                            NUMBER 13-07-00391-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


GUADALUPE ATKINSON,                                                         Appellant,

                                           v.

SAN JUANITA ATKINSON,                                                       Appellee.


                   On appeal from the 103rd District Court
                        of Cameron County, Texas.


                         MEMORANDUM OPINION

                Before Justices Yañez, Rodriguez, and Vela
                Memorandum Opinion by Justice Rodriguez

      Appellee, San Juanita Atkinson, sued appellant, Guadalupe Atkinson, for breach of

contract, fraud, theft, and violations of the Deceptive Trade Practices Act (DTPA). After

a bench trial, the trial court ruled in favor of San Juanita and awarded $91,000 in actual

damages, $5,000 in attorney's fees, and court costs. By two issues, Guadalupe contends
that the evidence is legally and factually insufficient to support the trial court's judgment.

We affirm.

                                               I. Background

        San Juanita asked her father, Jesus Atkinson, and her step-mother, Guadalupe, to

hold $91,000 in a safe at their home. Sometime after placing the money in the safe, San

Juanita had Jesus open the safe. It was empty. San Juanita filed charges against

Guadalupe and Jesus. Guadalupe pleaded "no contest" to the charge of felony theft and

was sentenced to pay restitution in the amount of $87,000.

        San Juanita then filed suit against Guadalupe alleging, among other things, civil

theft.1 See TEX . CIV. PRAC . & REM . CODE § 134.002 (Vernon 2005). At trial, Guadalupe

testified that she pleaded "no contest" to the criminal charge of theft, was ordered by the

court to pay restitution, and that she believed she owed about $82,000 minus some

deductions. Guadalupe acknowledged that a document entitled "WRITTEN WAIVER AND

CONSENT TO STIPULATION OF TESTIMONY, WAIVER OF JURY AND PLEA OF

GUILTY" was a correct copy of her plea and it was admitted into evidence. In this

document, Guadalupe stipulated that each and every allegation in the indictment charging

the offense of "[t]heft $20,000-100, 000 [was] true and correct."

        Guadalupe further testified that Jesus and San Juanita both knew the combination

to the safe, but that when San Juanita requested her money, "[Jesus and San Juanita] shot

[the safe] open with a pistol." Guadalupe stated that she had not opened the safe before

San Juanita discovered her money was missing. However, at another point during her


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         San Juanita also filed suit against Jesus who did not appear at trial. The trial court granted a default
judgm ent against Jesus in favor of San Juanita. Jesus is not a party to this appeal.

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testimony, Guadalupe admitted to taking $5,000 out of the safe without San Juanita's

permission.

      Guadalupe's deposition was admitted into evidence. In her deposition, Guadalupe

stated that San Juanita called her when she wanted to remove some of her money from

the safe because Jesus wanted Guadalupe to be present when it was opened. However,

Guadalupe did not go to the house and Jesus used a jigsaw to open the safe. When

asked by San Juanita's counsel why Jesus would open the safe using a jigsaw when he

knew the combination, she said she did not know. Guadalupe stated, "[Y]ou want me to

admit [that Jesus knew the combination]. Maybe he forgot it. He's always on medication

and pills. I cannot answer. Maybe he did know it. Maybe I'm assuming that he knew it

and maybe he's claiming that he forgot it."

      San Juanita testified that she entrusted $91,000 to Guadalupe and Jesus. She

admitted into evidence a bank statement showing three withdrawals of $15,000, $40,000,

and $30,000 from her bank account. She further testified that after Guadalupe opened the

safe for her, she recorded the amount of money on a piece of paper, told Guadalupe how

much money it was, and placed it in the safe. San Juanita stated that when she needed

$13,000 to pay a contractor who was working on her house, she asked Guadalupe to open

the safe in order for her to remove the money. Guadalupe then disappeared for three or

four days. San Juanita claimed that Jesus could not open the safe because he did not

know the combination, so they opened the safe with a jigsaw.

      Without stating the theory of recovery, the trial court ruled in favor of San Juanita

and ordered Guadalupe to pay $91,000, attorney's fees and court costs. No findings of

fact and conclusions of law were requested or filed. This appeal ensued.

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                                   II. Standard of Review

       In a nonjury trial, where no findings of fact and conclusions of law are requested or

filed, all the necessary findings of fact to support the trial court's judgment are implied.

Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003); Holt Atherton Indus.,

Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Gutierrez v. Elizondo, 139 S.W.3d 768, 773

(Tex. App.–Corpus Christi 2004, no pet.). Implied findings may be challenged for legal and

factual sufficiency when the appellate record contains the reporter's and clerk's records as

in this case. Sixth RMA Partners, L.P., 111 S.W.3d at 52; Wade v. Comm'n for Lawyer

Discipline, 961 S.W.2d 366, 374 (Tex. App.–Houston, [1st Dist.] 1997, no pet.).

       In a legal sufficiency review, we review the evidence in the light most favorable to

the verdict, crediting any favorable evidence if a reasonable trier of fact could and

disregarding any contrary evidence unless a reasonable trier of fact could not. City of

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In a factual sufficiency review, we

weigh all of the evidence and set aside the finding if it is so against the great weight and

preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.

2001). We will affirm the judgment on any theory of law supported by the evidence.

Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

                                         III. Analysis

       By two issues, Guadalupe generally contends that the evidence is legally and

factually insufficient to support the trial court's finding of theft, breach of contract, fraud,

and a violation of the DTPA. More specifically, as to the civil theft claim, Guadalupe claims

there is no evidence to support a finding of theft. We construe this as a challenge to the



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trial court's implied finding that Guadalupe unlawfully appropriated property. See TEX . CIV.

PRAC . & REM . CODE § 134.002 (Vernon 2005) (defining civil theft).

       There was evidence that Guadalupe pleaded "no contest" to the criminal charge of

theft. In a document admitted into evidence, Guadalupe stipulated under oath that each

and every allegation in the indictment charging the offense of theft was true and correct.

The trial court heard conflicting evidence as to whether Jesus knew the combination to the

safe. Guadalupe testified in trial that she believed Jesus knew the combination, but in her

deposition she stated that maybe she just assumed he knew it. San Juanita testified that

Jesus did not know the combination and that they had to open the safe with a jigsaw.

Guadalupe admitted that she took $5,000 from the safe without San Juanita's permission.

This occurred after testifying that she had never opened the safe prior to San Juanita

noticing that her money was gone, and after stating that she had never counted the money.

       As the sole judge of the credibility of the of the witnesses and the weight to be given

to their testimony, the trial court could have believed San Juanita's testimony that Jesus

did not know the combination to the safe. See London v. London, 192 S.W.3d 6, 14 (Tex.

App.–Houston [14th Dist.] 2005, pet. denied). Furthermore, based on the evidence

presented, the trial court could have found that Guadalupe unlawfully appropriated San

Juanita's money.

       Therefore, after reviewing the evidence in the light most favorable to the verdict,

crediting any favorable evidence if a reasonable trier of fact could and disregarding any

contrary evidence unless a reasonable trier of fact could not, we conclude that the

evidence was legally sufficient to support the trial court's implied finding of fact that

Guadalupe unlawfully appropriated San Juanita's money. See City of Keller, 168 S.W.3d

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at 827. Moreover, after weighing all of the evidence, we conclude that the trial court's

finding is not so against the great weight and preponderance of the evidence. See Dow

Chem. Co., 46 S.W.3d at 242. We overrule Guadalupe's first and second issues. See

Worford, 801 S.W.2d at 109.

       In Guadalupe's sub-issues, she challenges the sufficiency of the evidence

supporting San Juanita's remaining causes of action. However, because we affirm the

judgment on the theory of civil theft, we need not address Guadalupe's issues attacking

San Juanita's other causes of action. See Worford, 801 S.W.2d at 109 (providing that

"[t]he judgment must be affirmed if it can be upheld on any legal theory that finds support

in the evidence"); see also TEX . R. APP. P. 47.1.

                                      IV. Conclusion

       We affirm the judgment.


                                                     NELDA V. RODRIGUEZ
                                                     Justice

Memorandum Opinion delivered and
filed this 22nd day of May, 2008.




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