Latoya Sakeitha Erwin v. The State of Texas

Latoya Sakeitha Erwin was convicted in a bench trial in Smith County1 of exploitation of

an elderly individual. See TEX. PENAL CODE ANN. § 32.53(b) (West 2016). The trial court

sentenced Erwin to ten years’ imprisonment, but suspended the sentence in favor of placing her on

community supervision for six years. In her sole point of error on appeal, Erwin argues that the

evidence is legally insufficient to support her conviction. We agree. Accordingly, we reverse the

judgment of conviction and render a judgment of acquittal.

In evaluating legal sufficiency of the evidence, we review all the evidence in the light most

favorable to the trial court’s judgment to determine whether any rational jury could have found the

essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893,

912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979));

Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). We examine

legal sufficiency under the direction of the Brooks opinion, while giving deference to the

responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772,

778 (Tex. Crim. App. 2007).

Legal sufficiency of the evidence is measured by the elements of the offense as defined by

a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

1Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We follow the precedent of the Twelfth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.

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The “hypothetically correct” jury charge is “one that accurately sets out the law, is authorized by

the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for which the

defendant was tried.” Id.

Here, the State alleged that Erwin, on or about November 10, 2016, “did then and there,

for monetary or personal benefit, profit or gain, intentionally and knowing[ly] cause the

exploitation of Betty Callier [(Betty)], an elderly person, by the illegal or improper use of the

resources of the elderly person by withdrawing funds from Betty Callier’s bank account.” Thus,

to obtain a conviction, the State was required to prove beyond a reasonable doubt that, on or about

November 10, 2016, (1) Erwin, (2) for monetary or personal benefit, profit, or gain, (3)

intentionally, knowingly, or recklessly (4) caused the exploitation of (5) Betty, an elderly person, (6) by the illegal or improper use (7) of funds from her bank account.2

The evidence at trial established that Erwin and her friend, Jameel Thompson, worked for

“KD’s Auto Sales,” owned by a man named Kelly Key. On November 9, 2016, Key executed a

check on behalf of KD’s Auto Sales to Thompson for $684.24 on the business’ JPMorgan Chase

Bank account. Erwin and Thompson asked Erwin’s grandmother, Betty, to deposit Thompson’s

payroll check into her bank account so they could withdraw the money for the check. According

to Erwin’s uncle, Ricky Callier (Ricky), Erwin claimed she needed $400.00 for her car payment.

Betty agreed to the arrangement, and the check was deposited into her account November 10.

2Our sister court has held that a jury charge which submits a mental state not alleged in the State’s indictment is erroneous. Johnson v. State, 797 S.W.2d 330, 332 (Tex. App.—Tyler 1990, no pet.). Nevertheless, for the purposes of our analysis, we will review all three mental states referenced in the statute of offense.

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Ricky testified that, because he held Betty’s bank card for her, Erwin and Thompson asked him to use the bank card to withdraw $400.00, the then-existing withdrawal limit.3 After obtaining

Betty’s express permission, Ricky used the bank card on November 10 to withdraw the $400.00

and handed it to Erwin. Thompson returned to Betty’s home that evening to ask for the remaining

funds, which Ricky withdrew and tendered to Erwin. The following day, Ricky and Betty learned

that “the check was no good.” On November 15, Betty’s bank returned the check because the

account had been closed. According to Ricky, Betty absorbed the loss for the bad check.

Testimony from Royce Jordan, an investigator with the Tyler Police Department, and KD’s

Auto Sales’ JPMorgan Chase Bank account records both established that the account was open

and had a balance of over $1,100.00 when Key executed the check on November 9, but that the

account was closed by Key on November 10. Jordan testified that Key had a bad reputation and

was known to pass bad checks and engage in fraudulent activity. Nevertheless, Jordan testified

that the police department did not investigate Key.

Ricky testified that Erwin and Thompson identified Key as the person who wrote the bad

check and claimed that Betty would get her money back. Ricky testified that he confronted Key,

who gave him $250.00 to give to Betty. When asked if Erwin had anything to do with the bad

check, Ricky testified, “[S]he didn’t have nothing to do with it.” Betty, who was eighty-four at

the time of trial, testified that Erwin was not guilty and would not have brought Thompson to her

3Over objection, Ricky testified that Thompson said he was owed $300.00 and that Erwin claimed the check was made out for $684.24 because she needed money for her car payment.

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home if she had known that the check was bad. Betty opined that perhaps Thompson had lied to

Erwin.

Jordan testified that he was unaware of whether Erwin had any knowledge that the check

was bad before Betty’s bank returned the check, but that Erwin attempted to pass the same check

at a Texaco gas station on November 16. Jordan testified that, according to another reporting

officer, Key acted “offended that his employee, Ms. Erwin, . . . couldn’t cash her check” at the

Texaco.

The State introduced Jordan’s recorded interview with Betty, in which Betty said Erwin

pushed her to complete the transaction and “had to have at least 85% in this deal because

[Thompson] don’t know me, I don’t know [him].” Betty also said she confronted Erwin when the

check was returned and that she lied by promising Betty she would make sure that the “boys”

responsible would repay the money. As a result of that interview, Jordan opined that Betty

believed Erwin “got a cut in it, and that she had to fix this.” Jordan said that, because Erwin

admitted to passing the check on November 15 at the Texaco, he believed she was trying to profit from a scheme.4

In response to Erwin’s legal sufficiency complaint, the State argues that Erwin’s “urgency

in convincing her grandmother to deposit the check, attempt to cash the check after it was returned

. . . , [and] testimony that she needed $400 for a car payment” and Betty’s statement that she

4Jordan testified that the address for KD Auto Sales was a residence, but did not testify whether it belonged to Key or someone else.

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believed Erwin “to have at least 85% in this deal” constituted evidence from which a rational fact

finder could infer Erwin’s guilt. We disagree.

“[A] culpable mental state generally can be established only by inferences from the acts,

words, and conduct of the accused.” Carson v. State, 422 S.W.3d 733, 743 (Tex. App.—Texarkana

2013, pet. ref’d). In determining a defendant’s intent, “we should look at ‘events occurring before,

during and after the commission of the offense and may rely on actions of the defendant which

show an understanding and common design to do the prohibited act.’” Wirth v. State, 361 S.W.3d

694, 697 (Tex. Crim. App. 2012) (quoting Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App.

2004). However, a fact-finder is “not permitted to come to conclusions based on mere speculation

or factually unsupported inferences or presumptions.” Hooper, 214 S.W.3d at 16. “A conclusion

reached by speculation may not be completely unreasonable, but it is not sufficiently based on

facts or evidence to support a finding beyond a reasonable doubt.” Id.

“We are mindful that our review of the evidence must be conducted in the light most

favorable to the [fact-finder’s] verdict, but we must not supply a bridge to the analytical gap in the

evidence.” Ferguson v. State, 506 S.W.3d 113, 121 (Tex. App.—Texarkana 2016, no pet.). This

is because, “[i]f the evidence at trial raises only a suspicion of guilt, even a strong one, then that

evidence is insufficient [to convict].” Winfrey v. State, 323 S.W.3d 875, 882 (Tex. Crim. App.

2010) (quoting Urbano v. State, 837 S.W.2d 114, 116 (Tex. Crim. App. 1992), superseded in part

on other grounds by Herrin v. State, 125 S.W.3d 436, 443 (Tex. Crim. App. 2002)).

The evidence at trial unequivocally established that the check deposited into Betty’s

account was covered by adequate funds when executed. No evidence demonstrated that Erwin

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knew or suspected that the check would be bad at the time of the offense. A finding that Erwin

knew or suspected that Key would close the JPMorgan Chase account based on her alleged

“urgency” in depositing the check constitutes an unreasonable inference, especially in light of

testimony establishing her need to make a car payment. Betty’s statement that she believed Erwin

“had to have at least 85% in this deal” and Jordan’s repetition of that stated belief constituted only

speculation since it was unsupported by facts or otherwise explained. Although Erwin’s later

attempt to cash the check on November 16 was a subsequent bad act, that subsequent extraneous

offense fails to demonstrate that she had the required mens rea on the earlier date of this offense

since the check was good when executed, and no evidence showed her knowledge that Key had closed the bank account at the time of the alleged offense.5 See Kuykendall v. State, 160 S.W.2d

525, 526–27 (Tex. Crim. App. 1942) (concluding there was no evidence to support finding of

intent to defraud in executing check returned for insufficient funds on December 16 where

5The State cites Parks v. State, 746 S.W.2d 738, 741 (Tex. Crim. App. 1987), and Landry v. State, 583 S.W.2d 620, 622 (Tex. Crim. App. 1979), for the proposition that extraneous offenses committed after the charged offense can be probative of intent. Both cases held admissible extraneous acts showing that the defendant had committed the same crimes for the purpose of proving mens rea. See Parks, 746 S.W.2d at 741; Landry, 583 S.W.2d at 622. In Parks, evidence of extraneous acts showing the defendant had forged signatures was admissible in a subsequent forgery case. Parks, 746 S.W.2d at 741. In Landry, evidence that the defendant attempted to cash checks made out to someone else was admissible to show the defendant had made the same attempt at another bank. Landry, 583 S.W.2d at 621–22. Neither case held the evidence legally sufficient based on the extraneous offenses since (1) testimony from the victims of the forgeries in Parks established that their signatures were not affixed to the documents at issue and (2) the bank tellers in Landry testified to the defendant’s attempts to cash someone else’s check. Parks, 746 S.W.2d at 739; Landry, 583 S.W.2d at 621. Here, the extraneous act of attempting to pass the check at the Texaco does not demonstrate that Erwin had the intent to exploit her grandmother since the check was covered by sufficient funds on the day it was signed by Key, and nothing shows Erwin knew or suspected otherwise on the date of this alleged offense.

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defendant signed the checks on December 3 and 10, and testimony showed they would have been paid with sufficient funds if timely presented).6

Taken together, even when viewed in the light most favorable to the verdict, the evidence

established only a mere suspicion of guilt. Therefore, we sustain Erwin’s point of error arguing

that the evidence is legally insufficient to prove, beyond a reasonable doubt, that Erwin had a

culpable mental state to exploit Betty by the illegal or improper use of her bank account.

Since the evidence here is insufficient to prove any culpable mental state, we reverse the

judgment of conviction and render a judgment of acquittal.