Debbie Sue Jacks v. The State of Texas--Appeal from 273rd District Court of San Augustine County

NO. 12-04-00355-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DEBBIE SUE JACKS, APPEAL FROM THE 273RD

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SAN AUGUSTINE COUNTY, TEXAS

MEMORANDUM OPINION

Debbie Sue Jacks was convicted of theft of property of more than $100,000.00, a second degree felony, and was sentenced to ten years of imprisonment. Appellant challenges the admission of hearsay testimony and venue. We affirm.

Background

On April 25, 2001, a San Augustine County grand jury indicted Appellant for theft of more than $100,000.00 but less than $200,000.00.1 Appellant pleaded not guilty and was tried before a jury.2

Testimony at trial revealed that during Appellant s employment with Sabine County Hospital Home Health, she went to the home of R.D. and Jewel Turner three times a week to assist them with their personal care. The Turners were in their eighties at the time. After Appellant stopped working for the home health company, Mrs. Turner called her occasionally to do odd jobs and paid her for each job.

In April 1999, Mr. Turner was hospitalized and the Turners son Robert came to see after his parents.3 During his trip, Robert asked Appellant to make sure that the Turners had food to eat and were taking their medicine after he returned home. Appellant provided this service for one month and was paid $100.00 per week. One month later, Mr. Turner started having mini-strokes, and Appellant began staying at the Turners home 24 hours a day. According to Appellant, Mrs. Turner agreed to pay her $900.00 per month.

In October 1999, Mrs. Turner broke her hip and was no longer able to drive. Her mental condition severely deteriorated after she was administered anesthesia during her hip surgery. Both of the Turners continued to decline, and their sons decided that several other people should be hired to assist in providing the Turners care. Robert testified that he trusted Appellant and allowed her to hire the other caregivers since she was from the area and knew people. He stated that the compensation they agreed upon for Appellant was $300 per week.

Elaine Coulter testified that she was originally hired in 2000 to provide weekend care for the Turners. For the first three to four months, Elaine worked from Friday evening until Monday morning. Appellant worked weekdays from 6:00 a.m. until 2:00 p.m., and two other caregivers worked the remaining shifts. Elaine usually saw Appellant only on Monday mornings, when Appellant relieved Elaine after her weekend duties.

When Elaine first began working for the Turners, she noticed that the house was dirty, there was little food in the house, and the Turners had not been bathed regularly. Appellant, acting as the primary caregiver, prepared the Turners medications and instructed the other caregivers what should be given to them. Elaine became concerned when she saw the thousands of dollars of medication in the bathroom that was prescribed to the Turners but not being administered to them. In June 2000, Elaine found a note that read, Dear Mrs. Turner, thank you . Elaine became suspicious and looked at the Turners checkbook, which had been left lying out. She saw that several checks had been written to Appellant, totaling thousands of dollars. Elaine told the Turners son Robert about the checks and the state in which she had found his parents and their home. Robert fired Appellant in June 2000.

After firing Appellant, Robert contacted the Texas Department of Family and Protective Services, Adult Protective Services division (APS), and drove to the Turners home to assess the situation. When he arrived, he had difficulty finding financial records. Robert testified that Mrs. Turner had always been a meticulous bookkeeper. He stated that Mrs. Turner always kept the couple s financial or business documents organized in files located in a filing cabinet. However, he found checkbooks and other financial documents hidden in closets, in shoe boxes, under the bed, in the back of file cabinets, just everywhere. Robert said that after an exhaustive search, he was unable to find all of the recent records. Neither he nor anyone else was able to locate the black ledger book in which Mrs. Turner kept records of money spent. After reviewing the records that he found, he was shocked at the number and dollar amounts of checks written to Appellant and her mother. He questioned whether his father s signature on one check was authentic, claiming that his father never signed checks. He also questioned whether some of Mrs. Turner s signatures were authentic. Although Appellant denied ever signing any checks, Robert testified that Appellant had told him she had signed checks at times in order to get bills paid when she was unable to coax Mrs. Turner to sign. Robert also questioned the lack of promissory notes to back up all the checks that were noted as loans, which he said was a clear departure from his parents usual business practices.

Rhonda Brooks, a certified adult protective services supervisor for APS, investigated the Turners case after Elaine Coulter reported her observations to Robert Turner. At trial, Brooks talked about the markers that suggest exploitation of the elderly. Brooks testified that she found evidence of each marker in this case, describing the situation as a textbook case of exploitation.

During her investigation, Brooks found over 65 checks that had been written to Appellant, her mother, or to third parties for the benefit of Appellant. Some of the checks to Appellant and her mother had the notation loan in the memo section; the others had no notation showing the purpose of the checks. Three of the checks were for a Ford Explorer that the Turners signed over to Appellant. Although most of the checks appear to have been signed by Mrs. Turner, many were in Appellant s handwriting. Brooks concluded that the case against Appellant was financial exploitation based on undue influence. She stated her opinion that the Turners no longer had full mental capacity. She verified the Turners diminished capacity with the Turners doctor and stated that Appellant knew of their dementia because she was the person who took them to their doctor s appointments.

The jury convicted Appellant of the crime as charged, sentenced her to ten years of imprisonment, and assessed a $10,000.00 fine. The trial court overruled Appellant s motion for new trial, and this appeal followed.

Admission of Hearsay

In her first issue, Appellant complains that the trial court permitted Rhonda Brooks, the APS supervisor who investigated the complaint against Appellant, to testify about the value of the Ford Explorer that the Turners purchased and signed over to Appellant. Specifically, Appellant points out that although Brooks made no showing that she has knowledge of motor vehicle evaluation, she testified about the value of the Explorer using information from the Kelley Blue Book.

 Standard of Review

We review the trial court s decision to admit or exclude testimony under an abuse of discretion standard. Kelly v. State, 824 S.W.2d 568, 574 (Tex. Crim. App. 1992). An abuse of discretion occurs when the trial court acts without reference to any guiding rules and principles or acts arbitrarily or unreasonably. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). In determining whether a trial court abused its discretion, we review the trial court s ruling in light of what was before the trial court at the time the ruling was made. Hoyos v. State, 982 S.W.2d 419, 422 (Tex. Crim. App. 1998). This standard requires an appellate court to uphold a trial court s admissibility decisions when they are within the zone of reasonable disagreement. See Montgomery, 810 S.W.2d at 391 (op. on reh g).

Discussion

In the case at hand, the State alleged that Appellant committed theft of more than $100,000.00 but less than $200,000.00. Consequently, the State had the burden to prove the fair market value of the stolen property at the time and place of the offense. See Tex. Pen. Code Ann. 31.08. Rhonda Brooks testified that the Turners bought a new Ford Explorer and then signed it over to Appellant. Brooks also testified that the vehicle was valued at $21,000.00 according to the Kelley Blue Book. Appellant objected to Brooks s use of information from the Kelley Blue Book, contending it was hearsay. The trial court overruled Appellant s hearsay objection.

Hearsay is an out of court statement offered at trial to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is not admissible, absent a rule-based or statutory exception to the hearsay rule. Tex. R. Evid. 802; see Philpot v. State, 897 S.W.2d 848, 851 (Tex. App. Dallas 1995, pet. ref d). One exception to the hearsay rule permits the admission of certain objective data such as market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations. See Tex. R. Evid. 803(17).

On appeal, Appellant does not dispute that the Kelley Blue Book is such a published compilation. Instead, she argues that the proper predicate was not laid to establish this exception to the hearsay rule. Appellant s complaint on appeal no proper predicate does not comport with her objection at trial hearsay. Therefore, nothing is preserved for our review. See Jones v. State, 817 S.W.2d 854, 857 (Tex. App. Houston [1st Dist.] 1991, no pet.) Even if Appellant had preserved the issue, however, the result would not change.

Immediately after the trial court overruled Appellant s hearsay objection, Brooks testified that she found a check in the Turners account for over $22,000.004 that was used to pay the balance owed on the Ford Explorer. Fair market value can be proven by showing the price paid for the stolen item. See Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim. App. 1991). Therefore, assuming arguendo that the trial court erred in overruling Appellant s hearsay objection, any such error was harmless because the value of the Explorer was established by other testimony. Appellant s first issue is overruled.

Proof of Venue

In her second issue, Appellant challenges venue, contending that there is no evidence in the record that any of the actions for which she was prosecuted occurred in San Augustine County, the county in which she was prosecuted.

Discussion

The Texas Code of Criminal Procedure provides that where property is stolen in one county and removed by the offender to another county, the offender may be prosecuted in either the county where the property was stolen or the county where the property was taken. See Tex. Code Crim. Proc. Ann. art. 13.08. Here, the record does not reflect that the property was stolen in one county and taken to another. Therefore, the proper county for the prosecution of Appellant is the county in which the offense was committed. See id. art. 13.18. To sustain the allegation of venue, it shall only be necessary to prove by the preponderance of the evidence that by reason of the facts in the case, the county where such prosecution is carried on has venue. Id. art. 13.17. Failure to prove venue in the county of prosecution is reversible error. See Black v. State, 645 S.W.2d 789, 791 (Tex. Crim. App. 1983).

The Texas Rules of Appellate Procedure provide that unless disputed in the trial court, or unless the record affirmatively shows the contrary, the court of appeals must presume that venue was proved in the trial court. Tex. R. App. P. 44.2(c)(1). In this case, Appellant did not raise the issue of venue in the trial court. Therefore, we will presume that venue was proven unless the record affirmatively shows otherwise. Id.; Clark v. State, 558 S.W.2d 887, 891 (Tex. Crim. App. 1977). To overcome the presumption of venue, Appellant must affirmatively and conclusively show that the venue of prosecution was improper. See Dill v. State, 895 S.W.2d 507, 508 (Tex. App. Fort Worth 1995, no pet.). An appellate court may not presume venue was proved by the State if the record affirmatively negates the State s proof on the matter of venue. Holdridge v. State, 707 S.W.2d 18, 21-22 (Tex. Crim. App. 1986).

In this case, a San Augustine County grand jury indicted Appellant, and the district attorney for San Augustine and Sabine counties prosecuted the case. Thus, to overcome the presumption that venue in San Augustine County was proper, the record must contain affirmative and conclusive proof that the crime did not occur in that county. Appellant states that the bank where the Turners had their accounts was in Hemphill, Texas, which she asserts is in Sabine County. Appellant also states that the post office box address for the Turners and Appellant s address were both in Pineland, asserting that Pineland is also located in Sabine County. However, Appellant has identified nothing in the record that shows any of the conduct constituting theft occurred outside San Augustine County. Therefore, we must presume that venue was proven at trial. Dill, 895 S.W.2d at 508. Appellant s second issue is overruled.

 Disposition

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

DIANE DEVASTO

Justice

Opinion delivered March 15, 2006.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

(DO NOT PUBLISH)

1 A person commits theft if she unlawfully appropriates property with intent to deprive the owner of the property. Tex. Pen. Code Ann. 31.03(a) (Vernon Supp. 2005). An offense under this section is a felony of the second degree if the value of the property stolen is $100,000.00 or more but less than $200,000.00. Id. 31.03 (e)(6).

2 Five persons were indicted in Cause Number CR 7365 in the 1st District Court of San Augustine County. Appellant and her mother, Dorothy Ann Latham, were prosecuted together in a single trial, from which the instant appeal arises. Appellant s husband, Lee Douglas Jacks, and her father, Donald Melvin Latham, were prosecuted in a single trial following Appellant s trial. Appellant s sister, Betty Holloway, made restitution of $1,500.00, and the case against her was dismissed.

3 R.D. Turner had two sons. Robert Turner lived in Topeka, Kansas, and Raymond Turner lived in Atlanta, Georgia. After R.D. s first wife died, he married Jewel Turner when his sons were young. Robert testified that he considered Jewel to be his mother although Appellant testified that neither Robert nor Raymond were close to either of the Turners.

4 The record reveals that a total of $23,673.86 was paid for the Ford Explorer from the Turners account: one check for $22,562.28 and two checks for $555.79 each.