Shirley A. Butler v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-03-00858-CR

Shirley A. BUTLER,

Appellant

v.

The STATE of Texas,

Appellee

From the 227th Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CR-6617

Honorable Pat Priest // , Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: September 21, 2005

AFFIRMED

Shirley A. Butler appeals the judgment convicting her of misapplying fiduciary funds in an aggregate amount of $20,000.00 or more but less than $100,000.00, ordering restitution in the amount of $99,999.96, and placing her on community supervision for ten years. We affirm the trial court s judgment.

Factual and Procedural Background

Butler s mother, Lee Vera Tussie, received a $750,000.00 settlement. After payment of attorney s fees, approximately $25,000.00 was distributed to each of Mrs. Tussie s seven children, including Butler, who was Mrs. Tussie s guardian; and the remainder was placed in a trust for Mrs. Tussie s benefit. Shortly thereafter, Mrs. Tussie died intestate; accordingly, the trust paid its expenses and issued a check for $214,866.99 to Butler, who by then had qualified as the independent administrator of Mrs. Tussie s estate. This should have resulted in a distribution to each of Mrs. Tussie s heirs of approximately $30,000.00, according to Patricia Strader, an investigator with the white collar crimes section of the District Attorney s office; however, each heir other than Butler received only about $5,000.00. From September 2001 until December 2001, Butler spent approximately $154,000.00 on furniture, a vehicle, and other items. Ultimately, Butler was indicted for theft and misapplication of fiduciary funds of an aggregate amount of $100,000.00 or more but less than $200,000.00. A jury found her guilty of the lesser included offense of misapplication by a fiduciary of property valued at $20,000.00 or more but less than $100,000.00.

Discussion

1. In her first point of error, Butler argues the trial court erred in failing to instruct the jury that she was a beneficiary, an owner of property, had title to property and right to the possession of the property as the seventh heir. However, Butler was not entitled to this instruction since, as she recognizes in her brief, the court s charge already instructed the jury that no person may be convicted of theft or misapplication of property which is their own property. Cf. Gonzalez v. State, 954 S.W.2d 98, 103 (Tex. App. San Antonio 1997, no pet.) (noting that fiduciary receives money in a fiduciary capacity 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 ) (quoting Black s Law Dictionary 625 (6th ed.1990)) (emphasis added). //

2. In her second point of error, Butler argues the State violated Brady v. Maryland // by withholding the reporter s record of a hearing in the probate court, which Butler argues would establish that the probate court judge testified falsely. In Brady, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. 373 U.S. at 87. However, Brady does not apply when the evidence is already available to the defendant. Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002). Brady thus does not apply to the reporter s record, which Butler could have obtained from the reporter. Moreover, when asked whether there was anything else to take up on Butler s motions for exculpatory evidence, Butler s attorney mentioned only the motion for extraneous evidence. Butler thus failed to preserve her right to appellate review on her point of error. See Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 1999). And even if the error had been preserved, Butler has failed to establish harm. See Tex. R. App. P. 44.2.

3. In her third point of error, Butler argues her mother s death terminated the probate court s jurisdiction over the guardianship; accordingly, the probate court lacked jurisdiction when it issued its order determining her mother s heirs. However, the probate court issued its order in an exercise of its jurisdiction over the Estate of Lee Vera Tussie, not its jurisdiction over the Guardianship of Lee Vera Tussie; and this criminal case arises not out of Butler s acts and omissions as her mother s guardian but Butler s acts and omissions as the personal representative of her deceased mother s estate.

4. In her fourth point of error, Butler argues the trial court erred in denying her motion to suppress the evidence seized pursuant to the search warrant because the affidavit supporting the issuance of the warrant lacked the affiant s signature and the warrant itself lacked the issuing judge s signature. However, the record of the hearing on the motion to suppress is quite clear that unsigned copies of these documents were admitted on the parties representation, including Butler s, that signed copies existed and would be provided to supplement the record; and a supplemental record containing the signed copies has been filed in this Court.

5. In her fifth point of error, Butler argues the State violated the criminal trespass statute by permitting attorney David A. Wise to attend the search of her home. However, Butler failed to preserve this alleged error for appellate review by failing to object on this basis in the trial court. See Little v. State, 758 S.W.2d 551, 563 (Tex. Crim. App.), cert. denied, 488 U.S. 934 (1988); Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(1).

6. In her sixth point of error, Butler argues her rights under the Confrontation Clause were violated by including in the affidavit for a search warrant the testimony of a person who did not testify at trial. However, Butler has failed to establish harm from this alleged error, since the search warrant affidavit was not introduced at trial. Moreover, Butler failed to object on this basis either in the hearing on her motion to suppress or at trial and thus waived appellate review of this alleged error. See, e.g., Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).

7. In her seventh and final point of error, Butler argues the prosecutor submitted false reports (the unsigned warrant and affidavit) in violation of the Fourteenth Amendment s prohibition on state deprivations of property without a proper hearing. However, this constitutional guarantee has no application in a criminal proceeding such as this. See, e.g., Fuentes v. Shevin, 407 U.S. 67, 82, 92 S. Ct. 1983, 1995, 32 L. Ed. 2d 556 (1972) (the procedural due process guarantee protects against arbitrary takings in the civil context).

The trial court s judgment is affirmed.

Sarah B. Duncan, Justice

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