Wirth v. State
2011 Tex. App. LEXIS 4225
| Tex. App. | 2011Background
- Wirth operated two auto-leasing businesses (RW Leasing and Wirth Leasing, Inc.) with Wirth controlling banking and financial operations.
- Drafts on RW Leasing were funded by banks, transferred titles, and funded by those banks into RW Leasing’s Prosper account, with payments routed to dealerships and then to lenders.
- In early 2005, fifteen drafts totaling over $500,000 were dishonored; Wirth closed the Prosper bank accounts and later filed for bankruptcy.
- Wirth was indicted for theft of property over $200,000; the jury convicted of theft of $20,000 or more but less than $100,000 and sentenced to 10 years’ imprisonment and a $10,000 fine, with restitution.
- This court initially held the evidence legally sufficient under Clewis to support the verdict but factually insufficient, and subsequent Brooks v. State overruled Clewis’s standard, prompting remand.
- On remand, this court reversed the conviction and rendered acquittal; on rehearing, the State’s challenge to agency-based liability was rejected, and the motion for rehearing was overruled.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the evidence legally sufficient to prove Wirth's intent to steal? | Wirth lacked the necessary criminal intent at issuance of drafts; his conduct was a failed business failure, not theft. | Brooks merged legal and factual sufficiency standards; the state failed to prove intent to deprive at the time of taking. | No; evidence insufficient to prove intent beyond reasonable doubt. |
| Did extraneous acts evidence (Amegy Bank Bloodgood and Rogers policy) prove mens rea? | Extraneous acts show Wirth's intent not to honor drafts. | Such acts are admissible and probative of intent to deceive. | Bloodgood admissible but weak, Rogers policy inadmissible and harmless; overall insufficient to prove intent. |
| Can Wirth be held criminally responsible for the acts of his employees to establish intent? | Wirth directed and controlled the schemes, so he should be responsible for employees' acts. | Absent direct evidence of Wirth’s own intent, cannot bootstrap liability from employees. | Overruled; insufficient evidence of Wirth’s own intent; cannot bootstrap agency liability to sustain conviction. |
| Did the hypothetically-correct jury charge properly state the law and support the State’s theories? | Charge accurately instructed on deception and consent, aligning with the indictment. | Not required to reshuffle standards after Brooks; evidence still lacking. | Charge appropriate; sufficiency still lacking. |
Key Cases Cited
- Clewis v. State, 922 S.W.2d 126 (Tex.Crim. App. 1996) (first formal acknowledgment of factual-sufficiency review in Texas criminal cases)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (legal sufficiency standard: rational trier of fact could convict beyond reasonable doubt)
- Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010) (overruled Clewis’s factual-sufficiency standard; aligned with legal sufficiency approach)
- Wirth v. State, 296 S.W.3d 895 (Tex.App.-Texarkana 2009) (factually insufficient under Clewis prior to Brooks; vacated and remanded)
- Peterson v. State, 645 S.W.2d 807 (Tex.Crim.App. 1983) (intent to deprive evaluated at time of taking)
- Moore v. State, 969 S.W.2d 4 (Tex.Crim.App. 1998) (mental state inferred from acts and circumstances)
- Grotti v. State, 273 S.W.3d 273 (Tex.Crim.App. 2008) (hypothetically-correct jury charge standard for sufficiency review)
- Villarreal v. State, 286 S.W.3d 321 (Tex.Crim.App. 2009) (appropriately describes offense in sufficiency analysis)
- Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997) (describes sufficiency and weighing of evidence)