Texas Case Law


LATHAM v. STATE, 12-04-00357-CR (Tex.App.-Tyler [12th Dist.]
TEXAS, Appellee. No. 12-04-00357-CR Court of Appeals of
Texas, Twelfth District, Tyler. Opinion delivered April 28,

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Appeal from the First Judicial District
Court of San Augustine County, Texas.

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and



Donald Melvin Latham was convicted of theft of property of
more than $1,500.00, a state jail felony. In two issues,
Appellant challenges the legal and factual sufficiency of
the evidence to support his conviction. We affirm.


Appellant met the victims, R.D. and Jewel Turner, through
his wife, Dorothy Ann Latham, and daughter, Debbie Sue
Jacks.[fn1] Debbie initially worked a few hours each week
caring for the Turners, an elderly couple in their
eighties. However, when the Turners’ health began
declining, their son[fn2] Robert requested that Debbie work
full time, and eventually, several other caregivers were
hired to provide care twenty-four hours a day, seven days a

Based upon reports Robert received from Elaine Coulter, one
of the Turners’ caregivers, Robert fired Debbie. He then
contacted the Texas Department of Family and Protective
Services, Adult Protective Services division (APS), and
drove to the Turners’ home to assess the situation. Mrs.
Turner handled the couple’s financial matters and kept all
financial or business documents organized in files located
in a filing cabinet. She was a meticulous bookkeeper. After
searching extensively, Robert was unable to find all of the
recent records. After reviewing the records that he found,
he was “appalled” at the number and dollar amounts of
checks written to Debbie and her mother, Dorothy. At the
time of trial, Mr. Turner had died and Mrs. Turner was in a
nursing home, suffering from advanced Alzheimer’s.

Rhonda Brooks, a certified adult protective services
supervisor for APS, investigated the Turners’ case. During
her investigation, Brooks found more than sixty-five checks
had been written to Debbie, Dorothy, or to third parties
for the benefit of Debbie, Dorothy, and their families.
Brooks concluded that the Turners’ case was financial
exploitation based on undue influence.

On April 25, 2001, the San Augustine County grand jury
indicted Appellant, Debbie, Dorothy, Lee Douglas Jacks, and
Betty Holloway for theft of more than $100,000.00 but less
than $200,000.00. Appellant pleaded not guilty and was
tried before a jury.[fn3] The jury convicted Appellant of
theft of more than $1,500.00 but less than $20,000.00,
sentenced him to two years of imprisonment, probated for
ten years, and assessed a $10,000.00 fine. This appeal


In his first and second issues, Appellant challenges the
legal and factual sufficiency of the evidence supporting
his conviction.

Standard of Review

Legal sufficiency is the constitutional minimum required by
the Due Process Clause of the Fourteenth Amendment to
sustain a criminal conviction. Escobedo v. State, 6 S.W.3d
1, 6 (Tex.App.-San Antonio 1999, pet. ref’d) (citing
Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781,
2786-87, 61 L. Ed. 2d 560 (1979)). In reviewing a legal
sufficiency challenge, the appellate court examines the
evidence in the light most favorable to the judgment to
determine whether a rational trier of fact could have found
the essential elements of the offense beyond a reasonable
doubt. Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App.
1993) (citingJackson, 443 U.S. at 319, 99 S. Ct. at 2789).
The conviction will be sustained “unless it is found to be
irrational or unsupported by more than a `mere modicum’ of
the evidence.” Moreno v. State, 755 S.W.2d 866, 867
(Tex.Crim.App. 1988). The jury is the exclusive judge of (1)
the facts, (2) the credibility of the witnesses, and (3)
the weight to be given to the testimony of each witness.
Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App. 1994);
Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.
1981). Any reconciliation of conflicts and contradictions
in the evidence is entirely within the jury’s domain.
Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App. 1986).
The jury is entitled to draw reasonable inferences from the
evidence. Benavides v. State, 763 S.W.2d 587, 588-89
(Tex.App.-Corpus Christi 1988, pet. ref’d). A successful
legal sufficiency challenge results in the rendition of an
acquittal by the reviewing court. See Tibbs v. Florida, 457
U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652

In conducting a factual sufficiency review, the appellate
court must review all of the evidence, but not in the light
most favorable to the prosecution. Johnson v. State, 23
S.W.3d 1, 7 (Tex.Crim.App. 2000). We must determine whether
a neutral review of all the evidence, both for and against
the challenged finding, demonstrates that a rational juror
could find guilt beyond a reasonable doubt. Zuniga v.
State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence
is factually insufficient when evidence supporting the
verdict, considered by itself, is too weak to support the
finding of guilty beyond a reasonable doubt. Id. Evidence
is also factually insufficient when contrary evidence is so
strong that the beyond a reasonable doubt burden of proof
could not have been met. Id. at 484-85. In performing a
factual sufficiency review, we defer to the fact finder’s
determinations, including those involving the credibility
and demeanor of witnesses. Id. at 481. The only question to
be answered in a factual sufficiency review is whether,
considering the evidence in a neutral light, the fact
finder was rationally justified in finding guilt beyond a
reasonable doubt. Id. at 484.

Applicable Law

A person commits theft if he unlawfully appropriates
property with intent to deprive the owner of the property.
Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2005).
An offense under this section is a state jail felony if the
value of the property stolen is $1,500.00 or more but less
than $20,000.00. Id. § 31.03(e)(4). Appropriation of
property is unlawful if it is without the owner’s effective
consent. Id. § 31.03(b)(1). “Appropriate” means to
acquire or otherwise exercise control over property other
than real property. Id. § 31.01(4)(B). “Deprive”
means to withhold property from the owner permanently or for
so extended a period of time that a major portion of the
value or enjoyment is lost to the owners. Id. §
31.01(2)(A). “Effective consent” includes consent by a
person legally authorized to act for the owner. Id.
§ 31.01(3). Consent is not effective if induced by
deception or coercion or given by a person who by reason of
mental disease or defect or of advanced age is known by the
actor to have diminished capacity to make informed and
rational decisions about the reasonable disposition of
property. Id.

Under the law of parties, an actor is criminally
responsible as a party to an offense if, acting with intent
to promote or assist in the commission of the offense, he
solicits, encourages, directs, aids, or attempts to aid
another person in committing the offense. See id.
§§ 7.01, 7.02. The evidence is sufficient to
support a conviction under the law of parties where the
actor is physically present at the commission of the
offense and encourages the commission of the offense either
by words or other agreement. See Cordova v. State, 698
S.W.2d 107, 111 (Tex.Crim.App. 1985). The evidence must
show that, at the time of the offense, the parties were
acting together, each contributing to their common purpose.
See id. When determining whether parties were acting
together, the court may examine the events occurring
before, during, and after the commission of the offense and
may rely on actions of the defendant that show an
understanding and common design to commit the offense. See
id. Circumstantial evidence may be used to prove one is a
party to an offense. See id. Each fact need not directly
and independently point to one’s guilt as long as the
cumulative effect of the incriminating facts is sufficient
to support the conviction. Guevara v. State, 152 S.W.3d 45,
49 (Tex.Crim.App. 2004). A conviction may rest on the
cumulative strength of all incriminating circumstances even
if it is based on circumstantial evidence. See Conner v.
State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001).

Legal Sufficiency

Robert Turner testified that he remembered seeing a check
payable to Dorothy Latham for $2,000.00, but could offer no
explanation for the check. He said it would surprise him
that the check was for putting shingles on the roof.
Additionally, Robert did not recall any checks written for
the purchase of shingles. The exhibits admitted at trial
showed that check # 2905 was made payable to Dorothy Latham
for $2,000.00 and included the notation “Loan/Roofing” in
the memo section. However, Robert was unaware that any work
had been done on his parents’ roof. Robert also testified
that he saw two new four wheelers, a boat, and a travel
trailer parked between Appellant’s home and the home of his
codefendant, Lee Douglas Jacks. The court admitted into
evidence copies of the Turners’ checks written to Debbie
totaling $63,185.82, to Dorothy totaling $18,394.71, and to
third parties for their benefit and that of their families
totaling $35,126.36.

Elaine Coulter testified that she found a significant
number of the Turners’ checks written for large amounts
that had been issued to Debbie and Dorothy. Because of Mrs.
Turner’s diminished mental capacity, Coulter was concerned
that the Turners were being exploited. After showing Mrs.
Turner all the checks that had been written to Debbie and
Dorothy, Mrs. Turner said, “but I told her no.” Coulter did
not recall seeing checks payable to Appellant or Lee. She
recalled meeting Appellant at the lake where the travel
trailer was parked at the time. Coulter knew nothing about
Appellant and Lee roofing the Turners’ house and could say
nothing concerning their guilt for the theft charge
“because I don’t know them.”

APS caseworker Rhonda Brooks testified that Debbie and
Dorothy received at least $115,341.53 in goods and money
from the Turners, not including earnings paid to Debbie for
her services. Personal property purchased with the Turners’
money included a sport utility vehicle, a boat and motor, a
travel trailer, a computer, furniture, and appliances. A
check for $22,562.28 was written to pay off the balance
owed on Debbie’s sport utility vehicle. Furniture costing
the Turners at least $2,300.00 was delivered to Lee’s
house. The travel trailer was purchased with a check for
$4,661.00. Debbie’s computer was purchased with a check for
$1,100.00. Brooks testified that both Mr. and Mrs. Turner
were suffering from dementia to some degree, but Mrs.
Turner’s mental capacity was worse than Mr. Turner’s. She
concluded that the Turners had been financially exploited
between the years 1997 and 2000. Neither Appellant nor Lee
was named as a suspect in her investigation.

Bank manager Vickie Felts testified that she was concerned
with the money transactions flowing from the Turners’
accounts to the accounts of Appellant and Lee. The Turners
had $116,000.00 in certificate of deposit accounts, the
largest portion of which had been depleted. She said that
the actions of Debbie and Dorothy concerned her considering
that Mrs. Turner’s personality had changed from being a
meticulous bookkeeper to becoming lax with her money. At
some point, Felts became so concerned that she contacted
APS, but never heard the results of the investigation. Lee
Jacks testified that he met the Turners through Debbie’s
association with them. The Turners joined Appellant,
Dorothy, Debbie and Lee for Thanksgiving and Christmas for
several years. He mowed their yard and helped Appellant
work on the Turners’ roof.

Lee said that he was married to Debbie, lived with her, and
had a joint checking account with her. He denied having any
knowledge of the numerous checks totaling over $60,000.00
deposited into his account from the Turners’ accounts. Lee
admitted that he and his wife filed bankruptcy in 1996. He
denied taking anything from the Turners or knowing anything
about Debbie’s actions. Had he known, he would have stopped
her “because it wasn’t right.” Lee conceded that the
Turners helped Debbie get the Ford Explorer, but denied any
specific knowledge of the vehicle transaction. He drove the
Explorer “once or twice.” He also said that they still
owned the travel trailer although he denied using it. He
conceded, however, that he had returned none of the items
nor had he paid back any money to the Turners.

Appellant testified on his own behalf at trial. He said
that the Turners were “real good friends” and that they
would come to his house for Thanksgiving and Christmas. He
and Dorothy had been married for thirty-five years, and
they had a joint checking account although Dorothy took
care of the finances for the family. Appellant would be
paid for his work driving a log truck and then he would
give his paycheck to Dorothy. She gave him approximately
$40.00 cash each week for miscellaneous items. Appellant
said he never made deposits to the checking account and
wrote only a few checks, “I signed them and they filled them
out at the store.” He knew that the Turners loaned them
$700.00 to fix their car, but did not think it unusual
because they were good friends. Appellant claimed he put a
new roof on the Turners’ home, for which he was paid.
However, he said he never saw the check. He said he knew
nothing of his daughter’s and wife’s actions until they
were indicted and denied knowledge of over $18,000.00
deposited into his account from the Turners’ accounts. Had
he known, he’d have “put [his] foot down.” Appellant
admitted that he and his wife filed bankruptcy close to the
time that Lee and Debbie filed in 1996. He claimed he did
not know where the money was coming from at Lee’s house
— “that’s [their] household . . . I seen [saw] a lot
of stuff going on; but it wasn’t [any] of my business.”
Appellant said that he never drove Debbie’s sports utility
vehicle or used the travel trailer or four wheeler.
However, he admitted that the travel trailer had been moved
to the new restaurant business that he and Dorothy owned
and operated. Appellant also conceded that he has not paid
back any money or returned any property to the Turners.

From this evidence, the jury could have found that the
Turners, by reason of diminished mental capacity or
advanced age, were no longer able to make reasonable
property dispositions; thus, Appellant did not have the
Turners’ effective consent to acquire or exercise control
over their property. Considering the evidence regarding the
travel trailer, the Turners’ roof, and their $2,000.00
check marked “Loan/Roofing,” the jury could have found that
Appellant was acting together with Lee, with each
contributing some part toward the execution of the common
purpose of depriving the Turners of their property.[fn4]
Further, under the law of parties, the jury could
rationally conclude that Appellant was aware of unlawful
appropriations from the Turners and that he solicited or
encouraged the unlawful conduct with the intent to promote
the commission of the offenses. Although Appellant and Lee
claimed they committed no offenses and that they were
unaware of the unlawful actions of their respective wives,
they conceded that they had made no attempts to return any
of the property or repay any money to the Turners.
Considering the events occurring before, during, and after
the commission of the offense, the jury could have found
that the actions of Appellant and Lee show an understanding
and common design to commit the offense by exercising
control over the property. A rational trier of fact could
have found beyond a reasonable doubt that Appellant and Lee
unlawfully exercised control or appropriated more than
$1,500.00 of the Turners’ property with the intent to
deprive them of their property. Even if the evidence is
circumstantial, a conviction may rest on the cumulative
strength of all incriminating circumstances. See Conner, 67
S.W.3d at 197. After examining all the evidence in the
light most favorable to the judgment, Appellant’s legal
sufficiency argument fails; consequently, we overrule his
first issue.

Factual Sufficiency

The record also includes evidence that is contrary to the
verdict. Appellant admitted that he accepted money from the
Turners, but contended it was payment for working on their
roof. Appellant denied receiving any benefit from the four
wheeler, travel trailer, appliances, and new furniture. He
denied that he had taken any property from the Turners
except for earned wages. Appellant claimed to be unaware of
his wife’s unlawful actions. He depended on her to handle
the family’s financial matters, stating that he went to
school only through the tenth grade. He claimed to be an
honest man who has never been arrested, charged, or
convicted of a crime prior to this case. According to APS
specialist Rhonda Brooks, her investigation of the
exploitation of the Turners centered on Debbie. Bank
manager Vickie Felts never saw Appellant in the bank with
Mrs. Turner and knew of no specific improprieties
concerning him.

The jury accepted the State’s version of the facts and
found against Appellant. In our evaluation, we should not
substantially intrude upon the jury’s role as the sole
judge of the weight and credibility of witness testimony.
See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.
1997). We have conducted a neutral review of all the
evidence, both for and against the finding. The record does
not reveal any evidence that causes us to conclude that the
proof of guilt is too weak to support the finding of guilt
beyond a reasonable doubt. Nor does the record reveal
contrary evidence so strong that guilt cannot be proven
beyond a reasonable doubt. Thus, we hold that the evidence
is factually sufficient to support the jury’s verdict.
Consequently, we overrule Appellant’s second issue.


Having overruled both of Appellant’s issues, we affirm the
judgment of the trial court.

[fn1] We have issued our opinion in the appeal of
Appellant’s daughter and wife, Debbie Sue Jacks and Dorothy
Ann Latham, respectively. For a more complete recitation of
the background facts, see Jacks v. State, No.
12-04-00355-CR, 2006 WL 629036 (Tex.App.-Tyler Mar. 15,
2006, no pet.) (not designated for publication); see also
Latham v. State, No. 12-04-00354-CR, 2006 WL 859687
(Tex.App.-Tyler Mar. 31, 2006, no pet. h.) (not designated
for publication).

[fn2] R.D. Turner had two sons. Robert Turner lived in
Topeka, Kansas, and Raymond Turner lived in Atlanta,
Georgia. After R.D.’s first wife died, he married Jewel
Turner when the boys were youths. Robert testified that he
considered Jewel to be his mother.

[fn3] Five persons were indicted in a single indictment in
Cause Number CR 7365 in the 1st District Court of San
Augustine County. Appellant and his son-in-law, Lee Douglas
Jacks, were prosecuted together in a single trial, from
which the instant appeal arises. Appellant’s wife, Dorothy
Ann Latham, and daughter, Debbie Sue Jacks, were prosecuted
together in a single trial prior to Appellant’s trial.
Appellant’s other daughter, Betty Holloway, made
restitution of $1,500.00, and the case against her was

[fn4] Although five persons were indicted together in a
single indictment, Appellant and Lee were tried together in
one trial, separate from Debbie and Dorothy’s trial. The
court’s charge in the instant case listed only Appellant
and Lee as parties to the offense. Thus, in reviewing the
sufficiency of the evidence in this case, our examination
is primarily focused on the evidence relating to Appellant
and Lee.