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Black v. State

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

April 5, 2018

JOYCE BLACK, Appellant,

         Publish. Tex.R.App.P. 47.2(b).

          On appeal from the 130thDistrict Court of Matagorda County, Texas.

          Before Justices Rodriguez, Contreras, and Hinojosa.


          LETICIA HINOJOSA Justice.

         Appellant 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.)), [1] 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.

         I. Background

         Black, 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.

         A. Investigation and Charges

         In 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 Office.

         The law 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.

         The 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, [[2] 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."

         B. Motion for Severance

         Before 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.

         C. Trial

         At 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.

          1. Johnson

         Rubye 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 agent.

         According 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.

         Sergeant 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, and airfare to and hotel accommodations in Washington D.C. in January 2009.[3]

         On 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.

         As 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?
A. Right.
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?
A. Right.
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 need it?
A. Right. If I got any.
Q. And you trust Ms. Black not to take advantage of you?
A. Right.
Q. And you trust her not to take your money and use it for her personal use?
A. Right.
Q. You trust her not to use money for her needs but your needs; is that right?
A. Right.
Q. And did you trust Ms. Black for all these things when you gave her a ...

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