                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-14-00053-CR

WESLEY THEODORE BURNS,
                                                               Appellant
v.

THE STATE OF TEXAS,
                                                               Appellee



                           From the 361st District Court
                               Brazos County, Texas
                         Trial Court No. 11-02209-CRF-361


                            MEMORANDUM OPINION

       Wesley Burns appeals from a conviction for the offense of misapplication of

fiduciary property. TEX. PENAL CODE ANN. § 32.45 (West 2011). Burns complains that the

abstract portion of the jury charge was erroneous because it included definitions of terms

that were not authorized by the indictment, that the evidence was insufficient, and that

he received ineffective assistance of counsel. Because we find no reversible error, we

affirm the judgment of the trial court. Because the sufficiency of the evidence is relevant

in our analysis of Burns’ first issue, we will address the sufficiency issue first.
Sufficiency of the Evidence

        In his second issue, Burns complains that the evidence was insufficient for the jury

to have found beyond a reasonable doubt that Burns was the person who did not abide

by an agreement to deposit cash into the victim’s account that was accepted on the

victim’s behalf. See TEX. PENAL CODE ANN. § 32.45(a)(2)(A). The Court of Criminal

Appeals has expressed our standard of review of a sufficiency issue as follows:

        In determining whether the evidence is legally sufficient to support a
        conviction, a reviewing court must consider all of the evidence in the light
        most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the
        responsibility of the trier of fact fairly to resolve conflicts in the testimony,
        to weigh the evidence, and to draw reasonable inferences from basic facts
        to ultimate facts.” Jackson, 443 U.S. at 319. “Each fact need not point directly
        and independently to the guilt of the appellant, as long as the cumulative
        force of all the incriminating circumstances is sufficient to support the
        conviction.” Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

        The Court of Criminal Appeals has also explained that our review of “all of the

evidence” includes evidence that was properly and improperly admitted. Conner v. State,

67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. at 326.

Further, direct and circumstantial evidence are treated equally: “Circumstantial evidence

is as probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt.” Hooper v. State, 214 S.W.3d at 13.

Burns v. State                                                                              Page 2
Finally, it is well established that the factfinder is entitled to judge the credibility of

witnesses and can choose to believe all, some, or none of the testimony presented by the

parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

        Burns argues that the evidence was insufficient for any reasonable juror to have

found that Burns unlawfully appropriated property; however, neither the indictment nor

the jury charge authorized the jury to find Burns guilty on this basis. Burns also argues

that the evidence was insufficient for the jury to have found that Burns was the individual

who misapplied the property in question. Section 32.45(a)(2)(A) of the Penal Code

defines “misapply” as dealing with property contrary to “an agreement under which the

fiduciary holds the property.” TEX. PENAL CODE ANN. § 32.45(a)(2)(A).

Background Facts

        Burns was the property manager for Galindo Properties, and his duties included

depositing rents the same day they were received and not accepting cash payments as

rent. However, testimony was presented regarding multiple individuals who paid Burns

personally in cash for rent and other expenses, and those payments were not deposited

into Galindo’s account nor were they accounted for in Galindo’s accounting system.

There were other individuals employed by Galindo during the same time period as Burns

who were allowed by Burns to accept rental payments by cash, check, or money order or

who were occasionally allowed to make deposits at the bank.               One person who

occasionally made deposits at the bank testified that the deposits never contained cash

when she made them.



Burns v. State                                                                       Page 3
        When asked about the missing money, Burns denied knowing where the missing

money was but admitted to an investigator that he would have been the last person to

possess the money. At trial, Burns testified that he was responsible for ensuring that the

cash was deposited and that there was money that had not been deposited, although he

denied knowing where the money had gone.

Analysis

        The jury was presented with evidence of Burns and other employees having access

to cash payments, evidence that Burns personally accepted or was the last person in

possession of those payments, and evidence that those payments were not accounted for

in Galindo’s accounting records or bank statements as having been deposited. It was

within the jury’s province as the factfinder to determine which testimony it believed or it

did not believe, and the jury determined that Burns was the individual who misapplied

the money. The evidence was sufficient for a reasonable juror to have determined beyond

a reasonable doubt that Burns was the individual who misapplied the cash payments.

We overrule issue two.1

Jury Charge Error

        In his first issue, Burns complains that he suffered egregious harm because the jury

charge erroneously included the definitions of “appropriation,” “deception,” “effective

consent,” “steal,” and “theft.” Burns argues that the inclusion of these definitions




1Burns does not challenge the amount of the money misapplied, that he was acting in a fiduciary capacity,
or that an agreement existed between Galindo and himself to deposit the money into Galindo’s account.
See TEX. PENAL CODE ANN. § 32.45.

Burns v. State                                                                                    Page 4
allowed the jury to convict him of the offense of misapplication of property by theft,

which was an offense for which he was not charged. The State does not dispute that these

definitions should not have been included in the jury charge.

        In reviewing a jury-charge issue, this Court’s first duty is to determine whether

error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996).

If error is found, the appellate court must analyze that error for harm. Middleton v. State,

125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). We agree with Burns that the inclusion of

the superfluous definitions was erroneous because those terms are not applicable to the

offense of misapplication of fiduciary property pursuant to the indictment. We will

therefore consider whether Burns was harmed by the inclusion of the definitions.

        If the error was properly preserved by objection, reversal would be necessary if

the error is not harmless. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).

However, if error was not preserved at trial by a proper objection, a reversal of the trial

court’s judgment would only be granted if the error presents egregious harm, meaning

that Burns did not receive a fair and impartial trial. Id. To obtain a reversal for jury-

charge error, Burns must have suffered actual harm and not just merely theoretical harm.

Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012).

        Burns concedes that he did not object to the jury charge; thus, he must show

egregious harm. See Almanza, 686 S.W.2d at 171. In examining the record for egregious

harm, we consider the entire jury charge, the state of the evidence, the arguments of the

parties, and any other relevant information revealed by the record of the trial as a whole.

Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006).         Jury charge error is

Burns v. State                                                                        Page 5
egregiously harmful if it affects the very basis of the case, deprives the defendant of a

valuable right, or vitally affects a defensive theory. Stuhler v. State, 218 S.W.3d 706, 719

(Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).

        The application paragraph of the jury charge applies the pertinent penal law,

abstract definitions, and general legal principles to the particular facts and the indictment

allegations. See Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). “It is the

application paragraph of the charge, not the abstract portion, that authorizes a

conviction." Yzaguirre v. State, 394 S.W.3d 526, 530 (Tex. Crim. App. 2013) (quoting

Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012)). The application paragraph

"explains to the jury, in concrete terms, how to apply the law to the facts of the case." Id.

Accordingly, we look to the application paragraph to determine whether the jury was

correctly instructed in order to resolve a harm analysis. Id. "Where the application

paragraph correctly instructs the jury, an error in the abstract instruction is not

egregious." Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999). With these

principles in mind, we will proceed to conduct a harm analysis using the Almanza factors

as far as possible. See Dougherty v. State, 188 S.W.3d 670, 2006 WL 475802, at *1 (Tex. Crim.

App. 2006) (per curiam) (not designated for publication) (reversing appellate court that

did not conduct analysis using all Almanza factors).

        The first Almanza factor requires consideration of the entire jury charge. See

Almanza, 686 S.W.2d at 171. The application paragraph of the jury charge properly

tracked the allegations in the indictment, and Burns does not argue that the application



Burns v. State                                                                         Page 6
paragraph of the jury charge was erroneous in any way. Accordingly, the charge as a

whole does not weigh in favor of egregious harm. See Medina, 7 S.W.3d at 640.

        The second Almanza factor involves the state of the evidence, including the

contested issues and weight of the probative evidence. See Almanza, 686 S.W.2d at 171.

As analyzed above in Burns’ sufficiency issue, we have already determined that the facts

were sufficient for the jury to have convicted Burns of misapplication of fiduciary

property. As such, the state of the evidence does not favor a finding of egregious harm.

        The third Almanza factor involves the argument of counsel. See Almanza, 686

S.W.2d at 171. In the State's closing argument, the State briefly mentions that the extra

definitions are in the charge but the rest of its argument regarding the charge discusses

the elements set forth in the application paragraph. In his closing argument, Burns

argued that he was not charged with theft but was charged with misapplication only.

The argument of counsel does not favor a finding of egregious harm.

        The final Almanza factor addresses any other relevant information revealed by the

record of the trial as a whole. See Almanza, 686 S.W.2d at 171. We are not aware of "any

other relevant information" that we should consider and Burns has not identified any

information he argues is relevant to our analysis in his briefing to this Court.

        Thus, in light of the Almanza factors, we are unable to conclude that Burns suffered

egregious harm from the errors in the abstract section of the jury charge which included

definitions that were not applicable to the offense of misapplication of fiduciary property.

Accordingly, we overrule Burns’ first issue.



Burns v. State                                                                        Page 7
Ineffective Assistance of Counsel

        In his third issue, Burns complains that he received ineffective assistance of

counsel because his attorney elicited evidence of four prior convictions for the offense of

criminally negligent homicide that occurred in 1995, which he argues would not have

been admissible pursuant to rule 609 of the Rules of Evidence. Specifically, Burns argues

that because criminally negligent homicide is not a crime of moral turpitude and more

than ten years had passed since the date of the offense, the convictions were not

admissible.

        The State correctly responds that criminally negligent homicide is a felony offense

and therefore it does not matter that it is not a crime of moral turpitude pursuant to rule

609(a)(1). See TEX. R. EVID. 609(a)(1) (evidence of conviction must be admitted if “the

crime was a felony or involved moral turpitude….”). Additionally, the State argues that

the limitation on using evidence after ten years starts only after the later date of the

conviction or release from confinement, and that there was no evidence of what date

Burns was released from confinement. See TEX. R. EVID. 609(b). Because of this, the State

argues that, under this record, Burns cannot show that trial counsel’s conduct was

deficient.

        To prevail on an ineffective-assistance claim, Burns must prove (1) counsel's

representation fell below the objective standard of reasonableness; and (2) there is a

reasonable probability that, but for counsel's deficiency, the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). In

Burns v. State                                                                         Page 8
considering an ineffective-assistance claim, we indulge a strong presumption that

counsel's actions fell within the wide range of reasonable professional behavior and were

motivated by sound trial strategy. Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d at 813.

To overcome this presumption, a claim of ineffective assistance must be firmly

demonstrated in the record. Thompson, 9 S.W.3d at 814. In most cases, direct appeal is an

inadequate vehicle for raising such a claim because the record is generally undeveloped

and cannot adequately reflect the motives behind trial counsel's actions. Rylander v. State,

101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813-14.

        When the record is silent regarding trial counsel's strategy, we will not find

deficient performance unless the challenged conduct was "so outrageous that no

competent attorney would have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392

(Tex. Crim. App. 2005); Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex. Crim. App. 2000).

In rare cases, however, the record can be sufficient to prove that counsel's performance

was deficient, despite the absence of affirmative evidence of counsel's reasoning or

strategy. Id.

        Burns did not file a motion for new trial alleging ineffective assistance of counsel.

Burns does not set forth and we have found nothing in the record regarding the date of

Burns’ conviction or subsequent release from confinement. The record before this Court

is insufficient for us to be able to determine whether the trial court would have erred by

admitting the evidence of the prior convictions pursuant to any of the limitations set forth

in rule 609. Our inability to make this determination based on the record before us leads

us to the conclusion that Burns has not shown that his trial counsel’s alleged

Burns v. State                                                                         Page 9
ineffectiveness in introducing evidence of the convictions in question is firmly

demonstrated in the record or was “so outrageous that no competent attorney would

have engaged in it.” Goodspeed, 187 S.W.3d at 392. We overrule issue three.

Conclusion

        Having found no reversible error, we affirm the judgment of the trial court.


                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 27, 2015
Do not publish
[CR25]




Burns v. State                                                                     Page 10
