Dirden v. State

• Decision Date: 24 August 2016
• Docket Number: NO. 09-14-00330-CR,09-14-00330-CR
• Parties: DENISE WILNELL DIRDEN, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

DENISE WILNELL DIRDEN, Appellant v. THE STATE OF TEXAS, Appellee

NO. 09-14-00330-CR

Court of Appeals Ninth District of Texas at Beaumont

Submitted on December 1, 2015

August 24, 2016

On Appeal from the 9th District Court Montgomery County, Texas

Trial Cause No. 12-01-00323 CR

MEMORANDUM OPINION

The State initially charged Denise Wilnell Dirden (Denise or Appellant) with aggregate theft of money over $200,000, "from Ike Martin and/or Martin Wood Company and/or Stoneham Mill Company, the owner, . . . pursuant to one scheme or continuing course of conduct which began on January 28, 2008, and continued until on or about December 16, 2008[.]" See Tex. Penal Code Ann. §§ 31.03, 31.09 (West 2011 and Supp. 2015). The State amended the indictment. In the Amended Indictment, the State amended the defendant's name, the owners' names, and added language specifying that the money came from "account number(s) 1003706 and 1047786 at First Bank of Conroe, N.A[.]" Denise pleaded "not guilty." A jury found Denise guilty "of theft, as charged in the indictment." Denise elected to have the trial court assess punishment, and the court sentenced Denise to fifty years in prison. Denise timely appealed, raising six issues. We affirm the trial court judgment as reformed to correct a clerical error.

EVIDENCE AT TRIAL

Isaac Martin III (Ike) owned two timber-related businesses: Stoneham Mill, Inc. (Stoneham Mill), a hardwood sawmill, and Martin Wood Company, Inc. (Martin Wood), a factoring company. Upon delivering timber to a sawmill (including, but not limited to, Stoneham Mill), loggers would receive a scale ticket that recorded the date of delivery, the name of the logger, and the weight of the timber. Martin Wood purchased scale tickets from loggers at a discounted rate, and by paying loggers a discounted rate for their scale tickets, Martin Wood made a four percent profit. Ike explained the Martin Wood business model at trial:

Q. . . . Do you have a lot of expenses with Martin Wood?

A. No.

Q. Any reason why Martin Wood should lose money?

A. No.

Q. Why do you laugh?

A. Because there is no way to lose money.

Q. Why do you say that?

A. Because the expenses are so -- the expenses are so low. All you're paying is basically a light bill and someone to sit there and write the checks and pay for the timber. A $1,000 a week maybe.

Q. In expenses?

A. At the most, yes.

Q. So your profit is four percent. What's the risk for you?

A. Loaning money I suppose, stealing money, loaning money. There really is no risk.

Q. Okay. There is no risk because it's just a profit business?

A. Unless you start loaning people money, there's basically no way to lose.

In addition to paying loggers on a factored basis, Martin Wood paid landowners for stumpage and advanced loggers funds for certain business expenses, both of which were to be later deducted from the amount paid to the loggers. Denise and Patricia Brown (Patricia), who also worked in the Martin Wood office, completed "settlement sheets" that were supposed to itemize the amount due to each logger, based on the quantity and type of wood delivered, and reflect deductions necessary for stumpage or for advances previously made to the logger.

Denise worked as the office manager for Ike's companies from 2002 until March or April of 2009. Her job duties included buying log tickets from loggers, paying bills, depositing money in the bank, and bookkeeping. As office manager, she also supervised two office employees: her son Trinity Howard (Trinity) and Patricia. During the relevant time period, Martin Wood utilized accounting software called QuickBooks to electronically maintain checkbook records. Denise was authorized to advance up to $1000 to loggers.

When she started working for Ike, Denise was married to Donald Ray Howard (Ray), who also worked for Ike at Stoneham Mill. Denise filed for a divorce from Ray in July of 2008 and received a decree of divorce on October 1, 2008. Denise began seeing Lawrence Dirden¹ (Lawrence) in 2008 and married Lawrence in 2010.

Ike testified that bounced checks were not "uncommon" for Martin Wood, and Ike was not concerned about the Martin Wood bounced checks because he felt they merely reflected a "cash flow problem" and a "cost of doing business." However, at some point in mid-2008, Ike noticed that the Stoneham Mill bank account also had problems with bounced checks and insufficient funds. Ikeexplained that, in early 2009, he asked Patricia to do an internal audit to reconcile "receivables or the wood we bought with the wood that was being paid for."

Ike explained that he had first perceived Lawrence to be a part-time logger, but later perceived him to be a full-time logger based on the value of the scale tickets Martin Wood was purchasing from Lawrence and from Lawrence's logging company, L2, Inc. (L2). The scale tickets indicated that L2 was selling large quantities of lumber to sawmills. At trial, Ike recognized Denise's handwriting on Stoneham Mill lumber tickets written to L2. Ike testified that it was not part of Denise's job to write lumber tickets on behalf of Stoneham Mill. Trinity also testified that he recognized Denise's handwriting on Stoneham Mill scale tickets issued to L2, that Denise was not supposed to be filling out any scale tickets for Stoneham Mill, and that Trinity was responsible for completing Stoneham Mill scale tickets. Erin Smith (Smith), a forensic examiner with the Montgomery County district attorney's office, testified that during this time period, L2's bank accounts did not reflect any increased payments to L2's workers despite the L2 scale tickets showing an increase in logging activity.

Ultimately, Ike approached law enforcement alleging Denise was misappropriating funds from him or his companies, and he presented certain checks to back up his claim. Ike believed the primary way Denise took moneyfrom him was by writing checks. Ike agreed that "most of the theft in this case occurred [] in September and October[,] in the fall of 2008[.]" Due in part to "trust issues" Ike had concerning Denise, on October 24, 2008, Ike opened an account at Woodforest National Bank for Martin Wood, and he instructed Denise that she should no longer use the First Bank of Conroe account for Martin Wood. He also deleted Denise as an authorized signer on the First Bank of Conroe account for Martin Wood. Ike estimated that ultimately Martin Wood lost about seventy-five percent of its business as a result of loggers getting bounced checks.

At trial, Ike recognized numerous checks Denise had written for expenses related to the construction of Denise and Lawrence's home, and Ike testified that he did not authorize any such checks. Trinity testified that he was with Denise at Home Depot on an occasion when Denise picked up home construction items for Denise and Lawrence's home and paid for the items with a Stoneham Mill check. Patricia also testified that she was with Denise on an occasion when Denise picked up faucet fixtures and paid using a Stoneham Mill check.

The State offered a summary of fifty-five checks written on Stoneham Mill or Martin Wood First Bank of Conroe accounts that had been made payable to Trinity, totaling $55,161. Trinity testified at trial that Denise had written the checks payable to him, he cashed the checks, and he gave the cash to Denise. Ike testifiedthat none of the fifty-five checks written to Trinity were authorized. Leah Howard (Leah), who is married to Denise's son Dennis Howard (Dennis), also testified at trial. Leah worked at Martin Wood, and she testified that Denise also wrote checks payable to Leah, Leah would cash the checks, and Leah would take the cash to Denise.

According to Trinity, at one point in 2008, Denise was "never at the office anymore. She just hardly was ever there." Trinity told Denise he knew she was seeing someone, and that

I didn't want to tell her who I thought it was. I wanted to wait and find out who it was. So I told her -- I said, I know. I just don't know who it is. She told me, well, it's Lawrence. And I said, Lawrence Dirden? She said, yeah, Lawrence Dirden. And she told me I couldn't tell anyone. No matter what, to not tell anyone. I asked her why. She said because Ike thinks I'm stealing money from him. If he finds out that me and Lawrence are together, he's going to think I'm stealing it for Lawrence.

. . . .

I asked her if she was stealing money for Lawrence. She said, no. All she did was loan Lawrence money. And I said, well, then it don't matter if y'all are together and they find out. If you've loaned him money, you are -- she was at a position at her job where she could loan money to people, you know, and get money back without having to ask for permission.

Trinity also testified that Denise and Lawrence had asked him to take the blame:

. . . Denise and Lawrence had stated to me if I took the blame for the money that was in my name, for the checks that are in myname, that I wouldn't get in trouble for them because I was a minor at the time. I was under the age. And the most I would get for was probation, and they couldn't send me to jail for it or anything.

. . . .

And then that's when we kind of had our falling out. Not right then, but afterwards I quit talking to her because I didn't want to take blame for something that I didn't do and end up going to jail or getting probation for it.

. . . .

. . . Denise was telling me that if I took the blame for the checks that were in my name that I wouldn't get in any trouble. And then that's when I told them I will get in trouble, you know, because it was still stealing. And Lawrence said, well, you was under the age at the time that it happened. Nothing can happen to you. And then that's when Denise told me all that would happen is I would get probation.

Patricia also testified that Denise would miss work because Denise was with Lawrence. According to Patricia, it was common knowledge that Denise and Lawrence were together, but Patricia also explained that she kept this secret...