Latham, Sheila Denise v. The State of Texas--Appeal from 180th District Court of Harris County

Affirmed and Memorandum Opinion filed August 18, 2005

Affirmed and Memorandum Opinion filed August 18, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00248-CR

NO. 14-04-00249-CR

NO. 14-04-00250-CR

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SHEILA DENISE LATHAM, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause Nos. 886,873; 949,495 & 949,496

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M E M O R A N D U M O P I N I O N

Appellant, Sheila Denise Latham, was charged with one count of theft and two counts of misapplication of fiduciary property. The jury found appellant guilty and assessed punishment at probation for ten years and a $10,000 fine. Challenging her convictions, appellant asserts on appeal that (1) the evidence is factually insufficient to support her conviction, (2) the prosecutor improperly commented during final argument on appellant=s failure to testify, and (3) the trial court erred in denying her request to include certain items in the jury charge. We affirm.

Background

In the early 1990s, Cleophus Graves, the complainant in this case, became unable to attend to his physical and financial needs. In January 1991, a Harris County probate judge appointed appellant, an attorney who practiced probate and guardianship law at that time, to be the guardian of Graves=s estate. Appellant=s guardianship of Graves=s estate appears to have been proper until 1994, when the probate court began noticing problems in appellant=s annual accounts for the estate. From that point on, none of appellant=s annual reports were approved by the court, and the probate court refused to pay appellant for her work as guardian of Graves=s estate.

In the mid-1990s, appellant invested $40,000 of her own money into a personal injury case, which she lost at trial. After this loss, appellant wanted to quit practicing law and open a store with a close friend, Sandrice McGlown. Appellant wanted her long-time legal secretary, Ingrid Caldwell, to be involved in the new venture. McGlown apparently did not want Caldwell involved in the business, and when appellant insisted that Caldwell be included in the venture, McGlown backed out and withdrew her money, which was all the capital they had for the business.

After McGlown backed out of the venture, appellant and Caldwell went forward with their plans and opened a store. It is undisputed that approximately $72,000 from Graves=s estate was deposited into various business accounts and used to finance this business. Appellant claims that she was unaware of this activity and that Caldwell took the money on her own, forging appellant=s signature as necessary to obtain money from Graves=s estate. However, Caldwell testified that appellant told her she was borrowing money from the estate and would repay it when the store made money. The store never made money and closed a few months later. Appellant and Caldwell later opened other stores with the remaining merchandise, which they had purchased with money from Graves=s estate. These stores failed, too.

In 1998, the probate court appointed a successor guardian, Wesley Wright, to replace appellant as guardian of Graves=s estate. Wright quickly discovered that the estate, which had been valued at nearly $100,000 in the early 1990s, had been depleted to only $3,100.

Sufficiency of the Evidence

In her second issue, appellant argues the evidence is factually insufficient to support the jury verdict. When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). A reviewing court may find the evidence factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond a reasonable doubt standard could not have been met. Id. at 484B85. In conducting the factual sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 481B82. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

Appellant asserts the evidence is factually insufficient in two ways. First, she claims that because the probate court never approved her annual reports after 1993 and thus never renewed her letters of guardianship, there is insufficient evidence to support a finding of a fiduciary relationship, which is necessary to prove misappropriation of fiduciary property. Two probate law experts testified that, although the probate court may not have renewed her letters of guardianship, as long as appellant had possession of the money in Graves=s estate, she owed him a fiduciary duty not to use that money for her own benefit. They also testified that appellant remained Graves=s guardian until the probate court officially removed her and appointed a new guardian in 1998.

Second, appellant asserts that the evidence is factually insufficient to show theft Abecause of the conflicts in the testimony regarding who signed [appellant=s] name to have the funds from the Graves estate deposited into a personal and private business account.@ She points to evidence indicating that Caldwell signed appellant=s name to various instruments used to withdraw funds from the estate and to her impeachment of Caldwell at trial with evidence suggesting Caldwell previously had taken money from other wards= accounts for personal use. However, Caldwell admitted that she had signed appellant=s name to several of these instruments, explaining that she was acting under appellant=s directions and that, in her capacity as appellant=s legal secretary, Caldwell signed appellant=s name frequently. Caldwell also testified that appellant told her she was Aborrowing@ money from Graves=s estate to finance the business and eventually would repay it. Further, it is undisputed that the first deposit into the store account was from a certificate of deposit belonging to Graves=s estate that appellant directed to be closed out and which appellant endorsed herself. The instructions under the endorsement to deposit the money into the store account were written by Caldwell, but again, Caldwell explained that she was following appellant=s orders, and other testimony established that there was no legitimate need for Graves=s estate to close out the certificate of deposit at that time. The jury was entitled to believe Caldwell=s testimony, despite appellant=s attempts to impeach her. See Cain, 958 S.W.2d at 407.

Viewing all the evidence in a neutral light, the jury was rationally justified in finding appellant owed Graves a fiduciary duty at the time the money was stolen and that she was responsible for the theft. Having rejected appellant=s challenges to the sufficiency of the evidence, we overrule her second issue.

Comment on Failure to Testify

In her first issue, appellant argues that in his closing argument, the prosecutor made three separate references to her failure to testify. AProsecutorial comment that refers to an accused=s failure to testify violates the accused=s Fifth Amendment right against compelled self-incrimination.@ Canales v. State, 98 S.W.3d 690, 695 (Tex. Crim. App. 2003). It is not sufficient that a comment may be construed as an indirect or implied allusion; rather, the comment clearly must refer to the accused=s failure to testify. Id. We must determine whether the language was Amanifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant=s failure to testify.@ Id. We examine each comment in turn.

Appellant complains first about the following argument:

You heard the facts and the [jury charge] talks about this. It says, You can=t consider facts not before you in evidence. Lawyers= questions are not evidence in and of themselves. For example, the old saw that everybody says, when-did-you-stop-beating-your-wife kind of question. The person goes what? No, I never. You know that=s not any evidence of wife beating.

And, so, a defendant doesn=t have to testify; but, if a lawyer asks a question, you can=t take that question as evidence if the answer is no. That=s no evidence before you. You can=t speculate as to what somebody would have said if they testified and you can=t consider things that aren=t in evidence.

(emphasis added). Appellant claims that the last line of this argument constitutes a comment on her failure to testify. We disagree. Viewed in context, the prosecutor was merely explaining to the jury that it could not consider evidence not before it and drawing the jury=s attention to the charge, which contained similar instructions. There is no error in correctly arguing the law, and each side is entitled to explain a legal concept as long as the example does not constitute a statement of law contrary to that in the charge. See State v. Renteria, 977 S.W.2d 606, 608 (Tex. Crim. App. 1998); Corpus v. State, 30 S.W.3d 35, 41 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). The prosecutor did not argue the law incorrectly, and his statement was not improper.

Appellant next complains about the following statement:

You would think, if the secretary did it, you would say, Look, man, the secretary took the money. I will report her to the police.

The prosecutor here was challenging the defensive theory that appellant was unaware of Caldwell=s alleged wrongdoing by commenting on appellant=s failure to report Caldwell to the police once she discovered it. Responding to a defensive theory is proper argument. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000). Further, this argument does not point to a lack of testimony at trial but rather a lack of reporting to the police, which was long before trial.

Finally, appellant complains about the following argument, made immediately after the above comment:

No evidence from the witness stand from Ingrid Caldwell testifying that she was ever reprimanded by anybody, that she was ever reported to the police, that she was ever reported to the Court.

This argument dealt not with appellant=s failure to testify but with Caldwell=s testimony. Either person could have testified about appellant=s failure to reprimand or report Caldwell, and when a statement does not refer to evidence that can come only from the defendant, it is not a direct comment on the defendant=s failure to testify. Goff v. State, 931 S.W.2d 537, 548 (Tex. Crim. App. 1996).

None of the statements about which appellant complains constitutes a comment on her failure to testify. We overrule appellant=s first issue.

Jury Charge

In her final issue, appellant claims that the trial court erred in denying several requested changes to the jury charge. In her appellate brief, appellant merely notes that she requested changes in five different areas of the charge, but she does not specify exactly which items form the basis of her complaint on appeal. She also fails to provide any analysis or authority as to why she was entitled to the requested changes or how the trial court=s failure to grant these requests harmed her. Appellant has inadequately briefed this issue, thus presenting nothing for our review. See Tex. R. App. P. 38.1(h); Jensen v. State, 66 S.W.3d 528, 534 n.3 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). Accordingly, appellant has waived her complaint, and we overrule her third issue.

Having overruled each of appellant=s issues, we affirm the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed August 18, 2005.

Panel consists of Justices Anderson, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).