Robin A. Bailey v. State

Citation: Not availableDocket: 03-02-00622-CR

Court: Court of Appeals of Texas; December 3, 2003; Texas; State Appellate Court

Original Court Document: View Document

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Robin A. Bailey was convicted by a jury of first-degree felony theft and misapplication of fiduciary property, receiving a five-year prison sentence for each offense. Bailey contended that the evidence was insufficient to support her convictions. The case involved allegations that Bailey misappropriated property belonging to Marguerite Norman, a 99-year-old woman who was incompetent to testify due to her mental condition. Norman, who had two deceased husbands and three children, had two checking accounts managed by Mary Ann Barr, her caretaker, before Bailey took over financial responsibilities after Mary Ann moved out in 1996.

In 1997, a checking account in Norman's name and Bailey's name was opened, into which approximately $280,000 was deposited, but it became overdrawn by July 1999. Following Norman's hospitalization for a broken arm, she signed two deeds transferring significant real estate holdings to Bailey and her husband, valued at over $471,000. After Norman was moved to a nursing home in 2000, her daughter, Billye Barr Hall, discovered the financial mismanagement and that Bailey had been named the guardian after Norman was diagnosed with dementia. The appellate court affirmed the theft conviction but reduced the misapplication charge to a second-degree felony and remanded for punishment reassessment.

The indictment charged the appellant with misapplication and theft of over $200,000 from Norman through transactions involving the Norman/Bailey account and misapplication and theft of undeveloped Trimmier Road real estate. The jury received the two theories of each offense in an alternative manner and returned general guilty verdicts. The appellant claims the evidence is insufficient to uphold these verdicts, raising both legal and factual sufficiency challenges. 

In a legal sufficiency review, the question is whether any rational juror could find the essential elements of the offense beyond a reasonable doubt. In a factual sufficiency review, the inquiry is whether the evidence against guilt is so weak or outweighed by contrary evidence that it undermines confidence in the jury's finding. 

Regarding the Trimmier Road property, in April 1997, Norman executed a will that left the property to Mary Ann Barr and the appellant. In July 1998, the appellant sought a deed transferring the property to herself, claiming Norman was coerced into signing the will. The deed was prepared while Norman remained in her car, and upon reviewing it, she requested the addition of “Joe's name” as a co-transferee. The property, valued at $262,000, was partially sold a year later for $117,600. 

The appellant contends the State did not demonstrate that she appropriated the property without Norman's effective consent. The jury was instructed on circumstances under which consent is ineffective, including deception, mental incapacity, or diminished capacity due to advanced age. Testimonies suggested that while some witnesses believed Norman was competent during the transaction, others noted a decline in her mental faculties during her nineties, though opinions on the extent of this decline varied.

In November 1997, Norman fell and broke her arm, leading to a severe decline in her mental health. Testimony from Billye Barr Hall indicated that Norman physically recovered but struggled mentally, exhibiting disorientation and difficulty in conversation. Joe Work, a longtime acquaintance, noted that Norman lost her cognitive sharpness and began experiencing hallucinations, becoming fearful of visual stimuli. In April 1999, Dr. Richard Lenehan, a neurologist, assessed Norman and documented a significant decline in her ability to perform daily activities, memory loss, and delusions, concluding she had severe dementia likely due to Alzheimer's disease. He noted that her cognitive impairment likely began years earlier, rendering her incapable of making rational decisions in 1997 despite appearing normal to outsiders. Psychiatrist Dr. Richard Coons, who reviewed Norman's medical records, concurred with Lenehan's assessment of severe Alzheimer's dementia and her incapacity to make informed decisions as early as 1997. Conversely, defense expert Dr. Robert Cantu acknowledged Norman's Alzheimer's but characterized it as less severe, suggesting mild dementia with occasional delirium, and hesitated to determine her decision-making capacity in 1997. Jean Gautier, a church member, observed Norman's mental decline over several years, noting her unresponsiveness during a late 1999 visit. The collective evidence supports the conclusion that by July 1998, when Norman signed a deed transferring property, she was unable to make informed decisions due to her mental state or age, although the appellant contends there is insufficient evidence to prove she was aware of Norman's lack of capacity to consent effectively.

Appellant resided on Trimmier Road since 1994 and became the primary caregiver for Norman in 1996. Witnesses noted a significant decline in Norman's mental condition following a 1997 injury, leading to a neurologist's referral in 1999 due to memory loss, delusions, and an inability to perform daily activities. Although some testimonies suggested Norman remained competent longer, the jury was tasked with evaluating credibility and resolving inconsistencies. The evidence allowed a rational conclusion that appellant knowingly arranged for Norman to sign a deed in July 1997, despite her diminished mental capacity, indicating that the transfer was made without Norman's effective consent. Consequently, the court upheld appellant's theft conviction under count IIB, dismissing the need to assess her conviction for theft related to Norman's bank account under count IIA.

Regarding count IB, the indictment alleged that appellant, as a fiduciary, improperly transferred the Trimmier Road property to herself and Joseph Bailey, posing a risk of loss to Norman. However, the court found insufficient evidence to prove appellant held any fiduciary status at the time of the transfer, as Norman was the sole titleholder until the deed was executed. The court concluded that while appellant exploited Norman's trust, the actions constituted theft rather than misapplication of fiduciary property. Thus, the court sustained appellant's challenge to the misapplication of fiduciary property conviction under count IB.

Count IA of the indictment addresses the appellant's alleged misapplication of funds in the Norman/Bailey account. The appellant argues that the evidence is insufficient to demonstrate that she acted contrary to any fiduciary agreement concerning the property or that Norman did not benefit from the disputed transactions. Prior to July 1997, Norman had two checking accounts, and in July 1997, he signed a check for $42,243.66 from one account to open the Norman/Bailey account, retaining $1,000 in cash. In January 1998, he deposited $42,000 from another account into the Norman/Bailey account, less $2,000 in cash. Several certificates of deposit also contributed funds to this account, with a total of $245,597.40 allegedly misapplied by the appellant through various transactions, including cash withdrawals and transfers. The indictment cites 143 transactions between August 1997 and August 2000, while additional unindicted transactions totaled approximately $89,000. Appellant contends there was no express fiduciary agreement, arguing that the State needed to provide direct proof of such an agreement, which is defined as a mutual understanding regarding actions. However, the agreement can be inferred from circumstances, and evidence indicates that all funds in the Norman/Bailey account belonged to Norman, despite some being held jointly with family members.

Mary Ann Barr testified that she managed checks on the Norman/Barr accounts, which contained funds solely belonging to Norman, intended for his personal expenses. She stated that she never considered using these funds for her own benefit. After her remarriage and relocation in November 1996, she continued writing checks for Norman until July 1997, when she learned that a new Norman/Bailey account had been established and was no longer asked to write checks. Appellant took over this responsibility, managing all of Norman's bills and finances thereafter. The jury could reasonably infer a mutual understanding between appellant and Norman regarding the funds in the Norman/Bailey account for Norman's benefit. The evidence was deemed sufficient to support this inference without being contradicted by weaker proof.

Appellant disputed the existence of a fiduciary agreement and claimed that the State did not adequately prove that Norman did not benefit from the transactions outlined in the indictment. It was determined that the State failed to demonstrate that appellant misapplied over $200,000 from the account, but sufficient evidence indicated misapplication of more than $100,000. Bank records were presented, including those from the Norman/Barr and Norman/Bailey accounts, as well as accounts held by Joseph and Robin Bailey. Ruthie Bryant, the State's CPA witness, analyzed the bank records and noted that Mary Ann wrote approximately $17,000 in checks from the Norman/Barr accounts prior to the Norman/Bailey account's opening. In contrast, appellant wrote over $19,000 in checks from the Norman/Bailey account in the last five months of 1997 and $58,800 in 1998. Bryant concluded that appellant had exceeded Mary Ann's spending by over $100,000. However, the State's burden was to prove misapplication of fiduciary property through specific transactions listed in the indictment, and Bryant's comparative analysis did not fulfill this requirement, as it included checks not cited in the indictment.

Bryant testified that from 1997 to 2000, the appellant and her husband issued checks from their joint accounts that exceeded their reported incomes, suggesting alternative income sources. However, this does not prove that the 143 transactions in the indictment constituted misapplications of Norman's property. Additionally, the purchases of horses, a trailer, and a swimming pool do not demonstrate criminal activity, as there is no evidence linking these purchases to funds misappropriated from the Norman/Bailey account.

The indictment claimed that $26,500 was misapplied from two deposits in the Norman/Bailey account. The first deposit on August 29, 1997, involved $50,000 from a closed certificate of deposit, with only $22,000 withheld. Evidence shows $5,000 was deposited into another account, $4,000 taken as cash, and the remaining $13,000’s disposition is unclear. A second deposit on April 27, 1999, also involved $50,000 and $4,500 taken as cash, which was later deposited into the Robin Bailey account. The jury could find that $7,500 was misapplied, but there is insufficient evidence regarding the remaining amounts.

The indictment also alleged ten cash withdrawals totaling $72,358 as misapplications. The first withdrawal on January 22, 1998, was $1,000, which was deposited into the Joseph Bailey account. On January 26, 1998, withdrawals of $2,500 and $61,108 were made, with corresponding deposits into Joseph and Robin Bailey accounts. The evidence supports that $64,608 was misapplied since it was withdrawn and deposited into her accounts. However, for the remaining $7,800 from seven additional withdrawals, there is no evidence of misapplication, rendering it legally insufficient to support a claim of misappropriation.

The indictment accused the appellant of misapplying $14,900 through transfers from the Norman/Bailey account to her own accounts, which was substantiated by bank records. Additionally, forty-six checks totaling $62,941, made payable to cash, were written by the appellant. Evidence indicates that deposits matching $35,700 from sixteen of these checks were made into her accounts, supporting a finding of misapplication for that amount. However, $27,241 remains unaccounted for, leading to a conclusion that there is insufficient evidence for misapplication of this sum. 

Three checks totaling $1213.74 were also written to unnamed payees, with no evidence provided regarding their use, resulting in a determination of insufficient evidence for misapplication. 

Further transactions included checks to named payees totaling $69,435.77. Specific checks to Joe Bailey and National Bank, totaling $8,150, were linked to deposits in the Joseph and Robin Bailey accounts, allowing the jury to reasonably find misapplication of these amounts. The evidence presented was deemed legally sufficient to support findings of misapplication for the specified sums, while other amounts lacked supporting evidence.

Appellant is accused of misapplying fiduciary property totaling $136,858 from the Norman/Bailey account, with specific misapplications identified: $7,500 withheld from deposits, $64,608 withdrawn, $14,900 transferred to her own accounts, $35,700 in checks made payable to cash, and $14,150 in checks made payable to herself, Joseph Bailey, or National Bank. Additional checks totaling $55,285.77 were allegedly misapplied but lack sufficient evidence to determine their nature or the borrowers involved. While these checks could suggest further misapplication, even if considered, the total would not exceed $200,000, leading to the conclusion that evidence does not support a conviction for misapplication exceeding that amount. However, the evidence is legally sufficient for a conviction for misapplication over $100,000. Appellant's argument regarding the possibility of the transactions being gifts from Norman was found unconvincing, as the evidence did not undermine the jury's determination. The court affirmed the district court's judgment for theft of real property exceeding $200,000 but modified the conviction for misapplication to reflect an amount between $100,000 and $200,000, upholding the modified judgment regarding appellant's guilt.

The court has determined that, while the punishment is within the range for a second-degree felony, it cannot be assumed that the same term would apply to the lesser offense. As a result, the judgment regarding count I's sentence is reversed and remanded for the district court to reassess the punishment related to the misapplication offense. Theft involves the unlawful appropriation of property with intent to deprive the owner, and misapplication occurs when a fiduciary intentionally, knowingly, or recklessly mishandles property, risking substantial loss to the owner. Evidence indicates that the appellant signed checks for various expenditures that were not challenged as insufficient by the appellant, who instead claimed authorization for the transactions. Bank records indicated multiple checks and cash withdrawals attributed to the appellant, including a notable check to Victoria's Secret, which was highlighted by the prosecution. The evidence is deemed legally sufficient to demonstrate misapplication that posed a significant risk of loss, and the jury charge allowed for conviction on this lesser included offense.