

Beatty made, by his own admission, between $37,000 and $53,000 worth of

personal charges on SCA’s credit cards. Pilant

testified that, out of the $124,000 in charges made to SCA credit cards by

Beatty, SCA paid approximately $89,000. Although

these transactions did not involve cash money, Beatty’s use of SCA’s credit

cards amounts to an instrumentality to misappropriate SCA funds to pay for his

personal expenses. We follow Mueshler , and hold that no variance

exists between the indictment—which alleged that Beatty stole “money”—and the

proof at trial—which demonstrated that Beatty’s use of SCA’s credit cards for

personal expenses deprived SCA of its cash money.

When

viewing the evidence in the light most favorable to the verdict, we hold that a

rational jury could have found beyond a reasonable doubt that Beatty unlawfully

appropriated between $20,000 and $100,000 of SCA’s property with the intent to

deprive SCA of that property. Thus, the

evidence is legally sufficient to support Beatty’s conviction, and the trial

court correctly denied Beatty’s instructed verdict motion.

Charge Instruction on Conspiracy

Beatty

next contends that the trial court erred by overruling his objection to the

inclusion of a conspiracy instruction in the written charge because the State

presented no evidence that Beatty made an agreement with anyone else to commit

theft from SCA. When we review a jury

charge, we must first determine whether error exists, and if so, we must

determine whether the error is harmful. See Ngo v. State , 175 S.W.3d 738, 743

(Tex. Crim. App. 2005). If, as here, the

defendant properly objects to the charge, we will reverse the conviction if the

error constitutes “some harm.” See Almanza v. State , 686 S.W.2d 157,

171 (Tex. Crim. App. 1985). The Code of

Criminal Procedure requires the trial court to deliver to the jury a written

charge “distinctly setting forth the law applicable to the case.” Tex.

Code Crim. Proc. Ann. art. 36.14 (Vernon 2007); Gray v. State , 152 S.W.3d 125, 127 (Tex. Crim. App. 2004) (“Relying

on [article 36.14], we have held that a trial court is required to fully

instruct the jury on the law applicable to the

case . . . .”); see

also Trevino v. State , 100 S.W.3d 232, 238 (Tex. Crim. App. 2003) (“We have

stated that a jury charge pursuant to Section 8.04, like the one pursuant to

Section 20.04, should be given if it is raised by the evidence, indicating that

‘some’ evidence is sufficient.”).

Therefore, in determining whether the trial court erroneously included

the conspiracy instruction, we examine the record to determine if the State

produced some evidence of each element of conspiracy.

A

person commits criminal conspiracy if, with the intent that a felony be

committed, the person (1) agrees with one or more persons that they or one or

more of them engage in conduct that would constitute the offense; and (2) one

or more of them performs an overt act in pursuance of the agreement. Tex.

Penal Code Ann. § 15.02(a) (Vernon 2003). An agreement that constitutes a conspiracy

may be inferred from the parties’ acts. Id. § 15.02(b); see Rhoten v. State , 299 S.W.3d 349, 351

(Tex. App.—Texarkana 2009, no pet.) (“Since direct evidence of intent is rarely

available, the existence of a conspiracy can be proven through circumstantial

evidence.”); Williams v. State , 82

S.W.3d 557 , 564–65 (Tex. App.—San Antonio 2002, pet. ref’d) (“Conspiracy is

seldom shown by direct evidence but often must be proved by circumstances from

which the existence of the conspiracy is logically deducible.”).

Carlean

Cruse testified that, as a result of her conduct while at SCA, she pleaded

guilty to theft and owed SCA over $78,000 in restitution. Cruse stated that Beatty instructed her to intentionally

miscode financial information sent to SCA accountant Blanchard to conceal the personal

use of company credit cards. Cruse wrote

every check at Beatty’s direction and discussed almost every check with him,

including checks payable to petty cash or for reimbursements, even though she knew

that these checks were written for other purposes. Beatty also instructed Cruse to falsify

information given to SCA’s board by changing financial documents to show that

the organization received a grant when it had not. At Beatty’s direction, Cruse also falsified

board minutes given to the United Way and to SCA auditors Grant Thornton to

remove references to negative information about Beatty. Former board president Codwell testified

that, after Beatty resigned, he obtained audit records from Grant Thornton

which included copies of board minutes from a meeting that never occurred. Codwell also discovered that portions of board

minutes that called Beatty’s conduct into question had been deleted from the

minutes provided to Grant Thornton. Cruse

acknowledged that by the end of 2004, board members routinely received altered

financial information at board meetings and she misrepresented SCA’s financial

condition to the board on “more than one occasion.”

Beatty,

Cruse, LeBlanc, and Hayes charged over $186,000 on their SCA credit cards, and

SCA paid approximately $130,000 of these charges. Beatty and Cruse also issued approximately

$182,000 in “over-payroll” checks to various employees, including

themselves. Cruse testified that Beatty

“directed” every check that she wrote, and he made the decision regarding how

much to pay on each of SCA’s credit cards each month. Codwell and other board members testified

that they were unaware of the additional credit cards and the over-payroll

checks, and they did not authorize the additional cards, their use for personal

expenses, or the over-payroll checks.

Cruse stated that she regularly attended board meetings and she never

mentioned, nor heard Beatty mention, the multiple credit cards given to the

employees.

We

conclude that the State produced some evidence from which the jury could

reasonably infer that Beatty and Cruse agreed to commit theft from SCA and

committed overt acts in furtherance of that agreement. We therefore hold that the trial court did

not err by instructing the jury on conspiracy.

Objection to Condition of Community Supervision

Beatty

further contends that article 42.12, section 12 of the Code of Criminal

Procedure, which authorizes the trial court to impose 180 days’ confinement as

a condition of community supervision, allows the trial court to increase his

sentence beyond the statutory maximum in violation of the Sixth Amendment. See

Apprendi v. New Jersey , 530 U.S. 466,

490 , 120 S. Ct. 2348 , 2362–63 (2000); Blakely

v. Washington , 542 U.S. 296, 305 , 124 S. Ct. 2531, 2538 (2004). The Code of Criminal Procedure defines

“community supervision” as involving a suspension of the sentence. Tex.

Code Crim. Proc. Ann. art. 42.12, § 2(2) (Vernon Supp. 2009). Community supervision is an arrangement in

lieu of the sentence—it is not part of the sentence. Speth

v. State , 6 S.W.3d 530, 532 (Tex. Crim. App. 1999). A trial court’s decision to grant community

supervision is “wholly discretionary” and the trial court also has broad

discretion to determine the conditions of community supervision. Id.

at 533 . In Speth , the Court of Criminal Appeals stated that “[a]n award of

community supervision is not a right, but a contractual privilege, and

conditions thereof are terms of the contract entered into between the trial

court and the defendant.” Id. at 534 . If the defendant does not object to the

community supervision conditions, those conditions are “affirmatively accepted

as terms of the contract” and the defendant waives “any rights encroached upon

by the terms of the contract.” Id.

Thus, “[a] defendant who benefits from the contractual privilege of

probation . . . must complain at trial to conditions he

finds objectionable.” Id.

We

have previously held that a defendant who first complains on appeal that a community

supervision condition of 180 days’ confinement violates Apprendi does not preserve the complaint for appellate review. See

Ledet v. State , 177 S.W.3d 213, 221 (Tex. App.—Houston [1st Dist.] 2005,

pet. ref’d); see also Ivey v. State ,

16 S.W.3d 75, 76 (Tex. App.—Houston [1st Dist.] 2000, no pet.). The Fort Worth Court of Appeals noted that,

under Speth , we cannot hear a

challenge to the validity of a community supervision condition unless the

defendant objected to that condition at the time the trial court imposed the

condition, presumably at sentencing. Lopez v. State , 46 S.W.3d 476, 480 (Tex.

App.—Fort Worth 2001, pet. ref’d). The

Court of Criminal Appeals recognized an exception to this general rule of

preservation when the defendant does not have the opportunity to object to the

community supervision condition at the time the trial court imposes the

condition. Rickels v. State , 108 S.W.3d 900, 902 (Tex. Crim. App. 2003). In Rickels ,

the trial court modified a probation condition without a hearing and Rickels

had no opportunity to object to this modification in the trial court. Id. In this circumstance, the Court of Criminal

Appeals addressed the merits of Rickels’s appeal, even though he raised the

issue for the first time on appeal. Id. ; see

also Pearson v. State , 994 S.W.2d 176, 179 (Tex. Crim. App. 1999) (stating

that when defendant does not have opportunity to object at sentencing hearing,

a motion for new trial preserves error).

Here,

Beatty and the trial judge both signed the conditions of community supervision

and Beatty’s fingerprint appears on the document. Beatty did not object to this condition. About a month later, Beatty filed a written

objection, contending that this condition violates Apprendi and Blakely , but

nothing in the record indicates that Beatty lacked an opportunity to object at

the time the trial court imposed the community supervision conditions and he

signed the order. We therefore hold that

Beatty’s written objection, filed after the trial court imposed the community

supervision conditions, fails to preserve Beatty’s contention for appellate

review.

Conclusion

We

hold that the State presented legally sufficient evidence that (1) Beatty

unlawfully appropriated between $20,000 and $100,000 of SCA’s property with the

intent to deprive SCA of that property and (2) Beatty and Cruse agreed to

commit theft from SCA. Therefore, the

trial court correctly denied Beatty’s motion for an instructed verdict and

included a written jury instruction on conspiracy. We further hold that, because Beatty did not

object to the terms of community supervision at the time the trial court imposed

the conditions, his Apprendi and Blakely motion failed to preserve the

issue for appellate review. We therefore

affirm.

Jane Bland

Justice

Panel consists of Justices Jennings, Hanks,

and Bland.

Do Not Publish. Tex.

R. App. P. 47.2( b ).