Mark Anthony Stradone v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

No. 04-97-00883-CR
Mark Anthony STRADONE,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th District Court, Bexar County, Texas
Trial Court No. 96-CR-1503
Honorable Henry Schuble, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: November 18, 1998

AFFIRMED

Mark Anthony Stradone appeals his felony convictions for the offenses of theft and misapplication of fiduciary property. In two points of error, Stradone complains that the trial court erred in denying his motion to quash the indictment and that the evidence is factually insufficient to support the convictions. We affirm.

I.

Stradone, a certified public accountant and licensed real estate broker, served as treasurer and assessments collector for the Braun Station East Community Improvement Association (BSECIA), the homeowner's association governing the neighborhood in which he lived. A review of BSECIA's books by an independent accountant revealed a $5,000 discrepancy. This discrepancy was traced through a series of transactions, culminating in the issuance of a check for $5,000 payable to BSECIA, which Stradone endorsed and deposited into his real estate company's escrow account. An investigation ensued, resulting in Stradone being charged by indictment with one count of felony theft and one count of misapplication of fiduciary property.

The case was tried to a jury, who found Stradone guilty on both counts. The trial court sentenced Stradone to ten years community supervision and ordered him to pay a $5,000 fine. Stradone appeals.

II.

In his first point of error, Stradone alleges that the trial court erred by refusing to grant his motion to quash the indictment. Specifically, Stradone complains that the indictment failed to give him notice of the law prescribing the custody and disposition of the property to which he acted contrary. Stradone filed his motion to quash on the day of trial. The failure to object to a defect, error, or irregularity of form or substance in an indictment before the date on which the trial on the merits commences waives the objection on appeal. Tex. Code Crim. Proc. Ann. 1.14 (b) (Vernon Supp. 1998). This provision is strictly construed. See State v. Turner, 898 S.W.2d 303, 306 (Tex. Crim. App. 1995) (agreeing that article 1.14 (b) "means what it says"). Because Stradone waited until the day of trial to lodge his objection, he waived and forfeited his right to object to the defect. Id. Stradone's first point of error is overruled.

In his second point of error, Stradone alleges that the evidence is factually insufficient to support the convictions for theft and misapplication of fiduciary property. We review a challenge to the factual sufficiency of the evidence by considering all the evidence "without the prism of the light most favorable to the prosecution and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).

Section 31.03 of the Penal Code provides that a person commits the offense of theft "if he unlawfully appropriates property with intent to deprive the owner of property." Tex. Penal Code Ann. 31.03(a) (Vernon 1994 & Supp. 1998). Appropriation of property is unlawful when it is done without the owner's effective consent. Id. 31.03(b).

A person commits the offense of misapplication of fiduciary property "if he intentionally, knowingly, or recklessly misapplies property he holds as a fiduciary or property of a financial institution in a manner that involves substantial risk of loss to the owner of the property or to a person for whose benefit the property is held." Tex. Penal Code Ann. 32.45 (b) (Vernon 1994 & Supp. 1998). "Misapply" means to deal with property contrary to an agreement under which the fiduciary holds the property, or a law prescribing the custody or disposition of the property. Id. 32.45(a)(2)(A)-(B).

BSECIA maintains three financial accounts: (1) an operating fund account with Bank of Leon Springs, now Compass Bank; (2) a capital improvement account with Merrill Lynch; and (3) a "clubhouse" account out of which expenses for the neighborhood clubhouse are paid. Stradone established the Merrill Lynch account on behalf of BSECIA after BSECIA received a windfall of past due collections. The evidence showed that, in his capacity as treasurer, Stradone had signatory power, along with other designated officers, on BSECIA's three bank accounts. The operating account required dual signatures to make withdrawals or transfers, and the officers believed that the Merrill Lynch account required dual signatures, although apparently it did not.

At some point during Stradone's tenure as treasurer, BSECIA's officers made the decision to purchase two undeveloped lots abutting the subdivision. Stradone participated in these discussions, and there was testimony that Stradone assisted in obtaining reduced property valuation for them, allowing BSECIA to purchase the lots for $1,500 and $3,500, respectively.

Stradone obtained the co-signature of BSECIA's then-vice-president Carol Burket on a check transferring $5,000 from the Bank of Leon Springs operating account to the Merrill Lynch account, which he represented to Burket was for the purpose of purchasing the lots. In a series of subsequent transactions by and between Merrill Lynch and Texas Commerce Bank, eventually a cashier's check payable to BSECIA in the amount of $5,000 was drawn against the funds in the capital improvement account. Stradone was the only signatory on the drafts by and between Merrill Lynch and Texas Commerce Bank. As treasurer, Stradone alone endorsed this check payable to the order of Stradone & Co. escrow account, and he deposited it into his real estate escrow account with Jefferson State Bank. In a subsequent transaction, a check was drawn from this escrow account for $5,000 payable to, and endorsed by, Mark A. Stradone.

In an attempt to explain this scheme, Stradone made two contradictory claims: first, the transfers were necessary to effect the issuance of a check to purchase the lots, and, alternatively, that he had reached an agreement with BSECIA to act as their agent in the transaction for which he would receive commission in the amount of $5,000, or $2,500 per lot, an amount equal to the combined purchase price of the lots.

The evidence shows that separate checks were drawn on the Bank of Leon Springs operating account payable to two title companies for the purchase price of each of the lots, and there was testimony that commissions traditionally would, or should, have been paid out of those funds. Based on this evidence, the jury was free to reject Stradone's first claim, because the lots had already been paid for directly out of the operating account, thus obviating the need for an elaborate scheme to obtain funds to pay for the lots.

In support of his contention that a commission agreement existed, Stradone offered an unsigned copy of an agreement purporting to be such agreement. The former officers of BSECIA who testified denied that BSECIA authorized Stradone to withdraw the funds from the Merrill Lynch account or act as its agent for the purchases. None of the former officers could even recall discussions regarding such an agreement or its terms. No one produced a signed copy of the agreement, and the then-president of BSECIA, who would have signed the agreement on behalf of BSECIA, specifically denied ever seeing a draft agreement, much less signing one. The jury heard Stradone's testimony regarding the existence of the purported agreement, and, as judge of the credibility of the witnesses, was free to disbelieve his testimony.

Considering all the evidence, without the prism of the light most favorable to the prosecution, we find that the jury was presented with sufficient evidence to find that Stradone unlawfully appropriated $5,000 of BSECIA's property without its effective consent, and that he did so as a fiduciary of the funds of BSECIA with an intent to deprive BSECIA of the funds. We find that the convictions are not "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." We overrule Stradone's second point of error.

III.

Stradone's motion to quash the indictment was untimely filed, and preserved nothing for appeal. The evidence was sufficient to support Stradone's convictions for theft and misapplication of fiduciary property. We affirm the judgment of the trial court.

PHIL HARDBERGER,

CHIEF JUSTICE

DO NOT PUBLISH

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