McCay, Mark ( 2015 )

PD-1306-15
PD-1306-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/2/2015 9:22:44 AM
Accepted 10/2/2015 12:10:18 PM
ABEL ACOSTA
No. PD-_______________ CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
AUSTIN, TEXAS
MARK PATRICK McCAY,
Petitioner/Appellant
vs.
THE STATE OF TEXAS,
Respondent/Appellee
On Appeal in Cause No. F11-00694-K
from Criminal District Court No 4.
of Dallas County, Texas
On Petition for Discretionary Review from
the Fifth District Court of Appeals of Texas
sitting at Dallas, Texas
in Cause No. 05-12-01199-CR
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
Lynn Pride Richardson Katherine A. Drew
Chief Public Defender Assistant Public Defender
Dallas County, Texas State Bar No. 06117800
Kathi.Drew@dallascounty.org
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Dallas, Texas 75207-4399
(214) 875-2360 (phone)
(214) 875-2363 (fax)
Attorneys for Petitioner/Appellant
October 2, 2015
LIST OF PARTIES
APPELLANT
Mark Patrick McCay
APPELLEE
The State of Texas
DEFENSE COUNSEL AT TRIAL
Jeff Buchwald
7849 Alto Caro
Dallas, Texas 75248
Karen Lambert
6060 N. Central Expressway, Suite 560
Dallas, Texas 75206
STATE’S ATTORNEY AT TRIAL
Donna Strittmatter & Amy Croft
Assistant District Attorneys
Dallas County District Attorney‘s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
APPELLANT’S ATTORNEY ON APPEAL
Katherine A. Drew
Dallas County Public Defender‘s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Dallas, Texas 75207-4399
STATE’S ATTORNEY ON APPEAL
Patricia Poppoff Noble
Dallas County District Attorney‘s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
iii
TRIAL COURT JUDGE
The Honorable John Creuzot (now retired)
Criminal District Court No. 4 of Dallas County, Texas
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
APPELLATE COURT JUDGES
The Honorable Justices Molly Francis, Ada Brown and Craig Stoddart
Fifth Court of Appeals
600 Commerce St., Suite 200
Dallas, Texas 75202-4658
iv
TABLE OF CONTENTS
LIST OF PARTIES .................................................................................................. iii
INDEX OF AUTHORITIES.....................................................................................vi
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 2
STATEMENT OF FACTS ........................................................................................ 2
QUESTIONS FOR REVIEW .................................................................................... 4
ARGUMENT ............................................................................................................. 5
Questions for Review 1 through 4: The Indictment Issues .............................5
Question 1: “Theft by Will”.............................................................................5
Question 2: Omitted Pleadings re Testamentary Capacity and Undue
Influence...........................................................................................................8
Questions 3 & 4: Omitted Pleadings re Ownership and Property ................11
Question 5: Sufficiency Standard of Review ..................................................17
CONCLUSION ........................................................................................................ 20
PRAYER FOR RELIEF .......................................................................................... 21
CERTIFICATE OF SERVICE ................................................................................ 22
CERTIFICATE OF COMPLIANCE ....................................................................... 22
v
INDEX OF AUTHORITIES
Cases
Brooks v. State,
323 S.W.3d 893, (Tex. Crim. App. 2010) ..................................................... 18, 20
Byrd v. State,
336 S.W.3d 242 (Tex. Crim. App. 2011) .............................................................14
Crabtree v. State,
389 S.W.3d 820 (Tex. Crim. App. 2012) ...............................................................8
Farmer v. Dodson,
326 S.W.2d 57 (Tex. Civ. App.—Dallas 1959, no writ)........................................9
Geter v. State,
779 S.W.2d 403 (Tex. Crim. App. 1989) .............................................................14
In re Estate of Bendtsen,
230 S.W.3d 823 (Tex. App.–Dallas 2007, pet. denied) .........................................3
Inman v. State,
650 S.W.2d 417 (Tex. Crim. App. 1983) ...................................................... 12, 13
Jackson v. Virginia,
443 U.S. 307 (1979) ...................................................................................... 18, 20
Lee v. Lee,
424 S.W.2d 609 (Tex. 1968) ..................................................................................9
Lehman v. State,
792 S.W.2d 82 (Tex. Crim. App. 1990) ...............................................................15
McCay v. State,
No. 05-12-01199-CR (Tex. App. – Dallas July 31, 2015) .....................................2
McCay v. State,
No. 05-12-01199-CR (Tex. App.–Dallas September 9, 2015)
...................................................................................... 2,6,8,10,12,13,14,16,17,20
Merritt v. State,
368 S.W.3d 516 (Tex. Crim. App. 2012) .............................................................18
Rothermel v. Duncan,
369 S.W.2d 917 (Tex. 1963) ..................................................................................9
Turner v. Cross,
83 Tex. 218, 18 S.W. 578 (1892) ...........................................................................8
vi
Wirth v. State,
361 S.W.3d 694 (Tex. Crim. App. 2012) ...................................................... 18, 20
Statutes
TEX. CODE CRIM. PROC. art. 21.01 .............................................................................6
TEX. CODE CRIM. PROC. art. 21.08 ...........................................................................14
TEX. CODE CRIM. PROC. art. 21.09 ...........................................................................15
TEX. ESTATES CODE §252.201 ...................................................................................8
TEX. ESTATES CODE §252.203 ...................................................................................8
TEX. PENAL CODE §1.07(a)(22)(D) ..........................................................................11
TEX. PENAL CODE §1.07(a)(35)(A) ..........................................................................13
TEX. PENAL CODE §31.02 ...........................................................................................6
TEX. PENAL CODE §31.03 ...........................................................................................1
TEX. PENAL CODE §31.03(e) ....................................................................................16
TEX. PENAL CODE §31.04 ...........................................................................................6
TEX. PENAL CODE §31.05 ...........................................................................................7
TEX. PENAL CODE §31.06 ...........................................................................................7
TEX. PENAL CODE §31.12 ...........................................................................................7
TEX. PENAL CODE §31.16 ...........................................................................................7
TEX. PENAL CODE §32.21(d)......................................................................................7
TEX. PENAL CODE §32.43(a)(2)(B) ............................................................................7
TEX. PENAL CODE §32.45(a)(1)(A) ...........................................................................7
TEX. PENAL CODE §32.47(d)(1) .................................................................................7
TEX. PROB. CODE §75 ................................................................................................8
Rules
TEX. R. APP. P. 66.3(b) .............................................................................................20
TEX. R. APP. P. 66.3(c) .............................................................................................20
TEX. R. APP. P. 66.3(f) .............................................................................................20
TEX. R. APP. P. 68.4(i) ...............................................................................................2
vii
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW Mark Patrick McCay, Petitioner herein and Appellant
before the Court of Appeals, and respectfully submits this Petition for
Discretionary Review.
STATEMENT REGARDING ORAL ARGUMENT
This Petition presents a case of first impression, i.e., whether ―theft by will‖
is a criminal offense and, if it is, the requisites of an indictment for attempted ―theft
by will.‖ This Petition also presents a question of whether, in conducting a
sufficiency review, an appellate court can ignore extensive defense testimony and
rely exclusively on the State‘s evidence. Oral argument is essential.
STATEMENT OF THE CASE
Appellant was convicted by a jury of attempted theft of property valued in
excess of $200,000.00 in violation of TEX. PENAL CODE §31.03. (CR1: 6,186;
RR5:19,28). The trial court assessed punishment at 10 years‘ imprisonment,
probated for 4 years, and a fine of $1000.00 (CR1:190).
1
The reporter‘s record was not prepared in sequential order and will be referred to as follows:
RR1-RR10: Ten volumes of trial testimony filed on January 7, 2013;
RRSupp: Record from trial for June 18, 2012; (precedes RR9 in order of trial);
RRSupp 1: Record from pretrial hearing on December 17, 2007;
RRSupp 2: Record from pretrial hearing on January 11, 2008;
RRSupp 3: Record from pretrial hearing on February 15, 2008;
RRSupp 4: Record from pretrial hearing on October 19, 2011;
RRSupp 5: Record from pretrial hearing on May 31, 2012.
1
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
On July 31, 2015, in an opinion slated for publication, the Court of Appeals
for the Fifth District of Texas affirmed Appellant‘s conviction. McCay v. State,
No. 05-12-01199-CR (Tex. App. – Dallas July 31, 2015). A motion for rehearing
was filed on August 13, 2015. That motion was denied on September 9, 2015.
On September 9, 2015, the Court of Appeals also issued an Opinion Nunc
Pro Tunc, slated for publication, correcting clerical errors in the original opinion.
McCay v. State, No. 05-12-01199-CR (Tex. App.–Dallas September 9, 2015) (not
yet published) (attached as an Appendix as required by TEX. R. APP. P. 68.4(i)).
This Petition is timely if filed on or before October 9, 2015.
STATEMENT OF FACTS
This was a long, hotly contested trial involving extensive, conflicting and
complex testimony. The Court of Appeals‘ opinion recites many, but not all, of
those facts. See Appendix and arguments under Question 5, infra.
On February 22, 2005, Mary Ellen Bendtsen, aged 88, executed a will (the
―Baylor will‖) while she was in Baylor Hospital after suffering a stroke. (RR5: 41;
SX 1). In this will, Bendtsen disinherited her only child, Frances Ann Giron,
leaving Giron only a ―cradle‖ rocking chair. (SX 5). Aside from two other bequests
of personal property, Bendtsen left the bulk of her estate to her longtime friends,
Appellant and Justin Burgess. (SX 1,3,5). This was consistent with the intent
2
Bendtsen had expressed over a long period of time to various close friends.
(RRSupp:155-58,183-184,187; RR9:49,59,117-119,166-167,174,177).
Bendtsen‘s main asset was a 5/12 interest in a large, old house located at
4949 Swiss Avenue, which everyone knew she loved.2 (RR5:113,117; RR6:242;
RR7:208; RRSupp:167-168). As one friend described it: ―Mary Ellen was the
house and the house was Mary Ellen.‖ (RRSupp:155-158,168,187). The appraised
value of the house in 2005 was $656,870.00. (RR5:170).
Bendtsen died on March 2, 2005. (RR5:53). That same day, an application to
probate the ―Baylor will‖ was filed with the Dallas County District Clerk.
(RR5:95; SX 5). An application to probate a prior will that had been executed by
Bendtsen in 2002, naming Giron as her sole beneficiary (the ―Florida will‖), was
also filed that day. (RR5:64,80-81,86). Ultimately, the ―Baylor will‖ was set aside
by a probate court and the ―Florida will‖ was given effect.3 Appellant was
subsequently charged with and convicted of attempted theft for causing Bendtsen
to execute the ―Baylor will‖ and for filing the ―Baylor will‖ for probate.
2
The Swiss Avenue house had been purchased by Bendtsen‘s parents, who left it in equal shares
to their three children: Bendtsen, Ann, and Lawrence. (RR5:111-114,126-128,132;
RRSupp:167). When Lawrence died, his surviving wife received half his interest, while the other
half of his interest, i.e. 1/6, was divided between Ann and Bendtsen, raising their interest in the
house to a 5/12 interest each. (RR5:128; see also SX 11).
3
See In re Estate of Bendtsen, 230 S.W.3d 823 (Tex. App.–Dallas 2007, pet. denied).
3
QUESTIONS FOR REVIEW
Question 1
Is “theft by will” a criminal offense?
Question 2
If “theft by will” is a criminal offense, may an indictment for attempted “theft by
will” omit pleadings regarding the testatrix’s testamentary capacity and/or undue
influence?
Question 3
If “theft by will” is a criminal offense, may essential theft pleadings regarding
ownership be omitted when the offense alleged is an attempted “theft by will?”
Question 4
If “theft by will” is a criminal offense, may essential theft pleadings regarding
the description of property be omitted when the offense alleged is an attempted
“theft by will?”
Question 5
By looking only to the State’s evidence and ignoring defense evidence, did the
Court of Appeals apply an improper standard of review in evaluating Appellant’s
challenge to the sufficiency of the evidence?
4
ARGUMENT
Questions for Review 1 through 4:
The Indictment Issues
Questions 1 through 4 center on the indictment4 which alleged as follows:
…with specific intent to commit the offense of Theft of Property of
an aggregate value of $200,000 or more, did all of the following,
which amounted to more than mere preparation that tended but failed
to effect the commission of the said intended Theft, to-wit: Defendant,
with intent to deprive any other person having a greater right of
possession of the property than Defendant, upon the death of Mary
Ellen Bendtsen, did cause Mary Ellen Bendtsen to execute a will
naming Defendant as the beneficiary, to receive her property upon her
death; and Defendant did thereafter file said will for probate.
(CR1: 99) (emphasis added). In upholding this indictment, the Court of Appeals
essentially gives the State carte blanche to prosecute a person for ―theft by will‖
without specific legislation authorizing such a prosecution and with the most
cursory of allegations and notice.
Question 1: “Theft by Will”
The State alleged that Appellant committed a crime because he ―caused‖
Bendtsen to make a will in his favor and then filed that will for probate. (CR1: 99).
Appellant argued, both at trial and on direct appeal, that because no law declares
4
This prosecution was on-going for many years and Appellant was indicted multiple times.
(CR1: 6,74,88-89,99; CR2: 12,49,142).
5
either act illegal,5 either singularly or in conjunction, the indictment failed to allege
an offense.
The Court of Appeals recognized Appellant‘s arguments, and agreed to a
point,6 but found that, because the indictment also alleged that Appellant did these
acts ―with specific intent to commit the offense of theft,‖ these acts amounted to
the criminal offense of ―theft by will.‖ McCay, slip op. at 5. The Court of Appeals
also held that the general theft statute, TEX. PENAL CODE §31.03, is broad enough
to encompass an offense of ―theft by will‖ without the necessity of legislative
action. Id. at 8. As that Court stated: ―The only will contests that can be
‗criminalized‘ are those in which a will proponent knowingly submits a will for
probate with the specific intention of stealing an estate from others with the legal
right to inherit.‖ Id. at 9.
Appellant recognizes that many separate theft offenses which pre-dated the
1974 Penal Code were subsumed into the general theft statute in 1974. TEX. PENAL
CODE §31.02. What the Court of Appeals failed to recognize was that not all forms
of theft were subsumed into the general statute and many specific forms of theft
survive today as separate offenses. See TEX. PENAL CODE §31.04 (theft of service);
5
See TEX. CODE CRIM. PROC. art. 21.01 (an indictment must accuse the defendant of an act
constituting an offense).
6
The Court of Appeals stated: ―Appellant argues that causing a person to execute a will and
filing that will for probate are not illegal acts. If that conduct were standing alone, he would be
correct.‖ McCay, slip op. at 5.
6
TEX. PENAL CODE §31.05 (theft of trade secrets); TEX. PENAL CODE §31.06 (theft
by check); TEX. PENAL CODE §31.12 (theft of multichannel video services); TEX.
PENAL CODE §31.16 (organized retail theft). These offenses all have particularized
elements and, hence, particularized pleading requirements.
The Court of Appeals also failed to recognize that other Penal Code
provisions specifically criminalize conduct within the realm of wills and probate.
See TEX. PENAL CODE §32.21(d) (forging a will); TEX. PENAL CODE
§32.43(a)(2)(B) (commercial bribery by an executor or administrator); TEX. PENAL
CODE §32.45(a)(1)(A) (misapplication of fiduciary property by an executor or
administrator); TEX. PENAL CODE §32.47(d)(1) (altering, destroying or concealing
a will with intent to defraud or harm). To date, the Legislature has not chosen to
criminalize the acts of (1) causing a person to make a will in their favor and/or (2)
filing that will for probate. Moreover, a crime of ―theft by will‖ would necessitate
certain particularized pleadings not provided for in the general theft statute, such as
a lack of testamentary capacity by the testatrix or the exercise of undue influence
by the defendant. See arguments and authorities under Question 2, infra.
The Court of Appeals further failed to address arguments made by Appellant
that he was required to deliver the ―Baylor will‖ to the clerk of the court that has
jurisdiction over the decedent‘s estate after receiving notice of the death of the
testatrix; criminal penalties exist for a person having a will who fails to deliver it to
7
a court. TEX. ESTATES CODE §§252.201,252.203 (formerly TEX. PROB. CODE §75).
The State cannot both require conduct and then criminalize that same conduct.
Lastly, by reading the theft statute in such a global manner, the Court of
Appeals has essentially created a new crime and thereby impermissibly legislated
from the bench. See Turner v. Cross, 83 Tex. 218, 18 S.W. 578, 579 (1892)
(holding that an appellate court administers the law as it is written and is not
permitted to legislate from the bench); Crabtree v. State, 389 S.W.3d 820 (Tex.
Crim. App. 2012) (Hervey, J. concurring) (same).
Question 2: Omitted Pleadings re Testamentary Capacity and Undue Influence
Appellant has argued that, in order to properly charge an offense of ―theft by
will,‖ (assuming such an offense exists) the indictment must, of necessity, have
alleged that Bendtsen lacked testamentary capacity7 or that her testamentary
capacity was undermined by undue influence. The Court of Appeals, however,
held that the indictment need not allege either because (1) ―[t]hese terms…are
rooted in the civil law and are meaningful in probate proceedings‖8 and (2)
appropriation of property is unlawful if the owner did not give effective consent.
McCay, slip op. at 6. The logic employed by the Court of Appeals reveals precisely
7
Prior indictments had contained this allegation. (CR2: 12,49,142).
8
The implication is that these terms have no meaning in a criminal prosecution at all. Yet, the
State spent the bulk of the trial attempting to prove both concepts. See McCay, slip op. at 10-17.
8
why ―theft by will‖ is not a criminal offense subsumed within the general theft
statute or, if it is, why it was not properly alleged in the instant indictment.
Lack of Testamentary Capacity and/or Undue Influence Allegations
If Bendtsen had not possessed testamentary capacity because of mental
infirmity on the day the ―Baylor will‖ was executed, then that will was invalid ab
initio. Lee v. Lee, 424 S.W.2d 609, 611 (Tex. 1968). If, however, Bendtsen
possessed testamentary capacity when she executed the ―Baylor will,‖ then her
wishes were paramount, Farmer v. Dodson, 326 S.W.2d 57, 61 (Tex. Civ. App.—
Dallas 1959, no writ), absent a showing that she had been subjected to undue
influence. Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963). Whether
Bendtsen had testamentary capacity bears directly on whether any act of
Appellant‘s ―caused‖ her to make a will she would not otherwise have made, i.e.,
whether he exerted undue influence on Bendtsen and/or had criminal intent to
steal. Appellant cannot be guilty of ―causing‖ Bendtsen to make the ―Baylor will,‖
regardless of what acts he may have engaged in, if any, unless those acts rose to
the level of undue influence.9
9
Indeed, the trial court recognized this principle, telling the parties prior to trial:
THE COURT: If the State puts on a case that this lady, of her own accord
executed a will, whether they talked her into it or not, but of her own accord…
that is not a criminal offense as far as I‘m concerned. It has to be that all this was
done with intent to commit the offense of theft…If this was just a routine will
situation, we’re out of here.
(RR3: 5) (emphasis added).
9
Because the indictment failed to negate testamentary capacity, either
because of mental infirmity or undue influence, the indictment failed to allege
―theft by will.‖ The Court of Appeals failed to recognize that, as written, the
indictment did not allege a criminal offense and should have been dismissed.
Lack of Effective Consent
The Court of Appeals excused the lack of pleadings regarding testamentary
capacity and undue influence on grounds that appropriation of property is unlawful
if the owner did not give effective consent. McCay, slip op. at 6. That Court,
however, missed the point that the indictment did not allege a lack of effective
consent at all. (CR1: 99). Nevertheless, despite this pleading vacuum, the Court of
Appeals opined two ways in which consent may not be effective: 1) if it is given
by someone who by reason of mental defect is known by the actor to be unable to
make reasonable property dispositions or 2) if given by someone who by reason of
advanced age is known by the actor to have a diminished capacity to make
informed and rational decisions about the reasonable disposition of property.
McCay, slip op. at 6 (citing to TEX. PENAL CODE §§31.01(3)(C),31.01(3)(E)).
Recognizing that neither method was alleged in the indictment, the Court of
Appeals reasoned that ―these are questions of proof, and the indictment did not
need to set out the manner and means by which the State would prove the
10
attempted theft.‖ Id. These are questions of proof, however, only if a lack of
effective consent is alleged, which it was not.
While it is generally true that manner and means need not be alleged in an
indictment, the negation of any exception to an offense is an ―element of the
offense‖ which must be alleged. TEX. PENAL CODE §1.07(a)(22)(D). In order to
properly allege a ―theft by will‖ crime, it was essential that the indictment allege
either that Bendtsen lacked testamentary capacity (in which case she could not give
effective consent to the bequests in the ―Baylor will‖ at all) or that Appellant
exercised undue influence on Bendtsen (which rendered her consent ineffective).
Because neither a lack of testamentary capacity, undue influence, nor a lack of
effective consent (due to advanced age, mental infirmity or some other reason) was
alleged in this indictment, the Court of Appeals erred in concluding that the
indictment was sufficient to allege attempted ―theft by will.‖
Questions 3 & 4: Omitted Pleadings re Ownership and Property
The indictment alleged that the owner was ―any other person having a
greater right of possession of the property than Defendant.‖10 (CR1: 99) (emphasis
added). The indictment alleged that Appellant sought to appropriate property, but
10
Prior indictments alleged that ―Frances Giron, an heir,‖ was the owner of the property. (CR2:
12,49,142).
11
failed to give any description of any of that property.11 The Court of Appeals erred
by finding that neither element was essential. McCay, slip op. at 5-8.
Attempt
The Court of Appeals held that the indictment did not need to allege
ownership or describe the property which was the subject of the theft because the
indictment alleged an attempted theft. McCay, slip op. at 5.
Appellant recognizes that there is case law which holds, generally, that there
need not be an allegation of all constituent elements of the offense of theft in a
charging instrument dealing with the offense of attempted theft. Inman v. State,
650 S.W.2d 417, 420 (Tex. Crim. App. 1983). The Court of Appeals relied on
Inman to conclude that an indictment for attempted ―theft by will‖ need not allege
any of the underlying elements of a theft. In so doing, however, that Court failed to
consider the underlying facts of Inman which render that opinion distinguishable
from the case at bar. Inman dealt with factual allegations regarding the manner in
which the crime was committed, not with the absence of required pleading
elements. Id. Additionally, the indictment in Inman, for attempted theft of an
automobile, is further distinguishable because it alleged both a named owner and
11
Prior indictments alleged Bendtsen‘s property as ―real property located at 4949 Swiss Avenue‖
and ―furniture, eating utensils, dishware and other items unknown to the grand jury.‖ (CR2:
49,142).
12
gave a description of property, neither of which are alleged in the indictment in the
case at bar. Id.
To the best of the undersigned attorney‘s research, this Court has never
specifically held that an indictment for attempted theft may omit allegations both
as to ownership and a description of property which was the subject of the
attempted theft. Yet, the Court of Appeals‘ opinion requires that neither allegation
need be included in an indictment for attempted ―theft by will.‖
The Lack of Pleading on Ownership
While not requiring an ownership allegation, the Court of Appeals
nevertheless held that the allegation of ―any person‖ who has ―a greater right to
possession of the property‖ was sufficient to allege ownership. McCay, slip op. at
7-8 (referencing TEX. PENAL CODE §1.07(a)(35)(A)). That Court actually found
dual ownership in that (1) at the time Appellant caused Bendtsen to execute the
Baylor will, she was the owner of the property at issue and (2) because the
property would not pass until Bendtsen‘s death, the owner(s)—who would be
deprived of possession of the property by Appellant—were those who would take
Bendtsen‘s estate in the absence of the ―Baylor will.‖ McCay, slip op. at 6. The
Court of Appeals saw no discrepancy between these two divergent conclusions.
The Court of Appeals also reasoned that, because the identity of the person
who could take Bendtsen‘s property after her death could change between
13
execution of the will and Bendtsen‘s death, and when ―appellant formed the
specific intent to steal Bendtsen‘s estate, he could not have known who would take
that estate but for his conduct,‖ the State‘s allegations sufficed. McCay, slip op. at
7-8. While this logic might have relevance in analyzing the sufficiency of the
evidence, it begs the question of the sufficiency of the indictment because, by the
time the indictment was returned, the owner of Bendtsen‘s estate was known and
could easily have been identified in the indictment.
Appellant, in written briefs and oral argument to the Court of Appeals, relied
on Byrd v. State 336 S.W.3d 242 (Tex. Crim. App. 2011) for the proposition that,
in any theft case, an owner must be named. Appellant also relied on TEX. CODE
CRIM. PROC. art. 21.08, which provides that, when the alleged theft is from an
estate, ownership may be alleged in the executor, administrator or any heir of the
deceased person. The Court of Appeals‘ opinion, however, failed to discuss, much
less distinguish, either Byrd or the requirements of Article 21.08.
Nor did the Court of Appeals analyze how the jury could be expected to
evaluate lack of consent in the absence of a named owner. In a theft prosecution
where the State relies upon a defendant‘s act or omission to negate consent, the
indictment must allege which of the statutory negatives vitiated consent, or the
indictment will be subject to a timely motion to quash for lack of notice. Geter v.
State, 779 S.W.2d 403, 407 (Tex. Crim. App. 1989). The State relied on specific
14
acts to prove attempted theft, i.e., that Appellant (1) ―caused‖ the execution of the
―Baylor will‖ and (2) filed that will for probate. (CR1: 99). Specific pleadings
regarding an owner‘s lack of effective consent were, therefore, essential.
Furthermore, the Court of Appeals did not discuss the lack of a named
owner in the indictment vis-à-vis the jury charge, which references an ―owner‖
multiple times and which permitted conviction only if the jury found that the
attempted appropriation was ―without the owner’s effective consent.‖ (CR1: 178-
180) (emphasis added). Without an allegation of a named owner, and without an
allegation of a lack of effective consent of that owner,12 the jury could not evaluate
whether Appellant had attempted an unlawful appropriation of property.
The Lack of a Description of Property
Specific allegations regarding property are required in a theft indictment.
TEX. CODE CRIM. PROC. art. 21.09. A theft conviction can never rest, in whole or in
part, upon theft of property not alleged in the indictment as stolen. Lehman v.
State, 792 S.W.2d 82, 84 (Tex. Crim. App. 1990). Yet, this indictment failed to
describe any property which was the subject of the alleged attempted theft.
Appellant‘s research reveals no case law which dispenses with a description of
12
It is easy to understand defense counsel‘s objection to the jury charge: ―the jury doesn‘t know
who to apply the effective consent to, to Mary Ellen Bendtsen or whether it applies to the heirs.‖
(RR9: 200-201).
15
property in an attempted theft. Yet, the Court of Appeals‘ opinion failed to discuss
the requirements of Article 21.09.
Despite finding that the indictment did not need to describe the property at
all, the Court of Appeals nevertheless held that the ―property at issue was the
property in Bendtsen‘s estate, that is, whatever she owned when she died.‖ McCay,
slip op. at 6. Relying on civil law, that Court stated that the allegation in the
indictment–―her property at her death‖–was sufficient to allege the property
Appellant intended to steal.13 Id. at 7.
That Court‘s logic ignored Appellant‘s arguments that theft is a valuation
crime and the degree of theft is dependent on the value of the property. TEX. PENAL
CODE §31.03(e). The indictment alleged that Appellant attempted to steal
―property‖ in an aggregate amount of $200,000.00 or more. (CR1: 99). The value
of the property in question can hardly be determined in the absence of a description
of that property. Certainly, the value was crucial to a jury‘s determination of
whether the aggregate value of the property was in excess of $200,000.00 as
13
In this regard, the Court of Appeals‘ language appears to bless an allegation of a ―contingent
crime,‖ i.e., forming intent to steal based on some potential, as yet unascertained future benefit.
16
alleged14 or whether a lesser degree of theft, on which the jury was charged, (CR1:
183,186), was a more appropriate verdict.
This indictment was returned many years after Bendtsen died. The property
in her estate was known. The fact that the making of the ―Baylor will‖ and the
filing of that will were ―separated by time,‖ McCay, slip op. at 8, does not excuse
the State‘s failure to plead facts affirmatively known prior to the return of the
indictment.
Question 5: Sufficiency Standard of Review
In rejecting Appellant‘s challenge to the sufficiency of the evidence to
support his conviction for attempted theft, the Court of Appeals looked only to the
State‘s evidence and did not refer to or discuss the extensive defense testimony
introduced at trial to refute the prosecution‘s case. McCay, slip op. at 9-17. The
Court of Appeals thus applied an improper standard of review.
While it is true that an appellate court reviews the evidence in the light most
favorable to the verdict, that court must review all of the evidence to determine
whether any rational trier of fact could have found the essential elements of the
14
The only proof at trial of the value of Bendtsen‘s property, other than a $65,000 bank account
with rights of survivorship to Giron, was testimony that her 5/12 interest in the Swiss Avenue
house was worth $273,695.00. (RR5: 170). Because Appellant and Burgess were bequeathed
Bendtsen‘s property in equal shares, (SX 5), Appellant‘s potential interest in the house, i.e., 5/24,
could only be valued at $136,847.50. Under this indictment, it cannot be known what other
property the State relied on to meet the $200,000.00 threshold.
17
offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Evaluating the
evidence in the light most favorable to the verdict is not the same as looking only
to the State‘s evidence of guilt and ignoring the defense evidence. An appellate
court cannot only emphasize evidence that favors it‘s holding while ignoring
controverting testimony. See Merritt v. State, 368 S.W.3d 516, 526 (Tex. Crim.
App. 2012) (finding that a court of appeals incorrectly applied the Jackson
standard by employing a ―divide-and-conquer‖ approach which failed to consider
all of the evidence); Wirth v. State, 361 S.W.3d 694, 697 (Tex. Crim. App. 2012)
(reversing a court of appeals for selectively emphasizing ―snippets of the record
that ostensibly favored its holding‖ while ignoring controverting testimony).
Here, the Court of Appeals ignored defense evidence which showed that
Bendtsen and her daughter had become estranged in the years preceding
Bendtsen‘s death. (RR7:78,122; RR9:29-30,55). Evidence of Bendtsen‘s continuity
of intent, i.e., that over a period of time Bendtsen had expressed a desire to leave
her property, particularly her house, to Appellant,15 was similarly ignored.
(RRSupp:155-158,183-184,187; RR9:49,59,117-119,166-167,174,177). That Court
failed to acknowledge the contents of State‘s Exhibit 1, a video of the execution of
15
Indeed, in its Brief on direct appeal, the State even admitted that Bendtsen ―had expressed a
desire to leave her estate to Appellant.‖ (State‘s Brief at 4; see also State‘s Brief at 16).
18
the will, wherein Bendtsen‘s intent is unequivocally expressed, i.e., that she did not
want her daughter to inherit her estate but wanted to leave her property to ―the
boys,‖ i.e., to Appellant and Justin Burgess.
The defense evidence at trial, and State‘s Exhibit 1, are relevant to whether
or not Appellant had criminal intent in any of his actions vis-à-vis Bendtsen and
the making of the ―Baylor will,‖ whether Bendtsen had the capacity to execute the
will, and whether she consented to the dispositions made by the ―Baylor will.‖ The
defense evidence at trial established that the ―Baylor will‖ was a valid expression
of Bendtsen‘s wishes regarding her property. The defense demonstrated that
Bendtsen did not lack testamentary capacity, nor was she deceived, coerced, forced
or threatened into signing the ―Baylor will.‖ The defense demonstrated that none of
Appellant‘s actions were done with the intent to steal Bendtsen‘s estate or
influence her decision to make a will in his favor but, rather, that Bendtsen freely
sought to give Appellant a gift of her property. The defense affirmatively
established that Bendtsen was a proud, independent woman who, being angry at
her daughter and still possessing sufficient mental capacity, acted on her long held
desire to give her property to two dear friends as opposed to the daughter who had
angered and humiliated her at the end of her life. (RRSupp:151,208,209-228;
RR9:5-101,102-130,155-190).Yet, the Court of Appeals‘ opinion makes it appear
as if no defense evidence was presented at all. As such, that opinion fails to comply
19
with the dictates of Jackson and Brooks and thus is in conflict with those decisions.
TEX. R. APP. P. 66.3(c).
Additionally, the Court of Appeals, in several instances, misstated and/or
mis-characterized key evidence; these errors were pointed out, in detail, in
Appellant‘s Motion for Rehearing, pp. 6-12. Yet, the only corrections made by that
Court in the Opinion Nunc Pro Tunc were to change the date originally listed for
Bendtsen‘s stroke and the execution of the ―Baylor will.‖ McCay, slip op. p. 3.
Consequently, this Court should conduct an independent review of the sufficiency
of the evidence in this case. Wirth, 361 S.W.3d at 698. In the alternative, this Court
should remand this case to the Court of Appeals with instructions to conduct a
proper sufficiency review.
CONCLUSION
The Court of Appeals, by finding that ―theft by will‖ is a criminal offense in
the absence of specific legislative authority, and by further finding that an
indictment for attempted ―theft by will‖ can dispense with many essential pleading
requirements, has decided an important question of state law which has not been,
but should be, addressed by this Court. TEX. R. APP. P. 66.3(b). Additionally,
because the Court of Appeals ignored critical issues raised by Appellant, as well as
extensive defense evidence, this Court should exercise its supervisory powers.
TEX. R. APP. P. 66.3(f). The exercise of this Court‘s supervisory powers is further
20
essential because, as an opinion slated for publication, the Court of Appeals‘
opinion fails to serve as a guide to bench and bar in any future prosecutions.16 Id.
PRAYER FOR RELIEF
For the reasons herein alleged, Appellant prays that this Court will grant his
Petition for Discretionary Review and, upon review, reverse the decision of the
Court of Appeals.
Respectfully submitted,
/s/ Katherine A. Drew
Lynn Richardson Katherine A. Drew
Chief Public Defender Assistant Public Defender
Dallas County, Texas State Bar No. 06117800
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Dallas, Texas 75207-4399
(214) 875-2360 (phone)
(214) 875-2363 (fax)
Kathi.Drew@dallascounty.org
16
Justin Burgess is currently charged with attempted theft, as is Edwin Olsen, the attorney who
drafted the ―Baylor‖ will and prepared the application for probate. Neither co-defendant has yet
gone to trial.
21
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing Petition For Discretionary
Review was served on Patricia Poppoff Noble, Attorney for the State, Dallas
County District Attorney‘s Office, 133 N. Riverfront Blvd., LB-19, 10th Floor,
Dallas, Texas, 75207, by electronic transmission on the 2 day of October, 2015.
I further certify that a true copy of the foregoing Petition For Discretionary
Review was served on Lisa McMinn, the State‘s Prosecuting Attorney, P. O. Box
13046, Austin, Texas 78711-3046, by electronic transmission on the 2 day of
October, 2015.
/s/ Katherine A. Drew
Katherine A. Drew
CERTIFICATE OF COMPLIANCE
I hereby certify that, in accordance with the terms of TEX. R. APP. P. 9.4(i)
(1), the word count in this document, which is prepared in Microsoft Word 2010, is
4,421, exclusive of the caption, identity of parties and counsel, statement regarding
oral argument, table of contents, index of authorities, statement of the case,
statement of issues presented, statement of procedural history, signature, proof of
service, certification, certificate of compliance, and appendix.
/s/ Katherine A. Drew
Katherine A. Drew
22
APPENDIX
McCay v. State, No. 05-12-01199-CR (Tex. App. – Dallas September 9, 2015)
(not yet published).
Affirmed and Opinion Filed September 9, 2015
In The
No. 05-12-01199-CR
MARK MCCAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F11-00694-K
OPINION NUNC PRO TUNC
Before Justices Francis, Brown, and Stoddart
Opinion by Justice Francis
A jury found appellant Mark McCay guilty of attempted theft of property valued at more
than $200,000. The trial court assessed appellant’s punishment at ten years in prison, probated
for four years, and a $1000 fine. In four issues, appellant contends: the indictment (1) failed to
allege an offense and (2) failed to provide constitutionally sufficient notice of an offense; and (3)
the evidence is legally insufficient to support his conviction; and (4) the trial court abused its
discretion by admitting evidence of an extraneous offense. We affirm the trial court’s judgment.
Background
In January 2005, Mary Ellen Bendtsen was eighty-eight years old and lived alone in a
house on Dallas’s historic Swiss Avenue, where she had resided almost her entire life. Bendtsen
was widowed twenty years earlier. Her only child, a daughter, lived in the Dallas area, as did
Bendtsen’s sister and nephew. This case centers on Bendtsen’s relationship with appellant and
his business partner, Justin Burgess. The two young men were antique dealers, and over a period
of ten or so years, they became frequent companions of Bendtsen. Certain details of this
relationship are discussed more fully below when we analyze the sufficiency of the evidence, but
the framework of events in early 2005 are necessary to our discussion at the outset.
On January 12, 2005, Bendtsen fell and hit her head while retrieving her mail. She was
taken to Baylor Hospital in Dallas. Two days later, she signed a power of attorney allowing her
daughter, Frances Giron, to make medical decisions for her. Bendtsen remained at Baylor for
nine days and was treated for her head injury. Appellant and Burgess were frequent visitors.
About a week after she was admitted, Bendtsen’s doctor explained to her family that she would
need to spend six weeks at a rehabilitation facility before she could return home. On January 18,
2005, while Giron and her nephew were visiting facilities for Bendtsen’s rehabilitation, Bendtsen
signed a second power of attorney. This document was drafted by attorney Edwin Olsen, a
friend of appellant, and named appellant to act on Bendtsen’s behalf. From that day forward,
appellant prevented Bendtsen’s family from visiting her in the hospital. On January 21,
appellant had Bendtsen admitted to Ashley Court, a skilled nursing facility. Appellant instructed
the staff at Ashley Court not to allow Giron to visit her mother.
In response to these developments, Giron initiated a legal proceeding seeking to become
first the temporary, and then permanent, guardian of her mother. The court appointed an ad
litem for Bendtsen and held a series of hearings in the initial temporary guardianship proceeding.
After the first hearing on January 31, at which Bendtsen testified against the guardianship,
appellant and Burgess brought her back to her Swiss Avenue home rather than returning her to
Ashley Court. The men hosted a large party that evening at Bendtsen’s home.
–2–
Two more hearings were held on the issue of temporary guardianship. After the third
hearing, the probate court denied the temporary guardianship, although the permanent
guardianship proceeding continued.
On February 22, Bendtsen was at home, visiting with Dixie Tidwell (a friend of Bendtsen
and appellant) and Rose Cline (a companion hired by appellant to stay with Bendtsen), when she
suffered a massive stroke. Tidwell called appellant. When he and Burgess arrived, they called
an ambulance, and Bendtsen was again taken to Baylor. On that same day, appellant and
Burgess stood at the foot of Bendtsen’s hospital bed while Olsen read her the will he had drafted
and helped her make a mark on the will to execute it. The event was video recorded by Tidwell;
she and Cline served as witnesses. The will named Tidwell executrix and left Bendtsen’s estate
to appellant and Burgess with three exceptions: her jewelry to longtime friend, Bea Grayson,
except one piece to be chosen by Cline, and a rocking chair to Giron. Bendtsen died in the
hospital on March 2, 2005. On the morning of March 3, appellant and Burgess filed the Baylor
will with the probate court. Later that day, Giron’s attorney filed the will Bendtsen had executed
in 2002 in Florida, where Giron was living at the time. The Florida will left Bendtsen’s estate to
Giron. Giron prevailed in the will contest because the Baylor will was not executed with proper
statutory formalities: although appellant had Tidwell and Cline attend the will execution as
witnesses, they did not sign in Bendtsen’s presence, and appellant and Tidwell subsequently took
the will from the hospital and had it notarized as if the notary had been present when the will was
signed. The notary was Marian Gibson, another of appellant’s friends.
In February 2006, the State filed its indictment charging appellant with attempted theft of
Bendtsen’s estate. Appellant went to trial and was found guilty of attempted theft of property
valued at more than $200,000. The trial court assessed his punishment at ten years in prison and
–3–
then suspended the sentence, placing appellant on probation for four years, requiring appellant to
serve thirty days in the Dallas County jail, and imposing a fine of $1,000. This appeal followed.
Sufficiency of the Indictment
In his first two issues, appellant challenges the trial court’s denial of his motion to quash
the indictment. He argues the indictment was insufficient because it failed to allege an offense
and failed to give him sufficient notice of the charges against him. Both the United States and
Texas Constitutions assure an accused the right to notice of the charges against him. U.S.
CONST. amend. VI; TEX. CONST. art. I, § 10. The charging instrument must be specific enough
to inform the accused of the nature of the accusation against him so that he may prepare a
defense. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). The sufficiency of an
indictment presents a question of law; we review the trial court’s ruling on sufficiency de novo.
Smith v. State, 309 S.W.3d 10, 13–14 (Tex. Crim. App. 2010).
Appellant was charged with attempted theft of property valued at $200,000 or more.
Both parties acknowledge appellant’s indictment was amended a number of times. The
indictment on which he went to trial, and which we must review for sufficiency, charged that
appellant:
with specific intent to commit the offense of theft of property of an aggregate
value of $200,000 or more, did all of the following, which amounted to more than
mere preparation that tended but failed to effect the commission of said intended
theft, to wit: Defendant, with intent to deprive any other person having a greater
right to possession of the property than Defendant upon the death of Mary Ellen
Bendtsen, did cause Mary Ellen Bendtsen to execute a will, naming Defendant as
a beneficiary to receive her property upon her death; and Defendant did thereafter
file said will for probate.
Appellant challenges the form of this indictment on grounds that it failed to allege an illegal act,
failed to identify the owner of the property appellant attempted to steal, and failed to describe the
property that was the subject of the attempted theft.
–4–
A person commits theft if he unlawfully appropriates property with intent to deprive the
owner of that property. TEX. PENAL CODE ANN. § 31.03(a) (West Supp. 2014). A person
commits the criminal offense of attempt if, with specific intent to commit an offense, he does an
act amounting to more than mere preparation that tends, but fails, to effect the commission of the
offense intended. Id. § 15.01(a) (West 2011). An indictment alleging an attempt is sufficient if
it alleges each element of the offense of criminal attempt. Epps v. State, 811 S.W.2d 237, 242
(Tex. App.—Dallas 1991, no pet.). An indictment for criminal attempt is not fundamentally
defective for failure to allege the constituent elements of the offense attempted. Young v. State,
675 S.W.2d 770, 771 (Tex. Crim. App. 1984). Thus, appellant’s indictment charging attempted
theft was not required to allege all constituent elements of the offense of theft. See Inman v.
State, 650 S.W.2d 417, 420 (Tex. Crim. App. 1983). Instead, the indictment needed only to
allege that appellant, with the specific intent to commit a theft, committed acts amounting to
more than preparation—here, causing Bendtsen to execute the Baylor will and filing it for
probate—which tended, but failed, to effect the commission of the theft. See id.
Appellant argues that causing a person to execute a will and filing that will for probate
are not illegal acts. If that conduct were standing alone, he would be correct. But the indictment
charged that appellant acted “with specific intent to commit the offense of theft.” At the hearing
on appellant’s motion to quash, the trial court ruled that the State had alleged an offense,
stressing that proof of the offense would turn on proof of appellant’s specific criminal intent.
We agree. If performed with the requisite criminal intent to deprive whoever would otherwise
have taken Bendtsen’s property after her death, the conduct alleged in this indictment—causing
Bendtsen to execute a will in his favor and then filing the will for probate—amounts to a
criminal offense.
–5–
Appellant also argues the indictment is insufficient because the State did not plead either
that Bendtsen lacked “testamentary capacity” or that appellant exercised “undue influence” over
her. These terms, though, are rooted in the civil law and are meaningful in probate proceedings.
In a criminal proceeding, the State can prove the accused attempted to appropriate property
unlawfully in many ways. One of those ways is by proving the owner did not give effective
consent. See TEX. PENAL CODE ANN. § 31.03(b)(1) (West Supp. 2014) (“Appropriation of
property is unlawful if it is without the owner’s effective consent.”). And the code explains that
consent is not effective if it is given by someone who by reason of mental defect is known by the
actor to be unable to make reasonable property dispositions. Id. § 31.01(3)(C). Likewise,
consent is not effective if given by someone who by reason of advanced age is known by the
actor to have a diminished capacity to make informed and rational decisions about the reasonable
disposition of property. Id. § 31.01(3)(E). But these are questions of proof, and the indictment
did not need to set out the manner and means by which the State would prove the attempted
unlawful appropriation. See Geick v. State, 349 S.W.3d 542, 546–47 (Tex. Crim. App. 2011).
Nor, as we have stated, did the indictment need to set out the specific elements of the
theft that was attempted. See Young, 675 S.W.2d at 771. Despite appellant’s complaints to the
contrary, the indictment was not required to describe the property at issue with specificity or to
name the owner of that property. Those are constituent elements of the offense of theft, not
criminal attempt. Regardless, we conclude the indictment gave sufficient notice of the property
at issue and the owner of that property for appellant to prepare his defense. See Moff, 154
S.W.3d at 601.
The property at issue was the property in Bendtsen’s estate, that is, whatever she owned
when she died. The State alleged that appellant intended to steal whatever property made up that
estate (with the exception of jewelry and a rocking chair). But precisely what property would be
–6–
in the estate when Bendtsen died could not be known at the time appellant caused her to sign the
will. Property could be lost or sold or stolen during the time between signing the will and
Bendtsen’s passing. By referring to “her property at her death,” the indictment clearly identified
the property in Bendtsen’s estate, which was the property the Baylor will earmarked for
appellant. See Shriner’s Hosp. for Crippled Children of Tex. v. Stahl, 610 S.W.2d 147, 150
(Tex. 1980) (“A will speaks at the time of the testator’s death, and it is the estate he then
possessed that passes according to the terms of that will.”). Appellant argues that at the time of
trial, years after Bendtsen died, the State could have identified the property that was in fact in her
estate. However, that identification would not have spoken to appellant’s intent at the time he
caused Bendtsen to execute the will and offered it for probate. The indictment sufficiently
identified the property that appellant attempted to steal.
The issue of timing is also relevant to naming the owner of the property in this case. At
the time appellant caused Bendtsen to execute the Baylor will, she was the owner of the property
at issue. To the extent effective consent was necessary to pass the property to appellant, it was
Bendtsen’s consent that was relevant. However, because the property would not pass until
Bendtsen’s death, the owner(s)—who would be deprived of possession of the property by
appellant—were those who would take Bendtsen’s estate in the absence of the Baylor will.
Again, the identity of that person or persons could have changed between execution of the will
and Bendtsen’s death based on a number of circumstances: Giron might have predeceased
Bendtsen, the Florida will might have been declared invalid, Giron’s two children could have
succeeded to the property. The penal code defines “owner” as a person who has title to or
possession of the property or who has “a greater right to possession of the property than the
actor.” TEX. PENAL CODE ANN. § 1.07(a)(35)(A) (West Supp. 2014). When appellant formed
the specific intent to steal Bendtsen’s estate, he could not have known who would take that estate
–7–
but for his conduct. Thus, the State properly adopted this statutory definition of owner and stated
appellant’s attempt was to deprive “any other person having a greater right to possession of the
property than Defendant upon the death of Mary Ellen Bendtsen.” Again, the indictment
sufficiently identified the persons whose ownership was at issue in this prosecution.
Before we leave the subject of the indictment, we address appellant’s argument that the
State’s prosecution in this case is an inappropriate use of the theft statute and an attempt to
criminalize a will contest. The theft statute has a broad reach: “A person commits theft if he
unlawfully appropriates property with intent to deprive the owner of property.” Id. § 31.03(a).
Indeed, chapter 31 of the penal code, which addresses theft, explains this statute was intended to
create a “single offense” that would supersede a dozen separate offenses that predated the form
of the code effective in 1974. See id. § 31.02 (West 2011) (section 31.03 supersedes theft, theft
by false pretext, conversion by a bailee, theft from the person, shoplifting, acquisition of property
by threat, swindling, swindling by worthless check, embezzlement, extortion, receiving or
concealing embezzled property, and receiving or concealing stolen property). The statute clearly
applies to a theft when the appropriation is accomplished using a legal document. See, e.g., Lehr
v. State, No. 05-09-00381-CR, 2011 WL 1566970, at *8 (Tex. App.—Dallas Apr. 27, 2011, pet.
ref’d) (not designated for publication) (theft by deed); see also Cooper v. State, 707 S.W.2d 686,
691–92 (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d) (theft by promissory note). We see no
reason why such an unlawful transfer cannot be made by will. The fact that the two acts
necessary for a theft by will—causing the will to be made and filing the will for probate—are
separated by time does not negate the fact that such a prosecution serves the identical policies as
a theft by deed.
Appellant expands on his contention that the State is attempting to criminalize will
contests by arguing that the probate court is the proper arena for this type of contest. A will
–8–
contest determines the validity of a will. See TEX. EST. CODE ANN. § 256.04(a) (West 2014). A
prosecution for theft determines whether a person has the specific criminal intent to deprive the
owner of her property. TEX. PENAL CODE ANN. § 31.03(a). The only will contests that can be
“criminalized” are those in which a will proponent knowingly submits a will for probate with the
specific intention of stealing an estate from others with the legal right to inherit. See id. A good
faith contest between two wills does not amount to a theft and would not be prosecuted as one.
But the legislature has expressed its intent in clear terms: when an actor appropriates property
knowing its owner cannot give effective consent to the transfer, the appropriation—or attempted
appropriation—is a criminal offense, not a probate matter. See id. § 31.03(b)(1).
We conclude the indictment not only stated a criminal offense, it sufficiently identified
both the property at issue and the owners of that property so as to give appellant the notice he
needed to prepare his defense. See Moff, 154 S.W.3d at 601. We overrule appellant’s first two
issues.
Sufficiency of the Evidence
In his third issue, appellant challenges the sufficiency of the evidence at trial to support
his conviction for attempted theft. Appellant argues that the Baylor will represented Bendtsen’s
true intent and that she possessed testamentary capacity when she executed that will. At the
same time, appellant contends he had no criminal intent in his conduct surrounding the Baylor
will and there was no evidence of deception, coercion, force, or threat in his dealings with
Bendtsen. Specifically, then, appellant challenges two elements of the State’s proof. He
contends the evidence was insufficient to establish he intended to steal Bendtsen’s estate. He
also contends the evidence was insufficient to establish he attempted to appropriate Bendtsen’s
property unlawfully, because she consented to his taking the estate when she died.
We review a sufficiency challenge by examining the evidence in the light most favorable
to the prosecution to determine whether any rational trier of fact could have found the essential
–9–
elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979). The jury is the exclusive judge of the credibility of the witnesses and the weight to be
given their testimony. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). Our duty is
to ensure that the evidence presented supports the jury’s verdict and that the State has presented a
legally sufficient case of the offense charged. Montgomery v. State, 369 S.W.3d 188, 192 (Tex.
Crim. App. 2012).
Appellant’s Criminal Intent
To prove an attempted theft, the State must show the accused possessed an intent to steal;
this intent may be inferred from circumstantial evidence. Wolfe v. State, 917 S.W.2d 270, 275
(Tex. Crim. App. 1996). In appellant’s case, we consider his conduct throughout his relationship
with Bendtsen, especially during her 2005 hospitalizations, and we look to evidence of
appellant’s conduct with other persons that was offered and admitted for the purpose of
determining his intent in this case.
The evidence at trial established appellant was determined to possess Bendtsen’s Swiss
Avenue home. Bendtsen owned five-twelfths of the Swiss Avenue property; the remainder was
owned by her siblings or their heirs. Several witnesses gave specific evidence of appellant’s
efforts to obtain the house from Bendtsen. We view their testimony in the light most favorable
to the prosecution. See Jackson, 443 U.S. at 319.
Jeffrey Martin, a landscape and interior designer and friend of Bendtsen, testified that in
2003 appellant called him twice and told him he was trying to get Bendtsen to sign a power of
attorney and to leave her share of the house to him and Burgess in exchange for everything they
had done for her. But Bendtsen was not cooperating. Appellant told Martin he had invested a lot
of time and energy into Bendtsen, and he had kept receipts of all the food and alcohol he had
brought to her and money spent taking her out. Appellant repeated “over and over” that he
–10–
wanted that house and was entitled to it. Indeed, he told Martin he had a plan to get full
ownership of the house when he inherited Bendtsen’s share: he would refuse to join the other
owners in selling the house, driving the price down until he could afford to buy their shares. He
also told Martin that if Bendtsen would not sign the papers, he and Burgess would stop seeing
her—it would be the end of their relationship.
Jackie Staley testified similarly at trial. Staley was a retired home restorer as well as a
long-time friend of Bendtsen. She said appellant called her and told her he was trying to get
Bendtsen to sign legal papers that would give Bendtsen a life estate in the house and would allow
appellant and Burgess to move in to take care of her. Appellant told Staley he had taken
Bendtsen to an attorney, but she refused to sign the paperwork. Appellant was “quite upset.”
Appellant told her that his friend Gibson was hosting a party where Bendtsen’s best friends
would talk to her and encourage her to sign the paperwork. (Staley chose not to attend such a
party, and when she spoke to Bendtsen afterwards, Bendtsen was “very angry.”) Appellant told
Staley that he and Burgess were going to “back off” their time with Bendtsen so she would
understand how much they had helped her. Appellant also shared with Staley a plan to get the
entire house: he told her he would present the other owners with bills for taxes and insurance
Bendtsen had paid while she lived there. The record indicates Bendtsen’s siblings had agreed
that she could remain in the house after their parents’ death if she paid the taxes and insurance on
the house.
Understanding that appellant’s self-expressed goal was to obtain the Swiss Avenue
property, and that he had been unsuccessful in obtaining Bendtsen’s cooperation in making such
a transfer, the months leading up to Bendtsen’s death are revealing. Again, we look at the
evidence in the light most favorable to the prosecution. See Jackson, 443 U.S. at 319.
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Ayodeji Fatunde was an investigator for Adult Protective Services (APS). After
Bendtsen’s fall, appellant encouraged a Baylor social worker to make a referral to APS alleging
exploitation of Bendtsen by her daughter. Fatunde interviewed Bendtsen, Giron, appellant, and
numerous people on staff of both Baylor and Ashley Court. His conclusion was that Giron was
not exploiting Bendtsen, but that appellant wanted to isolate Bendtsen and discredit Giron so that
he could exploit Bendtsen.
Maryann Jones, a concierge at Baylor, was asked to go to Bendtsen’s room during the
first hospitalization to notarize a document. Jones testified the document was a legal document;
she thought it was a power of attorney. She testified that there were three men in the room
(evidence indicates it was appellant, Burgess, and attorney Olsen) who were trying to tell
Bendtsen how to answer Jones’s questions. Jones did not “feel comfortable” about proceeding
with the notarization. Similarly, Cynthia Kennedy was Bendtsen’s physical therapy assistant
during her first hospitalization. Kennedy described appellant as “meddling” in her mental status
assessment of Bendtsen, trying to steer Kennedy to topics that might make Bendtsen seem “more
cognitive” than she was.
On January 18, 2005, appellant had Bendtsen execute the power of attorney in his favor.
(The document had originally been dated November 2003, when appellant initially tried to
persuade Bendtsen to sign a power of attorney, but she had refused.) Then on January 22,
appellant had Bendtsen execute a document (1) revoking any other powers of attorney,
declarations of guardianship, or other authorizations empowering others to act on her behalf, and
(2) naming appellant as her agent/attorney in fact to exercise both a durable power of attorney
and a medical power of attorney, and naming Olsen as her attorney in law. The January 22
document was notarized by Gibson, the same person who hosted the party at which friends of
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Bendtsen were to encourage her to sign over her property to appellant and who falsely notarized
the Baylor will.
The doctors who treated Bendtsen at Baylor after the stroke testified to appellant’s
conduct that effectively isolated Bendtsen from her family. David Cobasko, Bendtsen’s
neurologist, discussed her worsening condition with appellant. Appellant told Cobasko he was
not to discuss the case with Bendtsen’s sister or daughter; he was to discuss her status only with
appellant. Susan Ellen Kohl, Bendtsen’s attending physician at Baylor after the stroke, testified
appellant and Burgess were with Bendtsen in the emergency room. They told Kohl that
Bendtsen was estranged from her daughter and would not want her daughter notified of her
condition. They had Bendtsen identified as “Patient X” to keep family members from learning
that she was in the hospital.
The circumstances surrounding the Baylor will further manifest appellant’s intent. His
efforts to have Bendtsen voluntarily sign over her home had failed. He was informed that
Bendtsen’s status was grave after the stroke. He had isolated her from her family. And so he
had Olsen draft the will leaving the estate to him and Burgess and bring it to Baylor. Bendtsen’s
physical and mental status, and her ability to consent to the provisions of that will, are discussed
in more detail below. Under the facts of this case, appellant’s orchestration of this deathbed
transfer is itself evidence that he intended to take the property regardless of Bendtsen’s wishes
by creating a transfer of the property by will. When he submitted the Baylor will for probate
after Bendtsen died, appellant finalized his attempt to gain possession of her estate.
Finally, witnesses testified to a relationship appellant developed with an elderly couple,
Jack and Irene Farrington. Appellant got to know the Farringtons after Jack’s brother died. At
some point, he assumed responsibility for caring for the sickly couple, and he sometimes lived in
their house. At one point, he hired Margaret Armstrong as a caretaker. She testified that when
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she arrived, the house was filthy, the couple had not been bathed in years, and they were wearing
threadbare clothing held together with safety pins. Appellant told Armstrong the Farringtons had
no living relatives. During the months she worked there, appellant brought an attorney to the
house to get Jack to sign legal papers, but he refused. The men argued a number of times, and
Armstrong advised Jack not to sign the papers. Ultimately, appellant took Jack to attorney Paul
Lokey, and Jack signed documents creating a trust. Lokey testified Jack placed his half of the
home and two bank accounts in the trust, which would be used to care for the couple during their
life and then would be split between appellant and an old friend of Jack’s.
Appellant’s relationship with the Farringtons was challenged only when Irene’s sister and
niece visited and found the couple in frail condition. Appellant initially persuaded the visitors he
was taking care of them. But when the niece, Leona Owen, returned after a few months, she
discovered Jack had died; appellant had not notified Jack’s family. Owen took care of her aunt
for a year in the Farringtons’ house and then moved Irene to Waco. She testified that when she
was about to leave the house with Irene, appellant drove up “screaming and hollering, wanting –
I couldn’t move her, I couldn’t move the furniture, the house was his.” Owen gave appellant the
Farringtons’ furniture other than Irene’s hospital bed. Lokey testified appellant wanted the
couple’s house and was not happy when it was sold. When Irene died two years later, appellant
received about $100,000 from the trust.
The jury was instructed they could consider this evidence only if they found and believed
beyond a reasonable doubt that appellant had in fact committed these acts. Moreover, they were
instructed that the evidence could only be considered in determining appellant’s intent,
knowledge, or plan in connection with the case before them. We conclude the jury could have
found the evidence true beyond a reasonable doubt and could have concluded it was further
evidence of appellant’s intent in the Bendtsen case. Jurors could have believed that in both cases
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appellant insinuated himself into elderly persons’ lives and pressured those individuals to sign
over property to him.
We conclude there was ample evidence that appellant intended to take Bendtsen’s estate
and thus to deprive anyone who would otherwise inherit that estate from their rightful
inheritance. Rational jurors could have concluded beyond a reasonable doubt that appellant
possessed the criminal intent necessary to commit an attempted theft. See Jackson, 443 U.S. at
319.
Bendtsen’s Ineffective Consent
Appellant also challenges the sufficiency of the evidence establishing he attempted to
appropriate Bendtsen’s property unlawfully. He argues she voluntarily transferred the property
to him in the Baylor will. Unlawful appropriation can be proved in a number of ways, but one is
by establishing the owner of the property did not effectively consent to giving the property. See
TEX. PENAL CODE ANN. § 31.03(b)(1). And, as we have discussed, consent is not effective if it is
given by someone who by reason of mental defect is known by the actor to be unable to make
reasonable property dispositions, id. § 31.01(3)(C), or if given by someone who by reason of
advanced age is known by the actor to have a diminished capacity to make informed and rational
decisions about the reasonable disposition of property, id. § 31.01(3)(E). Accordingly, the
evidence of unlawful appropriation is sufficient if a reasonable juror could have concluded that
appellant knew Bendtsen was unable to make reasonable dispositions of her property, either
because her mind was not well or because of a diminished capacity that came about because of
her advanced age. We focus on Bendtsen’s mental status during the time leading up to and
immediately after her stroke, including the day Bendtsen made a mark on the will.
Those who claimed to be Bendtsen’s friends were divided in their opinions as to her
mental capacity in the time period leading up to her stroke. Some testified she possessed all of
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the mental ability she always had; others testified to a slow decline she experienced over time;
still others testified they were concerned at the significant decline she experienced in the early
months of 2005. As the exclusive judge of the credibility of the witnesses and the weight to be
given their testimony, the jury had to resolve this conflicting testimony. Wise, 364 S.W.3d at
903. That said, even counsel for appellant acknowledged in his opening statement to the jury
that Bendtsen’s mental ability had been affected by the stroke and that “she had some problems”
as a result.
The medical testimony on this subject, however, was not conflicting. Even before her
stroke, Kennedy testified, Bendtsen was not alert and oriented. Psychiatrist Edward Tuthill, who
performed a psychological assessment of Bendtsen, concluded she suffered from advanced
dementia and was “not competent to make informed choices or give informed consent, or even
formulate clear choices.” Tuthill found she would be “vulnerable to ‘undue influence’ and
would not be able to protect her own interests from someone.” He concluded further that this
condition was not caused by her fall, but it would have developed over time. Bendtsen’s
attending physician at Ashley Court, Vladimir Grebennikov, agreed that she was confused and
disoriented, with decreased short-term memory.
After her stroke, Bendtsen’s doctors described her as obtunded, meaning she was
comatose or close to it. According to Tuthill, she could have conceived of the idea of a will, but
she could not have pursued it. Significantly, the State asked each testifying health care
professional whether he or she would have been comfortable serving as a witness to a legal
transaction by Bendtsen; each witness replied negatively and testified Bendtsen lacked the ability
to participate in such a transaction. Her doctors reported her condition to appellant, who had
Bendtsen’s medical power of attorney. After Bendtsen suffered her stroke, appellant stood at the
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foot of her hospital bed while Olsen read her the will he had drafted and helped her make a mark
on the will.
From this evidence, we conclude a rational jury could have found that—although
Bendtsen “signed” the Baylor will—she did not effectively consent to transferring her estate to
appellant and Burgess. A rational jury could also have concluded appellant knew that Bendtsen
was unable to give effective consent after her stroke. Accordingly, we conclude the evidence
appellant unlawfully appropriated the estate was sufficient. See Jackson, 443 U.S. at 319.
We overrule appellant’s third issue.
Admissibility of Extraneous Offense
In his fourth issue, appellant argues the trial court erroneously admitted the evidence of
appellant’s relationship with Jack and Irene Farrington during the guilt/innocence phase of his
trial. As we discussed above, the evidence included allegations of mistreatment of the couple by
appellant and of his attempts to obtain possession of their home and property.
Appellant objected that the evidence involved conduct that was not relevant to the
Bendtsen case and was improper character evidence. His attorney argued that if the evidence
were admitted the jury could “convict him for a collateral crime,” with which he had never been
charged. Appellant also objected that the Farrington evidence was too remote from the facts of
the Bendtsen case to be admissible under the theft statute’s provision governing “recent
transactions other than, but similar to, that [upon] which the prosecution is based.” TEX. PENAL
CODE ANN. § 31.03(c)(1). We review a trial court’s decision to admit evidence under an abuse
of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).
We first address the issue of remoteness. The theft statute allows the State to prove an
accused’s knowledge or intent through evidence he participated in “recent transactions other
than, but similar to” the transaction being prosecuted. TEX. PENAL CODE ANN. § 31.03(c)(1).
Appellant’s first objection to the Farrington evidence was that it did not involve a recent
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transaction, as the statute required. However, when dates within these two transactions are lined
up, the overlap is clear. Trial testimony consistently placed appellant in Bendtsen’s social circle
for ten to fifteen years. At the latest, then, he had befriended Bendtsen and was seeing her
regularly by 1995. In 1997, he hired Armstrong to care for the Farringtons, and he took Jack to
Lokey to draw up the trust in his favor. The Farringtons’ family visited in 1999, the year Jack
died. Irene’s niece stayed in the house caring for her for the following year and then moved her
to Waco in 2000. Appellant finally received his share of the trust when Irene died in 2003. That
was the same year Bendtsen visited her daughter in Florida and executed the Florida will, and it
was the same year appellant began calling Martin and Staley, confiding to them that he wanted—
and deserved—Bendtsen’s house. We conclude that appellant’s involvement with the
Farringtons necessarily overlapped in time with his involvement with Bendtsen. The evidence
offered by the State was not remote from the Bendtsen evidence presented to the jury. We
conclude the evidence was admissible under section 31.03(c).
Appellant also argues the Farrington evidence was not admissible under rule 403, given
its bar to evidence that is more unfairly prejudicial than probative. See TEX. R. EVID. 403. The
State argues initially that appellant did not preserve a rule 403 objection below. Our review of
the record confirms that the issue of unfair prejudice was argued by the parties and that the trial
court specifically conducted a rule 403 balancing test before admitting the evidence. Because
the trial court considered and ruled on this issue, we may as well.
The court of criminal appeals has identified factors a trial court must balance when
performing a rule 403 analysis. Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim.
App. 2006). On the one hand, the court evaluates the probative force of the proffered evidence
and the proponent’s need for that evidence. Id. at 641. And on the other hand—when the
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complaint is that the evidence is more unfairly prejudicial than probative—the court must
evaluate the tendency of the evidence to suggest a decision on an improper basis. Id.
“[W]here intent or guilty knowledge is an essential element of the offense which the State
must prove to obtain a conviction, its materiality goes without saying.” Morgan v. State, 692
S.W.2d 877, 880 (Tex. Crim. App. 1985). In this case, evidence that appellant insinuated
himself into the lives of these elderly persons and attempted to pressure Jack into signing over
the couple’s home and accounts is highly probative of his criminal intent in Bendtsen’s case.
Appellant contends Bendtsen wanted to make first a power of attorney, and then a will, in his
favor, and that in doing so she transferred the bulk of her estate to him voluntarily. The
Farrington evidence, if the jury believed it, showed appellant’s intent to isolate frail individuals
from their families and pressure them into legally transferring property, especially the interest in
their homes.
On the other hand, we do not see that evidence of appellant’s relationship with the
Farringtons would tend to cause the jury to decide the Bendtsen case on an improper basis. The
evidence tended to show appellant knew he could isolate elderly individuals from their families
and obtain legal transfers of those individuals’ power and money to himself. The evidence was
necessary to rebut appellant’s arguments that his conduct involving Bendtsen was based solely
on affection and a desire for her well-being. Finally, appellant was protected from misuse of the
evidence because the trial court instructed the jury concerning use of this, or any, extraneous
offense evidence. Jurors were told the evidence could be used only if they were persuaded
beyond a reasonable doubt that appellant actually committed the wrongful act, and even then,
they could consider the evidence only in determining appellant’s intent, knowledge, or plan in
connection with the Bendtsen case. We presume the jury follows the trial court’s instructions in
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the manner presented. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). We discern
no violation of rule 403 in admission of the Farrington evidence.
We conclude the trial court did not abuse its discretion in admitting the Farrington
evidence. We overrule appellant’s fourth issue.
Conclusion
We have decided each of appellant’s issues against him. Accordingly, we affirm the trial
court’s judgment.
Publish
TEX. R. APP. P. 47 /Molly Francis/
121199F.P05 MOLLY FRANCIS
JUSTICE
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JUDGMENT
MARK MCCAY, Appellant On Appeal from the Criminal District Court
No. 4, Dallas County, Texas
No. 05-12-01199-CR V. Trial Court Cause No. F11-00694-K.
Opinion delivered by Justice Francis.
THE STATE OF TEXAS, Appellee Justices Brown and Stoddart participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered September 9, 2015.
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