RUTH ANN GAMBLE LEDBETTER v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice Richter

A jury found appellant guilty of theft over $200,000 and the court sentenced her to forty-nine years' imprisonment and a $10,000 fine.   The court also ordered restitution of $912,000.   In four issues on appeal, appellant challenges the sufficiency of the evidence and asserts the trial court erred in allowing the State's investigator to testify as an expert because the State failed to provide proper notice of expert testimony.   Concluding appellant's arguments are without merit, we affirm the trial court's judgment.

Sufficiency Of the Evidence

In her first two issues, appellant challenges the sufficiency of the evidence to support her conviction.   The Texas Court of Criminal Appeals has overruled Clewis v. State, holding that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.   See Brooks v. State, 323 S.W.3d 893, 894–95 (Tex.Crim.App.2010) (plurality op.).   This standard requires the reviewing court to determine whether, considering all of the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt.  Id. at 899 (citing Jackson v. Virginia, 443 U.S. at 319).   We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters.  Id. Therefore, we will conduct a single review of appellant's sufficiency complaints under the Jackson standard.

Appellant was charged with theft of property valued at $200,000 or more, a first-degree felony.  Tex. Penal Code Ann. § 31.03(a),(e)(7) (West 2011).   The indictment alleged that pursuant to one scheme and continuing course of conduct, appellant unlawfully appropriated more than $200,000 from the owner, Tomima Edmark, without Edmark's consent and with the intent to deprive Edmark of the property.  “Appropriate” means to acquire or otherwise exercise control over property other than real property.  Tex. Penal Code Ann. § 31.01(4)(B) (West 2011).   Appropriation of property is unlawful if it is without the owner's effective consent.  Tex. Penal Code Ann. § 31.03(b)(1) (West 20121).

The evidence adduced at trial established that appellant was retained as Edmark's primary bookkeeper in 2000, and was responsible for entering bills into the accounting system, paying the bills, printing checks, and reconciling bank statements.   Edmark was the only person authorized to sign checks.

Approximately a year after she was hired, appellant started her own company, 2nd Office (“Office”).   Appellant did not work for Edmark for a few months and then Edmark hired Office on a part-time, contract basis to perform all of her bookkeeping.   During the five years she worked for Edmark, appellant's fees for bookkeeping services ranged from approximately $40,000 to $80,000 per year.

In 2005, Edmark's credit union contacted her regarding its suspicion that a check written from her account and payable to Office in the amount of $11,580.83 had a forged signature.   Upon examination, Edmark determined that she had not signed the check.   Edmark's accountant, Dave Joiner, advised that neither nor Office had ever been paid more that $6,000 in a single check.   Joiner examined the accounting system's audit trail and learned that appellant, or a person using her log-in, entered the check in the register as payable to a vendor with whom Edmark frequently did business, tampered with the check and printed it as payable to Office, reentered the check as having been paid to the vendor and deleted record of payment to Office.

Edmark then reviewed several months of checks and found additional forged checks made out to appellant or Office.   Each of these checks appeared in the accounting system as a payment to a vendor or company other than Office.   The audit trail on one of these checks showed that appellant, or someone using her log-in, printed a check to appellant in the amount of $6,432.33 and then edited the payee to reflect a legitimate vendor.

Edmark, Joiner, and others subsequently confronted appellant.   Appellant admitted that the signature on the $11,580.83 check was not Edmark's, but denied that she received the money, and claimed she did not know whether the bank account numbers on the check endorsements were hers.   Appellant thought one of her employees might have done it, but acknowledged that no one had her log-in code.   When Joiner confronted her with four forged checks, appellant became frazzled.   Without admitting personal responsibility, appellant accepted responsibility because she had several employees working for her and this occurred on “her watch.”

Shortly after the meeting, appellant contacted her son in Oklahoma and instructed him to withdraw $18,600 from their joint checking account.   Appellant then closed all of her Bank of America accounts and transferred her real property to her sons.

Edmark and the credit union discovered that the total amount of all forged checks was over $900,000, and the checks dated back to appellant's first week of employment in December 2000.   Over the five-year span of time, the amount of the checks gradually increased.   During this time, appellant cashed or deposited about 250 checks;  five of the checks exceeded $10,000.   Appellant would make the checks out to an individual Edmark had previously hired or paid, forged Edmark's signature on the check, forged the payee's signature, and wrote “pay to the order of [appellant]” and/or signed the check, and then cashed the check or deposited it into her account.   As appellant's scheme developed, she altered the checks by making them payable to herself or Office.   She then substituted a false check entry in the check register using a legitimate payee's name.   Checks from Edmark's accounts were also used to pay American Express bills for an account used by appellant but issued in her ex husband's name.   No checks were forged during the months in 2002 when appellant did not work for Edmark.

About two weeks after the meeting with Edmark, appellant made a statement to the police.   She admitted she endorsed some of the forged checks, but claimed the accounting software was corrupt.   After Edmark hired Cole Ramsey, an attorney, to investigate the missing funds, Ramsey questioned appellant twice under oath.   Initially, appellant claimed the forged checks were used to purchase supplies for Edmark's business, such as tissue boxes, ink, postage, and shelving.   Later, appellant claimed the money went to vendors or was for her own compensation and that her bank accounts would reflect these payments.   Still later, appellant blamed the “mix-up” on the accounting system.

Joiner testified about trouble-shooting issues in the accounting software, and stated that the issues were not related to unreliability or corruption of the data.   In his nineteen years' experience with the system, Joiner never saw a problem where the program listed the wrong name or address.   Joiner further testified that the audit trails showing manipulations of the check payees and the check register cannot be altered.   Appellant, Joiner, and Ellen Temple, a contract bookkeeper who worked in Joiner's office, were the only people who had full access to the accounting software.   Two other users had limited access for the purpose of entering purchase orders.

Joiner also said that he had no knowledge of any arrangement for appellant to “front” expenses for Edmark and subsequently reimburse her.   Instead, appellant included any incidental expenses on her regular monthly invoices to Edmark.

Temple testified that she trained appellant to use the accounting software in 2001.   The first year that appellant was employed, she was the only person other than Joiner and appellant who had access to the system.   Temple subsequently set up two other users with limited access to the system but these users could not access the general ledger and were restricted from paying bills.   Temple testified that between 2000 and 2005, the highest amount expended for office supplies in any single year was $22,532.   Therefore, any claim that approximately $900,000 was for reimbursement for office supplies would be false.

Ramsey, the attorney hired to investigate the missing funds, subpoenaed appellant's account records and the records for appellant's former husband's American Express account.   Ramsey confirmed that the forged checks were written to appellant, Office, or to American Express.   After examining all checks written for $500 or more from appellant's accounts, Ramsey found no evidence that appellant paid Edmark's vendors from her accounts.   Appellant also told Ramsey under oath that no one else had access to her computer name and password.

Detective Andrew Masters, an investigator in the Dallas County District Attorney's office, testified that he reviewed every transaction in appellant's four Bank Of America accounts for the relevant time period.   Detective Masters prepared charts and summaries demonstrating categories of deposits, withdrawals and spending in appellant's accounts, a comparison of income to spending, and the amount of money appellant removed from Edmark's accounts per year.   Detective Masters testified that there were a few forged checks that were paid to legitimate vendors, but these amounts were not included in the total amount of “stolen” funds.   Detective Masters further testified that the quality of the forged signatures improved over time.   From his review of appellant's and Edmark's financial information, the detective determined that appellant took approximately $912,140.87.

Appellant insists the evidence is insufficient because the State failed to prove she was the only one who had access to the accounting system.   This argument is misplaced.   As set forth in detail above, the State established that access to the system was limited, and significant sums of money were deposited into or paid to appellant's accounts.   Appellant admitted she forged some of the checks and there was no evidence to support any of her proffered explanations for the missing funds.   Therefore, based on our review of the record, we conclude the jury was rationally justified in finding beyond a reasonable doubt that appellant unlawfully appropriated more than $200,000 of Edmark's money without her effective consent.   Appellant's first two issues are overruled.

Testimony of Investigator

In her third and fourth issues, appellant asserts the trial court erred in allowing Masters to testify as an expert because the State did not provide the proper pre-trial notice of expert testimony.   The State responds that the complained-of error is not preserved, but if it was, Masters properly offered lay opinion testimony.   In the alternative, the State asserts that any error was harmless.

A defendant claiming a trial judge erred in admitting evidence must preserve the error by a proper objection and a ruling on that objection.  Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App.2003).  Tex.R.App. P. 33.1(a) states that a prerequisite to preserving error on appeal is that the record show the “complaint was made to the trial court by a timely request, objection, or motion that [states] 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, unless the specific grounds were apparent from the context.”   An objection must be made each time inadmissible evidence is offered unless the complaining party obtains a running objection.  Lopez v. State, 253 S.W.3d 680, 684 (Tex.Crim.App.2008).   It is also well established that a proper objection that has been overruled “will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling.”   See Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App.1998).

Detective Masters testified that he has an accounting degree and is a certified fraud examiner, and is employed by the specialized crime division of the District Attorney's office as an investigator.   Detective Masters explained that this case was investigated by the Dallas Police Department and then referred to the District Attorney's office.   In the course of his investigation, Detective Msters reviewed the police file and financial records from appellant's four bank accounts for the years 2000–2005, and concluded appellant embezzled over $912,000 from Edmark.   Detective Masters explained the three methods appellant utilized to steal the funds, and stated that he had prepared charts summarizing the data he reviewed.   One of the charts about which he testified listed the forged checks, the payee on each check, the payee listed in the accounting system, the account on which the checks were drawn, which of appellant's accounts the check was deposited into, and the date and amount of the checks.   The detective further testified about his observations of the forged and actual signatures on the checks and stated that the forgeries got better over time.   Twenty-nine pages of this testimony appears in the record before defense counsel objected to Masters testifying as an expert because the State did not provide notice of expert testimony.   The trial court overruled the objection, and Detective Masters continued to testify about his investigation.   An additional thirteen pages of such testimony appears in the record before defense counsel objected again, and requested a running objection because the State did not provide notice of Masters' testimony as an expert.

Defense counsel's objections were not timely.   Counsel was obligated to object as soon as the grounds for the objection became apparent.   See Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex.Crim.App.2006).   Even if the initial objection had been timely, additional evidence was received without objection after the trial court's ruling.   Counsel's request for a running objection did not occur until well after Masters continued to develop the testimony counsel deemed objectionable.   We therefore conclude issues three and four have been waived.   Appellant's third and fourth issues are overruled.

Having resolved all of appellant's issues against her, we affirm the trial court's judgment.

MARTIN RICHTER JUSTICE