Judy Hurta Domel v. State

Opinion issued May 24, 2012.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00823-CR

———————————

Judy Hurta Domel , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 434th Judicial District Court

Fort Bend County, Texas

Trial Court Case No. 05-DCR-042878A

MEMORANDUM OPINION

A

jury found appellant, Judy Hurta Domel, guilty of the third-degree felony

offenses of theft [1]

and misapplication of fiduciary property. [2] The trial court assessed her punishment at confinement

for ten years, suspended the sentence, placed appellant on community

supervision for two years, and ordered that she serve six months in jail and

pay $72,000 in restitution. In three

issues, appellant contends that the evidence is legally insufficient to support

her convictions and the trial court erred in submitting, in its charge to the

jury, an instruction that “did not require a unanimous jury verdict” for each

offense “independent of each other” and not submitting appellant’s requested instructions

to the jury.

We

affirm.

Background

Steve

Clugston, a former assistant superintendent for the Needville Independent

School District (“NISD”), testified that he began working for NISD in June

2003. One of his duties was to supervise

NISD’s “food service department,” overseeing the school cafeterias at the NISD

elementary, intermediate, middle, junior high, and high schools. Each cafeteria employed a cashier who was

responsible for collecting breakfast or lunch money and completing an

“accounting sheet” that reflected how each child had paid for his or her meal,

a “cash sheet” that reflected the amount of money collected by the cashier, and

a “deposit slip” that reflected the total amount of cash and checks. The forms and the money were then collected

by Cathy Bracewell and sent to appellant, who was Clugston’s secretary and

responsible for “verify[ing] that deposit,” making copies of the forms, and

keeping the original forms on file “so that [they] had a paper trail of the

accounting of the money.” Appellant was

to make sure that the numbers on the accounting sheet matched those on the

final deposit slip beyond any minor discrepancies. The money was placed in locked bags in a safe

at the back of the administration building, and Larry Lott, a maintenance

worker, would deposit the money at the bank and return the bank deposit slips

to appellant. From 2003 to 2004,

appellant did not report “any shortages of money or discrepancies between the

campus and her accounting.”

For

the 2004 – 2005 school year, NISD hired

Chartwell’s Dining Services, a cafeteria managing company, to supervise its

cafeterias, and Florinda Parnell was assigned by Chartwell’s to manage NISD’s

account. In August 2004, Parnell

expressed a concern that the deposits didn’t “match[] the amount of food that

was being used.” Clugston suspected that

someone was taking money “at the cashier level,” so he told Bracewell and

Parnell to observe the cashiers, but they “didn’t feel like that was where

[the] problem was.” Suggesting that Bracewell

was involved, Clugston instructed Parnell to collect and count the money, but

she found no discrepancies. Parnell then

took the deposits to appellant’s office, and, when Clugston checked the final

deposit that was sent to the bank, it was off by approximately $400. Clugston immediately reported the problem to

the superintendant and “started pulling some records,” comparing the bank

deposit slips with those found in appellant’s office “to see if it was a one-time

occurrence or if [they] had a systemic problem.” Through this process, Clugston discovered

“numerous discrepancies” over the past year, ranging from forty dollars to

“several hundred dollars.” Clugston met

with appellant to ask her about the discrepancies, but she “couldn’t answer the

question.” NISD then placed appellant on

paid leave and began collecting records for the 2003 – 2004 school year.

While

going through appellant’s files, Clugston occasionally found accounting forms

that appeared to be altered or “completely rewritten.” He rarely found original “cash sheets” or

deposit slips prepared at the cafeterias, although appellant was required to

keep the original versions of these documents and there was “really not a

reason to rewrite” any of the forms.

After the completion of the investigation, the NISD police chief had

Clugston place the records in a vault at the high school. Clugston then identified several examples

demonstrating that the deposit slips found in appellant’s office did not match

those obtained from the various school cafeterias, either in the amount of cash

collected or the amount of students who had bought a meal. Clugston concluded that there was “a systemic

problem” concerning the accounting at all of NISD’s cafeterias and the

discrepancies between appellant’s deposit slips and the records obtained from

the school cafeterias were a “normal occurrence.” After reviewing all of the documents,

Clugston found a discrepancy of $16,782.13 concerning the elementary school,

$11,916.75 concerning the middle school, $18,452.71 concerning the junior high

school, and $48,000 concerning the high school.

He noted that appellant had repeatedly stated to him that there had been

only minor discrepancies in the cafeteria’s deposit slips. Alarmed, Clugston reviewed documents dating

back to May 2002, discovering a loss of $17,735.34 at the elementary school for

the 2002 – 2003 school year.

On

cross-examination, Clugston conceded that it was possible that another person

had taken the money before it had reached appellant. Appellant never admitted to taking any money,

no one saw her take any money, and several office workers had access to the

safe where the money was kept. Clugston

admitted that he was not aware of any complaints about appellant before he

started working at NISD, and, before his arrival, appellant had reported some

“deposits being off” and complained that “money [was] being delivered by

different people to the office at different times.” Clugston explained that in August 2004, a

missing money bag was found in the office of Pat Garcia, NISD’s high school

cafeteria manager.

Parnell

testified that she oversaw the NISD cafeterias as an employee of Chartwell’s

starting in July 2004. Shortly after her

arrival, Parnell asked appellant for documents pertaining to the amount of

money received and the number of students served at the cafeterias. The next day, Parnell informed Clugston that

the documents revealed that “the money amounts were not . . . right for the

amount of students that we had in the district,” particularly at the high

school. Clugston reported the

discrepancies to the NISD superintendant and directed Parnell to “make sure

that cashiering procedures were put into place and start checking . . . the

deposits.” Clugston and Parnell then

approached appellant and asked her to read off the deposit slips from the bank,

and Parnell indicated to Clugston that the numbers did not match the forms that

she had collected from the school cafeterias.

Appellant, who had not reported any discrepancies to Parnell or Clugston,

was placed on leave the following week “until further investigation.” Parnell observed the cashiers, Bracewell, and

“the managers who were running the money over,” but it did not appear that any

of them were taking money. Parnell

explained that, after appellant was placed on leave, the accounting sheets

balanced out with the deposit slips. On

cross-examination, Parnell admitted that the money collecting procedures were

inadequate when she arrived at NISD and “seven or eight” different people had

access to the safe where the money was kept.

Lott

testified that he performed various maintenance tasks for NISD in 2003. One of his jobs was to pick up money bags

from appellant, take them to the bank, and then take them back to the school

cafeterias. The bags were always locked

when Lott received them, and he did not have a key to open the bags. When picking up the bags to take them to the

bank, Lott would sometimes obtain them directly from appellant’s office. Other times, a secretary would go and obtain

them from the safe. On

cross-examination, Lott explained that many of the secretaries in the

administration office had access to the safe where the money bags were

sometimes kept.

Vanessa

Dannhaus, a cashier at the NISD elementary school cafeteria in 2003, testified

that she kept track of the amount of students who bought a meal using a

“clicker” and tallied how the students paid for their meals. After lunch, she would fill out an accounting

form using the information on her clicker and check those numbers with the

amount of money she had received.

Dannhaus would also fill out the “cash sheet” reflecting the types of

currency she received, a deposit slip reflecting the total amount of cash and

checks, and a “personal form” that compared the two so she could verify the

amount of money. For each form, she

would make a copy and put the original along with the money in a locked vinyl

bag. Dannhaus would then give those bags

to the principal or cafeteria manager to take to the administration office. At some point, appellant instructed her to

stop sending the “personal form” because it was not required by the

administration. Dannhaus did not believe

that she was ever short on money when she sent it to the administration office,

and she never received any information from appellant or anyone else that her

deposit slips were incorrect. She did

not know why appellant would have to edit or revise the forms that she

submitted.

Following Dannhaus’s testimony,

cashiers from the other campuses testified to similar procedures and confirmed

that the deposit slips from appellant’s offices were often rewritten or altered

from the forms they had filled out on their campus. For example, Sallie Torres, a cashier at the

NISD middle school, testified that she filled out an accounting sheet and a

deposit slip every day, she sent the originals to the administration office,

and the deposit slips found in appellant’s office did not match her own

records. Vivian Jedlicka, a cashier at

the NISD junior high school, noted that one of appellant’s forms had omitted

the money received at the snack bar, and she identified other altered or

rewritten documents from appellant’s files.

Carrie Hartfiel, the cashier at the NISD high school, testified that she

always sent the three pertinent documents to the administration office and

appellant’s deposit slips sometimes omitted sales of cookies or ice cream. She noted that several of appellant’s deposit

slips demonstrated a difference of $100 between the money Hartfiel had accounted

for and the money actually deposited at the bank.

Bracewell testified that in 2003,

she was promoted to NISD’s cafeteria supervisor. Every day, a cafeteria manger or school

principal would bring to her a bag containing money, “their daily slips, cashiering

slips[,] and any invoices.” Bracewell

would take those bags, which were generally unlocked, to appellant’s office in

the administration building.

Occasionally, appellant would inform Bracewell that the amount of money

did not match the accounting forms, but Bracewell never instructed appellant to

“correct” the issue on the forms. On

cross-examination, Bracewell explained that she believed that the money “went

through too many hands.”

Dovie Brown, NISD’s Director of

Finance, testified that she would occasionally fill in for appellant by

verifying the amount of money in the bags with the forms. Each bag contained money, a deposit slip, an

accounting sheet, and a cash sheet. When

Brown filled in for appellant, she never discovered any discrepancies between

the forms and the amount of money in the bags.

Several of the secretaries in the administration building had access to

the safe in which the money was kept, as did the tax collector, Bernie Novak. Each afternoon, Bracewell would bring the

money bags from the campus cafeterias to appellant, who was supposed to verify

the amount of money enclosed with the forms.

After the amount was verified, the money was placed in the safe, which

was locked at all times and located at the back of the administration

building. The next morning, Lott would

pick up the bags and take them to the bank.

Brown would use the deposit slips

received from the bank to fill out a “general ledger” tracking the total

revenue that the district was bringing in.

However, she never verified the amount of money coming in from the food

service department because “that was [appellant’s] responsibility.” In 2003, because there was a shortage in

revenues from the food service department, Brown had to transfer $77,000 from

the district’s general fund to the food service department. She explained that

when she reviewed the documents from appellant’s office and the campus

cafeterias, she discovered that the bank deposit slips always matched

appellant’s documents but not necessarily those at the campus cafeterias. From 2002 to 2004, Brown noticed a total

difference of $80,913.60 from the deposit slips received from the bank and the

amount of money that should have been deposited as indicated by the campus

cafeteria documents. Appellant never

alerted Brown to any discrepancies in the amount of money she received.

Brown further testified that

approximately once a month, appellant would go on “gambling trips” and “she was

always talking about . . . how much money she had won,” but she never “talked

about any losses.” She also told Brown

that she was able to pay off the loan on her car “very quickly.” From 2002 to 2004, appellant made

approximately $25,000 a year, after taxes, at her job with NISD. Brown explained that when she inspected

appellant’s bank accounts, she discovered that, from January 2002 through April

2005, appellant had deposited $87,375 in cash in her Prosperity bank savings

account and $35,970 in cash into her Southwest Bank savings account. On cross-examination, Brown admitted that she

did not know for sure from where appellant’s cash deposits had come and Brown

was not “licensed” as an accountant.

Shirley Warncke, who worked in the

NISD administration office for accounts payable, testified that Brown had told

her that she did not like appellant.

Warncke opined that Brown, Clugston, or Jennifer Michalec, the Benefits

Administrator, could have taken NISD’s money.

She explained that there had been reports of money missing at NISD

before appellant had started working there and the reports of missing money

began after Brown was hired. Appellant

had also told Warncke, “at least once or twice,” that she would receive bags of

money from the campus cafeterias with no corresponding accounting sheets. Occasionally, appellant would not have time

to count the money on the same day that she had received it, so she left the

money in the safe overnight and counted it the next morning. Warncke also recounted an incident in which

appellant placed her own money into the bags to make the total amount

consistent with the deposit slips.

Warncke did not believe that appellant could have taken the money

because “[s]he’s from a well-known family and her dad was on the school board.” She also explained that the safe was kept

unlocked until the “point where money started missing.”

After NISD placed appellant on

administrative leave, Warncke assumed her responsibilities and noticed that

money was often miscounted and she received the deposit slips, but not the

accounting forms, from the campus cafeterias.

She also opined that Clugston was “like a used car salesman” and had an

“ongoing feud” with appellant during her time at NISD. After Warncke’s testimony, several other NISD

secretaries and assistant superintendents testified that they believed that

appellant was trustworthy and would not steal money from the district.

Appellant testified that, at first,

the principals or cafeteria managers from each campus would bring the money

bags to her, but, starting in 2003, Bracewell was reassigned as a “food service

director” and given the responsibility of transporting all of the bags to the

administration office. Appellant would

“occasionally” receive “some of the paperwork,” but she generally received only

money from the campus cafeterias. Other

times, she would receive paperwork that was only partially completed, but she

never received the “accounting sheets” and did not even know of their

existence. When appellant asked her

direct supervisor, Kathryn Winkler, about the proper procedure to follow when

she received money but not paperwork, Winkler told her to fill out her own

deposit slip after counting the money herself.

Appellant usually would not have time to verify the amount of money before

she had to leave for the day, so she would leave the bags in the safe overnight

and verify the amount of money the next morning, when she often found the safe

left open. She explained that the safe

was open “to pretty much everyone” that worked in the administration building

and the money bags frequently came to her unlocked. Appellant explained the cash deposits, noting

that she and her husband had sold their two cars for cash and deposited the

proceeds into their savings accounts. In

addition, she would go about every six weeks to the Coushatta Casino to gamble,

and she received cash from her sons as loan repayments.

Sufficiency of the Evidence

In her first issue, appellant argues that the evidence is

legally insufficient to support her conviction because it was “entirely

circumstantial” and “failed to establish” her guilt beyond a reasonable doubt.

We review the legal sufficiency of the evidence “by

considering all of the evidence in the light most favorable to the prosecution”

to determine whether any “rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307 , 318–19, 99 S. Ct.

2781 , 2788–89 (1979). Our role is that

of a due process safeguard, ensuring only the rationality of the trier of

fact’s finding of the essential elements of the offense beyond a reasonable

doubt. See Moreno v. State , 755 S.W.2d 866, 867 (Tex.

Crim. App. 1988). We give deference to

the responsibility of the fact finder to fairly resolve conflicts in testimony,

to weigh evidence, and to draw reasonable inferences from the facts. Williams v. State , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). However, our duty requires us to “ensure that

the evidence presented actually supports a conclusion that the defendant

committed” the criminal offense of which he is accused. Id .

We note that when reviewing challenges to the sufficiency of

the evidence, the standard of review is the same for both direct and

circumstantial evidence cases. See Kutzner v. State , 994 S.W.2d 180,

184 (Tex. Crim. App. 1999).

Circumstantial evidence may be probative of a defendant’s guilt and is

sufficient by itself to establish guilt.

Guevara v. State , 152 S.W.3d

45, 49 (Tex. Crim. App. 2004).

Circumstantial evidence may also be considered as probative as direct

evidence in establishing the guilt of an actor.

Id.

A person commits the

third-degree felony offense of theft if the person unlawfully appropriates

property with intent to deprive the owner of property, and the value of the

property stolen is $20,000 or more but less than $100,000. Tex.

Penal Code Ann. § 31.03(a), (e)(5) (Vernon Supp. 2011). Appropriation of property is unlawful if it

is without the owner’s effective consent.

Id. § 31.03(b)(1). A person commits the third-degree felony

offense of misapplication of fiduciary property if the person “intentionally,

knowingly, or recklessly misapplies property [s]he holds as a fiduciary . . .

in a manner that involves substantial risk of loss to the owner of the property

or to a person for whose benefit the property is held,” and the value of the

property is $20,000 or more but less than $100,000. Id . § 32.45 (b), (c)(5) (Vernon

2011).

Appellant asserts that

the State “could not show that [a]ppellant was ever in exclusive possession of

any of the proceeds” and “[i]t was undisputed that the proceeds from the

different cafeterias were kept in a safe . . . to which at least six different

people had access, and which was often unlocked.” Appellant also argues that the evidence

against her “was entirely circumstantial since no one ever observed [a]ppellant

taking the money.”

Here, it is undisputed

that one of appellant’s responsibilities was to collect the breakfast and lunch

money from the campus cafeterias every afternoon and verify that she had

received the correct amount of money.

Cashiers at the elementary, middle, junior high, and high schools all

testified that they had properly filled out deposit slips, accounting sheets,

and cash sheets every day and included the original documents in the money bags

that were sent to appellant’s office. When

they compared the deposit slips from appellant’s office with the copies of

their own forms, they all testified that appellant had filled out her own

deposit slips that sometimes altered their accounting, such as by not

accurately reflecting the number of students who had purchased meals or by

omitting sales for the snack bars.

Clugston testified that he found what he opined were some original

accounting forms from the cafeterias that were nevertheless altered. Bracewell testified that the managers from

each cafeteria would give her a money bag that included the original versions

of the accounting sheets and cash sheets completed at the campuses, and she

would deliver the bags straight to appellant’s office.

Bracewell also

testified that some days, appellant would immediately start counting the money

when Bracewell delivered it. Jennifer

Michalec, the NISD Benefits Administrator who worked in the administration

office alongside appellant, testified that appellant normally would finish

verifying the amount of the money in the afternoon and then leave it in the

safe overnight. Brown testified that

appellant was supposed to verify the amount of the money the afternoon that she

received it and she had regularly seen appellant verify the amount of money at

that time.

Parnell testified that

when she began working at NISD in July 2004, she quickly noticed that the

deposits were low for the amount of students that the cafeterias served. When she inspected appellant’s deposit slips,

Parcell found that they did not match the accounting form copies at the various

campuses. Brown reviewed the documents

spanning from 2002 to 2004 and noticed a total difference of $80,913.60 from

the amount of money actually deposited and the amount of money received from

students as reflected in the cashiers’ forms. Both Clugston and Brown testified that

appellant had never reported to them a shortage of money or that she did not

receive the requisite forms from the cafeterias.

When he discovered the

discrepancies in accounting, Clugston first instructed Bracewell and Parnell to

observe the cashiers and the cafeteria managers, but they did not report

anything indicating that money was being removed at that level. Parnell testified that she had observed

Bracewell as well and did not believe that she had removed any money. Clugston testified that one day he had

Parnell, instead of Bracewell, transport the money bags to appellant, and the

final deposit was off approximately $400 for that day. Finally, Brown testified that she had

reviewed appellant’s bank accounts from January 2002 through April 2005 and

discovered cash-only deposits totaling $87,375 into one savings account and

$35,970 into another.

In support of her

argument that the above evidence is legally insufficient to support her

conviction, appellant relies on Martinez

v. State , 198 S.W.3d 36 (Tex. App.—Corpus Christi 2006, no pet.). In Martinez ,

the defendant, a middle school cafeteria manager, was convicted of theft by

deception by a public servant. Id. at 39–40. Her responsibilities included counting the

proceeds from “cafeteria and snack bar sales,” completing a deposit slip, and

“turn[ing] over the money for safekeeping.”

Id. at 40 . After giving the money to a police officer,

who transported the money to the bank, the defendant received a call from a

bank teller informing her that the deposit was twenty dollars short. Id.

at 45 . The bank returned the money to

the school’s central office, and, two days later, the defendant alleged that

she found the twenty dollars under a stack of papers on her desk, retrieved the

bag from the central office, took it back into the cafeteria, and replaced the

missing twenty dollars. Id.

The defendant then asserted that when she returned the bag to the

central office, the police officer who had arrived to pick up that day’s

deposit instructed her to combine the corrected deposit with that day’s deposit

into one bag. Id. However, the officer

testified that he did not instruct her to combine the deposits and, in fact, he

did not even pick up any money for the day in question. Id.

at 46 . Instead, he picked up only one

bag on the following day and did not receive the incorrect deposit bag that had

been sent back. Id. at 46–47. The bank never

received a corrected deposit bag. Id. at 48 .

The court held that

the evidence was factually insufficient to support the defendant’s conviction

because of the “numerous inconsistencies in the lax security and cash-handling

measures involving the missing deposit.”

Id. at 59 . However, in conducting its legal-sufficiency

review, the court held that “a rational jury could have found [that] . . . [the

defendant] appropriated the currency at some time after leaving the cafeteria

and before entering the front office . . . [and the defendant] stated that

there was an extra deposit in the bag when there was not.” Id.

at 50 . The court concluded that “the

evidence was such that a rational jury could have found the essential elements

of the offense beyond a reasonable doubt.”

Id. at 51 .

Here, viewing the

evidence in the light most favorable to the prosecution, the evidence reflects

the following: (1) contrary to her assertions, appellant had exclusive

possession of the cafeteria proceeds every afternoon as she was tasked with

counting and verifying the amount of money received; (2) the cashiers at each

cafeteria completed and sent to appellant’s office, along with the money, an

accounting sheet, a cash sheet, and a deposit slip and appellant was supposed

to keep accurate records of each; (3) appellant’s records frequently omitted

all of the original forms and instead contained new, completely rewritten

deposit slips or originals that had been altered; (4) from 2002 to 2004, there

was a discrepancy of $80,913.60 from the amount of money actually deposited in

the bank and the amount of money received at the cafeterias as reflected in the

cashiers’ accounting; (5) Clugston and Parnell investigated the cashiers,

cafeteria managers, and Bracewell, who was the employee instructed to transport

the bags to appellant, and determined they were not the source of the

discrepancies; and (6) from January 2002 to April 2005, appellant made

cash-only deposits totaling $87,375 and $35,970 respectively into two of her

bank accounts. It is true, as asserted by

appellant, that the State provided no direct evidence that she appropriated any

of the missing money. However, the

elements of theft may also be proved by circumstantial evidence. See

Christensen v. State , 240 S.W.3d 25, 32 (Tex. App.—Houston [1st Dist.]

2007, pet. ref’d); see also Hogan v.

State , No. 11-10-00001-CR, 2011 WL 4840528 (Tex. App.—Eastland Oct. 13,

2011, pet. ref’d) (mem. op.) (holding that evidence was legally sufficient to

support conviction of bank teller for theft even though money in question was

“handled by any number of people who could have taken [the] currency” and there

was no direct evidence that teller had taken money).

We conclude that the

jury could have reasonably inferred and found beyond a reasonable doubt that

appellant destroyed or altered the accounting forms she received from the

cafeterias and unlawfully appropriated money from NISD, with the intent to

deprive it of the money, in the afternoons that she was to verify the amount of

money received from the cafeteria. See Tex.

Penal Code Ann. § 31.03(a).

Furthermore, we conclude that the jury could have reasonably inferred

and found beyond a reasonable doubt that appellant, holding the money as a

fiduciary, knowingly misapplied the money in a manner that involved substantial

risk of loss to the school district. See

id . § 32.45(b).

Accordingly, we hold that the evidence is legally sufficient to support

appellant’s convictions.

We overrule

appellant’s first issue.

Jury

Charge

In her second issue,

appellant argues that because the trial court, in its charge to the jury,

instructed the jury that it had to reach a unanimous “verdict,” as opposed to

“verdicts,” the court “failed to instruct the jury that its decision on each

offense had to be individually unanimous.” In her third issue, appellant argues that the

trial court committed reversible error in denying her motion to include a

charge on “circumstantial evidence and the alternative perpetrator hypothesis”

because recent changes in the law on the factual sufficiency of evidence

necessitate such instructions.

Unanimous Verdict

We review jury charge

error by considering whether (1) error exists in the charge and (2) if so,

whether sufficient harm resulted from the error to require reversal. Ngo v.

State , 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). Jury unanimity is required to obtain a

criminal conviction. Tex. Const.

art. V, § 13; Tex. Code Crim.

Proc. Ann. art. 36.29(a)

(Vernon Supp. 2011); Ngo , 175 S.W.3d

at 745 . E ach and every

juror must agree that the defendant committed the same, single, specific

criminal act. Ngo , 175 S.W.3d at 745 . Non-unanimity

may result “when the jury charge fails to properly instruct the jury, based on

the indicted offense(s) and specific evidence in the case, that its verdict

must be unanimous.” Cosio v. State , 353 S.W.3d 766, 771 (Tex. Crim. App. 2011).

In

support of her argument that she was deprived of her right to a unanimous

verdict, appellant chiefly relies on Ngo

v. State , 175 S.W.3d 738 . However,

in Ngo , the prosecution charged the

defendant with “three offenses in three separate paragraphs within a single

count of one indictment.” Id. at 744 . The court noted that the State had “rel[ied]

on a laundry list of different criminal acts and let the individual jurors take

their pick on which each believe[d] the defendant committed.” Id.

at 745 . Here, however, given the trial

court’s charge to the jury, it is clear that the jury convicted appellant of

two separate offenses, each unanimously.

Although appellant seizes on the language in the jury charge that

required the jury to “unanimously agree[] on a verdict,” as opposed to

“verdicts,” the jury charge did instruct the jury to indicate the unanimous

verdict “by filling in the appropriate form attached to this Charge,” and the

jury ultimately found appellant “guilty” of each offense on two separate

verdict forms, one for each offense. See Martinez v. State , 225 S.W.3d 550,

555 (Tex. Crim. App. 2007) (noting that simplest way to ensure each allegation

is decided unanimously is to submit separate verdict forms); Torres v. State , No. 04-07-00873-CR,

2008 WL 5264869 , at *4 (Tex. App.—San Antonio Dec. 17, 2008, pet. ref’d)

(holding that there was no jury charge error because “the jury was instructed

that it must reach a unanimous verdict and because separate application

paragraphs and separate verdict forms were included with regard to each

count”). This is unlike the situation in

Ngo where the counts were submitted

to the jury disjunctively in a single application paragraph. See id.

at 742 n.5. Accordingly, we hold the

trial court’s charge to the jury did not deprive appellant of her right to a

unanimous verdict in each separate case.

We

overrule appellant’s second issue.

Circumstantial Evidence

Instruction

In

her third issue, appellant asserts that the trial court erred in denying her

requested instruction on circumstantial evidence and the “reasonable hypothesis

of guilt theory.” Appellant’s requested

instruction would have stated that, in a circumstantial evidence case, the

prosecution “must exclude to a moral certainty every other reasonable

hypothesis to accept the defendant’s guilt, and unless they do so beyond a

reasonable doubt, [the jury] will find the defendant not guilty.”

The

Texas Court of Criminal Appeals has discarded the “reasonable hypothesis of

guilt” theory as both a jury instruction and an appellate standard of

review. Geesa v. State , 820 S.W.2d 154 , 161–62 (Tex. Crim. App. 1991). Appellant argues that because criminal

defendants can no longer raise a factual-sufficiency challenge on appeal, and

because juries are no longer charged on the definition of the reasonable doubt

standard, “the need for a circumstantial evidence charge is resurrected.” See

Brooks v. State , 323 S.W.3d 893, 902 (Tex. Crim. App. 2010) (abolishing

factual-sufficiency review on appeal in criminal cases); Paulson v. State , 28 S.W.3d 570, 573 (Tex. Crim. App. 2000)

(eliminating requirement that juries be instructed on definition of “beyond a

reasonable doubt”). However, in Geesa , the court repudiated “the very

basis and authorization for the use of the ‘reasonable hypothesis’ construct in

reviewing sufficiency of the evidence in circumstantial evidence cases,” and

its holding was not limited to legal-sufficiency review. Geesa ,

820 S.W.3d at 159. Furthermore, “[t]o

find that a repudiation of the ‘beyond a reasonable doubt’ instruction

necessarily means a return to jury instructions on circumstantial evidence

would be to follow the same logic criticized by the court in Paulson .” Filoteo

v. State , No. 01-02-00693-CR, 2003 WL 22723480 , at *2 (Tex. App.—Houston

[1st Dist.] Nov. 20, 2003, pet. ref’d) (mem. op.) (citing Paulson , 28 S.W.3d at 572 ).

Accordingly, we hold that the trial court did not err in not submitting

appellant’s requested jury instructions on circumstantial evidence and the

“reasonable hypothesis of guilt.”

We

overrule appellant’s third issue.

Conclusion

We

affirm the judgment of the trial court.

Terry

Jennings

Justice

Panel

consists of Justices Jennings, Massengale, and Huddle.

Do

not publish. Tex. R. App. P. 47.2( b).

[1] See

Tex. Penal Code Ann. § 31.03(b), (e)(5)

(Vernon Supp. 2011).

[2] See id . § 32.45(c)(5) (Vernon 2011).