O'Brien v. State, 36594

• Decision Date: 04 March 1964
• Docket Number: No. 36594,36594
• Citation: 376 S.W.2d 833
• Parties: Jerry S. O'BRIEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 833

376 S.W.2d 833

Jerry S. O'BRIEN, Appellant, v. The STATE of Texas, Appellee.

No. 36594.

Court of Criminal Appeals of Texas.

March 4, 1964.

Rehearing Denied April 15, 1964.

Bernard A. Golding, Houston, for appellant.

Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Carl E. F. Dally and Gus J. Zgourides, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

McDONAND, Judge.

The appellant was convicted of the offense of Conversion from an Estate, and his penalty was assessed at ten years' confinement in the State Penitentiary.

Appellant was jointly indicted as a principal with Clem McClelland, the former Probate Judge of Harris County. After McClelland had moved the Court to sever, to place O'Brien on trial first, and for a change of venue, the severance was granted and the appellant was tried alone.

Gordon Robert von Stroh, a non-resident of Texas, while in police custody committed suicide. After the death of von Stroh, Captain Cecil Priest, of the Houston Police Department, had a telephone conversation with McClelland, the Probate Judge, regarding the property of the deceased. McClelland informed Captain Priest that he would send the appellant to take charge of the deceased's property and told him it would be unnecessary for an attorney to be employed by the deceased's family.

Mr. Russell Dahl, a brother-in-law of von Stroh, came to Houston from Oregon and first talked with Captain Priest and, thereafter, went to the courthouse to see Judge McClelland. Dahl had a conversation with Judge McClelland in his office. Following that conversation, Dahl met with the appellant. He did not recall whether he or the Judge first contacted the appellant, but their meeting was a result of the conversation with McClelland. Dahl met with the appellant on at least two occasions before he left Houston, and appellant was informed that Dahl had paid the funeral expenses of the deceased and that he had a claim against the estate for the same.

After returning to Oregon, Mr. Dahl corresponded and had telephone conversations with the appellant concerning the von Stroh estate. In one of the letters, dated October 19, 1959, from appellant to Dahl, appellant advised 'I cannot send you nor anyone any of Gordon's belongings without the Court's okeh, and my suggestion is that we sit steady in the boat and wait about a year, at which time the accounting will be due in the court; and if I have been successful in getting enough money together, I will ask that your claim for funeral expenses and other monies you have been out are reimbursed to you'. In a subsequent letter, dated October 25, 1960, the appellant informed Dahl that 'According to law when this estate is closed, I will be forced to turn over said estate to the executor according to letters testamentary'. The quoted sentence had reference to the fact that letters testamentary had been issued in California in the estate of Gordon Robert von Stroh.

Dahl's claim for funeral expenses was not paid by the appellant as administrator of the estate, nor anyone else.

The probate records of the estate, introduced into evidence, revealed that on the 23rd day of March, 1960, the appellant made application to the Probate Court, and in the application it was recited that an insurance policy in the amount of $3,500.00 had been collected, and that the funds on hand in the estate were $3,618.47. The appellant then moved the Court to pay temporary administrator's fee of $2,000.00 and an attorney's fee of $500.00. The Court's order, pursuant to the application, authorized the payment of $2,000.00 as temporary administrator's fee and $500.00 as attorney's fee out of the funds of the estate.

Records from the bank account of the estate in the Citizens State Bank reflected that on March 24, 1960, two checks, one in the amount of $2,000.00 and one in the amount of $500.00, were drawn on the account by the appellant. The $2,000.00 check payable to appellant bore the notation, 'Temp. adm. fees per court order #67899'. The check for $500.00 payable to appellant bore the notation, 'Attorney's fees per court order #67899'. The balance of the account remaining after these withdrawals was $1,118.47. Subsequent withdrawals to pay claims of the estate reduced the principal on deposit to $283.65.

The records of the same bank reflect that the appellant had a personal account there and that the check for $2,000.00, drawn as a temporary administrator's fee, was deposited into that account.

The appellant, testifying in his own behalf, said he was not a lawyer and not licensed to practice law. He had been acquainted with Judge McClelland since McClelland graduated from the University of Texas in about 1947 or 1948. Judge McClelland had suggested to him that he become the temporary administrator in the von Stroh estate. He did not draft the order appointing him temporary administrator. It was first seen by him in Judge McClelland's office at the courthouse.

Appellant denied that he had ever shared or given any part of the fees of any estate to Judge McClelland. Appellant said that he had not had any business transactions with McClelland. He was then confronted with the fact that a check had been drawn upon his account, made payable to McClelland in the amount of $500.00, on the day after he received $2,500.00 from the von Stroh estate. He then admitted the payment but his explanation was that McClelland had helped him with tax matters concerned with the drilling of an oil well, and that the $500.00 payment was made for the services rendered by McClelland. The original copy of that check was exhibited to him by his counsel, and he said it bore the notation 'Legal services oil & insurance matters'. Thereafter, on recross-examination it was shown that the check did not have this notation on it when it was negotiated at the bank. The words 'oil &' had been placed on the original check after it was negotiated at the bank.

In support of the appellant's explanation, he introduced a statement which he said was presented to him by Judge McClelland for the services. (Defendant's Exhibit No. 1). Under cross-examination, he denied that the statement was prepared recently in order to cover and explain the transaction of the payment of $500.00 to McClelland. However, he admitted that the statement could have been made on his typewriter at his...