Wirth v. State , 2010 Tex. Crim. App. LEXIS 1675 ( 2010 )

327 S.W.3d 164 (2010)

Raymond Waier WIRTH, Appellant,
v.
The STATE of Texas.

No. PD-1716-09.

Court of Criminal Appeals of Texas.

December 15, 2010.

Jason Butscher, Sherman, for Appellant.

John B. Setterberg, Asst. Crim. Dist. Atty., Bonham, Lisa C. McMinn, State's Atty., Austin, for State.

OPINION

JOHNSON, J., delivered the opinion of the Court in which KELLER, P.J., PRICE, WOMACK, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

Appellant was indicted for the offense of theft of property over $200,000 pursuant to one scheme and continuing course of conduct. TEX. PENAL CODE § 31.03(a). A jury convicted appellant of the lesser offense of theft of $20,000 or more but less than $100,000, assessed a punishment of ten years' imprisonment and a $10,000 fine, and recommended community supervision. Wirth v. State, 296 S.W.3d 895, 897 (Tex. App.-Texarkana 2009). The trial court sentenced appellant to ten years' incarceration, probated for five years, fined him $10,000, and ordered him to pay restitution of $128,103.27.

In the court of appeals, appellant argued that the evidence was legally and factually insufficient to support the verdict because the evidence could not support a finding of intent to commit theft. The court of appeals held that the evidence was factually insufficient to support the verdict, pursuant to Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996). Wirth v. State, 296 S.W.3d 895 (Tex.App.-Texarkana 2009).

At the time that the court of appeals considered this case, this Court had not issued its opinion in Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App.2010), in which we overruled Clewis. We therefore vacate the judgment of the court of appeals and remand the case to that court for reconsideration pursuant to Brooks.

MEYERS, J., dissented.