Opinion
No. 05-08-01037-CR
Opinion issued December 18, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 366th District Court, Collin County, Texas, Trial Court Cause No. 366-80165-06.
Before Justices BRIDGES, O'NEILL, and MURPHY.
OPINION
Carrie Marie Choat appeals her misapplication of fiduciary property conviction. A jury convicted appellant, and the trial court assessed punishment at two years' confinement, suspended for five years. In four issues, appellant argues the trial court erred in denying her motion to quash, failing to submit specific transaction evidence in the jury instructions, failing to submit a lesser included offense, and the evidence was legally and factually insufficient to support her conviction. We affirm the trial court's judgment. From May 2005 to April 2006, appellant was treasurer of the Marquette Booster Club, an organization that supports the McKinney High School drill team. Debra Selvidge, a former treasurer of the club, prepared the club's tax returns for the fiscal year during which appellant was the club's treasurer. Selvidge reviewed 795 pages of the club's bank records. Using bank statements, deposit and check registers she received from Jeff Gilliam, president of the club, Selvidge was able to generate a tax return, but she "had a lot of questions." Selvidge had been involved with the club for years, and she knew the club had "basically the same" fund raisers each year, some of which should have generated cash deposits. However, Selvidge found no cash deposits for the fund raisers in the club's records. Selvidge saw several instances where cash had been withdrawn from the club account to be used for petty cash to make change for the sale of programs at football games. However, none of the cash was ever re-deposited. The club held a spring show each year that ran three nights in a row. The records showed a cash withdrawal of $300 for the first night, $200 the second night, and $1000 the third night. Selvidge found no cash deposit to show the cash was returned, and the records showed no deposit of proceeds from ticket sales. Genevieve Peche succeeded as club president when Gilliam resigned, and she initially reviewed a check register and then copies of all the checks that were written out during appellant's time as treasurer. Peche reviewed the club's bank statements and created a spreadsheet showing appellant deposited a total of $8004.40, including amounts she deposited as payments for her daughter's expenses in the Marquettes. Using information appellant provided during the year regarding how much the club made from various events during the year and a spreadsheet appellant provided, Peche determined the club should have had $21,000 in cash deposits. Appellant was indicted for the offense of misapplication of fiduciary property in an amount at least $1500 but less than $20,000. At trial, Janio Lee, an investigator with the McKinney police department, testified he subpoenaed appellant's checking account records, but he could find no evidence that deposits into appellant's account correlated with cash transactions from the club. Rick McKeown testified he was friends with appellant in high school and resumed their relationship approximately twenty years later in 2005. McKeown testified appellant spent $1500 on meals and expenses over several months while they rekindled their relationship. All the money appellant spent was cash. At the time, McKeown understood that, financially, appellant was "behind very badly." Appellant's house was about to be foreclosed on, the electric bill was behind, and other bills were behind as well. A jury convicted appellant, and this appeal followed. In her first issue, appellant argues the trial court erred in denying her motion to quash the indictment. Specifically, appellant argues her due process rights were violated because the indictment was not specific enough to inform her of the nature of the offense. When reviewing a trial court's decision to deny a motion to quash an indictment, we apply a de novo standard of review. Lawrence v. State, 240 S.W.3d 912, 915 (Tex.Crim.App. 2007); State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App. 2004) (explaining that the sufficiency of an indictment is a question of law). "Upon the filing of a timely motion to quash, an indictment must be analyzed to determine whether it states on its face the facts necessary to allege that an offense was committed, to bar a subsequent prosecution for the same offense, and to give the accused notice of the precise offense with which he is charged." Rotenberry v. State, 245 S.W.3d 583, 586 (Tex. App.-Fort Worth 2007, pet. ref'd). This due process requirement may be satisfied by means other than the language in the indictment. Moff, 154 S.W.3d 599, 603 (Tex. Crim. App. 2004) (quoting Kellar v. State, 108 S.W.3d 311, 313 (Tex. Crim. App. 2003). In Kellar, prior to trial, the State filed an itemized list containing the dates, check numbers, and amounts of each transaction, which provided the defendant with sufficient notice to prepare his defense. Moff, 154 S.W.3d at 603; Kellar, 108 S.W.3d at 314. The indictment must state facts which, if proved, show a violation of the law; the indictment must be dismissed if such facts would not constitute a criminal offense. Id.; see Posey v. State, 545 S.W.2d 162, 163 (Tex. Crim. App. 1977). When a motion to quash is overruled, a defendant suffers no harm unless he did not, in fact, receive notice of the State's theory against which he would have to defend. Moff, 154 S.W.3d at 601, 603; see also Tex. Code Crim. Proc. Ann. Art. 21.19 (Vernon 2009) ("An indictment shall not be held insufficient, nor shall the trial, judgment or other proceedings thereon be affected, by reason of any defect of form which does not prejudice the substantial rights of the defendant."). However, in most cases, "an indictment is legally sufficient if it delineates the penal statute in question." See Moff, 154 S.W.3d at 602; Roberts v. State, 278 S.W.3d 778, 792 (Tex. App.-San Antonio 2008, pet. ref'd); see also DeVaughn v. State, 749 S.W.2d 62, 67 (Tex.Crim.App. 1988) (explaining that a "motion to quash should be granted only where the language concerning the defendant's conduct is so vague or indefinite as to deny the defendant effective notice of the acts he allegedly committed"); State v. Laird, 208 S.W.3d 667, 669 (Tex. App.-Fort Worth 2006, no pet.) (same). And although the State in some circumstances is required to go further by specifying manners and means of committing an offense in its indictment, it is entitled to, conjunctively or disjunctively, allege any or all of the statutorily defined types of conduct. See State v. Winskey, 790 S.W.2d 641, 642 (Tex.Crim.App. 1990) (explaining that if "a statute provides more than one way for the defendant to commit the act or omission, then on timely request the State must allege the manner and means it seeks to establish, either separately or in some disjunctive combination") (emphasis added); Queen v. State, 662 S.W.2d 338, 341 (Tex.Crim.App. 1983); Ferguson v. State, 622 S.W.2d 846, 851 (Tex.Crim.App. 1981) (op. on reh'g); Hartis v. State, 183 S.W.3d 793, 801 (Tex. App.-Houston [14th Dist.] 2005, no pet.). Also, the indictment is not required to contain matters that are only evidentiary, such as the specific manner of contact in an indecency with a child case. See State v. Shuck, 222 S.W.3d 113, 115-16 (Tex. App.-Houston [14th Dist.] 2006, no pet.). The indictment in this case alleged appellant committed the following offense:
intentionally, knowingly, and recklessly misapply property, to wit: lawful United States currency, of the value of at least Fifteen Hundred Dollars ($1500.00) but less than Twenty Thousand Dollars ($20,000.00), that [appellant] held as a fiduciary or as a person acting in a fiduciary capacity, but not as a commercial bailee, contrary to an agreement under which [appellant] held the property, and in a manner that involved substantial risk of loss of the property to Marquette Booster Club, and Jeff Gilliam, and Genevieve Peche, the owner(s) of said property, and the person for whose benefit the property was held, by failing to keep proper accounting of the income and expenses of the Marquette Booster Club, and by failing to deposit cash into the bank account of the Marquette Booster Club, and failing to keep proper receipts for expenses incurred by the Marquette Booster Club, and submitting false receipts for expenses incurred by the Marquette Booster Club, and submitting receipts to the Marquette Booster Club for reimbursement of expenses that were not incurred by the Marquette Booster Club. . . .Appellant filed a motion to quash, alleging the indictment failed to provide sufficient notice of specific transactions made during the time frame in the indictment that allegedly violate the statute. In response, the State filed a three-page summary of appellant's "illegal" transactions. The summary detailed seven specific occasions when appellant failed to deposit cash into the club's bank account and one specific instance of failing to keep proper receipts. Each specific instance listed on the summary referred to attached copies of spreadsheets, bank records, and club records detailing each specific instance. Also attached to the summary was a four-page document entitled "comparison of bank deposit copies and check register" which detailed twenty-six instances when the club's check register showed cash withdrawals but bank records did not show corresponding deposits after the cash was used for petty cash or that was received as income at various events. The trial court denied appellant's motion to quash. Appellant argues the State's three-page summary is a "mass of material" containing "70 pages of ledger sheets, pages of hundreds of copies of checks, hearsay summaries and speculation, and dozens of receipts, none of which are specifically identified or detailed." On the contrary, the summary details seven specific occasions when appellant failed to deposit cash into the club's bank account and one specific instance of failing to keep proper receipts. The "mass of material" contains documents supporting each specific instance. We conclude the indictment in this case, along with the summary, states on its face the facts necessary to allege that an offense was committed and to give appellant notice of the precise offense with which she was charged. Moff, 154 S.W.3d at 603; Rotenberry, 245 S.W.3d at 586. Thus, appellant received notice of the State's theory against which she would have to defend. Moff, 154 S.W.3d at 601, 603. Accordingly, the trial court did not err in denying appellant's motion to quash. See id. We overrule appellant's first issue. In her second issue, appellant argues the trial court erred in failing to include in the jury charge the list of specific transactions contained in the summary. Specifically, appellant argues the failure to include the summary allowed the State "to go to the jury on an indictment that is less than what was actually alleged." Appellant's argument appears to be that, by using the summary to support the allegations in the indictment, the summary of illegal transactions became part of the indictment. As support for this argument, appellant cites Dunn v. State, 646 S.W.2d 576, 578 (Tex. App.-Amarillo 1983, no pet.). Dunn involved a jury charge that contained three constitutionally deficient counts and a single offense validly charged. Id. at 579. The jury was instructed that it must "assess and fix the punishment" for all four counts, and the court held this constituted fundamental error. Id. In that case, the court found the defendant was not properly charged in the indictment. Id. at 578. However, Dunn does not address the situation involved in this case where the trial court charged the jury according to the indictment but refused to include in the charge a summary used for purposes of putting appellant on notice of the charges against her. The court of criminal appeals has approved of this process in Kellar. See Moff, 154 S.W.3d at 603; Kellar, 108 S.W.3d at 314. In making a novel argument for which there is no authority directly on point, an appellant must ground such a contention in analogous case law or provide the Court with the relevant jurisprudential framework for evaluating the claim. Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000). We overrule appellant's second issue. In her third issue, appellant argues the trial court erred in failing to submit to the jury the lesser included offense of misapplication of fiduciary funds in an amount less than the minimum $1500 charged in the indictment. A two-prong test must be met before a jury instruction on a lesser-included offense must be given: (1) the lesser-included offense must be included within the proof necessary to establish the offense charged and (2) some evidence must exist that, if the defendant is guilty, he is guilty only of the lesser offense. Hampton v. State, 109 S.W.3d 437, 440 (Tex. Crim. App. 2003) (citing Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993). Both prongs of the test must be met, regardless of whether such an instruction is requested by the defendant or by the State. Hampton, 109 S.W.3d at 440 (citing Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000)). The offense of misapplication of fiduciary property is a Class A misdemeanor if the value of the property misapplied is $500 or more but less than $1500 and a Class B misdemeanor if the value of the property is $20 or more but less than $500. Tex. Penal Code Ann. § 32.45(c)(2), (3) (Vernon Supp. 2009). The indictment in this case charged appellant with misapplication of funds in an amount more than $1500 but less than $20,000. Appellant requested that the jury charge include the lesser-included Class A and Class B misdemeanor offenses, and that request was denied. Appellant's theory of the case was that she did nothing wrong and was only trying to manage the club's money to the best of her ability. She pointed out during closing argument that the club members did not "do without" while she was treasurer. Thus, appellant's argument was that she did not misapply any amount. Evidence that no offense occurred at all is not adequate to raise the issue of a lesser-included offense. See Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001). Accordingly, the trial court did not err in refusing to instruct the jury on the lesser included offense of misapplication of funds in an amount less than $1500. See id. We overrule appellant's third issue. In her fourth issue, appellant argues the evidence was legally and factually insufficient to support her conviction. In a legal sufficiency review, we view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991). Specifically, we ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. As the exclusive judge of the weight and credibility of the witnesses' testimony, the jury is free to believe or disbelieve evidence from either side. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). In a factual sufficiency review, we view the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case based on factual insufficiency, we look at the evidence objectively and find that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. As a reviewing court, we may substitute our judgment for the jury's determinations on the weight and credibility of the evidence only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (stating that the factual sufficiency review requires "due deference" to be afforded to jury's determinations). Absent a contradictory showing from the record, we should defer to the jury's determinations regarding the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). Here, Peche reviewed the club's bank statements and created a spreadsheet showing appellant deposited a total of $8004.40, including amounts she deposited as payments for her daughter's expenses in the Marquettes. Using information appellant provided during the year regarding how much the club made from various events during the year and a spreadsheet appellant provided, Peche determined the club should have had $21,000 in cash deposits. Selvidge saw several instances where cash had been withdrawn from the club account to be used for petty cash to make change for the sale of programs at football games. However, none of the cash was ever re-deposited. The club held a spring show each year that ran three nights in a row. The records showed a cash withdrawal of $300 for the first night, $200 the second night, and $1000 the third night. Selvidge found no cash deposit to show the cash was returned, and the records showed no deposit of proceeds from ticket sales. McKeown testified appellant spent $1500 in cash on him and was "behind very badly" on her bills. Appellant argues the record shows she spent petty cash to purchase "various necessary items for the good of the" club. However, appellant does not offer evidence to account for the misapplication of funds alleged in the indictment and specified in the summary of illegal transactions and supporting financial records. Under these circumstances, the evidence was legally and factually sufficient to show appellant misappropriated fiduciary funds in an amount more than $1500 but less than $20,000. See Jackson, 443 U.S. at 318-319; Watson, 204 S.W.3d at 415. We overrule appellant's fourth issue. We affirm the trial court's judgment.