COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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MARIA GURROLA, Appellant, v. THE STATE OF TEXAS, Appellee. |
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No. 08-01-00107-CR Appeal from the 243rd District Court of El Paso County, Texas (TC# 20000D02316) |
O P I N I O N
This appeal presents the question of whether one of two signatories to a joint checking account commits theft by depleting funds in that account without the knowledge of the other signatory. Finding that, as a matter of law, signatories to a joint checking account are co-owners of the funds therein, but further finding there is evidence the joint account was established without the effective consent of both owners, we affirm.
Facts
Maria Gurrola, appellant here and defendant below, is the niece of complaining witness Soledad Lozoya. Lozoya is in her nineties, unmarried, has no children, and until March 1997 lived in Juarez, Chihuahua, Mexico. At that time, a drunk driver crashed into Lozoya=s house, destroying it and sending her into shock. Several days after the accident, Gurrola and her husband brought Lozoya to a hospital in El Paso. Lozoya paid her own hospital bills. She also paid $2,300 to a Juarez neighbor, Jose Gil, to repair her home. While the house was being repaired she lived with Gurrola and her family in El Paso for about five months. She then returned to Juarez.
In April 1997, Gurrola took Lozoya to Norwest Bank in El Paso where Lozoya had her checking account. Lozoya testified that on that day she was sick, was using supplemental oxygen, and did not understand what they had arranged there. Gurrola and Lozoya met with Queta Zwittag, the banker who handled Lozoya=s accounts. Zwittag first became acquainted with Lozoya in 1995 and for years saw her every month when Lozoya would come into the bank to have Zwittag help balance her account and facilitate her monthly withdrawal of about $400. In the years Zwittag has known Lozoya, her customer always seemed quite sharp and lucid.
Zwittag opened joint accounts for Lozoya and Gurrola. Zwittig said Lozoya seemed a little weaker than usual, and she was Akind of shocked@ to see her like that. Upon opening the joint accounts, Zwittag advised both Gurrola and Lozoya that the joint accounts had rights and liabilities, including the fact that both parties can write checks, withdraw funds, and make deposits. Lozoya and Gurrola opened two accounts that day--a joint checking account and a joint money-market savings account. Each required only one signature to withdraw funds. Zwittig testified she would have refused to open the joint accounts if she thought Lozoya had not understood what their joint status meant.
Zwittag characterized Lozoya=s spending habits as Avery conservative@ and noted that prior to the creation of the joint accounts, she made only a single monthly withdrawal of money for Athe essentials.@ After the joint accounts were created, Zwittag found the account activity incompatible with Lozoya=s established pattern. Zwittag did not see Lozoya for several months after she opened the joint accounts, which was also unusual. One day Lozoya returned to the bank alone. She told Zwittag she had returned to Juarez because her house had been repaired, and asked about the status of her accounts. Lozoya was very upset when she learned that large withdrawals had been made from the joint accounts. Lozoya told Zwittag she had not been receiving her bank statements, nor did Lozoya recognize any of the transactions when they reviewed them together.
Lozoya testified that $27,220 was stolen by Gurrola from the joint accounts. She did not give Gurrola permission to take this money. Lozoya testified she had offered Gurrola $2,000 to help with the purchase of a van, but Gurrola took the money out of the joint account without her permission. Lozoya also testified she paid Gurrola=s husband for some repairs to the house in Juarez. She also agreed she gave Gurrola=s daughter Maria $500 to help her with expenses.
Lozoya filed a complaint with the El Paso County Sheriff=s Department concerning the missing money. El Paso County Sheriff=s Department Detective Jaime Terrazas investigated the case. On direct examination, Terrazas was asked whether Gurrola ever provided receipts to confirm her statement about how the money was spent. He answered:
None whatsoever. We rescheduled for Friday. The interview was conducted, I believe, on a Tuesday. I asked her how much time she needed to provide the documents. She asked me for a couple of days, so I set an appointment for Friday morning about 8:00 or 9:00 in the morning Friday, that same Friday that we--she failed to show up in my office.
I believe our appointment was about 9:00. And I called her at home wanting to know why she hadn=t come to the office. I had a conversation with her over the phone advising me that she had consulted a lawyer. She was a little rude with me and told me that she didn=t have to give me anything, that she=d been advised not to talk to me and that she wasn=t going to give me squat.
Hector Lozoya, Gurrola=s brother, testified that Lozoya confided in him that she thought money was missing when she came to visit him in California in July 1997. He offered to help Lozoya send a letter to the bank instructing them not to allow any more withdrawals. He also helped Gurrola move about $20,000 to a Mexican bank.
Jesus Gurrola, defendant=s husband, testified they had plans to build an extension to their house so Lozoya could live with them permanently. Although they obtained a building permit, the extension was never built, in part because the I.N.S. would not permit Lozoya to remain in the United States. Lozoya ultimately expressed a desire to return to her home in Juarez. Jesus Gurrola produced no receipts for repairs made to the Juarez house. He testified that he paid for materials bought for the repairs with money received from Gurrola, and he personally made a number of the repairs.
Hector Lozoya testified that although he did go to Juarez with his brother-in-law to check on repairs to the house, Jesus Gurrola never did any work while Hector was there. Jesus also agreed that Lozoya=s neighbor, Gil, made repairs to the Juarez house. Jesus estimated that $9,000 was spent for repairs. A receipt from Gil for repairs to the house was produced by the State; Jesus did not recognize this receipt.
Gurrola=s daughter, Maria, testified Lozoya (her godmother) gave Maria $670 to help with expenses and another $170 so she could pay off a loan. She conceded these checks were signed by Gurrola, however. Maria claimed Lozoya told them to take whatever they wanted to purchase the van they needed to transport Gurrola because of her back surgery. Lozoya was happy at the Gurrola household and Maria was sorry she could not stay. Maria visited Lozoya after she moved back to Juarez and asked her to drop the charges against Gurrola. In July 2000, Lozoya=s Juarez neighbor heard Gurrola trying to convince Lozoya to drop the charges by telling her the money would be returned.
Bank records indicate the joint checking account was opened on April 8, 1997 with an initial deposit of $33,982.94 representing $29,982.94 from Lozoya=s old accounts and a $4,000 deposit from Gurrola. By July 15, 1997, the checking account was closed with a zero balance. The balance on the money-market account when the joint account was created was $13,739.97. By June 30, 1997, the balance was $9,843.07.
Detective Terrazas calculated that a total of $18,982.94 was taken from the checking account. Another $8,548.82 was taken from the money market account with $7,341.50 withdrawn through ATM machines, and $1,207.32 taken from non-ATM sources. Terrazas testified he verified and correlated every check and entry before including it in the summary tally. Based on these figures, Terrazas concluded that Gurrola took $27,531.76 from Lozoya=s accounts in five months. He also admitted that he did not know how much of the money was taken without Lozoya=s consent. Lozoya told him that she believed that she had gone to the bank to arrange a one-time withdrawal, not to allow Gurrola to continue taking money from the account.
The case was submitted to a jury on an uncontested charge. The jury found Gurrola guilty and sentenced her to five years= imprisonment.
Theft of funds from joint account by co-signatory
In her third, fourth, and fifth points of error,[1] Gurrola contends that the evidence was legally insufficient to prove an element of the offense of theft, because as signatory on joint accounts she was an owner with equal right to possession of the funds deposited therein. In determining whether the evidence was legally sufficient to support the conviction, we examine all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App.1996). We do not re-examine the evidence and impose our own judgment as to whether the evidence establishes guilt beyond a reasonable doubt, but only to determine if the findings of fact are rational. Lucero v. State, 915 S.W.2d 612, 614 (Tex. App.--El Paso 1996, pet. ref=d). Neither do we resolve conflicts of fact or assign credibility to witnesses. Id. We resolve any inconsistencies in favor of the verdict. Id.
Theft under Texas Probate Code Section 438
First, Gurrola contends that, as a matter of law, because the State indicted her under the theft statute generally, and because she was a joint owner of the account, the State=s proof failed in that the undisputed evidence was that she was an owner with equal right to possession of the accounts during the time specified in the indictment. The indictment read:
[F]rom on or about 8th day of April, 1997 until on or about the 16th day of July, 1997, [Maria Gurrola] did then and there unlawfully appropriate, by acquiring and otherwise exercising control over property other than real property, to wit: United States Currency of the value of $20,000 or more but less than $100,000 from Soledad Lozoya, the owner thereof, with intent to deprive the said owner of said property[.]
The evidence is undisputed that Gurrola and her aunt, Soledad Lozoya, were co-signers to joint bank accounts created April 8, 1997. The funds which Gurrola withdrew from those accounts are the source of the theft conviction here, and the State does not contend otherwise.
Rather, the State=s response to Gurrola=s ownership claim is two-fold: (1) the Texas Probate Code governs basic ownership and withdrawal rights, and Gurrola was only owner of account funds to the extent that she contributed funds on deposit in the account; and (2) Gurrola=s withdrawal of the funds was without Lozoya=s effective consent. We will address the effective consent argument hereafter, but first we consider the ownership status of a co-signatory to a joint account as a matter of law.[2]
The State relies upon Tex. Prob. Code Ann. ' 438(a) (Vernon 2003) in contending that it proved Gurrola was not entitled to withdraw funds as she did. That statute provides:
A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent.
Based upon this authority, it contends that Gurrola committed theft insofar as her withdrawals, made without her aunt=s specific consent, exceeded any amounts she deposited in the joint accounts. For the following reasons, we disagree.
Most importantly, the State ignores the limiting language that immediately precedes section 438. Tex. Prob. Code Ann. ' 437 (Vernon 2003) provides:
The provisions of Sections 438 through 440 of this code that concern beneficial ownership as between parties, or as between parties and P.O.D. payees or beneficiaries of multiple-party accounts, are relevant only to controversies between these persons and their creditors and other successors, and have no bearing on the power of withdrawal of these persons as determined by the terms of account contracts.
Thus, although Gurrola=s creditors would not be entitled to proceeds of the joint accounts that were deposited by her aunt, the terms of the joint account allowed her to withdraw whatever funds were on deposit (as indeed she did) and the Probate Code does nothing to alter that contractual right.
In a case factually identical to the one here, the Montana Supreme Court came to the same conclusion. State v. Kane, 297 Mont. 421, 992 P.2d 1283, 1285-86 (Mont. 1999). There, Kane was a long-time friend of Hilger, who was in his mid-eighties and ill. Hilger executed a general power of attorney in Kane=s favor, and the two established a joint checking account. Kane wrote numerous checks out of the account to herself, which the State alleged were for her personal use. The State urged that Kane=s use of Hilger=s funds, in violation of her position of trust, was theft because even though she was a joint owner of the account, she was authorized to use Hilger=s funds only for his benefit. Id. at 1285.
The court disagreed. It cited Montana probate statutes, substantially identical to the Texas Probate Code provisions cited above, in concluding that:
Although, the wisdom of the arrangement between Kane and Hilger was certainly questionable, and Kane=s actions may have breached the duty of loyalty as an agent, because the State does not allege that Kane deceived or threatened Hilger into establishing the joint tenant arrangement her actions do not make out the elements of the criminal theft statute. We hold that the District Court did not err in concluding that as a matter of law, Kane could not be prosecuted for theft of funds from the joint account with Hilger. Id. at 1286.
The same reasoning applies here. Access to the funds in a joint bank account is controlled by the contractual agreement between the signatories and the bank, and the law governing such contracts. Joint accounts such as those established by Lozoya and her niece Gurrola are generally fully accessible by both parties. For this reason, we reject the first legal sufficiency theory propounded by the State.
Sufficiency of evidence to establish theft by deception
As an alternative theory, however, the State contends that there is legally sufficient evidence to support the conviction on the basis of deception. In measuring the sufficiency of evidence to sustain a conviction, we measure the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App. 1997). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily restrict the State=s theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. at 240.
The offense of theft is the unlawful appropriation of property with the intent to deprive its owner of that property. Tex. Pen. Code Ann. ' 31.03(a) (Vernon 2003). Appropriation is unlawful if it is without the owner=s effective consent. Tex. Pen. Code Ann. ' 31.03(b) (Vernon 2003). The jury in this case was charged, without objection:
AEffective consent@ includes consent by a person legally authorized to act for the owner. Consent is not effective if induced by deception or coercion or given by a person the actor knows is not legally authorized to act for the owner.
Conspicuously absent from the charge is that portion of the definition of Aeffective consent@ which states consent is not effective if Agiven by a person 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.@ Tex. Pen. Code Ann. ' 31.01(3)(E) (Vernon 2003). Nevertheless, the State relies upon that theory here, and following Malik, we will consider that argument in determining the legal sufficiency of the evidence on effective consent.
Viewing all the evidence in the light most favorable to the verdict, we think there is legally sufficient evidence to support a verdict based on theft by deception. Lozoya was in her nineties, she had recently been through a traumatic experience which required her hospitalization, and she was using supplemental oxygen when she and her niece went to open the joint accounts. During the months she lived with Gurrola, Lozoya did not receive her bank statements, nor was she familiar with Gurrola=s transactions when she reviewed her account with her banker. Lozoya testified she had not given Gurrola permission to use her money, and told Detective Terrazas that she believed the trip to the bank with Gurrola Awas a one-time deal to withdraw money.@ Lozoya had no ATM card, and did not know what an ATM machine was, but many withdrawals were made with an ATM card. We think this is legally sufficient evidence to support a conviction on the basis of lack of effective consent, despite Gurrola=s legal status as joint signatory on the accounts. Appellant=s third, fourth and fifth points of error are overruled.
Comments on right to counsel and right to silence
In her first point of error, Gurrola claims the trial court erred in refusing a mistrial when Detective Terrazas testified she had told him she had consulted a lawyer and Awasn=t going to give [him] squat.@ Similarly, in her second point, she urges that the trial court=s denial of a mistrial was fundamental error in that it constituted a denial of her rights under the Fifth and Sixth Amendments to the U.S. Constitution.
A mistrial is a device used to halt trial proceedings in extreme cases when error is so prejudicial as to appear calculated to inflame the minds of the jury members. Moore v. State, 882 S.W.2d 844, 847 (Tex. Crim. App. 1994). A trial court=s denial of a motion for mistrial is reviewed under an abuse of discretion standard. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993).
When questioned as to whether Gurrola provided receipts to substantiate the monies used from Lozoya=s account, Detective Terrazas testified as follows:
None whatsoever. We rescheduled for Friday. The interview was conducted, I believe, on a Tuesday. I asked her how much time she needed to provide the documents. She asked me for a couple of days, so I set an appointment for Friday morning about 8:00 or 9:00 in the morning Friday, that same Friday that we--she failed to show up in my office.
I believe our appointment was about 9:00. And I called her at home wanting to know why she hadn=t come to the office. I had a conversation with her over the phone advising me that she had consulted a lawyer. She was a little rude with me and told me that she didn=t have to give me anything, that she=d been advised not to talk to me and that she wasn=t going to give me squat.
Gurrola=s counsel objected to this response, requesting the jury be instructed to disregard Terrazas=s comments. The trial court granted that request and instructed the jury to ignore the Alast statement of the officer regarding any conversations and her indication of what her attorney told her to do.@ Defense counsel then moved for a mistrial, a request which the trial court denied. The witness was also instructed not to talk about anything Gurrola might have told him about counsel.
Commonly, harm can be cured by a jury instruction to disregard improper evidence. Hernandez v. State, 805 S.W.2d 409, 413‑14 (Tex. Crim. App. 1990). A mistrial is required only when the improper evidence is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999); Mathews v. State, 40 S.W.3d 179, 183 (Tex. App.--Texarkana 2001, pet. ref=d). The determination of whether a mistrial is required must be based on the particular facts of each individual case. Vicioso v. State, 54 S.W.3d 104, 120 (Tex. App.‑-Waco 2001, pet. ref=d).
Here, we cannot say the trial court abused its discretion in denying Gurrola=s request for a mistrial. The trial court gave a prompt and thorough instruction that the jury was to disregard Terrazas=s testimony regarding Gurrola=s retention of counsel and not consider it for any purpose. The State did not pursue further questions concerning any instructions given to Gurrola by her attorney, nor did the State solicit the offending comments. We therefore conclude that the instruction to disregard was an adequate remedy for the comment. We overrule Point of Error One.
Next, we turn to Gurrola=s second point, in which she contends that Terrazas=s testimony was an impermissible comment upon her right to remain silent and her right to counsel. As such, she asserts that the trial court=s denial of her motion for mistrial constitutes fundamental constitutional error because her rights under the Fifth and Sixth Amendments to the U.S. Constitution were violated.
We first dispose of Gurrola=s claim that Terrazas=s testimony was a comment on her right to counsel. The Sixth Amendment right to counsel does not attach until the Atime that adversary judicial proceedings have been initiated, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.@ Griffith v. State, 55 S.W.3d 598, 603 (Tex. Crim. App. 2001). In this case, Gurrola voluntarily agreed to be interviewed by the sheriff at a point when adversarial proceedings had not yet been initiated against her. She was therefore not an Aaccused@ within the meaning of the Sixth Amendment and her right to counsel had not been violated.
Under certain circumstances, the right to counsel also possesses a Fifth Amendment due process component. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240 (1976) (detainee=s silence or request for an attorney cannot be used against him as substantive evidence). However, it is the request for counsel that is protected by the Fifth Amendment. Gurrola=s statement that she was advised not to speak to Terrazas by her attorney is thus Amost accurately viewed as an attempt . . . to convey [her] desire to remain silent.@ State v. Lee, 15 S.W.3d 921, 923-24 (Tex. Crim. App. 2000) (emphasis in original). We therefore find there was no violation of Gurrola=s right to counsel in the context of the Fifth Amendment.
The more troubling question is whether Terrazas=s statement that Ashe=d been advised not to talk to me and that she wasn=t going to give me squat@ constitutes a comment on Gurrola=s Fifth Amendment right to remain silent. The State contends that because Gurrola was not in custodial interrogation, her Fifth Amendment right to remain silent does not attach. To support this contention they rely on two Court of Criminal Appeals cases to stand for the proposition that the defendant=s Fifth Amendment rights to counsel and to remain silent are not violated when the defendant is not in custodial interrogation. See Griffith, 55 S.W.3d at 602-03; State v. Lee, 15 S.W.3d 921, 925 (Tex. Crim. App. 2000). However, in both Griffith and Lee the defendant had not yet been arrested and had not yet received his Miranda rights. Griffith, 55 S.W.3d at 605; Lee, 15 S.W.3d at 926. In contrast, Gurrola received her Miranda rights twice in the course of her interview with Terrazas.
The Court of Criminal Appeals has consistently held that AMiranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him.@ Griffith, 55 S.W.3d at 605. Having been given Miranda warnings, Gurrola was thus entitled to the presumption that her invocation of her right to silence would not be used against her when she spoke with Terrazas. We find her Fifth Amendment right to remain silent was therefore violated by the admission of Terrazas=s testimony.
The resolution of this issue, however, does not end here. Constitutional error such as that presented by this case can be cured. Laca v. State, 893 S.W.2d 171, 184 (Tex. App.‑-El Paso 1995, pet. ref=d) (prosecutor=s comment on defendant=s failure to testify cured by instruction to disregard). Again, the admission of improper evidence may be corrected by an instruction to disregard except in extreme cases where it appears that the evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds. Fletcher v. State, 852 S.W.2d 271, 275 (Tex. App.--Dallas 1993, pet. ref=d); Waldo v. State, 746 S.W.2d 750, 752 (Tex. Crim. App. 1988).
If the instruction given can be said to have removed the prejudicial effect of the improper comment, no error results from the overruling of a motion for mistrial. Garza v. State, 878 S.W.2d 213 (Tex. App.--Corpus Christi 1994, pet. ref=d) (prosecutor=s question in murder trial, which elicited statement from officer that defendant did not give any statements when arrested, not improper comment on defendant=s post-arrest silence and, even if it were, trial court=s instruction to disregard was adequate to cure error); Washington v. State, 822 S.W.2d 110, 118 (Tex. App.‑‑Waco 1991), rev=d on other grounds, 856 S.W.2d 184 (Tex. Crim. App. 1993). In this case, the trial court gave a prompt and thorough instruction to disregard to the jury. We find nothing in this record that leads us to conclude that Terrazas=s comment was clearly calculated to inflame the minds of the jury, or that the jury was fatally prejudiced by Terrazas=s testimony. As discussed above, we hold that the instruction to disregard cured any prejudicial effect that may have resulted from the improper comment, and overrule Point of Error Two.
Factually sufficient evidence of theft over $20,000
Finally, in her sixth point of error, Gurrola urges the evidence was factually insufficient to support a conviction for theft over $20,000. In reviewing factual sufficiency points, we consider all of the evidence, but do not view it in the light most favorable to the verdict. Dominguez v. State, 62 S.W.3d 203, 205 (Tex. App.--El Paso 2000, pet. ref=d); see Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Levario v. State, 964 S.W.2d 290, 295 (Tex. App.--El Paso 1997, no pet.). We will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Levario, 964 S.W.2d at 295. As with legal sufficiency standards, we cannot substitute our factual conclusions for those of the jury, nor is it within our province to interfere with the jury=s resolution of conflicts in the evidence or to pass on the weight or credibility of the witness=s testimony. Dominguez, 62 S.W.3d at 205. Therefore, the jury=s verdict on such matters is generally regarded as conclusive where the evidence conflicts. Id. Terrazas testified that $27,531.76 was taken from the joint accounts in five months. The State argued that $27,220 was stolen from the joint accounts. In her written statement, Gurrola said: AI was told [by Detective Terrazas] that I was suspected of having taken approximately $27,200.00 which sounds about correct. I explained to Detective Terrazas that I had approximately that much expenses.@
On appeal, Gurrola now claims the overwhelming weight of the evidence reveals that Gurrola withdrew $15,370 from the joint accounts for Lozoya=s use and benefit, and thus her conviction for theft for more than $20,000 and less than $100,000 cannot be sustained.[3] Gurrola contends she was authorized by Lozoya to remove the following amounts of money from the joint accounts:
$9,000 Rebuilding Lozoya=s house in Juarez
$670 For Lozoya=s goddaughter Maria for living expenses
$2,000 Purchase of van for the Gurrola family
$2,500 Room and board for Lozoya while staying with Gurrola family
$1,200 Money withdrawn from account before joint accounts created
We address this evidence in that order.
First, although Jesus Gurrola testified that $8,000 to $9,000 was spent on repairing Lozoya=s house, he was unable to produce any receipts for those expenses. He also admitted he received the money for the repairs from Gurrola and that he had no idea what Gurrola was doing with the account. On the other hand, Lozoya testified she paid $2,300 for the repairs, including some money she gave to Jesus.
It was the function of the jury to resolve the factual conflicts in this evidence. Levario, 964 S.W.2d at 295. We find that the jury could have reasonably rejected Gurrola=s contention that $9,000 was spent from the account on repairs to Lozoya=s house in Juarez.
With regard to the money given to Lozoya=s niece, Maria, we assume for purposes of this discussion that Lozoya did authorize the expenditure of $670 for her living expenses. We will also assume that she authorized the withdrawal of $2,000 for the purchase of a van by the Gurrolas.
We next note that the only Aevidence@ supporting Gurrola=s contention that $2,500 was spent on Lozoya=s room and board came from her counsel in closing argument. At that time he argued that $9,000, or $1,500 a month, was spent on Lozoya=s care while she lived with the Gurrolas. The jury apparently rejected that argument and we have no authority to alter that finding of fact.
Lastly, we find no evidence to support Gurrola=s contention that $1,200 she apparently took before the joint accounts were created cannot be included in the aggregate theft amount. Even if she were correct in that assertion, Gurrola still only accounts for $6,370 of the money taken from the accounts. The joint checking account was begun with $29,982.94 of Lozoya=s money. The joint savings account was begun with $13,739.97. A total of $43,722.91 of Lozoya=s funds thus went into the joint accounts. On July 15, a total of $22,982.94 had been withdrawn from the checking account. A total of $7,341.50 was withdrawn from ATMs and Gurrola does not challenge those withdrawals on appeal. A total of $30,324.44 was therefore taken from the joint accounts. That amount, minus the $6,370 which Gurrola accounts for, still accounts for more than $20,000 taken from the accounts by Gurrola. The same conclusion results even if we use the State=s allegation that $27,220 was taken from the accounts. We therefore hold that the evidence cited by Gurrola does not constitute an overwhelming weight of the evidence such that her conviction should be reversed. Her sixth point of error is overruled.
Conclusion
Gurrola=s conviction for third-degree felony theft is therefore affirmed.
SUSAN LARSEN, Justice
October 16, 2003
Before Panel No. 5
Larsen, Chew, JJ., and Preslar, C.J. (Ret.)
Preslar, C.J., (Ret.) sitting by assignment
(Do Not Publish)
[1]Whether Gurrola actually intends to bring a factual sufficiency point on her argument concerning joint ownership is unclear. Her fourth point of error states, AThe trial court erred in failing to grant a directed verdict because the evidence was factually insufficient.@ In the body of her brief, however, she addresses factual sufficiency only in terms of the amounts proven to have been taken from the accounts. Failure to adequately brief a ground of error or to cite authority in support presents nothing for review. Todd v. State, 911 S.W.2d 807, 819 (Tex. App.--El Paso 1995, no pet.). Accordingly, we overrule Point of Error Four.
[2]The State actually abandoned this theory during oral argument, conceding that the provision it relies upon is not intended to control disputes between co-signatories. Nevertheless, we think it important to address the issue, as we perceive consequences to banking practices inherent in the State=s initial theory.
[3]A lesser-included charge for theft of more than $1,500 but less than $20,000 was contained in the jury charge.