Bynum v. State

• Decision Date: 30 April 1986
• Docket Number: No. 07-84-0220-CR,07-84-0220-CR
• Parties: Ben BYNUM, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 321

711 S.W.2d 321

Ben BYNUM, Appellant, v. The STATE of Texas, Appellee.

No. 07-84-0220-CR.

Court of Appeals of Texas,

Amarillo.

April 30, 1986.

Rehearing Denied May 30, 1986.

Michael J. Hinton and Stanley G. Schneider, Law Offices of Stanley G. Schneider, P.C., Houston, George Whittenburg and David Mullin, Whittenburg, Whittenburg & Schachter, John Wheir, Amarillo, for appellant.

Randall L. Sherrod, Criminal Dist. Atty., Canyon, for appellee.

Before DODSON, COUNTISS and BOYD, JJ.

COUNTISS, Justice.

Appellant was convicted by a jury of five counts of misapplication of fiduciary property. Tex. Penal Code Ann. § 32.45 ¹ (Vernon 1974). The trial court assessed punishment of ten years in the Texas Department of Corrections, on each count, but granted appellant's request for probation of the penitentiary time. On the first count the court also assessed a $5000 fine that was not probated. In this Court, appellant attacks the judgment of conviction by six grounds of error, contending the evidence is insufficient to prove two of the elements alleged by the State, the indictment is defective in three different ways, and the trial court should have permitted the appellant to inspect the grand jury testimony of one of the State's key witnesses. We affirm.

Appellant was the County Judge of Potter County, Texas. In the fall of 1983, appellant, County Commissioner Pat Cunningham, and various other Potter County officials and citizens formed an organization named Citizens for Progress (CFP), to Each count of the five-count indictment alleges that appellant:

assist in the passage of a bond issue for the construction of a Courts Building. This case is based on appellant's handling of various funds donated to CFP.

did then and there intentionally or knowingly, or recklessly misapply by dealing with property, namely: money, of the value of $200.00 or more but less than $10,000.00, contrary to an agreement under which the fiduciary, BEN BYNUM, held such property, in a manner that involved substantial risk of loss to the Citizens for Progress committee, the person for whose benefit said property was held, by cashing contribution checks donated for the Citizens for Progress committee or by failing to make and keep an account of such property or by failing to deposit and remit for deposit such property in a bank account of the Citizens for Progress committee, ... (Emphasis and numbers added.)

By his first two grounds, appellant argues that the evidence is insufficient to prove the italicized allegations. Because the same law applies to both grounds, we will resolve the grounds together.

When deciding whether the State carried its burden of proof, we apply the standard of review formulated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) and adopted by the Texas Court of Criminal Appeals in Carlsen v. State, 654 S.W.2d 444, 448 (Tex.Crim.App.1983). That standard directs us to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The standard is the same, whether we are dealing with direct evidence or circumstantial evidence. 654 S.W.2d at 449.

The statute, and the indictment, contain two terms pertinent here that are not defined in the statute: "agreement" and "substantial risk of loss." It is a cardinal rule of statutory construction that when a word is not defined in a statute, the word "employed [is] ordinarily given [its] plain meaning, without regard to the distinction usually made between the construction of penal laws and laws on other subjects, unless the act clearly shows that [it] was used in some other sense." Campos v. State, 623 S.W.2d 657, 658 (Tex.Crim.App.1981); Bush v. State, 628 S.W.2d 270, 271 (Tex.App.--Amarillo 1982, pet. ref'd). Applying that principle here, the plain meaning of "agreement," from Webster's Third New International Dictionary 43 (1976 ed.) is the act of agreeing or coming to a mutual agreement; a harmonious understanding; or an arrangement (as between two or more parties) as to a course of action. The plain meaning of "substantial," from Webster's Third New International Dictionary 2280 (1976 ed.), is constituting substance; or not seeming or imaginary; or not illusive, but real and true. "Risk," in Webster's Third New International Dictionary 1961 (1976 ed.) is defined as the possibility of loss, injury, disadvantage, or destruction.

Appellant's first argument is that the State alleged, and was required to prove at least one of three agreements:

1. An agreement that appellant would not cash contribution checks donated to the Citizens for Progress Committee.

2. An agreement that appellant would make and keep an account of contribution checks.

3. An agreement that appellant would deposit and remit for deposit all contribution checks into the bank account of the Citizens for Progress Committee.

We note at the outset that we do not agree with appellant's construction of the indictment. The State alleged that appellant misapplied property "contrary to an agreement" under which he held the property. He engaged in that misapplication, said the indictment, by doing one of three different things: (1) cashing contribution checks, or (2) failing to keep an account of contribution checks, or (3) failing to deposit and remit for deposit the checks in the CFP Reviewing the record, we find testimony from several witnesses that appellant was present at the initial organization meeting of CFP. Those present at the meeting selected a citizen named Gene Gidel to serve as treasurer of CFP, and agreed that all checks and donations would be given to Gidel and that he would pay the bills. Appellant exhibited his knowledge of this agreement by signing and filing a form that designated Gidel as compaign treasurer of CFP and by transmitting to Gidel some but not all, of the checks appellant received. Thus, there was ample evidence from which the jury could conclude that appellant was a party to an agreement, i.e., a harmonious understanding or an arrangement as to a course of action, by which contribution checks were to be delivered to Gidel. Appellant argues that the evidence indicates, at best, only an implied agreement. However, there is ample evidence that those present when Gidel was selected as treasurer expressly agreed on his selection and duties.

bank account. Thus, the proper inquiry is whether there is sufficient evidence of an agreement on the manner in which the contribution checks were to be handled and whether appellant violated that agreement in at least one of the three ways alleged by the State.

Appellant's admitted violation of that agreement, by cashing some of the contribution checks, and other evidence that he cashed contribution checks, instead of delivering them to Gidel, is sufficient to establish acts violative of the agreement. Thus, the State carried its burden of proving an agreement, and the violation by appellant of the agreement.

Next, appellant contends the State failed to prove that his actions created substantial risk of loss for CFP. From the record, we find evidence that appellant said "I would have had more than 1,500 dollars" if Commissioner Cunningham and Treasurer Gidel had not been "constantly on me." He also admitted he could not remember what checks he had cashed, and agreed there could be checks for which he had not accounted. When appellant finally gave the money to Gidel, it was partially in cash ($300), and partially by appellant's personal check ($1600) that he covered by a loan from his parents. There is also evidence that appellant did not keep records of the checks he was cashing and that he determined the amount he owed, at least partially, from information furnished by Commissioner Cunningham. There is also evidence that there has never been an accounting for two checks cashed at a liquor store. From this evidence, the jury was entitled to conclude that the manner in which appellant handled the donated funds created a substantial risk of loss to CFP, i.e., that there was a real possibility of loss. Grounds of error one and two are overruled.

In the indictment, the State accuses appellant of misapplying money "of the value of $200.00 or more but less than $10,000.00 ..." (Counts 1-4), and "of the value of less than $200.00" (Count 5). Those allegations create a fatal defect in the indictment, says appellant by his third ground of error, because they do not describe the money and checks that were the subject of each count.

Appellant relies on the general rule that an indictment charging theft of a check must fully describe the check, by date, number, drawer, payee, and amount. Farabee v. State, 368 S.W.2d 222 (Tex.Crim.App.1963). If that rule is applicable in this case, his contentions still must be analyzed under the principles stated in the recent case of Adams v. State, 707 S.W.2d 900 (Tex.Crim.App.1986), in which the Court of Criminal Appeals, after stating the threshold issue, set forth a three-step process, for deciding whether a charging instrument is fatally defective:

The important question is whether a defendant had notice adequate to prepare his defense. The first step in answering this question, but only the first step, is to decide whether the charging instrument failed to convey some requisite item of 'notice'. The next step is to decide whether, in the context of the case, this When we apply that analysis, we must conclude that appellant has not demonstrated reversible error.

had an impact on the defendant's ability to prepare a defense, and, finally, how great an impact.

We will assume, without deciding, that the notice rule from Farabee upon which appellant relies is applicable and that the indictment did not contain all of the requisite information. However, approximately three weeks before trial, the...