Ashire v. State

296 S.W.3d 331, 2009 Tex. App. LEXIS 7316, 2009 WL 2961261
CourtCourt of Appeals of Texas
DecidedSeptember 17, 2009
Docket01-07-00681-CR, 01-07-00682-CR
StatusPublished
Cited by15 cases

This text of 296 S.W.3d 331 (Ashire v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ashire v. State, 296 S.W.3d 331, 2009 Tex. App. LEXIS 7316, 2009 WL 2961261 (Tex. Ct. App. 2009).

Opinions

OPINION

TIM TAFT, Justice (Retired).

A jury convicted appellant, David Ashire, of theft of property valued over $100,000 and under $200,000 and assessed punishment at life in prison and a fíne of $10,000 (trial court cause number 1110302; appellate cause number 01-07-00681-CR). See Tex. Penal Code Ann. §§ 31.03(e)(6) (Vernon Supp. 2008), 31.09 (Vernon 2003). The jury also convicted appellant of securing execution of a document by deception of a person at least 65 years old, namely, a purchasing document for a GMC truck valued over $20,000 and under $100,000, and the jury assessed punishment at 20 years in prison and a fine of $10,000 (trial court cause number 1110303; appellate cause number 01-07-00682-CR). See id. § 32.46(a)(1), (b)(5), (c-1) (Vernon Supp. 2008). Appellant challenges the legal and factual sufficiency of the evidence supporting each conviction. He also challenges the trial court’s admission of testimony regarding an unadjudicated extraneous offense and victim-impact testimony about this offense during the punishment phase.

We affirm.

Background

Dr. John Keating lived with his wife, Helen, in Humble, Texas. At trial, Dr. [334]*334Keating was 88 years old. They had no children, and they lived on a fixed income, with occasional monetary gifts from their only living relative, Mrs. Keating’s sister, who lived in California. Mrs. Keating handled the couple’s finances, writing checks and paying bills.

Mrs. Keating testified that her husband had memory problems and had suffered two head injuries that affected his memory: a fall from a bed before they met appellant and a fall in a Kroger parking lot after they had met appellant. She said Mr. Keating’s memory was better when they first met appellant, but “it was getting down already then.” She said:

Well, it was beginning to fade. He isn’t as — he wasn’t as bad then as he was after he had his accident in Krogers. His memory was pretty good considering he was in his late 80s. He did pretty good. He remembered a lot of things, but it was beginning to fade. I don’t know how to explain it. It was just a gradual downward climb that he had with his memory.

At one point in her testimony, Mrs. Keating became confused and said that her memory was dwindling also, saying, “I’m getting like my husband. I’m forgetting.”

Two of the Keatings’ neighbors, Clifford Thoe and Charity DeLeon, visited them regularly and helped them around the house. Thoe testified that he had known the Keatings for 20 years and that over time, Dr. Keating became forgetful. Thoe’s vafe also testified that Dr. Keating had become forgetful and “absent-minded.” Thoe testified that he helped Dr. Keating with car maintenance and repair, yard work, errands, and driving him places, for example, to get a haircut. De-Leon testified that she had lived across the street from the Keatings for seven years. She said that she mowed their lawn onee a month and that they sometimes paid her. She also testified that they shared the cost of garbage pickup, because the Keatings did not want to spend money on that. DeLeon said that Dr. Keating was very business-like when she first met him, but he grew increasingly confused beginning around 2005 or 2006: “[I]t seemed that he would lose [his] train of thought when he would talk to me. He would often talk to me, and he would get a dazed look in his eye and kind of like he didn’t really remember who he was talking to about what.” DeLeon said she never saw anyone visit the Keatings regularly before they met appellant. Both Thoe and De-Leon testified that they believed Dr. Keat-ing was unable to make decisions about the disposition of his property.

Humble Police Detective Eric Squier, who investigated appellant’s crime, testified that he met Dr. Keating several times before the investigation in this case. Once, Squier found Dr. Keating stopped in a moving lane of traffic unable to find his way to the hospital, a place where the detective had previously seen Dr. Keat-ing’s car, which was only a few blocks away. On a separate occasion, Squier observed that Dr. Keating had not replaced his gas cap and was spewing gas from the car. When Squier stopped Dr. Keating to tell him, Mrs. Keating got out of the vehicle, and Squier noticed that she was exposing herself. Mrs. Keating told Squier that she had forgotten to button her shirt.

In May 2006, the Keatings had a roof leak. Thoe testified that he had caulked the roof before he went on vacation and that he had promised to fix it more permanently when he returned. Mrs. Keating testified that Thoe had told her husband that he would fix the roof, but did not follow through.

One day, appellant drove down the Keatings’ street in a truck bearing a roofing company sign and saw Dr. Keating [335]*335sitting outside. Appellant introduced himself as Jim Brooks and struck up a conversation, after which the Keatings decided to hire appellant to fix their roof. Initially, Mrs. Keating paid appellant $1,925 in a check made out to Juanita Mitchell, whom appellant said was his boss. She said she thought that it was payment in full, but she later came to learn that it was a down payment. She later gave appellant $250 for roofing materials. Appellant fixed the roof, and the Keatings had no further problems with it.

Appellant came back to visit and to ask if they were satisfied with the roof repairs. Mrs. Keating said that appellant visited them several times a week from May through August 2006, inquiring about them and generally behaving in a pleasant manner.

In early June 2006, Mrs. Keating gave appellant $1,025. She testified, “I don’t remember why I gave it to him, but' I gave it to him. And don’t ask me why because I don’t know why because I thought he was an honest person.” She said that she trusted him. Mrs. Keating did not know and could not recall if her husband had helped her make out the $1,025 check. Mrs. Keating testified that she gave appellant money from her credit card account twice because he asked for it. Later, she vacillated, saying that she thought that it was twice, but she was not sure. She testified, however, that appellant paid her back $500 of the money that she gave him.

Mrs. Keating said that appellant was a “good friend” and was “so helpful, I fell for him” when she was hospitalized during that summer. Appellant and a woman the Keatings knew as appellant’s wife brought her get-well cards while she was in the hospital.1 Dr. Keating testified that appellant once gave him a pocket watch that he had inherited from his father. Once, appellant told a salesman at a jewelry store that Dr. Keating was his father, and Dr. Keating testified that this flattered him, saying, “I think that it elevated my ego. That’s the best way I can say, that somebody liked me for that.” Mrs. Keating said that appellant took them out to eat several times at places “like Denny’s and the Waffle House and just bought us our lunch or our breakfast.” Only later did Mrs. Keating realize that appellant took them out only after she had given him money, and they were in essence paying with their own money.

Appellant asked the Keatings to accompany him to a car dealership to see the kind of truck that he was planning to buy, ostensibly for work. Mrs. Keating testified that appellant did not ask them to cosign for the truck, but Mrs. Keating said that she was perplexed about why her husband went into the office and signed the papers while she and appellant waited outside.

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Ashire v. State
296 S.W.3d 331 (Court of Appeals of Texas, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
296 S.W.3d 331, 2009 Tex. App. LEXIS 7316, 2009 WL 2961261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ashire-v-state-texapp-2009.