(1) acting with =
the kind of=20
culpability required for the offense, he causes or aids an =
innocent or=20
nonresponsible person to engage in conduct prohibited by the =
definition of=20
the offense[.]
Tex. Pen. Code Ann. =
=C2=A7 7.02(a)(1)=20
(Vernon 2005).=20
Section 7.03 of the Texas Penal Code further provides, =E2=80=9CIn =
a prosecution=20
in which an actor=E2=80=99s criminal responsibility is based on =
the conduct of=20
another, the actor may be convicted on proof of commission of the =
offense=20
and that he was a party to its commission, and it is no defense . =
. . that=20
the person for whose conduct the actor is criminally responsible =
has been=20
acquitted, [or] has not been prosecuted or convicted . . . =
.=E2=80=9D=20
Id. =C2=A7=20
7.03(2) (Vernon 2005) (emphasis added). We therefore conclude that =
the=20
evidence is not legally insufficient merely because Kowalsky, =
Merritt, and=20
Padilla were=20
not charged with theft.
=
2. The Scripts Used by the=20
Telemarketers
<=
/SPAN>Appellant contents =
that the=20
evidence is legally insufficient because he did not approve or =
write any=20
of the scripts used by the solicitors during the telemarketing. We =
agree=20
with appellant that no evidence shows that appellant had =
any role=20
in the preparation or use of the scripts that were used during=20
telemarketing. The record shows that Kowalsky and Merritt prepared =
scripts=20
from the correspondence signed by appellant, and that appellant =
had no=20
role in the preparation or use of the scripts. Because the =
undisputed=20
evidence shows that appellant had no role in the preparation or =
use of the=20
scripts by the telemarketers, we conclude that evidence concerning =
the=20
scripts cannot be used as evidence to show any criminal intent by=20
appellant.
<=
/SPAN>3. Appellant=E2=80=99s Contact with=20
Merritt
=
Appellant contends =
that the=20
evidence is legally insufficient because he had no contact with =
Merritt.=20
The undisputed evidence shows that appellant had no contact with =
Merritt,=20
who was the primary telemarketer who received the funds during the =
Toys=20
for Tots solicitations. Appellant=E2=80=99s contact was with =
Kowalsky only. It is=20
undisputed that Kowalsky gave no instructions to Merritt regarding =
for=20
which program Merritt should conduct telemarketing. Merritt =
testified that=20
he never spoke with appellant about the Toys for Tots fundraising=20
campaign. The undisputed evidence shows that appellant had no role =
in the=20
way that the telemarketing was conducted by Merritt. We therefore =
conclude=20
that Merritt=E2=80=99s activities, such as the use of =
telemarketers who claimed to=20
be sheriff=E2=80=99s deputies, cannot be used as any evidence of =
criminal intent=20
by appellant.
<=
/SPAN>4. Appellant=E2=80=99s Control Over=20
Disposition of Funds
<=
/SPAN>Appellant=20
contends that the evidence is legally insufficient because no evidence in the =
record=20
shows that he controlled how funds were spent by the organization. =
Viewing the=20
evidence in a light most favorable to the jury=E2=80=99s verdict, =
the evidence=20
shows that appellant =E2=80=9Ccalled =
the shots=E2=80=9D for the=20
organization, signed most of the checks that paid Kowalsky the =
percentage=20
of the funds due to Kowalsky from the amount of funds received by =
the=20
telemarketers, signed most of the checks written for the =
organization, and=20
used a credit card that belonged to the organization to cover his =
expenses=20
while performing work for the organization. A rational jury =
could have=20
determined that appellant controlled funds for the organization by =
exercising control over the funds. See Tex. Pen. Code Ann. =
=C2=A7 31.01(4)(B)=20
(Vernon 2005) (defining =E2=80=9Cappropriate=E2=80=9D as =
=E2=80=9Cto acquire or otherwise exercise=20
control over property other than real =
property=E2=80=9D). =
=
5.=20
Appellant=E2=80=99s Lack of Personal Gain
=
Appellant=20
contends that the evidence is legally insufficient because no evidence in the =
record=20
shows that he personally gained from the telemarketing and thus =
the=20
evidence fails to show that he acted with criminal intent. =
Evidence that=20
shows that a defendant converts funds for personal use is some =
evidence of=20
criminal intent to commit theft. See King v. State, 17 =
S.W.3d 7, 15=20
(Tex. App.=E2=80=94Houston [14th Dist.] 2000, pet. =
ref=E2=80=99d) (holding evidence =
legally=20
sufficient to support theft conviction under law of parties =
because=20
defendant personally made representations to complainants and =
converted=20
bulk of unlawfully acquired money to personal use, such as paying =
personal=20
credit card debt). Viewing the =
evidence in a=20
light most favorable to the jury=E2=80=99s verdict, the evidence =
shows that=20
appellant was a member of the organization and that the =
organization=20
received a large amount of funds from the telemarketing, part of =
which=20
were used towards financing a party. Additionally, =
appellant=20
received a stipend of $1500 for his services as president of the=20
organization and used the organization=E2=80=99s credit card for =
other expenses=20
that he incurred while performing duties for the organization. =
A rational jury =
could have=20
determined that appellant received some personal gain from the =
funds=20
received from the telemarketing.
=
6. Donations to =
Toys for=20
Tots=20
=
Appellant=20
contends that the evidence is legally insufficient to establish =
his=20
criminal intent to commit theft because toys were actually donated =
to Toys=20
for Tots from the funds received by the telemarketing. =
Viewing the =
evidence in a=20
light most favorable to the jury=E2=80=99s verdict, the evidence =
shows that the=20
donation made to Toys for Tots in December of 2000 was not made =
until=20
after appellant was aware of the investigation into the =
telemarketing for=20
Toys for Tots and the donation was less than the amount of funds =
received=20
by the organization from the telemarketing for Toys for Tots. =
According to=20
the State, only an insignificant amount of =
=E2=80=9Ccharitable=E2=80=9D checks were=20
written by the organization=E2=80=94$2,000 in 1998, $1,050 in =
1999, and $5,770 in=20
2000. The =
jury could=20
have rationally concluded that the donation in 2000 to Toys for =
Tots was=20
made only because of the investigation into the telemarketing by =
the=20
county attorney=E2=80=99s office and that the donation was meager =
in comparison to=20
the amounts received from the telemarketing. Thus, instead of =
showing=20
appellant always intended for money to be given to Toys for Tots, =
the=20
circumstances under which the money was given support an inference =
that=20
appellant was trying to cover up the theft.
=
7. The=20
Correspondence
=
Appellant=20
contends that the evidence is legally insufficient because the =
content of=20
the correspondence =
fails to=20
establish his intent to solicit funds for Toys for Tots. Viewing =
the=20
content of the correspondence in a light most favorable to the=20
jury=E2=80=99s verdict,=20
the evidence shows that the letter signed by appellant states,=20
=E2=80=9CLet us all as=20
a community give what we can in order to bring Some Joy and =
Laughter into=20
the lives of those who are less fortunate Than others.=E2=80=9D We =
conclude that,=20
viewing this statement in a light most favorable to the =
jury=E2=80=99s verdict,=20
this evidence shows that at least part of the correspondence was a =
solicitation for donations to Toys for Tots. =
<=
/SPAN>8. Lack of Consent from the =
Marines and Representations to the Board=20
<=
/SPAN>Appellant contends =
that the=20
evidence is legally insufficient because he did not approve the=20
solicitation of funds for Toys for Tots and thus his lack of =
consent from=20
the Marines does not show that he had criminal intent. When the =
evidence=20
is viewed in a light most favorable to the jury=E2=80=99s verdict, =
the evidence=20
shows that appellant knowingly failed to get consent from =
the=20
Marines to conduct the telemarketing campaign, a program that he =
said he=20
was familiar with because he was a former Marine. =
<=
/SPAN>The=20
State asserts that appellant=E2=80=99s deception shows that he had =
criminal=20
intent. See Ellis, 877 S.W.2d at 383 (holding =
evidence=20
legally sufficient to establish theft under circumstances that =
showed that=20
defendant did not perform =E2=80=9Canything=E2=80=9D for money =
complainants relinquished=20
to him and that defendant used =E2=80=9Cdeception=E2=80=9D); =
Reed, 717 =
S.W.2d at 645=20
(holding evidence legally insufficient to establish theft because=20
=E2=80=9Cevidence of appellant=E2=80=99s failure to perform his =
contract . . . is not=20
sufficient to prove deception=E2=80=9D).
<=
/SPAN>The=20
record before us shows deception by appellant. When the board for =
the=20
organization asked about Toys for Tots, appellant initially feigned ignorance =
of the=20
Toys for Tots telemarketing by stating only that he would look =
into the=20
matter, rather=20
than revealing to the board that he had signed the =
correspondence=20
that mentioned Toys for Tots, and that he had =
recently=20
discussed the telemarketing with Padilla and Kowalsky. =
Appellant=20
later falsely represented to the board for the organization that =
he had =
=E2=80=9Cinvestigated Toys=20
for Tots and anybody could raise money for Toys for Tots=E2=80=9D =
and that he had=20
=E2=80=9Ccontacted a Hispanic sergeant at the Marine Corps base =
who stated it was=20
okay,=E2=80=9D statements that the jury could have reasonably =
inferred were untrue=20
because of appellant=E2=80=99s familiarity with the Marines. =
We conclude that =
this=20
evidence is some evidence that appellant had criminal intent to =
commit=20
theft when he approved of the telemarketing that mentioned Toys =
for Tots=20
without getting approval from the Marines.
=
9. Appellant=E2=80=99s Directions to=20
Kowalsky
<=
/SPAN>Appellant contends =
that the=20
evidence is legally insufficient because he never directed =
Kowalsky to=20
solicit funds for Toys for Tots. Kowalsky =
testified=20
that he began telemarketing for Toys for Tots only after appellant =
signed=20
the correspondence that mentioned Toys for Tots. Kowalsky said =
that he=20
discussed the Toys for Tots solicitation with appellant before =
appellant=20
signed the correspondence. Additionally, appellant was one of the =
primary=20
people who met with Kowalsky during the time that Kowalsky =
conducted=20
telemarketing for the organization. We conclude that when this =
evidence is=20
viewed in a light most favorable to the jury=E2=80=99s verdict, it =
is some=20
evidence that shows that appellant=E2=80=99s actions in signing =
the correspondence=20
served as the impetus for the organization=E2=80=99s telemarketing =
campaign for=20
Toys for Tots.
<=
/SPAN>We=20
conclude that viewing the evidence in a light most favorable to =
the jury=E2=80=99s=20
verdict, the evidence shows that Kowalsky and =
Merritt=20
appropriated by acquiring or otherwise exercising control =
over=20
complainants=E2=80=99 money that had an aggregate value between =
$1,500 and less=20
than $20,000. Their telemarketing solicitations gave complainants =
the=20
false impression that funds donated were for Toys for Tots, when =
instead=20
some of the funds were used for operating expenses of the =
organization.=20
See Tex. Pen. Code =
Ann. =C2=A7 31.01(1) (Vernon 2005)
<=
/SPAN>We=20
conclude that the circumstantial evidence is legally sufficient to =
establish appellant=E2=80=99s guilt as a party to theft. Viewing =
the evidence in a=20
light most favorable to the jury=E2=80=99s verdict, a jury could =
rationally have=20
determined that appellant =
=E2=80=9Ccalled =
the shots=E2=80=9D for the=20
organization, signed most of the checks issued by the =
organization, signed=20
the checks that paid Kowalsky the portion due to Kowalsky from the =
telemarketing, and that appellant personally benefitted from the =
funds=20
received from the telemarketing as a member of the organization, =
which=20
used funds to finance a party for the organization and pay =
appellant=E2=80=99s=20
stipend as President. Further viewing the evidence in a =
light most=20
favorable to the jury=E2=80=99s verdict, we conclude that the jury =
could have=20
reasonably inferred that appellant had =
criminal=20
intent to commit theft at the time that the telemarketing for Toys =
for=20
Tots began because appellant failed to donate toys to Toys for =
Tots until=20
December 2000,=20
after the investigation into the telemarketing by the county =
attorney=E2=80=99s=20
office became public, and the donation was meager in comparison to =
the=20
amounts received from the telemarketing.
=
We conclude =
further that=20
when the evidence is viewed in a light most favorable to =
the jury=E2=80=99s=20
verdict, the jury could have reasonably inferred that =
appellant had=20
criminal intent to commit theft because appellant=E2=80=99s =
signature on=20
the correspondence was the impetus for the Toys for Tots =
telemarketing=20
that occurred without any authority from the Marines, appellant =
made false=20
statements to the organization about his authority to conduct=20
telemarketing for Toys for Tots, appellant failed to obtain =
consent from=20
the Marines when he knew that such consent was required, and =
appellant=20
failed to be candid with the organization about his role in the=20
telemarketing for Toys for Tots. Although no direct evidence =
establishes=20
appellant=E2=80=99s criminal intent at the time the contributors =
were deceived by=20
Merritt and Kowalsky, appellant=E2=80=99s conduct after the =
contributions were=20
made=E2=80=94feigning ignorance of the Toys for Tots telemarketing =
when asked=20
about it by the organization=E2=80=99s board and falsely telling =
the board that a=20
Marine sergeant had given him permission to collect for Toys for =
Tots=E2=80=94is=20
circumstantial evidence that shows appellant had criminal intent =
when he=20
failed to obtain authorization from the Marines to accept =
donations for=20
Toys for Tots. See Valdez v. State, 623 S.W.2d 317, 321 =
(Tex. Crim.=20
App. 1979) (noting event after alleged crime, such as flight from =
scene,=20
is circumstance from which guilt may be inferred); Sosa v. =
State,=20
177 S.W.3d 227, 230 (Tex. App.=E2=80=94Houston [1st Dist.] 2005, =
no pet.)=20
(following Valdez). We hold that a rational fact finder =
could have=20
found the essential elements of theft beyond a reasonable doubt =
and that=20
the evidence is thus legally sufficient to establish =
appellant=E2=80=99s guilt as=20
a party to theft.Factual=20
Sufficiency
<=
/SPAN>Appellant=20
also contends that the evidence is factually insufficient to =
establish his=20
guilt for theft. When conducting a factual-sufficiency review, we =
view all=20
of the evidence in a neutral light. Ladd v. State, 3 S.W.3d =
547,=20
557 (Tex. Crim. App. 1999). We will set the verdict aside only if =
(1) the=20
evidence is so weak that the verdict is clearly wrong and =
manifestly=20
unjust or (2) the verdict is against the great weight and =
preponderance of=20
the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. =
App.=20
2000). Under the first prong of Johnson, we cannot conclude =
that a=20
conviction is =E2=80=9Cclearly wrong=E2=80=9D or =
=E2=80=9Cmanifestly unjust=E2=80=9D simply because, on=20
the quantum of evidence admitted, we would have voted to acquit =
had we=20
been on the jury. Watson v. State, =E2=80=94 S.W.3d =
=E2=80=94, 2006 WL 2956272 at=20
*10 (Tex. Crim. App. Oct. 18, 2006). Under the second prong of=20
Johnson, we cannot declare that a conflict in the evidence=20
justifies a new trial simply because we disagree with the =
jury=E2=80=99s=20
resolution of that conflict. Id. Before finding that =
evidence is=20
factually insufficient to support a verdict under the second prong =
of=20
Johnson, we must be able to say, with some objective basis =
in the=20
record, that the great weight and preponderance of the evidence=20
contradicts the jury=E2=80=99s verdict. Id. In conducting a =
factual-sufficiency review, we must also discuss the evidence =
that,=20
according to the appellant, most undermines the jury=E2=80=99s =
verdict. See=20
Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App.=20
2003).
<=
/SPAN>We=20
may not re-weigh the evidence and substitute our judgment for that =
of the=20
fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. =
App.=20
2000). The fact-finder alone determines what weight to place on=20
contradictory testimonial evidence because that determination =
depends on=20
the fact-finder=E2=80=99s evaluation of credibility and demeanor. =
Cain v.=20
State, 958 S.W.2d 404, 408=E2=80=9309 (Tex. Crim. App. =
1997). As the=20
determiner of the credibility of the witnesses, the fact-finder =
may choose=20
to believe all, some, or none of the testimony presented. =
Id. at=20
407 n.5.
=
Appellant=20
repeats the same assertions regarding the reasons that the =
evidence is=20
factually insufficient as he stated in his legal sufficiency=20
complaint.
=
1. Alleged Accomplices Never Charged =
With=20
Crime
=
As=20
we stated in our legal sufficiency of the evidence analysis, =
appellant may=20
be convicted of theft as a party to the offense even if the =
alleged=20
accomplices were not charged with the crime.
<=
/SPAN>2.=20
The Scripts Used by the Telemarketers
<=
/SPAN> As we =
noted in=20
the legal sufficiency of the evidence analysis, the evidence =
undisputedly=20
shows that appellant had no role in the preparation or use =
of the=20
scripts that were used during telemarketing.
<=
/SPAN>3. Appellant=E2=80=99s Contact with=20
Merritt
=
As we =
also=20
determined in the legal sufficiency of the evidence analysis, the =
evidence=20
undisputedly shows that appellant had no contact with Merritt, the =
primary=20
telemarketer that received the funds during the Toys for Tots=20
solicitations.
=
; 4. Appellant=E2=80=99s Control Over=20
Disposition of Funds
<=
/SPAN>In=20
our legal sufficiency of the evidence review of the evidence in a =
light=20
most favorable to the jury=E2=80=99s verdict, we concluded that =
some evidence=20
showed that =
appellant=20
controlled funds for the organization because he =E2=80=9Ccalled =
the shots=E2=80=9D for the=20
organization, signed most of the checks that paid Kowalsky for the =
telemarketing, signed most of the checks issued by the =
organization, and=20
used a credit card that belonged to the organization to cover his =
expenses=20
while performing work for the organization. When the evidence =
concerning=20
appellant=E2=80=99s control over the organization=E2=80=99s funds =
is viewed neutrally,=20
however, the overwhelming evidence shows that he lacked control =
over the=20
disposition of funds.
=
A=20
witness testified that appellant =E2=80=9Ccalled the =
shots=E2=80=9D for the organization,=20
but that testimony is contrary to the overwhelming weight of the =
evidence=20
that shows that appellant did not control the =
organization=E2=80=99s funds. The=20
constitution and bylaws for the organization provide that the =
board of=20
directors, not the president, controls the disposition of funds. =
No=20
evidence shows that appellant voted or participated in the =
decision to=20
spend funds received from the telemarketers for the general =
purposes of=20
the organization, such as the organization=E2=80=99s Christmas =
party in 1999.=20
Thus, although appellant generally called the shots for the =
organization,=20
when that evidence is viewed neutrally and in light of contrary =
evidence,=20
the great weight and preponderance of the evidence in the record =
shows=20
that the board, not appellant, decided how the =
organization=E2=80=99s funds would=20
be spent.
<=
/SPAN> We=20
also noted in our legal sufficiency review that the record shows =
that=20
appellant signed most of the checks written by the organization =
and signed=20
most of the checks written as payment to Kowalsky for the =
telemarketing.=20
But when the evidence is viewed neutrally and in light of contrary =
evidence, the evidence shows that appellant merely acted in =
conformance=20
with the constitution and bylaws for the organization, which =
provided that=20
the president and treasurer are the preferred signatories for =
checks=20
written by the organization. Although appellant carried out the=20
ministerial duty of signing the checks, the board exclusively =
controlled=20
the decisions concerning how funds for the organization were =
spent.=20
Moreover, appellant=E2=80=99s signature on the check that paid =
Kowalsky for his=20
telemarketing services shows only that appellant was aware of the =
amounts=20
paid to Kowalsky and does not constitute evidence that appellant =
was aware=20
of the content of the telemarketing. We note further =
that=20
although appellant had use of a credit card that belonged to the=20
organization, the use of that credit card was limited to covering =
his=20
expenses while performing work for the organization. We =
conclude=20
therefore that the great weight and preponderance of the evidence =
shows=20
that appellant did not make the decisions regarding how the funds =
received=20
from the Toys for Tots solicitations would be =
spent.
5.=20
Appellant=E2=80=99s Lack of Personal =
Gain
=
We=20
noted in our legal sufficiency review that some evidence in the =
record=20
shows that appellant personally gained =
from the=20
telemarketing because funds received from the telemarketing were =
used to=20
host a party. We also noted that appellant received a stipend and =
used a=20
credit card in his role as president of the organization. When the =
totality of the evidence introduced at trial is considered and =
viewed=20
neutrally, the great weight an preponderance of the evidence in =
the record=20
shows that appellant did not personally benefit from the =
Toys for=20
Tots solicitations.=20
<=
/SPAN>The=20
evidence is undisputed that appellant never received any funds =
that had=20
not been approved by the board. Appellant=E2=80=99s receipt of a =
stipend of $1,500=20
for his services as president of the organization and use of the=20
organization=E2=80=99s credit card for other expenses that he =
incurred while=20
performing duties for the organization were his benefits =
regardless of=20
whether funds were collected through the Toys for Tots program. =
Appellant=20
was also a member of the organization and attended the Christmas =
party,=20
but, as discussed above, the decision to finance the party with =
funds=20
raised by the telemarketers was made by the board and not by =
appellant.=20
The record also shows that expenses incurred by the organization, =
such as=20
appellant=E2=80=99s stipend and use of the credit card were =
primarily paid by the=20
members=E2=80=99 dues. We conclude therefore that the great weight =
and=20
preponderance of the evidence shows that appellant did not =
personally=20
benefit from the funds received from the Toys for Tots =
solicitations.=20
=
6.=20
Donations to Toys for Tots =
=
As=20
we noted above, when the evidence is viewed in a light most =
favorable to=20
the jury=E2=80=99s verdict, some evidence shows that appellant had =
criminal intent=20
to commit theft because he failed to donate toys to Toys for Tots =
until=20
the investigation into the telemarketing became public and failed =
to=20
adequately compensate Toys for Tots commensurate with the amounts =
received=20
by the organization through the solicitations. In our neutral =
review of=20
the total record, however, the evidence overwhelmingly shows that =
the=20
organization made more than one donation to Toys for Tots in =
amounts=20
determined by the treasurer and not appellant.
<=
/SPAN>The=20
overwhelming weight of the evidence shows that the organization =
donated=20
toys to Toys for Tots in December 2000 and at least once prior to =
December=20
2000. Padilla stated that on at least two occasions the board =
voted to buy=20
toys for Toys for Tots to be donated at the MASO Christmas party =
and that=20
checks were written for that purpose, although she did not know to =
whom=20
the checks were made payable because the checks could have been =
written to=20
the person purchasing the toys or the store where the toys were =
purchased.=20
Marty Rocha testified that he has been a member of MASO for nine =
years,=20
that he solicited money from the organization several times for =
MASO=E2=80=99s=20
Toys for Tots event, and that he received at least one $500 check =
for Toys=20
for Tots in 1998 or 1999. Sammie Rinehart also testified that she =
recalled=20
Rocha coming in several times and getting several donations for =
Toys for=20
Tots. Appellant similarly testified that donations were made to =
Toys for=20
Tots before December 2000.
<=
/SPAN>The=20
only witnesses to possibly suggest that the organization may not =
have=20
donated toys to Toys for Tots prior to December 2000 were Guthrie, =
Tabor,=20
and the State=E2=80=99s fraud examiner, but their testimony was =
speculative.=20
Guthrie was vice- president after Tabor left in 1999, through =
2000, and he=20
was also a board member beginning in 1997 or 1998. =
Guthrie=E2=80=99s testimony=20
only tentatively stated that he was =E2=80=9Cnot aware=E2=80=9D of =
any toy donations that=20
were made before November 2000. Tabor, the vice-president, denied=20
knowledge of any requests for the board to purchase toys for Toys =
for=20
Tots, but he left the organization in October 1999, before the =
donations=20
were made in 1999 and 2000. The State=E2=80=99s fraud examiner =
testified that no=20
checks written by the organization had a notation mentioning Toys =
for=20
Tots, but he conceded that some checks had no notations. Although =
Guthrie,=20
Tabor, and the fraud examiner speculate that no donations were =
made to=20
Toys for Tots before 2000, the only direct evidence in the record =
from=20
Padilla, Rocha, and Rinehart establishes that the organization =
supported=20
Toys for Tots for years. Even if the jury disregarded testimony =
from=20
Padilla, Rocha, and Rinehart because it found them not credible, =
the=20
evidence fails to establish that no donations were made to Toys =
for Tots.=20
=
Additionally,=20
the State contends that only a small amount of funds were donated =
to Toys=20
for Tots and only an insignificant amount of =
=E2=80=9Ccharitable=E2=80=9D checks were=20
written by the organization. The evidence shows, however, that =
appellant=20
was not the person responsible for receiving checks from Kowalsky =
or=20
determining the amounts due to Toys for Tots. The clerks received =
the=20
funds and reported the amounts to the treasurer. Padilla, the =
treasurer,=20
testified that she calculated that $1,700 was the correct amount =
to donate=20
to Toys for Tots because that was the amount that she believed the =
organization had received from the Toys for Tots telemarketing. =
Appellant,=20
therefore, had no role in determining the amounts due to Toys for =
Tots=20
from the proceeds received from the telemarketers. Additionally, =
although=20
the telemarketers kept 75 to 80 percent of the contributions they =
received=20
from the telemarketing, Tabor and the board entered into this =
financial=20
relationship, not appellant. We thus conclude that the great =
weight and=20
preponderance of the evidence shows that the =
organization=20
made more than one donation to Toys for Tots in amounts determined =
by the=20
treasurer and not appellant.
=
7. The=20
Correspondence
=
In=20
our legal sufficiency review, we viewed the evidence in a light =
most=20
favorable to the trial court=E2=80=99s verdict and concluded that =
the statement in=20
the letter that says, =E2=80=9CLet us =
all as a community=20
give what we can in order to bring Some Joy and Laughter into the =
lives of=20
those who are less fortunate Than others=E2=80=9D is more than a =
scintilla of=20
evidence of a solicitation. When that =
statement is=20
viewed neutrally and in light of the totality of the letter and =
evidence=20
in the record, the single statement in the letter is greatly =
outweighed by=20
evidence that the letter was not a solicitation and was not =
deceptive or=20
untrue.
=
The=20
great weight and preponderance of the evidence shows that the =
organization=20
acted in accordance with its representations in the letter, which =
state,=20
=E2=80=9CEvery year at this time the Harris County =
Deputies=E2=80=99 Organization=20
lends A helping hand of support to the =E2=80=98=20
TOYS FOR TOTS =E2=80=98 [sic] program.=E2=80=9D As noted =
above, the great weight=20
and preponderance of the evidence shows that the organization =
donated toys=20
to Toys for Tots in December 2000 and at least once prior to =
December=20
2000. The correspondence also commits to =E2=80=9Csupport=E2=80=9D =
Toys for Tots, without=20
stating any particular amounts or percentages. As noted above, =
appellant=20
was not the person responsible for receiving checks from Kowalsky =
or=20
determining the amounts due to Toys for Tots. We also noted above =
that the=20
treasurer was the person who calculated that $1,700 was the =
correct amount=20
to donate to Toys for Tots. We conclude that the great weight and=20
preponderance of the evidence shows that the organization acted in =
accordance with the representations made by appellant in the=20
correspondence and that the statements in the correspondence were =
not=20
untrue or deceptive.
<=
/SPAN>8. Lack of Consent from the Marines =
and=20
Representations to the Board
=
As=20
we noted in our legal sufficiency of the evidence review, some =
evidence in=20
the record shows that appellant had criminal intent because =
appellant had=20
no consent from the Marines to collect funds for Toys for Tots and =
then=20
made false statements about his autho