Dorothy Ann Latham v. The State of Texas--Appeal from 273rd District Court of San Augustine County

 NO. 12-04-00354-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DOROTHY ANN LATHAM,   ' APPEAL FROM THE 273RD

APPELLANT

V.   ' JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

 APPELLEE   ' SAN AUGUSTINE COUNTY, TEXAS

MEMORANDUM OPINION

Dorothy Ann Latham 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 raises four issues on appeal. We affirm.

Background

Appellant met the victims, R.D. and Jewel Turner, through her daughter and codefendant, Debbie Sue Jacks.[1] Jacks initially worked a few hours each week caring for the Turners, an elderly couple in their eighties. However, when the Turners= health began declining, their son[2] Robert requested that Jacks work full time. Eventually, several other caregivers were hired to provide care twenty-four hours a day, seven days a week.

Based upon reports Robert received from Elaine Coulter, one of the Turners= caregivers, Robert fired Jacks. He then contacted the Texas Department of Family and Protective Services, Adult Protective Services division (APS), and drove to the Turners= home to assess the situation. He stated that Mrs. Turner handled the couple=s financial matters and kept all financial or business documents organized in files located in a filing cabinet. After an exhaustive search, he was unable to find all of the recent records. After reviewing the records that he found, he was shocked at the number and dollar amounts of checks written to Appellant and Jacks. Although Mrs. Turner defended Appellant and Jacks, Robert pointed out that his mother was adamant that all of her money was still in her accounts even after the accounts had been depleted. At the time of trial, Mr. Turner had died and Mrs. Turner was in a nursing home, suffering from advanced Alzheimer=s.

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 Aa textbook case of exploitation.@ During her investigation, Brooks found more than sixty-five checks had been written to Appellant, Jacks, or to third parties for the benefit of Appellant and Jacks. Brooks concluded that the Turners= case was financial exploitation based on undue influence.

On April 25, 2001, the San Augustine County grand jury indicted Appellant for theft of more than $100,000.00 but less than $200,000.00. Appellant pleaded not guilty and was tried before a jury.[3] 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.

Perjured Testimony

In her first issue, Appellant asserts that her due process rights were violated when the State Aused perjured testimony from Ramona Coulter and did not correct the perjured testimony.@

Discussion

The Fourteenth Amendment prohibits the knowing use of perjured testimony by the prosecution. Vasquez v. State, 67 S.W.3d 229, 239 (Tex. Crim. App. 2002) (citing United States v. Bagley, 473 U.S. 667, 678-79, 105 S. Ct. 3375, 3381-82, 87 L. Ed. 2d 481 (1985) (due process violation is established if the prosecutor knowingly uses perjured testimony and the reviewing court cannot determine beyond a reasonable doubt that the testimony was harmless)). Even when the prosecutor does not instigate the perjury, he is obligated to correct any perjured testimony given by one of his witnesses. Id.

At trial, Ramona Coulter testified that she saw Debbie Jacks pressure Mrs. Turner to write a check for $1,500.00 to Appellant. Specifically, Ramona stated that prior to her employment with the Turners, she went to their house to visit her mother who worked there at the time. When she arrived, Appellant, Jacks, and Mrs. Turner were on the back porch. Jacks told Mrs. Turner that she would not take her to see Mr. Turner in the nursing home if Mrs. Turner did not sign the $1,500.00 check to Appellant. On cross examination, Appellant=s counsel informed Ramona that there was no $1,500.00 check payable to Appellant in evidence. Ramona replied that she could only testify to the fact that the check had been written. She did not know if it was cashed. She specifically stated that she never saw the check again and did not know what became of it.

Appellant claims that since no processed check for $1,500.00 payable to Appellant was produced, Ramona was Alying@ about it. However, there is nothing in the trial record to support Appellant=s position that Ramona knowingly offered perjured testimony at trial or that the prosecutor knew or believed that it was perjured testimony. Consequently, we overrule Appellant=s first issue.

Brady Violation

Appellant urges that her conviction should be reversed because the State failed to disclose Ramona Coulter=s criminal convictions prior to trial, which was constitutional error.

Discussion

The State has an affirmative duty under the Due Process Clause to disclose exculpatory or impeachment evidence that is material to guilt or punishment. See Bagley, 473 U.S. at 676, 105 S. Ct. at 3380; Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963). A violation of the State=s duty occurs when a prosecutor fails to disclose evidence that is favorable to the accused and which creates a probability sufficient to undermine confidence in the outcome of the proceeding. Thomas v. State, 841 S.W.2d 399, 407 (Tex. Crim. App. 1992). In Brady, the Court held that the State=s suppressing material evidence favorable to the accused, upon the accused=s request for the evidence, denies the accused due process of law under the Fourteenth Amendment of the United States Constitution, irrespective of the State=s good or bad faith in withholding the evidence. See Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97; see also U.S. Const. amend. XIV. Withheld evidence is material if there is a reasonable probability that the proceeding=s outcome would have differed had the evidence been disclosed. See Bagley, 473 U.S. at 681-82, 105 S. Ct. at 3383. When the withheld evidence is disclosed during trial, the inquiry is whether the defendant was prejudiced by the delayed disclosure. See Yates v. State, 941 S.W.2d 357, 364 (Tex. App.BWaco 1997, pet. ref=d). If the defendant received the withheld material in time to put it to effective use at trial, her conviction should not be reversed simply because it was not disclosed as early as it might or should have been. See Givens v. State, 749 S.W.2d 954, 957 (Tex. App.BFort Worth 1988, pet. ref=d).

During the State=s cross examination of Ramona, she stated that her current address is TDC. She explained that her probation was revoked when she was caught driving under the influence of crack cocaine with her daughter. The underlying felony conviction was for theft of livestock. During continued questioning, Ramona also revealed that she had been convicted for credit card abuse in 1993. After questioning that comprises fourteen pages of the reporter=s record, Appellant requested a list of Ramona=s convictions. A hearing was held outside the jury=s presence. Appellant then moved for a mistrial, which the court denied. After more questioning, counsel for Jacks objected to a Brady violation and joined in Appellant=s motion for mistrial. The court again denied the motion, but ordered the sheriff to Arun a rap sheet@ on Ramona. The court advised counsel that the witness would be available to testify after all parties had received the NCIC (National Crime Information Computer) report. In the jury=s presence, the court allowed questioning to continue about crimes involving moral turpitude occurring within the last ten years. The next day, after receiving the NCIC report, Appellant was permitted to question Ramona further about the contents of the NCIC report. Appellant did not request a continuance.

When the evidence withheld in violation of Brady is disclosed at trial, the defendant=s failure to request a continuance waives the error or at least indicates that the delay in receiving the evidence was not truly prejudicial. See Young v. State , 183 S.W.3d 699, 705-06 (Tex. App.BTyler 2005, pet. ref=d) (failure to request continuance waived Brady error); Davis v. State, 992 S.W.2d 8, 12 (Tex. App.BHouston [1st Dist.] 1996, no pet.) (failed to show prejudice from the tardy disclosure). Appellant did not request a continuance. Moreover, Appellant received the witness=s complete criminal history and questioned Ramona further after receiving the NCIC report in the jury=s presence. Consequently, Appellant waived the error. See Young, 183 S.W.3d at 706. We overrule Appellant=s second issue.

Sufficiency of the Evidence

In her third and fourth issues, Appellant challenges the legal and factual sufficiency of the evidence supporting her conviction. Specifically, Appellant asserts the evidence is legally insufficient to sustain her conviction as a party to the offense. She also asserts the evidence is factually insufficient to sustain her conviction for the amount of money alleged in the indictment.

Standard of Review

Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.BSan Antonio 1999, pet. ref=d) (citing Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979)). In reviewing a legal sufficiency challenge, the appellate court examines the evidence in the light most favorable to the judgment to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993) (citing Jackson, 443 U.S. at 319, 99 S. Ct. at 2789). The conviction will be sustained Aunless it is found to be irrational or unsupported by more than a >mere modicum= of the evidence.@ Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). The jury is the exclusive judge of (1) the facts, (2) the credibility of the witnesses, and (3) the weight to be given to the testimony of each witness. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994); Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). Any reconciliation of conflicts and contradictions in the evidence is entirely within the jury=s domain. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). A successful legal sufficiency challenge results in the rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982).

In conducting a factual sufficiency review, the appellate court must review all of the evidence, but not in the light most favorable to the prosecution. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). We must determine whether a neutral review of all the evidence, both for and against the challenged finding, demonstrates that a rational juror could find guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilty beyond a reasonable doubt. Id. Evidence is also factually insufficient when contrary evidence is so strong that the beyond a reasonable doubt burden of proof could not have been met. Id. at 484-85. In performing a factual sufficiency review, we defer to the fact finder=s determinations, including those involving the credibility and demeanor of witnesses. Id. at 481. The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484.

Applicable Law

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 or more but less than $200,000. Id. ' 31.03 (e)(6). Appropriation of property is unlawful if it is without the owner=s effective consent. Id. ' 31.03 (b)(1). AAppropriate@ means to acquire or otherwise exercise control over property other than real property. Id. ' 31.01 (4)(B). ADeprive@ means to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment is lost to the owners. Id. ' 31.01 (2)(A). AEffective consent@ includes consent by a person legally authorized to act for the owner. Id. ' 31.01(3). Consent is not effective if induced by deception or coercion, given by a person who by reason of mental disease or defect or of advanced age is known by the actor to have diminished capacity to make informed and rational decisions about the reasonable disposition of property. Id.

Under the law of parties, an actor is criminally responsible as a party to an offense if, acting with intent to promote or assist in the commission of the offense, she solicits, encourages, directs, aids, or attempts to aid another person in committing the offense. See id. '' 7.01, 7.02. The evidence is sufficient to support a conviction under the law of parties where the actor is physically present at the commission of the offense and encourages the commission of the offense either by words or other agreement. See Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985). The evidence must show that, at the time of the offense, the parties were acting together, each contributing to their common purpose. See id. When determining whether parties were acting together, the court may examine the events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and common design to commit the offense. See id. Circumstantial evidence may be used to prove one is a party to an offense. See id.

Discussion

During trial, Appellant said that she met the Turners through Jacks=s association with them. The Turners joined Jacks and her husband at Appellant=s house for Thanksgiving and Christmas for several years. Appellant sold prearranged funerals to the Turners and was paid a commission on the sale. She conceded receiving several thousands of dollars in checks from the Turners. Specifically, Appellant said that she had borrowed approximately $8,000.00 from the Turners. She admitted that she had made no effort to repay any of the money. Appellant also admitted that she received an additional several thousand dollars in checks, but claimed she did not remember the purpose of the checks. Appellant claimed, however, that in one instance, Mrs. Turner wanted to cash a check but did not want to go to the bank. According to Appellant, Mrs. Turner changed her mind about driving to the bank; however, she had already written the $5,000.00 check to Appellant. Upon arriving at the bank, Appellant said she cashed the $5,000.00 check and then handed the money to Mrs. Turner. Appellant admitted that she and her husband filed bankruptcy in 1996.

Appellant received benefit from the travel trailer that the Turners purchased for Jacks and Jacks=s family. She denied receiving any benefit from the four wheelers, boat, freezer, Ford Explorer, and new furniture purchased for Jacks. Appellant conceded that she had arranged for an attorney to meet with the Turners for the express purpose of changing their will and that she and Jacks participated in that meeting.

APS caseworker Rhonda Brooks testified that Appellant and Jacks had received more than $127,000.00 in goods and money from the Turners, of which no more than $16,800.00 could have been legitimate earnings credited to Jacks. Brooks said that it is common for exploiters to take advantage of elderly people=s diminished mental abilities. Brooks questioned Appellant at the same time she questioned Jacks, but Appellant was not named as a suspect in her investigation. She testified that the Turners suffered from diminished capacity and that Jacks knew this and used it to exploit them.

Attorney Michael Adams confirmed that Appellant requested that he change the Turners= wills. However, after talking to them for thirty to forty-five minutes, he determined that he was not comfortable with the Turners= testamentary capacity. Thus, he did not proceed with writing new wills for them.

Ramona Coulter testified that she heard Jacks pressuring Mrs. Turner to sign a check payable to Appellant, using visits to Mr. Turner at the nursing home as leverage. She testified that Appellant was sitting with Mrs. Turner and Jacks when this exchange took place. She considered Jacks=s conversation and tone to be verbally abusive. Ramona also heard Jacks say that she was going to get a power of attorney for the Turners.

Bank manager Vickie Felts testified that she was concerned with the money transactions flowing from the Turners= accounts to Appellant and Jacks. Felts thought it Astrange@ that Appellant and Jacks stayed in her office while she and Mrs. Turner discussed the Turners= financial matters. She said that Appellant=s and Jacks=s actions especially concerned her considering that Mrs. Turner had changed from being a meticulous bookkeeper to being Areally easy going with her money.@

Jacks admitted that she received $30,986.82 in Aloans@ from the Turners. She also admitted that the Turners purchased and Asigned over@ a new Ford Explorer to her. Jacks acknowledged that an additional $25,370.00 in checks were written to her. She admitted that Mrs. Turner paid for a travel trailer on her behalf and for furniture she had purchased on credit. She claimed that the computer purchased with the Turners= money was a gift to her from Mrs. Turner. Jacks admitted that she and her husband filed bankruptcy in 1994. She said that she had never seen Ramona Coulter before her appearance at trial.

The court admitted into evidence copies of checks written to Appellant totaling $18,394.71, to Jacks totaling $63,185.82, and to third parties for the benefit of Appellant and Jacks totaling $35,126.36.

From this evidence, the jury could have found that the Turners, by reason of diminished mental capacity, were no longer able to make reasonable property dispositions; thus, Appellant did not have the Turners= effective consent to acquire or otherwise exercise control over their property. Furthermore, the jury could have found that Appellant was acting together with Jacks, with each contributing some part toward the execution of the common purpose of depriving the Turners of their property. A rational trier of fact could have found beyond a reasonable doubt that Appellant and Jacks unlawfully appropriated more than $100,000.00 of the Turners= property with the intent to deprive them of their property. Examining the evidence in the light most favorable to the judgment, Appellant=s legal sufficiency argument fails; consequently, we overrule her third issue.

Appellant admitted that she accepted money from the Turners, but contended she planned to repay it. She testified that some of the checks without the Aloan@ notation were written to her as reimbursement for items she had purchased on the Turners= behalf. Appellant denied receiving benefit from the Ford Explorer, boat, four wheelers, freezer, and new furniture. Appellant claimed to love the Turners and hosted them at her home for four years at Thanksgiving and Christmas. Appellant said that she believed that Jacks was taking good care of the Turners. She denied that she or Jacks ever verbally abused the Turners. Although she and her husband had experienced some difficult times financially, she asserted that they have always worked. Appellant did not believe that the Turners suffered from diminished capacity. She testified that they were competent and capable of knowing what they were doing concerning their financial affairs. Appellant claimed that she arranged for the attorney to meet with the Turners to change their will at Mrs. Turner=s request. According to APS specialist Rhonda Brooks, her investigation of the exploitation of the Turners centered on Jacks.

The jury accepted the State=s version of the facts and found against Appellant. In our evaluation, we should not substantially intrude upon the jury=s role as the sole judge of the weight and credibility of witness testimony. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We have conducted a neutral review of all the evidence, both for and against the finding. The record does not reveal any evidence that causes us to conclude that the proof of guilt is too weak to support the finding of guilt beyond a reasonable doubt. Nor does the record reveal contrary evidence so strong that guilt cannot be proven beyond a reasonable doubt. Thus, we hold that the evidence is factually sufficient to support the jury=s verdict. Consequently, we overrule Appellant=s fourth issue.

Disposition

Having overruled Appellant=s issues one, two, three and four, we affirm the judgment of the trial court.

SAM GRIFFITH

Justice

Opinion delivered March 31, 2006.

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

(DO NOT PUBLISH)

[1] We have issued our opinion in the appeal of Appellant=s codefendant, Debbie Sue Jacks. For a more complete recitation of the background facts, see Jacks v. State, No. 12-04-00355-CR, 2006 WL 629036 (Tex. App.BTyler Mar. 15, 2006, no pet. h.) (not designated for publication).

[2] 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 the boys were youths. Robert testified that he considered Jewel to be his mother although Jacks testified that neither Robert nor Raymond were close to their parents.

[3] Five persons were indicted in Cause Number CR 7365 in the 1st District Court of San Augustine County. Appellant and her daughter Debbie Sue Jacks were prosecuted together in a single trial, from which the instant appeal arises. Appellant=s husband, Donald Melvin Latham, and her son-in-law, Lee Douglas Jacks, were prosecuted in a single trial following Appellant=s trial. Appellant=s other daughter, Betty Holloway, made restitution of $1,500.00, and the case against her was dismissed.