

 
 





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