Lee Douglas Jacks v. The State of Texas--Appeal from 1st District Court of San Augustine County

NO. 12-04-00356-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

LEE DOUGLAS JACKS, APPEAL FROM THE FIRST

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SAN AUGUSTINE COUNTY, TEXAS

MEMORANDUM OPINION

Lee Douglas Jacks was convicted of theft of property of more than $1,500.00, a state jail felony. In two issues, Appellant challenges the legal and factual sufficiency of the evidence to support his conviction. We affirm.

Background

Appellant met the victims, R.D. and Jewel Turner, through his wife, Debbie Sue Jacks.1 Debbie 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 son2 Robert requested that Debbie work full time, and 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 Debbie. 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. Mrs. Turner handled the couple s financial matters and kept all financial or business documents organized in files located in a filing cabinet. She was a meticulous bookkeeper. After searching extensively, Robert was unable to find all of the recent records. After reviewing the records that he found, he was appalled at the number and dollar amounts of checks written to Debbie and her mother, Dorothy Ann Latham. 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. During her investigation, Brooks found more than sixty-five checks had been written to Debbie, Dorothy, or to third parties for the benefit of Debbie, Dorothy, and their families. 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, Debbie, Dorothy, Donald Latham, and Betty Holloway 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 theft of more than $1,500.00 but less than $20,000.00, sentenced him to two years of imprisonment, probated for ten years, and assessed a $10,000.00 fine. This appeal followed.

Sufficiency of the Evidence

In his first and second issues, Appellant challenges the legal and factual sufficiency of the evidence supporting his conviction.

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. San 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 unless 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). The jury is entitled to draw reasonable inferences from the evidence. Benavides v. State, 763 S.W.2d 587, 588-89 (Tex. App. Corpus Christi 1988, pet. ref d). 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 he 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 state jail felony if the value of the property stolen is $1,500.00 or more but less than $20,000.00. Id. 31.03(e)(4). Appropriation of property is unlawful if it is without the owner s effective consent. Id. 31.03(b)(1). Appropriate means to acquire or otherwise exercise control over property other than real property. Id. 31.01(4)(B). Deprive 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). Effective 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 or 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, he 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. Each fact need not directly and independently point to one s guilt as long as the cumulative effect of the incriminating facts is sufficient to support the conviction. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). A conviction may rest on the cumulative strength of all incriminating circumstances even if it is based on circumstantial evidence. See Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001).

Legal Sufficiency

Robert Turner testified that he remembered seeing a check payable to Dorothy Latham for $2,000.00, but could offer no explanation for the check. He said that it would surprise him if the check was for putting shingles on the roof. Additionally, Robert did not recall any checks written for the purchase of shingles. The exhibits admitted at trial showed that check #2905 was made payable to Dorothy Latham for $2,000.00 and included the notation Loan/Roofing in the memo section. However, Robert was unaware that any work had been done on his parents roof. Robert also testified that he saw two new four wheelers, a boat, and a travel trailer parked between Appellant s home and the home of his codefendant, Donald Latham. The court admitted into evidence copies of the Turners checks written to Debbie totaling $63,185.82, to Dorothy totaling $18,394.71, and to third parties for their benefit and that of their families totaling $35,126.36.

Elaine Coulter testified that she found a significant number of the Turners checks written for large amounts that had been issued to Debbie and Dorothy. Because of Mrs. Turner s diminished mental capacity, Coulter was concerned that the Turners were being exploited. After showing Mrs. Turner all the checks that had been written to Debbie and Dorothy, Mrs. Turner said, but I told her no. Coulter did not recall seeing checks payable to Appellant or Donald. She recalled meeting Donald at the lake where the travel trailer was parked at the time. Coulter knew nothing about Appellant and Donald roofing the Turners house and could say nothing concerning their guilt for the theft charge because I don t know them.

APS caseworker Rhonda Brooks testified that Debbie and Dorothy received at least $115,341.53 in goods and money from the Turners, not including earnings paid to Debbie for her services. Personal property purchased with the Turners money included a sport utility vehicle, a boat and motor, a travel trailer, a computer, furniture, and appliances. A check for $ 22,562.28 was written to pay off the balance owed on Debbie s sport utility vehicle. Furniture costing the Turners at least $2,300.00 was delivered to Appellant s house. The travel trailer was purchased with a check for $4,661.00. Debbie s computer was purchased with a check for $1,100.00. Brooks testified that both Mr. and Mrs. Turner were suffering from dementia to some degree, but Mrs. Turner s mental capacity was worse than Mr. Turner s. She concluded that the Turners had been financially exploited between the years 1997 and 2000. Neither Appellant nor Donald was named as a suspect in her investigation.

Bank manager Vickie Felts testified that she was concerned with the money transactions flowing from the Turners accounts to the accounts of Appellant and Donald. The Turners had $116,000.00 in certificate of deposit accounts, the largest portion of which had been depleted. She said that the actions of Debbie and Dorothy concerned her considering that Mrs. Turner s personality had changed from being a meticulous bookkeeper to becoming lax with her money. Felts testified that Appellant and his wife had a joint checking account at the bank. On one occasion, Debbie brought Mrs. Turner into the bank to withdraw $6,000.00 from the Turners account so that Debbie could buy a boat for Appellant. After Felts began questioning Debbie concerning the transaction, Debbie became very nervous and told me that she was sick and went outside. At some point, Felts became so concerned that she contacted APS, but never heard the results of the investigation.

Donald testified that the Turners were real good friends and that they would come to his house for Thanksgiving and Christmas. He was married to Dorothy, and he admitted that they had a joint checking account although he said that Dorothy took care of the finances for the family. Donald would be paid for his work driving a log truck and then he would give his paycheck to Dorothy. She gave him approximately $40.00 cash each week for miscellaneous items. Donald said he never made deposits to the checking account and wrote only a few checks. He conceded that Dorothy told him that the Turners loaned them $700.00 to fix their car. Donald claimed he put a new roof on the Turners home, for which he was paid. However, he said he never saw the check. Donald said he knew nothing of his daughter s and wife s actions until they were indicted and denied knowledge of over $18,000.00 deposited into his account from the Turners accounts. Had he known, he d have put [his] foot down. Donald admitted that he and his wife filed bankruptcy close to the time that Appellant filed in 1996. He claimed he did not know where the money was coming from at Appellant s house that s [their] household. . . . I seen [saw] a lot of stuff going on; but it wasn t [any] of my business. Donald said that he never drove Debbie s sports utility vehicle or used the travel trailer or four wheeler. However, he admitted that Dorothy moved the travel trailer to the new restaurant business that he and his wife owned. Donald also conceded that he has not paid back any money or returned any property to the Turners.

Appellant testified on his own behalf at trial. He said that he met the Turners through Debbie s association with them. The Turners joined Appellant, Debbie, Dorothy, and Donald for Thanksgiving and Christmas for several years. Appellant mowed the Turners yard and did various odd jobs for them, including helping Donald work on the Turners roof.

Appellant said that he was married to Debbie, lived with her, and had a joint checking account with her. He denied having any knowledge of the numerous checks totaling over $60,000.00 deposited into his account from the Turners accounts. Appellant admitted that he and his wife filed bankruptcy in 1996. He denied taking anything from the Turners or knowing anything about Debbie s actions. Had he known, he would have stopped her because it wasn t right. Appellant conceded that the Turners helped Debbie get the Ford Explorer, but denied any specific knowledge of the vehicle transaction. He drove the Explorer once or twice. He also said that they still owned the travel trailer although he denied using it. He conceded, however, that he had returned none of the items nor had he paid back any money to the Turners.

From this evidence, the jury could have found that the Turners, by reason of diminished mental capacity or advanced age, were no longer able to make reasonable property dispositions; thus, Appellant did not have the Turners effective consent to acquire or exercise control over their property. Considering the evidence regarding the travel trailer, the Turners roof, and their $2,000.00 check marked Loan/Roofing, the jury could have found that Appellant was acting together with Donald, with each contributing some part toward the execution of the common purpose of depriving the Turners of their property.4 Further, under the law of parties, the jury could rationally conclude that Appellant was aware of unlawful appropriations from the Turners and that he solicited or encouraged the unlawful conduct with the intent to promote the commission of the offenses. Although Appellant and Donald claimed they committed no offenses and that they were unaware of the unlawful actions of their respective wives, they conceded that they had made no attempts to return any of the property or repay any money to the Turners. Considering the events occurring before, during, and after the commission of the offense, the jury could have found that the actions of Appellant and Donald show an understanding and common design to commit the offense by exercising control over the property. A rational trier of fact could have found beyond a reasonable doubt that Appellant and Donald unlawfully exercised control or appropriated more than $1,500.00 of the Turners property with the intent to deprive them of their property. Even if the evidence is circumstantial, a conviction may rest on the cumulative strength of all incriminating circumstances. See Conner, 67 S.W.3d at 197. After examining all the evidence in the light most favorable to the judgment, Appellant s legal sufficiency argument fails; consequently, we overrule his first issue.

Factual Sufficiency

The record also includes evidence that is contrary to the verdict. Appellant admitted that he accepted money from the Turners, but contended it was payment for mowing and working on their roof. He said that the only boat he owned was purchased years before Debbie knew the Turners, claiming that any boats seen near his house belonged to Donald. He denied knowing anything about how Debbie purchased a new four wheeler. Appellant denied receiving any benefit from the four wheeler, travel trailer, appliances, and new furniture. He denied that he had taken any property from the Turners except for earned wages and gifts. Appellant claimed to be unaware of his wife s unlawful actions. He depended on her to handle the family s financial matters, stating that he went to school through the tenth grade and can only marginally read and write. He claims to be unable to write a complete check, asserting that someone at the store writes the store s name and amount on the check and then he signs it. When asked if he ever questioned Debbie about the money or the property they acquired, Appellant stated that he never asked because he depended on her to handle the money. He claimed he knew nothing about the furniture from Bealls, the appliances, or the computer purchased by the Turners. According to APS specialist Rhonda Brooks, her investigation of the exploitation of the Turners centered on Debbie. Bank manager Vickie Felts never saw Appellant in the bank with Mrs. Turner and knew of no specific improprieties concerning him.

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 second issue.

Disposition

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

DIANE DEVASTO

Justice

Opinion delivered April 28, 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 wife and mother-in-law, Debbie Sue Jacks and Dorothy Ann Latham, respectively. For a more complete recitation of the background facts, see Jacks v. State, No. 12-04-00355-CR, 2006 WL 629036 (Tex. App. Tyler Mar. 15, 2006, no pet.) (not designated for publication); see also Latham v. State, No. 12-04-00354-CR, 2006 WL 859687 (Tex. App. Tyler Mar. 31, 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.

3 Five persons were indicted in a single indictment in Cause Number CR 7365 in the 1st District Court of San Augustine County. Appellant and his father-in-law, Donald Melvin Latham, were prosecuted together in a single trial, from which the instant appeal arises. Appellant s wife, Debbie Sue Jacks, and mother-in-law, Dorothy Ann Latham, were prosecuted together in a single trial prior to Appellant s trial. Appellant s sister-in-law, Betty Holloway, made restitution of $1,500.00, and the case against her was dismissed.

4 Although five persons were indicted together in a single indictment, Appellant and Donald were tried together in one trial, separate from Debbie and Dorothy s trial. The court s charge in the instant case listed only Appellant and Donald as parties to the offense. Thus, in reviewing the sufficiency of the evidence in this case, our examination is primarily focused on the evidence relating to Appellant and Donald.