### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 18
- 00349
- CR

Bridget Marie Owens, Appellant

v. The State of Texas, Appellee

FROM THE 27TH DISTRI CT COURT OF LAMPASAS COUNTY NO. 9730, THE HONORA BLE JOHN GAUNTT, JUD GE PRESIDING

M E M O R A N D U M O P I N I O N
Bridget Marie Owens appeals h er conviction by a jury for misapplication of fiduciary property

. See Tex. Penal Code § 32. 45. The district court assessed Owens’s punishment at two years’ c onfinement in state jail but suspended t h e sentence and placed Owens on community supervision for five years. The court also ordered Owens to pay $5,705.74 in restitution

. On appeal, Owens contends that the evidence is insufficient to support her conviction

. We will affirm the district court’ s judgment of conviction

.
BACKGROUND Bridget Owens w ork ed as a store manager for Family Dollar in Lometa, Texas , in September and October 2016 , when the store sustained the financial losses that are the subject of this appeal

. Dennis Barringer, a distri c t manager who oversaw the Lometa Family Dollar and2 twenty

- three other store locations , testified about Owens’s daily duties , which she shared with other employees . These duties included count ing the cash on hand at the end of the business day, p lac ing th e cash in a sequentially numbered cash

- deposit bag, sign ing out t he money on a handwritten Deposit Log by noting the date and time , deliver ing the cash

- deposit bag to First
State B ank Central Texas nearby , p lac ing the cash

- deposit bag in the bank’s night d r op , and verifying the deposit on the Deposit Log by signature, date, and time

. Barringer testified that the notation verifying the deposit on the Deposit Log occurred after t he bank provide d a deposit slip with its stamp, reflecting the date of the store ’ s deposit and the amount deposited. For night

drop deposits, the bank would send the deposit slip to the store a few days later.
Bar ringer did not know that any deposits were missing unt il he learned that the regional loss prevention manager w ent to th e Lometa store and spoke to Owens

. Barringer discovered that al though store employees logged out deposits for September 26, 2016; September 30, 2016; and October 2 , 2016, those three deposits never cleared the bank.
No deposits from the store went missing before or after these three. A fter co nsulting with the regional loss prevention manager , Barringer notified law enforcement and met with Lampasas County Sheriffs’ Office I nvestigator Matt Barnes

. Investigator Barnes received several documents from Barrin g er , including pages of the handwritten D eposit L og and Family Dollar’s bank statements. The D eposit L og for September 26 showed that Owens signed the cash out of the store to take to the bank but that no cash was deposited that night. The cash on hand a t the end of the day on September 30 and October 1 was left in the store safe and was not signed out as deposited until October 2.
Owens’s co

- worker Amanda Kidd testified that when she was closing the store on October 2, she noticed that two cash

- deposit b ags for September 30 and October 1 had not been3 deposited but had remained in the store safe. She said according to store policy , “you’re only supposed to have one deposit each night.” Concerned about the safety of taking three bags of money to the ban k at night by herself, 1 Kidd asked Owens , who was at the store for a few groceries, to assist her

. Kidd opened the safe and handed Owens the two deposits ( from September 30 and October 1 that were previously left in the safe ) over the counter . Kidd testi f i ed that Owens “took them out and put them in her vehicle and waited for the third one, the one that I was about to do that night.” 2 Kidd stated that when she completed the paperwork for the October 2 deposit, she handed it to Owens , and Owens “walked o u t the door with it” while Kidd walked around the

co unter and set the alarm. Kidd then got in her own vehicle to follow Owens t o the bank. At the bank, Kidd stayed inside her vehicle, and Owens got out of hers. Kidd testified that Owens had the night dr o p deposit key and “[s]he had bags in her hand. She stuck them in the deposit, she closed it, and she locked it.” Kidd was un able to verify the dates on the bags that Owens deposited. Kidd told the jury that she did not know who took the money, but she d e nied that she took it.
T he Deposit Log entries show that both Owens and Kidd signed the money out

— i.e., as “deposited by” them

— for the three cash

- deposit bags from September 30, October 1, and October 2. But o nly the cash for the October 1 deposit cle a r ed the bank. T h ree of the store’s cash deposits

— two that were to be delivered to the bank that evening ( September 30 and

1 Kidd explained her concern further, “[L]ike if somebody wanted to show up over there and attack you, you had th r ee bags o f money.”

2 Kidd confirmed that the “third one” she referenced was the deposit for October 2.4 October 2 ) and one deposit from a prior day’s business (September 26)

— total ing about $5,700.00 never reached the bank and remained m i s sing. Investigator Barnes testified that he interviewed three store employees

— Owens , Kidd, and Crystal Torres. He found no evidence that Kidd , Torres , or the bank w as responsible for the missing money. He testified that Kidd and Torres were cooperative ; and , although he did not testify about their statements to him, he acknowledged that Kidd and Torres were able to provide him with information about who may have been responsible for th e crime

. Investigator Barnes interview ed Owens shortly after Barringe r came to see him. During her interview, Owens brought him what she said were copies of pages from the Deposit Log. 3 Investigator Barnes had not requested those documents from her, and she was unaware that Barringer had already given Investigator Barnes o r i ginal pages from the Deposit Log. 4 The pages that Owens brought to Investigator Barnes had been visibly altered and

were mor e difficult to read. Entries for the amounts that Owen s deposit ed on September 26, September 30 and October 2

— the dates of the t h ree missing deposits

— were blurred. The original Deposit Log listed Owens’s name in the “deposited by” column for all th re e of the missing deposits

. But on Owens’s Deposit Log , a portion of the lower

- left column , which listed the amounts of the store’s c a sh on hand by date, was covered with white correction tape and overwritten with dates in late September

. Further, an entry on the original D eposit L og page show ed that the amount of cash on hand for September 16 was $1,876.00, but the corresponding de p o s it slip for that date showed that only $1,276.00 was actually deposited with and credited by the bank

. On Owens’s

3 The altered pages of the Deposit Log were ad mitted into evidence at trial.

4 The original pages of the Deposit Log were also admitted into evide n ce at tr i al

.5 pag e of the D eposit L og , the amount of cash on hand for September 16 had been “ whited out ” and $1,276.00 was written over it, correspondin g t o the amount that the bank received that day. Investigator Barnes testified that he asked Owens whether she had altered the Deposit Log documents becaus e he had copies of the store’s D eposit L og that were different. Investigator Barnes said that Owens a d m i tted she altered the Deposit Log , and wrote new things on it, but said she had done it “so it would be easier for [him] to read. ” However, Owens did not explain why other portions of the Deposit Log she provided to him were illegible.
Owens told Invest i g a tor Barnes that she had signed for all the missing deposits and left the store with them. S he had no expla nation for why the bank never received the cash deposits for September 26, September 30, and October 2. Investigator Barnes reviewed Owens’s fina n c e s, but she provided only a reloadable debit card to which she made direct deposits. He testified that because all of the missing deposits were cash, there “was no point” in adding cash to a debit card. Jolene Alexander, an employee with F irst State Ban k C entral Texas , testified about the function of t he night

- deposit system. She stated that the night drop is accessible with a key, is part of an outside wall of the bank, and leads to the floor of the bank’s records vault. She also stated that when Barr i n g er reported the missing deposits, the bank inspected the night drop and confirmed that nothing was stuck. Alexander denied that a person could “come behind” another and retrieve wh at was deposited into the night drop. She further denied that the bank h a d
any issues , aside from this incident, with lost or misplaced deposits from the night drop.
A fter the State rested its case, Owens moved for an instructed verdict, which the district court denied. At the conclusion of the trial, the jury convicted Ow e ns for misapplication6 of fiduciary property , and the district court assessed punishment

. Owens filed a motion for new trial, which the court considered at a hearing and d enied. This appeal follow ed

.
DISCUSSION Owens contends that the evidence was insuff i ci e nt to support her conviction for misapplication of fiduciary property because the State did not prove that she took it

. Standard of review
A pplying a legal

- sufficiency standard, we consider the evidence in the light most favorable to the verdict and d et e rmine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979); Nisbett v. State , 552 S.W.3d 244, 262 (Tex. Crim. App. 2018). “Beyond a reasonab l e d oubt, however, does not require the State to disprove every conceivable alternative to a defendant’s guilt.” Ramsey v. State , 473 S.W.3d 805, 809, 811 (Tex. Crim. App. 2015). We defer to the jury’s resolution of conflicts in the evidence, weighing of th e testimony, and drawing of reasonable inferences from basic facts to ultimate facts. Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We apply the same standard to direct and circumstantial evidence. Id

. Circumstantial evidence is as p r oba t ive as direct evidence in establishing a defendant’s guilt, and circumstantial evidence can alone be sufficient to establish guilt. Nisbett , 552 S.W.3d at 262. Each fact need not point directly and independently to the defendant’s guilt if the cumul a tive force of all incriminating circumstances is sufficient to support the conviction. Id .; see Springer v. State , No. 03

- 04

- 00100

- CR, 2005 Tex. App. LEXIS 6979, at *6 (Tex. App.

— Austin Aug. 25, 2005 , no pet. ) (mem. op., not designated for7 publication) ( n oting that conviction for misapplication of fiduciary property may be based on circumstantial evidence )

. Sufficiency of evidence
M isapplication of fiduciary property requires proof that the defendant intentionally, knowingly, or recklessly misapplied pro p erty t hat she held as fiduciary in a manner that involved a substantial risk of loss to the owner of the property or to the person for whose benefit the property was held. T ex . P enal C ode § 32.45(b); Bowen v. State , 374 S.W.3d 427, 431 (Tex. Crim. App. 2 0 12)

. The Penal Code provides definitions for “fiduciary,” “misapply,” and “owner” relevant to th is offense. “F iduciary” is defined as includ ing a “manager” or an “employee.” Id

. § 32.45(a)(1)(D). “ M isapply ” means “to deal with property contrary to an

a greem e nt unde r which the fiduciary holds the property.” Id . § 3 2.45(a)(2)(A). “ Owner ” means a person who has title to the property, possession of the property (whether lawful or not), or a greater right to possession of the property than the actor. Id

. § 1.0 7 (a)(35). A “ substantial risk of loss ” means that a real possibility of loss exists and that the risk of loss is a positive possibility and more likely than not to occur. Salcido v. State , No. 08

- 04

- 00286

- CR, 2006 Tex. App.
LE XIS 3764, at * 13 (Tex. App.

— E l Paso May 4, 2006, no pet.) ( mem. op., not designated for publication ) (citing Dwyer v. State , 836 S.W.2d 700, 702 (Tex. App.

— El Paso 1992, pet. ref ’ d)). Here, the record shows that the property at issue consisted of cash

- deposit bags from the Lome t a Fam i ly Dollar store that contained cash from the close of the business on September 26, September 30, and October 2, and that the owner of the property was the store’s district manager, Barringer. See Byrd v. State , 336 S.W.3d 242, 252 (Tex. Crim. App. 2011) ( noting that w hen entity such as corporation own s property, traditionally preferable practice has been to allege ownership in natural person acting for corporation ; alternatively, corporat ion may8 be named as owner and may c all any agent or employee h oldin g relevant position in company to testify that corporation did not give effective consent for person to take corporation’s property ). The record also shows that Owens was a fiduciary of Barringer because at the time of the offenses in September and O ctober of 2016, she worked for Barringer as a store manager at the Lometa Family Dollar store and was responsible for handling the property at issue by counting the cash on hand at the end of the day and depositing it with the bank on Barringer’s behalf. Furthe r , a lthough Owens contends that any number of store or bank employees could have been charged and the evidence would have been “as damning against them as it was against her , ” Owens overlooks that only she provided law enforcement with a falsified D eposit
L og as part of the underlying investigation

. See Labree v. State , No. 08

- 16

- 00325

- CR,
2018 Tex. App. LEXIS 8355, at *18 (Tex. App.

— El Paso Oct. 12, 2018, no pet.) (not designated for publication) (noting that jury could have reasonably inferred th a t defen d ant made falsified entries in check register to conceal her actions). Additionally, the jury was provided with evidence that :

• Owens was the only employee who had signed out all three of the missing deposits ;

• O wens did not report the missing mon e y from a ny of those deposits to B arringer when

she failed to receive a receipt;

• Owens was the last person to have the deposit bags for September 26, September 30,

October 1, and October 2;

• The original Deposit Log listed Owens’s name in the “deposited b y ” colum n for all

three of the missing deposits;

• Owens admitted taking the bags for September 26, September 30, October 1, and

October 2 to the bank, but she could not explain why the October 1 deposit was the only one to clear the bank ;9 • Kidd saw Owens p u t cash

- d eposit bags into the bank’s night drop, but Kidd did not

know the dates on them;

• Subsequent d eposits for the Lom e ta Family Dollar store cleared the bank without

incident ;

• Owens ’s a ltered pages of the D eposit L og , which she voluntarily provided t o

Inves t igator Barnes , were difficult to read;

• Owens’s altered pages of the Deposit Log contained entries blurring the amounts that

Owens deposited on September 26, September 30 and October 2 (the dates of the three missing deposits) ;

• O wens’s altered pa g es of t h e Deposit Log contained s everal entries blurr ing the names

of the employees who counted the cash on hand an d signed it out to be deposited;

• The first page of Owens’s altered Deposit Log used white correction tape to cover a

portion of the lower

- l e ft colu m n list ing the amounts of the store’s cash on hand by date and was overwritten with dates in late September;

• The first page of Owens’s altered Deposit Log concealed a $600 discrepancy for

September 16 between the a mount of cash on hand at the end o f the d a y and the amount actually deposited , using white correction tape to cover the original amount of $1,876.00 and wr iting $1,276.00 in its place (an amount corresponding to t he amount on the bank receipt for the deposit that day ) ;

• Investigator Barne s did no t f ind any evidence that Kidd, Torres, or the bank was responsible for the missing money;

• Kidd and Torres were cooperative and provided Investigator Barnes with information

about who may have been responsible for the crime; and

• The bank did not h a ve any i ssues , aside from this incident, with lost or misplaced

deposits from the night drop.
Given this evidence, a rational jury could have reasonably inferred that: (1) there had been no problems with the bank’s night drop with other customers or the L ometa F a mily Dollar ; (2) Owens took the cash

- deposit bags from Kidd; (3) Owens was the last person t o
possess all t he cash

- deposit bags that went missing ; (4) the cash

- deposit bags that Kidd saw
Owens put into the bank’s night drop were not the ones for S e ptember 30 and October 2 because10 those never cleared the bank ; (5 ) Owens misapplied the property when she intentionally kept the cash

- deposit bags instead of puttin g them in to the bank’s night drop; ( 6 ) Owens purpos efully altered the D eposit L og and gave i t to In v estigator Barnes to mislead him and conceal her criminal activity; and (7 ) Owens knew that taking Barringer’s money for herself would involve substantial risk of loss to Barringer, the owner of the property listed in the indictment

. We conclude t h at the c ombined and cumulative force of all the evidence at trial, viewed in the light most favorable to the jury’s conviction , was sufficient to allow a rational jury to find beyond a reasonable doubt that Owens committed the charged offense of misapplic a tion of fiduciary property. See Jackson , 443 U.S. at 319; Nisbett , 552 S.W.3d at 262; Showery v. State , 678 S.W.2d 103, 106 (T ex. App.

— El Paso 1984, pet. ref’ d) ( concluding that complainant’s testimony , corroborated by documentary evidence , was sufficien t to sup p ort conviction for misapplication of fiduciary property) ; see also Springer , 2005 Tex. App. LEXIS 6979, at *6 , 12 ( rejecting contention that circumstantial evidence was insufficient to support conviction for misapplication of fiduciary property)

. Accordi n gly, we overrule Owens’s appellate issue.

CONCLUSION We affirm the district court’s judgment of conviction.

__________________________________________ Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Triana and Kelly Affirmed Filed: August 20, 2019 Do Not Publish