            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                       NO. PD-1416-12


                           LARRY EUGENE BERRY, Appellant

                                              v.

                                  THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
           AND DISCRETIONARY REVIEW ON COURT’S OWN MOTION
                   FROM THE FOURTH COURT OF APPEALS
                             BEXAR COUNTY

      A LCALA, J., delivered the opinion of the Court in which K ELLER, P.J., M EYERS,
W OMACK, J OHNSON , H ERVEY, and C OCHRAN, JJ., joined. P RICE and K EASLER, JJ.,
concurred.

                                       OPINION

       In this case, we interpret the meaning of the term “fiduciary capacity” as it appears in

the statute defining the offense of misapplication of fiduciary property. See T EX. P ENAL

C ODE § 32.45(a)(1)(C), (b). Interpreting that term in light of its plain meaning, we hold that

it encompasses only special relationships of confidence or trust in which one party is

obligated to act primarily for the benefit of the other. Applying that plain meaning to the

facts of this case, we hold that appellant, Larry Eugene Berry, was not acting in a fiduciary
                                                                                     Berry - 2

capacity when he took payments from customers for window treatments and then failed to

deliver those goods as promised. We, therefore, find the evidence insufficient to support

appellant’s conviction for misapplication of fiduciary property in count one of the indictment

under which he was tried. We reverse the judgment of the court of appeals holding that

appellant was acting as a fiduciary and that the evidence was sufficient to sustain his

conviction. See Berry v. State, No. 04-10-00924-CR, 2012 WL 1648213 (Tex. App.—San

Antonio May 9, 2012) (mem. op., not designated for publication).

       In light of the fact that appellant was also convicted on one count of aggregated theft

in the same trial, this Court granted a second ground for review on our own motion to

determine whether a defendant who is tried and convicted jointly for two offenses is entitled

to a new punishment hearing if one of those convictions is reversed on appeal due to

insufficient evidence. Having reviewed the relevant principles of law that determine whether

a defendant is entitled to resentencing, we conclude that appellant is not entitled to a new

punishment hearing on the theft charge for which he was convicted in count two, and we

uphold his conviction on that count.

                                       I. Background

       A. Criminal Conduct and Trial Proceedings

       Appellant owned a Budget Blinds franchise in San Antonio during 2004 and 2005.

Appellant’s business consisted of selling and installing blinds and shutters for homes and

businesses.   Starting in 2004, customers began complaining that appellant had taken

payments for orders but never delivered products as promised. In 2005, after receiving
                                                                                          Berry - 3

multiple complaints, Budget Blinds terminated appellant’s franchise agreement and

compensated some of appellant’s customers who had not received their orders. After the

franchise agreement was terminated, appellant continued operating his business under the

name Blinds Depot. His practice of taking money for undelivered products continued,

resulting in several customers contacting the police to report the matter. Appellant was

arrested and charged with one count of aggregated misapplication of fiduciary property

valued at more than $20,000 but less than $100,000, and one count of aggregated theft of

currency valued at more than $20,000 but less than $100,000.1

       Appellant was tried on both counts before a jury. At trial, the State called thirty-two

of the forty-one victims alleged in the indictment to testify. Each witness testified that

appellant agreed to sell and install blinds or shutters and, after receiving partial payment,

failed to deliver products and services. Appellant was convicted on both counts. The trial

court sentenced appellant to ten years’ imprisonment on each count, to run concurrently, and

ordered him to pay $78,733.44 in restitution.

       B. Appellate Proceedings

       On direct appeal, appellant argued that the evidence was insufficient to support his

conviction for misapplication of fiduciary property because there was no evidence that he

was “acting in a fiduciary capacity” at the time of the offense, as required by the statute. See

T EX. P ENAL C ODE § 32.45(a)(1)(C), (b). The court of appeals disagreed. See Berry, 2012




1
       See TEX . PENAL CODE §§ 32.45 (defining offense of misapplication of fiduciary property);
31.03 (defining offense of theft); 31.09 (permitting aggregation for purposes of property offenses).
                                                                                       Berry - 4

WL 1648213, at *2. In finding the evidence sufficient to sustain appellant’s conviction on

the misapplication count, the court of appeals initially observed that the meaning of the term

“fiduciary capacity” is not defined by the statute. Id. It interpreted that term in light of its

“plain and common meaning” and concluded that it means “‘holding, held, or founded in

trust or confidence.’” Id. (quoting W EBSTER’S N EW INTERNATIONAL D ICTIONARY 845 (3d

ed. 1981)). It further observed that one who acts as a fiduciary is “a person who has a duty,

created by his own undertaking, to act primarily for another person’s benefit in matters

connected with such undertaking.” Id. (citing Gonzalez v. State, 954 S.W.2d 98, 103 (Tex.

App.—San Antonio 1997, no pet.); B LACK’S L AW D ICTIONARY 625 (6th ed. 1990)). A

person receives money in a fiduciary capacity, it stated, “‘when the business which he

transacts, or the money or property which he handles, is not his or for his own benefit, but

for the benefit of another person as to whom he 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.’” Id. (quoting Gonzalez, 954 S.W.2d at 103; B LACK’S L AW D ICTIONARY 625

(6th ed. 1990)).

       Applying the plain meaning of “fiduciary” to the facts of this case, the court of

appeals concluded that the evidence was sufficient to support a finding that appellant acted

in a fiduciary capacity with respect to his customers. Id. at *3. In reaching its conclusion,

it reasoned that “each of the thirty-two victims testified that they had an agreement with

[appellant] to order and deliver the blinds and/or shutters they chose, and that the money they

paid [appellant] up front was for the specific purpose of ordering their window treatments,
                                                                                            Berry - 5

not for his own use or benefit.” Id. It further reasoned that appellant’s customers “trusted”

him to “perform in accordance with their agreement,” that he “was aware of the trust they

reposed in him,” and that he was “required to act in a fiduciary capacity with respect to his

customers’ funds.” Id. On this basis, the court of appeals concluded that appellant was

“clearly acting as a fiduciary” when he accepted his customers’ payments for the “particular

purpose of ordering their blinds and/or shutters, and pursuant to an agreement that the money

was to be used for the benefit of the customers, not for [appellant’s] own benefit.” Id.2

       This Court granted a single ground in appellant’s petition for discretionary review to

determine whether the court of appeals erred by concluding that appellant was acting in a

“fiduciary capacity” when he agreed to provide customers with blinds or shutters, took

payments accordingly, and failed to deliver goods and services.3 We also granted a second

ground on our own motion to determine whether a defendant who is tried jointly for two

offenses is entitled to a new punishment hearing when one of the convictions is reversed on




2
        The court of appeals also held that the evidence was sufficient to sustain the jury’s finding
that appellant “misapplied” the funds he held in a fiduciary capacity. See Berry v. State, No. 04-10-
00924-CR, 2012 WL 1648213, at *3 (Tex. App.—San Antonio May 9, 2012) (mem. op., not
designated for publication); TEX . PENAL CODE § 32.45(a)(2). Because we granted review for the
limited purpose of determining whether the evidence is sufficient to support the jury’s finding that
appellant was acting in a “fiduciary capacity,” and because we now hold that there is insufficient
evidence to support that element, we do not address the separate question of whether the evidence
was sufficient to support the jury’s finding on the misapplication element of the offense. See TEX .
PENAL CODE § 32.45(a)(2), (b).
3
        Appellant’s fourth ground for review asks: “Whether the court of appeals erred in finding the
evidence is legally sufficient since there was no evidence of misapplication by a fiduciary, requiring
that this verdict must be reversed and an acquittal entered.”
                                                                                             Berry - 6

appeal for insufficient evidence.4 See T EX. C ODE C RIM. P ROC. art. 44.45(a) (permitting

review by this Court on its own motion).

    II. Evidence Is Insufficient to Establish That Appellant Was Acting as Fiduciary

        Appellant argues that the evidence is insufficient to support his conviction for

misapplication of fiduciary property because there is no evidence that he was acting in a

fiduciary capacity with respect to his customers at any time. He further contends that, at all

times, the agreement he had with his customers was nothing more than “a contract for goods

and services” and that he was “not in any special privity to make him a fiduciary.” As

explained further below, we agree with appellant and hold that no rational trier of fact could

have determined that appellant was acting in a fiduciary capacity when he received

customers’ orders and payments for blinds and shutters and then failed to deliver those

goods. See Jackson v. Virginia, 443 U.S. 307, 316, 319, 99 S. Ct. 2781 (1979) (court

reviewing for sufficiency of evidence must determine whether, viewing all the evidence in

the light most favorable to the verdict, any rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt); Brooks v. State, 323 S.W.3d 893, 899,

912 (Tex. Crim. App. 2010).

        A. Statutory Analysis of “Acting in a Fiduciary Capacity”

        A person commits the offense of misapplication of fiduciary property if he

“intentionally, knowingly, or recklessly misapplies property he holds as a fiduciary . . . in a


4
         The additional ground upon which we granted review asks, “When two offenses are tried
jointly, and one of the convictions is reversed for insufficient evidence, should the defendant receive
a new punishment hearing on the remaining offense?”
                                                                                              Berry - 7

manner that involves substantial risk of loss to the owner of the property or to a person for

whose benefit the property is held.” See T EX. P ENAL C ODE § 32.45(b). The statute further

provides that a “fiduciary” includes:

        (A) a trustee, guardian, administrator, executor, conservator, and receiver;
        (B) an attorney in fact or agent appointed under a durable power of attorney
        as provided by Chapter XII, Texas Probate Code;

        (C) any other person acting in a fiduciary capacity, but not a commercial
        bailee unless the commercial bailee is a party in a motor fuel sales agreement
        with a distributor or supplier, as those terms are defined by Section 162.001,
        Tax Code; and

        (D) an officer, manager, employee, or agent carrying on fiduciary functions on
        behalf of a fiduciary.

Id. § 32.45(a)(1) (emphasis added).5

        Appellant was charged with misapplication of fiduciary property under the generic

definition of a fiduciary that appears in Subsection (C), which defines a fiduciary as “any

other person acting in a fiduciary capacity.” Id. § 32.45(a)(1)(C). The statute does not define

what constitutes acting in a fiduciary capacity, and so we interpret that phrase in accordance

with its plain meaning. See Ex parte Valdez, 401 S.W.3d 651, 655 (Tex. Crim. App. 2013)

(“We construe a statute in accordance with the plain meaning of its text unless the plain

meaning leads to absurd results that the legislature could not have possibly intended.”);

Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) (when statutory language is




5
        Although we do not interpret the misapplication prong of the statute in this opinion, we
further note that the statute states that a person “misapplies” fiduciary property when he “deal[s] with
[that] property contrary to: (A) an agreement under which the fiduciary holds the property; or (B)
a law prescribing the custody or disposition of the property.” TEX . PENAL CODE § 32.45(a)(2).
                                                                                            Berry - 8

clear and unambiguous, we give effect to its plain meaning unless to do so would lead to

absurd consequences).

       As the court of appeals below correctly observed, the plain meaning of a fiduciary is

one “who is required to act for the benefit of another person on all matters within the scope

of their relationship.” B LACK’S L AW D ICTIONARY 702 (9th ed. 2009); see also W EBSTER’S

N EW INTERNATIONAL D ICTIONARY 845 (3d ed. 2002) (defining adjective of fiduciary as

“holding, held, or founded in trust or confidence”). An individual who acts as a fiduciary is

further defined as “one who owes to another the duties of good faith, trust, confidence and

candor,” or, “[o]ne who must exercise a high standard of care in managing another’s money

or property.” B LACK’S L AW D ICTIONARY 702 (9th ed. 2009).6 A fiduciary relationship may

additionally be described as “existing when one person justifiably reposes confidence, faith,

and reliance in another whose aid, advice, or protection is sought in some matter,” or when

“good conscience requires one to act at all times for the sole benefit and interest of another

with loyalty to those interests.” W EBSTER’S N EW INTERNATIONAL D ICTIONARY 845 (3d ed.

2002); see also B LACK’S L AW D ICTIONARY 545 (8th ed. 2004) (fiduciary is one who has duty

to “act with the highest degree of honesty and loyalty toward another person”).

       Common examples of a fiduciary relationship include a “trustee-beneficiary, guardian-

ward, principal-agent, and attorney-client,” and the relationship commonly arises in one of

6
        See also Gonzalez v. State, 954 S.W.2d 98, 103 (Tex. App.—San Antonio 1997, no pet.)
(Onion, J.) (stating that one acts in a fiduciary 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”) (quoting BLACK’S LAW DICTIONARY 625 (6th
ed. 1990)).
                                                                                           Berry - 9

four situations:

       (1) when one person places trust in the faithful integrity of another, who as a
       result gains superiority or influence over the first, (2) when one person
       assumes control and responsibility over another, (3) when one person has a
       duty to act for or give advice to another on matters falling within the scope of
       the relationship, or (4) when there is a specific relationship that has
       traditionally been recognized as involving fiduciary duties, as with a lawyer
       and a client or a stockbroker and a customer.

B LACK’S L AW D ICTIONARY 1402 (9th ed. 2009).

       Although we do not expressly adopt the civil-law interpretations of the word

“fiduciary,” we observe that the civil courts of Texas have generally held that everyday arms-

length business transactions, including contracts to sell goods and services, do not give rise

to a fiduciary relationship between the parties. See Crim Truck & Tractor Co. v. Navistar

Int’l Transp. Corp., 823 S.W.2d 591, 594 (Tex. 1992), superseded by statute on other

grounds (“The fact that one businessman trusts another, and relies upon his promise to

perform a contract, does not rise to a confidential relationship.”). That is because in everyday

business dealings, it is assumed that the parties interact for their mutual benefit, and,

therefore, a party is not expected to act solely for the benefit of the other party to the contract.

See Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 177 (Tex. 1997) (declining to

impose fiduciary relationship in contractual situation because “all contracting parties

presumably contract for their mutual benefit”). To impose a fiduciary relationship in

ordinary business dealings would run contrary to the principle that a fiduciary is obligated

to act for the primary benefit of the other party. See W EBSTER’S N EW INTERNATIONAL

D ICTIONARY 845 (3d. ed. 2002); National Plan Adm’rs, Inc. v. National Health Ins. Co., 235
                                                                                           Berry - 10

S.W.3d 695, 702 (Tex. 2007) (“a contractual obligation does not generally give rise to a

fiduciary duty”).

       This Court’s cases interpreting the misapplication statute are consistent with an

understanding of the term “fiduciary” as encompassing special trust- or confidence-based

relationships. See, e.g., Bynum v. State, 767 S.W.2d 769, 777 (Tex. Crim. App. 1989)

(holding there was sufficient evidence to establish that defendant misappropriated fiduciary

property when he cashed checks given to him as contributions for the benefit of funding

citizens’ political-action committee); Coplin v. State, 585 S.W.2d 734, 736 (Tex. Crim. App.

1979) (upholding conviction for misapplication of fiduciary property against managing

partner of joint venture who received money from investors for purposes of obtaining

television broadcast rights but instead cashed checks for personal use).7 In Coplin, this Court


7
        Decisions of the courts of appeals provide further examples of individuals acting in a
fiduciary capacity within the meaning of the misapplication statute. See, e.g., Fuelberg v. State, 410
S.W.3d 498, 502 (Tex. App.—Austin 2013) (defendant was general manager of non-profit utility
cooperative who funneled cooperative’s funds to his brother and a friend); Anderson v. State, 322
S.W.3d 401, 406–07 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (defendant was investment
manager who received funds for sole purpose of investing funds in limited partnership but instead
spent funds on personal legal fees and a car); Head v. State, 299 S.W.3d 414, 433 (Tex.
App.—Houston [14th Dist.] 2009, pet. ref’d) (defendant was financial adviser and protector of
elderly woman’s two trusts who took personal and business loans from complainant’s funds without
her knowledge); Tyler v. State, 137 S.W.3d 261, 264–66 (Tex. App.—Houston [1st Dist.] 2004, no
pet.) (defendant was acting in “fiduciary capacity” when she agreed to help manage elderly relative’s
financial assets and then withdrew funds from complainant’s bank account without authorization);
Huett v. State, 970 S.W.2d 119, 124–25 (Tex. App.—Dallas 1998, no pet.) (defendant used
investors’ money on personal expenditures unrelated to oil-lease business including house and car
payments, clothing, and grocery expenses); Starnes v. State, 929 S.W.2d 135, 137–38 (Tex.
App.—Fort Worth 1996, no pet.) (defendant was hired by volunteer fire department to run charity
bingo games and misappropriated money from organization); Dwyer v. State, 836 S.W.2d 700, 702
(Tex. App.—El Paso 1992, pet. ref’d) (defendant was accountant who received customers’ payments
for purpose of forwarding them to utility company but instead applied them to his own personal and
business expenses); Showery v. State, 678 S.W.2d 103, 106 (Tex. App.—El Paso 1984, pet. ref’d)
(defendant was physician who received insurance-company overpayments on patient’s behalf and
                                                                                    Berry - 11

stated that the plain meaning of the statutory term “acting in a fiduciary capacity” was broad

enough to encompass “any fiduciary, including a joint adventurer or partner,” but it did not

suggest that the meaning of that term was so broad as to encompass activities associated with

everyday arms-length business transactions. See Coplin, 585 S.W.2d at 735 (citing T EX.

P ENAL C ODE § 32.45(a)(1)(C)).

       Regarding the plain meaning of the term “fiduciary,” the State contends in its brief

on discretionary review that the Legislature “appears to have purposefully allowed for the

broadest possible construction of the term ‘fiduciary’” and that this Court should accordingly

interpret the statute broadly.     But the definition proposed by the State in that brief

acknowledges that a fiduciary must have a duty “founded in trust or confidence” “to act

primarily for another person’s benefit.” That definition is consistent with the one applied by

the court of appeals and now by this Court. See Berry, 2012 WL 1648213, at *2. The State

does not explain how an ordinary, one-time contract to sell goods and services between two

parties acting for their own benefit would be included within its definition of fiduciary,

which requires a special relationship between the parties based on trust, good faith, loyalty,

and confidence, with one party operating under a duty to act primarily for the other person’s

benefit.

       In light of the foregoing, we hold that one acts in a “fiduciary capacity” for purposes

of the misapplication statute if his relationship with another is based not only on trust,

confidence, good faith, and utmost fair dealing, but also on a justifiable expectation that he



then failed to forward payments to patient).
                                                                                       Berry - 12

will place the interests of the other party before his own. See B LACK’S L AW D ICTIONARY 702

(9th ed. 2009) (fiduciary relationship is founded on “trust” and “confidence”; fiduciary is

“required to act for the benefit of another person on all matters” within scope of relationship

and is required to exercise a “high standard of care” in handling other party’s property);

W EBSTER’ S N EW INTERNATIONAL D ICTIONARY 845 (3d ed. 2002) (fiduciary relationship

arises when one person justifiably reposes confidence, faith, and reliance in another, and

when “good conscience” requires one person to act “at all times for the sole benefit and

interests of another with loyalty to those interests”); see also Crim Truck, 823 S.W.2d at 594

(fiduciary is required to “place the interest of the other party before his own”). We now

consider whether the court of appeals correctly applied that definition to the facts of this case.

       B. Evidence Is Insufficient To Sustain Finding That Appellant Was Fiduciary

       In reaching its conclusion that appellant was acting in a fiduciary capacity, the court

of appeals reasoned that (1) appellant had an “agreement” with his customers to provide them

with window treatments, (2) the customers’ payments were for the “specific purpose” of

carrying out that agreement and were “not for [appellant’s] own use or benefit,” and (3)

appellant’s customers trusted him to carry out his end of the bargain. Berry, 2012 WL

1648213, at *3. On this basis, it concluded that appellant was acting as a fiduciary when he

accepted his customers’ money for the particular purpose of ordering their blinds and

shutters. Id. We disagree that appellant’s ordinary business relationship with his customers

was, by virtue of the existence of an agreement to provide them with window treatments, a

fiduciary relationship.    Appellant had no special or confidential relationship with his
                                                                                        Berry - 13

customers beyond the usual contractual relationship that exists between any seller and a

buyer of goods. No evidence shows that appellant was a confidant, specially trusted advisor,

or that there was any special relationship that would have required him to act primarily in the

interest of his customers rather than in his own pecuniary interest, nor is there any evidence

to show that appellant was required to exercise a high standard of care in handling his

customers’ money. There is nothing in the record to suggest that appellant was specially

“required to act for the benefit of” his customers or that he owed them a duty of “good faith,

trust, confidence and candor.” B LACK’S L AW D ICTIONARY 702 (9th ed. 2009); see also Ditta

v. Conte, 298 S.W.3d 187, 191 (Tex. 2009) (noting that fiduciary “occupies a position of

peculiar confidence towards another”); Meyer v. Cathey, 167 S.W.3d 327, 330 (Tex. 2005).

On the contrary, this is a situation involving a one-time contract for goods and services made

for the benefit of both parties and is, therefore, not the type of relationship that gives rise to

a fiduciary duty. See Meyer, 167 S.W.3d at 331 (holding there was no fiduciary relationship

between two business associates after one associate failed to pay another promised amounts

for completed work on real-estate development project).

       The State argues in its brief, and the court of appeals noted in its opinion below, that

appellant’s customers trusted him to provide them with window treatments in exchange for

payment, and that because they trusted him to act in conformity with that agreement, he was

acting in a fiduciary capacity. But the mere fact that appellant’s customers subjectively

trusted him is insufficient to give rise to a fiduciary relationship. See id. (stating that mere

“subjective trust,” without more, does not transform an ordinary business relationship into
                                                                                      Berry - 14

a fiduciary relationship). Although appellant clearly acted contrary to the agreement he had

with his customers, his dishonesty and deception in failing to perform his end of the bargain

have no bearing on the question of whether he was acting in a fiduciary capacity in the first

instance.

       In short, the court of appeals cited the correct definition of “fiduciary” in assessing

the sufficiency of the evidence to sustain appellant’s conviction, but erred in its application

of that definition to the facts of this case. Considering all the evidence in a light most

favorable to the jury’s verdict, we hold that no rational juror could have found that appellant

was acting as a fiduciary with respect to his customers. See Jackson, 443 U.S. at 316. We,

therefore, hold that the evidence is insufficient to sustain appellant’s conviction for

misapplication of fiduciary property.

  III. Appellant Is Not Entitled to New Punishment Hearing on Theft Conviction

       In light of this Court’s holding that the evidence is insufficient to sustain appellant’s

conviction for misapplication of fiduciary property, and in light of the fact that appellant was

convicted in the same trial of aggregated theft, this Court granted review on its own motion

to determine whether appellant is entitled to a new hearing on punishment on his remaining

conviction for theft, for which he received a sentence of ten years’ imprisonment. We

conclude that appellant is not entitled to resentencing on the theft count.

       In response to this Court’s request for briefing on this issue, the State asserts that

appellant is not entitled to a new punishment hearing on the theft count in light of this

Court’s opinion in Ex parte Mills, 795 S.W.2d 203, 203–04 (Tex. Crim. App. 1990). In
                                                                                      Berry - 15

Mills, this Court was asked to decide whether a defendant who had been jointly convicted

of two counts of theft by receiving was entitled to a new punishment hearing after one of

those counts was reversed on appeal for insufficient evidence. Id. at 203. The applicant for

post-conviction relief in Mills, who had received a sixty-five year sentence on each count,

argued that he should receive a new punishment hearing because “there is no way of knowing

if the finder of fact would have assessed the same punishment had Applicant been found

guilty of only one of the counts.” Id. In rejecting Mills’s argument, this Court initially noted

that the “record reflect[ed] separate punishment imposed for each count,” and it further

reasoned that Mills had “fail[ed] to establish that the jury’s consideration of the second count

of the indictment, and its ultimate verdict and sentence on the count, contributed to the

separate sentence imposed on the first count in the indictment.” Id. at 205. It noted that the

“facts of the case” did not “otherwise reflect that the jury’s verdict of guilty on the second

count . . . affected the punishment assessed in the first count.” Id. This Court in Mills

distinguished the situation in that case from other cases in which it had held that a new

punishment hearing was warranted when the misjoinder of two offenses into a single

indictment resulted in a single sentence for both offenses, making it impossible to conclude

that the trial court’s sentence would have been unaffected by the reversal of one of the

offenses. Id. at 204 (citing Ex parte Broyles, 759 S.W.2d 674 (Tex. Crim. App. 1988)).

       Mills is squarely on point. In this case, as in Mills, appellant received a separate ten-

year sentence on each count of which he was convicted. The judgment of the trial court

clearly reflects that appellant received two sentences, one for each count, to run concurrently.
                                                                                         Berry - 16

Furthermore, as in Mills, appellant has failed to argue, let alone establish, that the trial court’s

consideration of the misapplication count contributed to his sentence on the theft charge. See

Mills, 795 S.W.2d at 205 (declining to hold that defendant was entitled to new punishment

hearing on remaining conviction when he had “fail[ed] to establish” that jury’s consideration

of second count contributed to sentence on first count); see also Ex parte Cravens, 805

S.W.2d 790, 791 (Tex. Crim. App. 1991) (same). Appellant makes no argument that Mills

was wrongly decided or that it differs from this case. We, therefore, hold that appellant has

failed to demonstrate that he is entitled to a new punishment hearing under the reasoning of

Mills.

                                        IV. Conclusion

         We hold that the evidence is insufficient to sustain appellant’s conviction for

misapplication of fiduciary property and we reverse the judgment of the court of appeals.

We render judgment in favor of appellant acquitting him of the offense of misapplication of

fiduciary property for which he was convicted in count one. In response to the additional

ground upon which we granted review, we further hold that appellant is not entitled to a new

punishment hearing on his theft conviction. We, therefore, affirm the judgment of the court

of appeals upholding appellant’s conviction for theft in count two.

Delivered: March 19, 2014

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