Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 130thDistrict Court of Matagorda County,
Justices Rodriguez, Contreras, and Hinojosa.
LETICIA HINOJOSA Justice.
Joyce Black appeals from a judgment convicting her on one
count of misapplication of fiduciary property in the
aggregate amount of $200, 000 or more, a first-degree felony
at the time, see Act of Jun. 19, 1993, 73rd Leg.,
R.S., ch. 900, 1993 Tex. Gen. Laws 3653 (amended 2017)
(current version at Tex. Penal Code Ann. § 32.45(b)
(West, Westlaw through 2017 1st C.S.)),  and sentencing
her to six years' confinement. In five issues, Black
contends that (1) the evidence is legally "and/or"
factually insufficient to sustain the conviction; and the
trial court abused its discretion in overruling her (2)
motion to exclude a witness from testifying on the ground
that the witness's testimony would be prejudicial; (3)
objection to the jury charge on the ground that it allowed
for a conviction on less than a unanimous verdict; (4) motion
to sever; and (5) objection to the testimony of two witnesses
on hearsay and qualification grounds. We affirm.
a native of Bay City, Texas, relocated back to her hometown
in 2004 after residing in Los Angeles, California. Upon
Black's return, she established "Must Advance Racial
Connections in Harmony" (M.A.R.C.H.), a non-profit
charity; SES Reburnishing, a subsidiary of M.A.R.C.H.; and
"New Beginnings for Labor Action Committee"
(NuBLAC), a successor entity to M.A.R.C.H. These entities
purportedly obtained funds from governmental grant programs
for use in rehabilitating houses of elderly residents in the
Bay City area.
Investigation and Charges
2009, Thurman Gardner, Black's brother, reported to the
Bay City Police Department that Black had gained online
access to his bank account and made unauthorized
transactions. Bay City Police Department Sergeant Chadley
Krenek investigated Gardner's allegations by questioning
Sheryl Vasek, a vice president at Gardner's bank who had
interacted with Black, and by subpoenaing Gardner's bank
records. Gardner's bank records showed online payments
to, among other things, M.A.R.C.H. and credit cards which
were held by Connie Johnson, an elderly Bay City resident.
M.A.R.C.H., Inc.'s bank records, which were also
subpoenaed during Sergeant Krenek's investigation, showed
deposits related to Odis Wright, another elderly Bay City
resident. Eventually, Sergeant Krenek handed the
investigation over to the Texas Attorney General's
enforcement agents theorized that, in addition to Black's
conduct toward Gardner, she used the non-profit charities as
a ruse to gain appointments from Johnson and Wright as their
agent under power-of-attorney instruments, and Black used her
fiduciary position for her benefit.
indictment charged Black with one count of theft, and it
described approximately thirty distinct instances of theft of
money from Johnson, Gardner, and Wright. The same indictment
also charged Black with one count of misapplication of
fiduciary funds in various ranges, belonging to Johnson ($20,
000 to $100, 000), Gardner ($100, 000 to $200, 000), and
Wright ($20, 000 to $100, 000). The misapplication count
alleged that Black acted "contrary to an agreement under
which [she] held the property or contrary to a law
prescribing the disposition of said property, to-wit: Texas
Probate Code, Durable Power of Attorney Act § 489B,
Duty to Inform or Account, and in a manner that involved
substantial risk of loss of the property . . . ." As to
both counts, the indictment alleged that "all of the
said amounts were obtained pursuant to one scheme or
continuing course of conduct, and the aggregate value of the
property obtained was $200, 000 or more."
Motion for Severance
trial, Black moved to sever the offenses related to Johnson
and Wright, arguing that Johnson does not believe himself to
be a victim of any theft or misapplication; Gardner died
before trial, and because of Gardner's death, any offense
related to his funds should be dismissed; and trying the
offenses together would necessitate the admission of
prejudicial evidence. At a pretrial hearing, the State argued
that there was sufficient evidence that the theft and
misapplication occurred as part of a continuing course of
conduct, and therefore, severance should be denied. The trial
court denied Black's motion to sever as to each
complainant, but it severed the theft count from the
misapplication count. Only the misapplication count proceeded
to trial. The theft count is not at issue in this appeal.
trial, the State primarily relied on Sergeant Krenek and two
staff members from the Texas Attorney General's
Office-Sergeant Randy Muenzler, a peace officer assigned to
the financial investigations section, and Stephen Thompson, a
research specialist assigned to the white-collar crime and
public integrity section-to sponsor and explain the financial
documents admitted into evidence.
Davis Brown, Johnson's great niece, testified that she
could not recall Black having a close relationship with
Johnson until Rubye Herbert, Johnson's daughter, became
terminally ill. Upon Herbert's illness, Brown recalled
Black visiting Johnson. Black assisted Johnson with
Herbert's funeral arrangement after her May 19, 2008
death. According to Brown, she and Johnson were to share in
the proceeds of Herbert's life insurance policy. However,
Brown's payment was delayed because the life insurance
carrier misunderstood that Brown had assigned her share of
the proceeds to Johnson. The State posited that the
misunderstanding stemmed from Black faxing two
power-of-attorney instruments to a benefit assistant at the
life insurance carrier: one naming Johnson as Herbert's
agent and another naming Black as Johnson's successor
to Sergeant Krenek, Black began acting as Johnson's agent
by transferring money and opening credit card accounts in the
months following Herbert's death. Thompson analyzed the
records that Sergeant Krenek had subpoenaed and summarized
them into a timeline. According to Sergeants Muenzler and
Krenek, Thompson's timeline shows Black's breach of
fiduciary responsibilities to Johnson, Gardner, and Wright.
Muenzler testified that he questioned Black during his
investigation, and regarding M.A.R.C.H.'s bank account,
Black admitted that she "used it for some charitable
endeavors, but also for some of her personal expenses."
Thompson's timeline shows that in June 2008 the balance
in M.A.R.C.H.'s bank account was $18.01 and that in July
2008 Johnson's share of Herbert's life insurance
proceeds, $16, 000, was transferred from Johnson's bank
account to M.A.R.C.H.'s bank account. Meanwhile, Black,
acting as Johnson's agent, opened credit card accounts at
Home Depot, Chase, Discover, and American Express in
Johnson's name. Over the following twenty months, the
accumulated charges or cash advances on those cards,
excluding interest, penalties, and late fees, totaled $137,
624.78. The underlying credit card statements showed charges
for, among other things, meals at Golden Corral Restaurant,
wigs from wigs.com, and airfare to and hotel accommodations
in Washington D.C. in January 2009.
August 22, 2008, Johnson executed a different
power-of-attorney instrument that named Black as his initial
agent instead of a successor agent as the previous
power-of-attorney instrument did. On December 31, 2008, the
balance in M.A.R.C.H.'s bank account was $57.36 and
Black, on Johnson's behalf, executed a reverse mortgage
on Johnson's house. Thompson's timeline shows that
$60, 641 in Johnson's reverse mortgage proceeds was
deposited into M.A.R.C.H.'s bank account on January 6,
2009. By February 19, 2009, the balance in M.A.R.C.H.'s
bank account had dwindled to $100.03.
Sergeants Muenzler and Krenek conducted their investigation,
they visited with Johnson about his many credit card
accounts. Sergeant Muenzler recalled that Johnson stated,
"I ain't got no credit cards." The sergeants
showed Johnson the credit card statements that had been
obtained through subpoena, but, according to Sergeant
Muenzler, Johnson expressed disbelief and stated,
"[S]omebody's lying here." The State called
Johnson as a hostile witness. On direct examination by the
State, Johnson testified:
Q. What did you say she [Black] pays?
A. I said she pays her own bills and pays mine, too. All that
I ain't got- my money won't cover-she pays out of her
own pocket, Joyce Black.
Q. Okay. And has it always been that way?
Q. There wasn't a time when she was paying her bills with
your credit cards?
A. No. No.
Q. Or out of your bank account?
A. No. No.
. . . .
Q. . . . You trust Ms. Black, right?
A. Right. All the way.
Q. You trust her to take care of your money?
Q. You trust her to keep it safe for you?
A. Right. Well, I don't have any.
Q. Do you trust that that money is there for you whenever you
A. Right. If I got any.
Q. And you trust Ms. Black not to take advantage of you?
Q. And you trust her not to take your money and use it for
her personal use?
Q. You trust her not to use money for her needs but your
needs; is that right?
Q. And did you trust Ms. Black for all these things when you
gave her a ...