                                       NO. 12-13-00046-CR

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                        TYLER, TEXAS

JOYCE MCGAHA,                                    §      APPEAL FROM THE 349TH
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      HOUSTON COUNTY, TEXAS

                                       MEMORANDUM OPINION
        Joyce McGaha appeals her conviction for misapplication of fiduciary property from the
elderly. In one issue, Appellant argues that the evidence is legally insufficient to support her
conviction. We affirm.


                                           BACKGROUND
        In 2006, Appellant began dating Jack Brittain, a man much older than she. Brittain
introduced Appellant as his girlfriend to his children, and they began living together in Brittain’s
house. While initially happy for him, Brittain’s children worried that Appellant was taking
advantage of him. Over several months, Brittain’s physical health declined, and Appellant
became his de facto caregiver. Even though Brittain’s children spoke to him over the phone and
visited occasionally, they all lived out of state. Thus, Brittain relied almost exclusively upon
Appellant for his care. In January 2007, Brittain executed a power of attorney in which he
appointed Appellant as his attorney in fact. The power of attorney was to become effective upon
Brittain’s disability or incapacity.
        Over the same period of time, Brittain’s mental condition declined. He was diagnosed
with moderate dementia. He also had memory difficulties, was frequently confused, and was
clinically depressed. On March 6, 2007, Brittain’s physician, Dr. James M. Cochran, wrote a
letter in which he certified that Brittain was mentally incapacitated. After Cochran certified that
Brittain was mentally incapacitated, Appellant engaged in various acts that benefitted her to the
detriment of Brittain. She added her name to the title of Brittain’s vehicle, withdrew money
from Brittain’s accounts, and deposited checks payable to Brittain into her account. Appellant
completed a number of these transactions by signing her name followed by ―POA.‖
       As Brittain’s health continued to deteriorate, Brittain’s children became convinced that
Appellant was harming him, either physically or financially. One of his daughters, Kathleen
Luther, instituted a guardianship proceeding in order to get Appellant away from her father. At
that point, Brittain’s children also began providing home health care for Brittain. However, while
the guardianship matter was pending, Brittain died.
       After Brittain’s death, his children discovered the extent of Appellant’s actions regarding
Brittain’s financial accounts, and believed their fears were confirmed. A criminal investigation
soon ensued resulting in Appellant’s being charged by indictment with misapplication of
fiduciary property from the elderly with the value of the property being more than $20,000 but
less than $100,000. The matter proceeded to a jury trial. After the close of evidence, the jury
found Appellant ―not guilty‖ of misapplication of fiduciary property from the elderly as alleged
in the indictment. However, the jury found Appellant ―guilty‖ of the lesser included offense of
misapplication of fiduciary property from the elderly with the value of the property being $1,500
or more but less than $20,000. After a trial on punishment, the jury assessed Appellant’s
punishment at imprisonment for ten years and a $10,000 fine. This appeal followed.


                                  EVIDENTIARY SUFFICIENCY
       In her sole issue, Appellant argues that the evidence is legally insufficient to support her
conviction. Specifically, Appellant contends that the evidence is legally insufficient because the
State failed to prove beyond a reasonable doubt that she held the property misapplied in the
capacity of a fiduciary because the power of attorney never became effective.
Standard of Review and Applicable Law
       Legal sufficiency of the evidence is the constitutional minimum required by the Due
Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson v.
Virginia, 443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786–88, 61 L. Ed. 2d 560 (1979); Escobedo v.
State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref’d); see also Brooks v. State, 323



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S.W.3d 893, 895 (Tex. Crim. App. 2010). The standard for reviewing a legal sufficiency
challenge is whether any rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also
Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in
the light most favorable to the verdict. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson,
871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an
acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211,
2217–18, 72 L. Ed. 2d 652 (1982). This familiar standard gives full play to the responsibility of
the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from the basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S.
Ct. at 2789.
       Under this standard, we may not sit as a thirteenth juror and substitute our judgment for
that of the fact finder by re-evaluating the weight and credibility of the evidence. See Dewberry
v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Brooks, 323 S.W.3d at 899.
Instead, we defer to the fact finder’s resolution of conflicting evidence unless the resolution is
not rational. See Brooks, 323 S.W.3d at 899–900; Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007). The duty of a reviewing court is to ensure that the evidence presented
actually supports a conclusion that the defendant committed the crime charged. See Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
       The sufficiency of the evidence is measured against the offense as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would include one that ―accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict
the State’s theories of liability, and adequately describes the particular offense for which the
defendant was tried.‖ Id.
       To support Appellant’s conviction for misapplication of fiduciary property from the
elderly, the State was required to prove that Appellant intentionally, knowingly, or recklessly
misapplied property that she held as a fiduciary in a manner that involved substantial risk of loss
to the owner of the property or to a person for whose benefit the property is held. See TEX.
PENAL CODE ANN. § 32.45(b) (West 2011 & West Supp. 2013); see also Skillern v. State, 355
S.W.3d 262, 268 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). One acts in a fiduciary



                                                3
capacity with regard to another’s property when the property she handles ―is not [hers] or for
[her] own benefit, but for the benefit of another person as to whom [she] stands in a relation
implying and necessitating great confidence and trust on the one part and a high degree of good
faith on the other part.‖ Gonzalez v. State, 954 S.W.2d 98, 103 (Tex. App.—San Antonio 1997,
no pet.) (quoting BLACK’S LAW DICTIONARY 625 (6th ed. 1990)). 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. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007).
Application
       In the instant case, Brittain executed a power of attorney that became effective on his
disability or incapacity. Brittain further stated in the power of attorney that he should


       be considered disabled or incapacitated for purposes of this power of attorney if a physician
       certifies in writing at a date later than the date this power of attorney is executed that, based on the
       physician’s medical examination of me, I am mentally incapable of managing my financial affairs.



       Several weeks later, Cochran, Brittain’s physician, wrote as follows:


       [I]t is my best medical judgment that [Brittain] is mentally incapacitated. Today (03/01/2007) we
       performed a MMSE on him. He scored 18/30, this is certainly very abnormal. He suffers from
       depression also, this is due to multiple factors. His medical status is very fragile due to severe
       heart disease.


Appellant contends that Cochran’s letter was insufficient to effectuate the power of attorney
because Cochran could have determined that Brittain was mentally incapacitated, but not
necessarily unable to manage his financial affairs.
       Appellant misses the point. Appellant was acting as a fiduciary under the statute if she
was (1) an attorney in fact or agent appointed under a durable power of attorney or (2) was
otherwise acting in a fiduciary capacity. See TEX. PENAL CODE ANN. § 32.45(a)(1)(B), (C).
According to the power of attorney, if Appellant acted under the appointment, she ―assume[d]
the fiduciary and other legal responsibilities of an agent.‖ Before Brittain died, Appellant told
Luther that Appellant had a power of attorney for Brittain. Luther testified that Appellant
withdrew money from Brittain’s account by signing her name as ―power of attorney.‖ Rebecca
Parker, an employee of the bank that Brittain used, testified that Appellant signed checks that


                                                          4
were payable to Brittain by signing her name as ―power of attorney‖ for Brittain. Regardless of
whether the power of attorney was properly effectuated, Appellant met the definition of a
fiduciary under the statute. See id.
         Having examined the record in the light most favorable to the verdict, we conclude that
the jury could have determined beyond a reasonable doubt that Appellant held the property
misapplied in the capacity of a fiduciary. Therefore, we hold that the evidence is legally
sufficient to support her conviction for misapplication of fiduciary property from the elderly with
the value of the property being $1,500 or more but less than $20,000. Appellant’s sole issue is
overruled.


                                                    DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.




                                                                  BRIAN HOYLE
                                                                     Justice



Opinion delivered December 20, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                         DECEMBER 20, 2013


                                          NO. 12-13-00046-CR


                                         JOYCE MCGAHA,
                                             Appellant
                                                V.
                                       THE STATE OF TEXAS,
                                             Appellee


                                 Appeal from the 349th District Court
                         of Houston County, Texas (Tr.Ct.No. 12CR-063)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                        Brian Hoyle, Justice.
                        Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
