Donald Edward Little v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 9, 2023
• Docket: 03-21-00393-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00393-CR

Donald Edward Little, Appellant

v.

The State of Texas, Appellee

FROM THE 51ST DISTRICT COURT OF IRION COUNTY NO. CR21-002, THE HONORABLE LEE HAMILTON, JUDGE PRESIDING

MEMORANDUM OPINION

Donald Edward Little was convicted of misapplication of fiduciary property

totaling more than $30,000 but less than $150,000 and was sentenced to five years’

imprisonment. See Tex. Penal Code §§ 12.34, 32.45. In five issues on appeal, he contends that

the evidence is insufficient to support his conviction and that the trial court erred by allowing the

State to amend the indictment. We will affirm the trial court’s judgment of conviction.

BACKGROUND

In 1996, articles of incorporation were filed with the Office of the Secretary of

State forming the Barnhart Water Supply Corporation (BWSC) to provide water services to

individuals residing in and around Barnhart, Texas. The BWSC’s original bylaws specified that

the board of directors would consist of three directors: a president, a vice president, and a

secretary-treasurer. The bylaws stated that the BWSC members would elect the directors at the members’ regular meeting, that the directors would not be paid for their services but could be

compensated for actual expenses by a majority vote of the directors, and that checks from

BWSC’s account had to be signed by two directors: the secretary-treasurer and either the

president or the vice-president. Additionally, the bylaws specified that anyone owning property

or having a legal right to possess or occupy property in the area covered by BWSC “shall have

the right to become a Member of the Corporation upon payment of the Membership fee” of

$100, entitling the applicant to a connection to the BWSC system. Further, the board of directors

could determine the form of the membership certificates, and ownership of memberships

“are deemed to be vested in those persons who are the record owners of Memberships.”

Additionally, the bylaws specified that they could be altered or amended by a majority vote of

the members but could not be amended in a manner that deprives any member “of rights and

privileges then existing.”

In 2017, the three longstanding directors of the BWSC board—Bill Avery

(president), John Nanny (vice president), and Frances Shaw (secretary-treasurer)—wanted to

transfer the operation of BWSC to a new board. Michael Barron expressed interest in the

opportunity. According to the minutes from the board’s meeting in April 2017, Barron presented

a letter of intent to acquire the assets of BWSC, and the board accepted the letter of intent and

scheduled an agenda item to discuss the letter at the next meeting in May 2017. Barron attended

that meeting with his lawyer Little and Ned Smith. After that meeting, Barron, Little, and Smith

took over the operations for BWSC.

Shortly after the meeting, Little prepared amended bylaws for BWSC naming the

following individuals to the board of directors: Barron (president and treasurer), Smith (vice

president), and Little (secretary). The amended bylaws specified that checks or other payment

2 instruments may be authorized by the signature of the president, the secretary, or another officer

authorized by the amended bylaws and no longer required signatures from two officers. Further,

the amended bylaws empowered the board of directors to make future amendments to the bylaws

or to adopt new ones by a majority vote of the directors. Similar to the previous bylaws, the

amended bylaws stated that the purpose of the nonprofit corporation is “to provide water services

and services ancillary to the provision of water” in Barnhart.

While serving as president of BWSC, Barron purchased a backhoe with his

personal funds. After purchasing the backhoe, Barron tried to sell it by placing it in the parking

lot of a business that he owned with a for sale sign on it. On August 28, 2019, Barron sent an

email to the bookkeeper for BWSC, Nola Baumann, asking her to call him when she received

the email. Barron attached to the email a bill of sale for the backhoe stating that BWSC was

going to purchase the backhoe from him for $28,500. When Baumann talked with Barron, he

asked her to write a check to him from BWSC’s bank account for $28,500. Baumann refused,

explaining that she believed that the residents of Barnhart had to vote to approve that type of

acquisition. Baumann called residents in the community to see if they knew anything about the

proposed sale, but none of the residents had heard about it.

Two days later, Little emailed Baumann, informing her that she had been fired

from her position and demanding that she hand over all records for BWSC. The email also

stated that BWSC only has three members, that all BWSC assets and authority over those assets

were transferred to the board of directors in 2018, and that the residents of Barnhart “do not have

any ownership interests in” BWSC. Little sent a follow-up email the following day stating that if

Baumann did not return all the records, he would “act accordingly to obtain the property and

3 records.” An employee for BWSC’s bank called Baumann to inform her that Barron had taken

the money from the account.

After Baumann was fired, a meeting was scheduled for October 28, 2019,

between the new board of directors and the customers of BWSC, who were Barnhart residents.

The former directors attended the meeting, and the meeting was recorded. During the meeting,

Little told the crowd multiple times that the former board “sold your rights” away and told the

crowd that no one at the meeting other than Barron, Little, and Smith was a member of BWSC

because no one besides the three of them had membership certificates. At the meeting, Little

handed out copies of a document entitled “Unanimous Resolution of the Members of Barnhart

Water Supply Corporation,” which he stated had been signed by all three former directors. The

unanimous resolution was dated May 3, 2017, and specified that the former directors resigned

their positions and appointed Barron, Little, and Smith “as sole Members of Barnhart Water

Supply Corporation” “with all rights and privileges . . . , including but not limited to transfer of

all assets, bank accounts, [and] certificates of deposit.” The unanimous resolution also purported

to indemnify the former directors for any liabilities incurred related to their service, contained

the former director’s signatures, and specified that the former directors were “all [of] the

Members of the Barnhart Water Supply Corporation.”

At the meeting, former directors Nanny and Shaw both denied signing the

document that Little handed out. Further, another resident asserted that Little was just “lining

his pockets,” and Little responded by saying that “[w]e’re lining our pockets, yeah.” Little and

Barron then left the meeting, and Little stated that the dispute would be resolved in court.

Following that meeting, a group of residents of Barnhart sought a temporary and

permanent injunction against Barron and Little preventing them from selling any assets,

4 collecting any money due, and writing checks on BWSC’s corporate account. The residents also

filed a petition to remove Barron and Little as directors of BWSC, asserting that Barron and

Little improperly made large financial expenditures of BWSC’s money without approval by

the members, paid themselves with BWSC’s money, and amended BWSC’s bylaws to deprive

members of their rights and privileges. Contemporaneously, Barron filed suit against several

residents of Barnhart, asserting that he was fraudulently induced into becoming a director and

operating BWSC, that the residents improperly converted BWSC property, and that the former

directors breached the terms of the unanimous resolution. Barron was represented by Little in

both suits. A few months later, the parties filed an agreed motion to dismiss both cases after

entering into a settlement agreement. Under the settlement agreement, the parties agreed to the

following: BWSC would retain ownership of the backhoe; the parties agreed not to pursue any

claims of fraud or perjury or any further legal actions with the Attorney General, the Texas

Rangers, and the Texas Commission on Environmental Quality; and Baron agreed that he would

no longer attend any BWSC meeting.

Approximately one year later, Little was indicted for misapplication of fiduciary

property belonging to BWSC by receiving personal payments from BWSC that were not in

conformity with BWSC’s purposes. An attachment to the indictment listed five specific checks

serving as the basis for the charge. During the trial, the following individuals testified for the

State: Pete Barrera, who was the current president of BWSC; Smith, who was the vice president

of and director for BWSC when Barron and Little were also officers and directors; Baumann,

who was the bookkeeper for BWSC before she was fired by Little; Glenda Kuykendall, who was

the secretary for BWSC at the time of trial; Jeffrey Lisson, who was the attorney that previously

represented Nanny and testified as an expert on nonprofit corporations; Susan Downman, who

5 was an auditor working for the Attorney General’s Office in the Criminal Investigations

Division; and Greg Dickerman, who was an investigator working for the Attorney General’s

Office in the Criminal Investigations Division. When presenting his case, Little elected to testify

and called several witnesses including the following: former directors Avery, Nanny, and Shaw

who, respectively, were the president, vice president, and secretary-treasurer of BWSC for years

before Barron and Little took over operating BWSC; Barron, who took over operating BWSC

with Little; and Bart Baggett, who testified as a handwriting expert.

In addition, multiple exhibits were admitted into evidence, including copies of

various checks, bank records from several accounts, the unanimous resolution, a recording of the

meeting where Little passed out the unanimous resolution, BWSC’s articles of incorporation,

BWSC’s bylaws and amended bylaws, the minutes of the board meeting from April 2017, a copy

of an indictment from January 2019 against Barron for aggravated assault with a deadly weapon,

a copy of a notice of appearance of counsel filed by Little on behalf of Barron in the aggravated-

assault proceeding, paperwork from the civil suits filed by the residents and by Barron, the

settlement agreement and order dismissing the two civil suits, an application for service from

BWSC filed by Barrera, the bill of sale sent to Baumann, the email sent to Baumann stating that

Little had fired her, a membership certificate issued to Barron in May 2017 and signed by Little,

and an invoice of services prepared by Little setting out legal work that he asserted he performed

from November 2019 to February 2020.

Regarding the checks forming the basis for the indictment, copies of the following

checks were admitted as exhibits:

A check from BWSC’s account dated September 5, 2019, that was made out to Barron for $28,500 and contained in the memo line a remark that the check was

6 for reimbursement for the backhoe.

A check from Barron’s personal account dated September 5, 2019, that was made out to Little for $28,500 and listed in the memo line that the check was for attorney’s fees.

A check from BWSC’s bank account dated October 29, 2019, that was made out to Little for $5,000, signed by Barron, and specified in the memo line that the check was for “Attorney At Law October 29 Litigation.”

A cashier’s check from BWSC’s account dated November 1, 2019, that was made out to Barron for $10,000 and had Barron’s and Little’s signatures on the endorsement side of the check.

A check from BWSC’s account dated December 9, 2019, that was made out to Little for $1,000, signed by Barron, and did not list anything in the memo line.

At trial, Lisson testified as an expert on nonprofit corporations. In his testimony,

Lisson explained that water supply corporations are nonprofit corporations. Further, he related

that members of nonprofit corporations do not receive salaries but that employees may be paid

a salary. Next, he stated that a director or officer can be paid reasonable rates for providing

services to a nonprofit corporation; however, he related that any distribution made would have to

be used for purposes benefitting the people who obtain services from the nonprofit corporation.

Additionally, he testified that nonprofits are designed to serve the people that benefit from its

operations, that a water supply corporation’s assets must be used solely for the benefit of the

corporation and its members and cannot be used to benefit third parties, and that anyone who

gets service from a water supply corporation “is a member of that corporation.” He explained

that nonprofit corporations may not make a profit and that no one is supposed to make money

from a water supply corporation. Moreover, he stated that only members of a water supply

corporation can serve on the board of directors, meaning that individuals on the board must

receive water service from the corporation. Next, Lisson explained that individuals on the board

7 and officers are fiduciaries to a water supply corporation and its members and must put the

corporation’s and the members’ needs ahead of their own. Regarding BWSC, Lisson testified

that BWSC was designed to benefit its members, who are the people obtaining water service

from BWSC, including renters and property owners; that the board of directors could not own

BWSC; and that the original bylaws did not authorize cancelling anyone’s membership status.

See Tex. Water Code § 67.016(e) (limiting circumstances in which corporation may cancel

membership to those where person fails to meet conditions for water service or comply with

condition placed on receipt of water).

Concerning the transfer of BWSC’s operations to Barron, Little, and Smith,

Lisson testified that the unanimous resolution was not proper because the transfer of all or

substantially all of the assets requires approval by the members, rather than the board, at a

meeting with proper notice. Further, he stated that Little could not serve on the board because he

did not receive services from BWSC. See id. § 67.0051 (providing that to be qualified to be

director, person must be member of corporation). Similarly, Lisson explained that the proposed

amendments to the bylaws were not properly adopted because amendments require a vote by the

members at a meeting and because the amendments were inconsistent with the directive from the

original bylaws specifying that a resident’s membership could not be taken away.

During his cross-examination, Lisson explained that water supply corporations

could hire an attorney and pay attorney’s fees if the services provided by the attorney were for

the benefit of the nonprofit and its mission. However, on redirect, Lisson testified that a lawyer

seeking to be paid by a nonprofit should sign a retainer agreement showing that the lawyer’s

services were for the purpose of the nonprofit and setting out the terms of the representation,

fees, and scope of what the lawyer would do. Further, he related that any payment would need

8 approval by the board of directors, that an individual getting paid should not be part of the

approval vote if he or she is on the board due to the conflict of interest, and that there would need

to be a record of the approval vote in the organization’s records.

The auditor for the Criminal Investigation Division of the Attorney General’s

Office, Downman, testified regarding the forensic audit that she performed in this case.

Specifically, Downman related that she looked at three accounts for BWSC, one personal

account for Barron, and one business account for Barron. Regarding BWSC’s accounts,

Downman related that BWSC received money almost exclusively from its customers’ water bills

and that typically the expenditures went to plumbing vendors, maintenance expenses, water

testing vendors, and payments to the bookkeeper; however, Downman explained that there were

payments to Barron and Little that did not appear to be related to BWSC’s purpose and that the

total amount of misapplied funds that Little received was $44,500 belonging to BWSC.

Downman related that the first unusual check was a check from BWSC’s account

dated September 5, 2019, that was made out to Barron for $28,500; was authorized by Barron

without another signatory; and indicated that it was reimbursement for the backhoe. The second

check was from Barron’s account, had the same date as the previous check, was made out to

Little for the same amount as the previous check, and noted that the amount was for attorney’s

fees. Downman explained that she was unaware of any business or legal events involving

BWSC occurring at that time; however, she explained that Little had represented Barron during a

criminal case starting in March 2019 and that Barron’s account had not been used to pay Little

from January to August of 2019. The third check was from BWSC’s account, was dated October

29, 2019; was made to Little for $5,000; was authorized by Barron without any other signatory;

and indicated that the money was for the October 29 litigation. The fourth was a cashier’s check

9 dated November 1, 2019, for $10,000 from BWSC’s account, was made out to Barron, and

had Barron’s and Little’s signatures on the endorsement line. In addition, the withdrawal slip

showed that the only authorizing signature for that transaction was Barron’s signature. The final

check was from BWSC’s account; was dated December 9, 2019; was made to Little for $1,000;

and did not mention what the money was for in the memo line.

The investigator in the Criminal Investigations Division of the Attorney General’s

Office, Dickerman, testified regarding his investigation after the case was referred to the

Attorney General from the Irion County Sheriff’s Office in March 2020. In his testimony,

Dickerman related that his review of BWSC’s articles of incorporation and bylaws indicated that

the board of directors must be elected by the members of the water supply corporation at an

annual meeting. Further, he related that the directors must be members of the water supply

corporation and that the bylaws required that the person receive service from BWSC, meaning

that the individual must have paid the application fee for a water meter. Along those lines, he

explained that someone becomes a member by applying and paying for a water meter to receive

service from BWSC. Moreover, he stated that BWSC could not rescind an individual’s

membership or take away voting rights, that BWSC’s bylaws could only be amended by a vote

of the members and could not be amended to deprive any members of their rights, and that the

new bylaws did not reflect that they were presented and approved by the members and instead

state that they were approved by the board of directors. Regarding the amended bylaws, he

testified that they gave Barron the authority to write checks without another signatory. Further,

he related that although the unanimous resolution stated that the only three members of BWSC

were Avery, Nanny, and Shaw, there were other members as well. Although he acknowledged

that BWSC started collecting more money from the residents after Barron took over, Dickerman

10 explained that charging members more simply to increase BWSC’s revenue was not consistent

with BWSC’s purpose.

Regarding the financial transactions alleged in this case, Dickerman related that in

September 2019 the funds from BWSC’s corporate account were removed and transferred to

another bank. Moreover, Dickerman discussed the checks mentioned above and explained that

Barron’s accounts would not have had sufficient funds to cover the $28,500 check written to

Little if Barron had not deposited the $28,500 from BWSC. Additionally, Dickerman explained

that the $10,000 cashier’s check endorsed by Barron and Little was written on the day after the

residents filed a civil suit seeking to have Barron and Little removed from the board and that the

$5,000 check to Little from BWSC’s account was also written about when the residents initiated

the civil suit. Dickerman also testified about other checks written by Barron to Little around the

time of legally significant events. For example, Dickerman stated that Barron wrote Little a

check for $3,000 on April 18, 2017, with a memo indicating that the check was for “water,” and

the date of the check is about when Barron presented his letter of intent to the former board.

Similarly, Dickerman testified that Barron wrote Little a check for $12,500 on May 3, 2017, with

a memo stating that the check was for “BWSC,” and the date of the check is the same as the date

appearing on the Unanimous Resolution drafted by Little and the date of the meeting in which

the former board purportedly agreed to transfer operations to Barron, Little, and Smith. Along

those lines, Dickerman related that Barron wrote a check to Little for $15,000 on October 19,

2018, stating that it was for “legal” work, and Dickerman explained that the amended bylaws

were adopted by Barron and Little on the same date listed on this check.

The current president of BWSC, Barrera, testified that he never saw the

unanimous resolution, that Barron put extra meters on the residents’ property and charged the

11 residents for those extra meters, that Little was trying to increase the price of water for his own

benefit, that Little informed residents at the October 2019 meeting that they were no longer

members of BWSC, that the residents had to sue to regain control of BWSC, and that most of the

funds from BWSC had been depleted when he took over as president. Regarding the backhoe,

Barrera explained that Barron used BWSC money to buy the backhoe even though he did not

check with the members, that BWSC had no need for the equipment because it rarely uses that

type of equipment and can just rent the equipment if needed or ask to use equipment belonging

to one if its members, that BWSC did not have a place to store the equipment, and that BWSC

ultimately sold the backhoe for $24,000. Concerning BWSC, Barrera related that the application

fees or deposits that residents paid to get water service were considered their membership fees.

Smith, who was the other new director on the board with Barron and Little,

testified that he had been a member of BWSC before becoming vice president because he paid

for a water meter, that anyone who had a meter was a member, that Barron and Little never

mentioned that the three of them would be the only members after the transfer, and that he had

not intended to take anyone’s membership away and instead wanted to volunteer to help

maintain BWSC’s water supply. Further, Smith related that he retired after Barron and Little

fired Baumann, that Barron used his position with BWSC “as a way to make money” rather than

“take care of the community,” and that Barron and Little told the community in the October 2019

meeting that the community no longer had any control over what BWSC did. Regarding the

backhoe, Smith said that Barron purchased the backhoe and used it on his personal property, that

the backhoe cost $24,000 plus shipping, and that Barron did use the backhoe to clean alleyways

for BWSC. Concerning the May 2017 meeting where Barron, Little, and he became board

members, Smith explained that he saw the former board of directors sign a document but did

12 not know what the document was. During his cross-examination, Smith stated that the new

water meters more accurately measured water consumption.

Next, Baumann testified that she served as the bookkeeper for BWSC for more

than twenty years, that individuals automatically became members of BWSC by filling out an

application and paying a deposit for water service, that everyone with a water meter was a

member, and that BWSC was formed to benefit the citizens of Barnhart. Further, Baumann

explained that the original bylaws required two of the officers to sign checks. Additionally,

Baumann related that she was fired after Barron asked her to write him a check for the backhoe

for an amount Barron believed the backhoe was worth, that she refused because that type of

purchase had to be approved by the members, that Barron stated that he needed the money to pay

for back surgery, and that Little sent her an email explaining that two directors—Barron and

him—had authorized the purchase. Regarding the backhoe, Baumann said that she called

someone who sells backhoes and that the individual explained that the backhoe was not worth

as much as what Barron suggested. Furthermore, Baumann explained that the bill of sale did

not provide enough information to ascertain the condition or value of the backhoe for several

reasons, including by not disclosing the model year or hours used. Moreover, Baumann stated

that BWSC did not need a backhoe because residents in Barnhart would donate their time and

their equipment for BWSC projects that came up, that there had only been two or three times that

equipment had been needed for repairs, and that BWSC had no place to store the backhoe.

Concerning the civil lawsuits, Baumann testified that under the settlement,

membership was transferred back to the residents, and Barron and Little were required to return

all BWSC records. Baumann also related that she currently volunteers to help BWSC and the

current bookkeeper and that her review of the records revealed the checks written to Little;

13 however, Baumann explained that she did not find any invoices or other documents showing that

Little had performed any legal work for BWSC.

Following Baumann’s testimony, the current secretary for BWSC, Kuykendall,

testified that the only income BWSC received was from the water bills sent to residents.

Regarding BWSC’s records, Kuykendall explained that there were no invoices for legal services

provided to BWSC by Little and no letter specifying that he would represent BWSC for any

particular fee.

When presenting his defense, Little called the former president of BWSC, Avery,

who testified that he wanted someone else to take over running BWSC; that Barron was

interested in the opportunity; that all of the members agreed in April 2017 to allow Barron,

Little, and Smith to take over; and that he told Little that all the members agreed to allow them

to take over and voted on it. However, Avery noted that the unanimous resolution incorrectly

stated that there were only three members and that Little added words like “sole members” when

drafting the resolution even though that was not true. Further, Avery stated that the unanimous

resolution was not presented to the members and was instead shown to the board of directors.

Moreover, Avery related that Little stated it was necessary for the board of directors to sign the

resolution to protect themselves from future liability, that he did not understand the resolution

when he signed it, that the former board of directors did not read the full resolution, and that he

was not sure if Nanny or Shaw signed the document.

Following Avery’s testimony, the former vice president of BWSC, Nanny,

testified that he signed something in Little’s presence but does not remember signing the

unanimous resolution; on the contrary, Nanny explained that the only document he remembered

signing was an indemnification clause that was worded differently from the unanimous

14 resolution. Similarly, the other former board member, Shaw, testified that she did not sign the

unanimous resolution. Further, Nanny stated that Little did not give the board copies of the

documents. Additionally, Nanny related that there were more than three members of BWSC,

that BWSC was owned by the thirty to forty users who paid for a meter, and that he only

intended to transfer operation of BWSC to a new board. Regarding the signatures on the

resolution, Little’s handwriting expert, Baggett, testified that after he examined known signatures

for Nanny and Shaw and compared them with the signatures on the resolution, he concluded that

Nanny and Shaw both signed the resolution.

Next, Little called Barron as a witness, and Barron testified that Little has

represented him in three prior cases, including his divorce and his criminal case. Regarding

BWSC, Barron explained that Little drafted a letter of intent stating that Barron wanted to

acquire BWSC’s assets and that Avery signed the letter at the April 2017 meeting when the

board of directors voted to accept the letter of intent. Further, Barron stated that all of the

directors signed the unanimous resolution, that the three directors were the only members, that

Avery said that he checked with the residents and that they all approved of the resolution, and

that the resolution appointed Little, Smith, and him as the sole members. Barron testified that

when he looked through BWSC’s records, he did not find any membership certificates for the

residents and that without certificates, the residents could not have been members; however,

Barron explained that he had a membership certificate. Additionally, Barron said that he

received no compensation for operating BWSC other than reimbursements for his expenses; on

the contrary, Barron stated that he invested $100,000 in BWSC that he paid from his $610,000

divorce settlement and that he spent “quite a bit” of his money buying supplies for BWSC

without reimbursement. Regarding the backhoe, Barron stated that he purchased it to replace all

15 the meters with new ones to stop the water loss that was happening each month, that BWSC

needed the equipment, that he decided to sell the backhoe to BWSC because he used it for the

benefit of BWSC, and that BWSC later sold the backhoe for $24,000. Moreover, Barron

testified that BWSC’s yearly revenue doubled after he took over. Barron also stated that he

believed that the former board had the authority to adopt the unanimous resolution.

In his testimony, Barron stated that he hired Little for the two civil lawsuits

involving BWSC but that Little was not fully paid for his services. Barron went over an invoice

setting out that Little was owed approximately $52,000 in fees and had a little over $6,000

in costs from November 2019 to February 2020 stemming from his representation in the two

lawsuits. Further, Barron explained that he paid Little $16,000 for reasonable attorney’s fees and

withdrew the money from BWSC’s account between October 2019 and mid-December 2019 but

could not pay Little the full amount owed because a preliminary injunction stopped him from

writing any more checks.

During his cross-examination, Barron agreed that the old bylaws required two

signatures on checks but that the amended bylaws got rid of that requirement and that as a

fiduciary, he could only expend money from BWSC’s accounts for the benefit of BWSC.

Further, Barron agreed that the articles of incorporation stated that individuals having property

served by BWSC have the right to become members by paying a fee. Additionally, Barron

stated that he was obligated to return all BWSC records and did so. Barron related that he

previously paid Little out of his personal bank account for legal services regarding researching

BWSC ($3,000), preparing the unanimous resolution ($12,500), preparing the bill of sale

($4,000), and drafting the amended bylaws and handling his divorce ($15,000), and Barron

explained that the payments were typically made at the time the legal services were provided.

16 When discussing Little representing him in his aggravated-assault case, Barron stated that he

did not pay Little for representing him in that case until September 2019 even though he was

indicted in January 2019 and even though Little informed the trial court that he was representing

Barron in March 2019.

Barron testified that he wrote himself a check for $28,500 from BWSC’s accounts

and that he needed the money at the time for back surgery, but he later stated that he needed the

money to pay attorney’s fees and fees for an investigator and that he wrote Little a check for the

same amount for attorney’s fees associated with BWSC. Barron also admitted that the funds

may have been compensation for Little representing him in the aggravated-assault case because

there were no legal matters related to BWSC occurring then. Concerning the $10,000 cashier’s

check withdrawn from BWSC’s account in November 2019, Barron said that the check was

endorsed by Little and him and that the check was “[p]robably for lawyer fees,” but Barron

admitted that he could not tell if the check was written for the benefit of the members of BWSC.

When asked about the $5,000 check to Little from BWSC’s account from October 2019, Barron

stated that the check was for attorney’s fees to defend him in the lawsuit filed by the residents.

Similarly, Barron stated that the $1,000 check to Little written in December 2019 and withdrawn

from BWSC’s account was for attorney’s fees for defending against the lawsuit filed by the

residents. Barron testified that he returned all the records pertaining to BWSC that were in

his possession.

During the trial, Little elected to testify and explained during his testimony that

Avery, Nanny, and Shaw all signed the resolution, that the bylaws in effect required individuals

to have certificates to be members, that the board of directors stated that they were the only

members, and that he relied on and believed that representation when he wrote the unanimous

17 resolution. Further, Little related that Barron, Little, and Smith obtained membership certificates

in May 2017 and that he created the certificates as secretary for BWSC. Regarding the checks

written to him from BWSC’s account, Little testified that the total amount was $16,000, that he

incurred over $6,000 in costs while representing BWSC, and that he was owed $55,000 in

reasonable fees for working 131 hours performing legal work. Moreover, Little related that any

payments that Barron made were for the benefit of BWSC.

In his cross-examination, Little admitted that he understood from the beginning

that BWSC was a nonprofit corporation. Although Little acknowledged that he owed a fiduciary

duty to the members of BWSC by becoming a director and an officer, he asserted that the only

members were Barron, Smith, and him. Little testified that he was able to be a member of

BWSC because he handled Barron’s properties in the area. Regarding the transfer of BWSC in

2017, Little stated that no members were denied any rights or privileges because no resident had

completed the steps necessary to become a member by obtaining a membership certificate. Little

stated that he made copies of the BWSC’s records but returned them to BWSC. Little admitted

that he drafted the bill of sale for the backhoe, that he received the $28,500 payment, and that he

endorsed the $10,000 cashier’s check from BWSC. Regarding the payments that were made by

BWSC, Little explained that only a majority of the board had to approve the transactions, that a

majority approved all of the expenditures, and that it did not matter if one or more of the

directors were interested parties in the transactions.

After considering the evidence, the jury convicted Little of misapplication of

fiduciary property. Little appeals his conviction.

18 DISCUSSION

In his first four issues on appeal, Little challenges the sufficiency of the evidence

supporting his conviction. Specifically, Little asserts that there was insufficient evidence to

establish that BWSC was at a substantial risk of losing at least $30,000, that the $16,000

payment to him from BWSC’s account constituted criminal conduct, that he acted on his own or

as a party to the offense with the requisite intent to commit an offense, and that he misapplied

currency as alleged in the indictment. In his final issue, he contends that the trial court erred by

allowing the State to amend the indictment. Because his first three issues present related

arguments, we will address those issues together before addressing the remaining issues.

Sufficiency of the Evidence

Evidence Concerning Misapplied Property and Intent

“Evidence is sufficient to support a criminal conviction if a rational jury could

find each essential element of the offense beyond a reasonable doubt.” Stahmann v. State,

602 S.W.3d 573, 577 (Tex. Crim. App. 2020) (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979)). In making this determination, “[w]e view the evidence in the light most favorable to

the verdict and consider all of the admitted evidence, regardless of whether it was properly

admitted.” Id. “The jury is the sole judge of credibility and weight to be attached to the

testimony of the witnesses.” Id. “Juries can draw reasonable inferences from the evidence so

long as each inference is supported by the evidence produced at trial,” id., and are “free to

apply common sense, knowledge, and experience gained in the ordinary affairs of life in drawing

reasonable inferences from the evidence,” Eustis v. State, 191 S.W.3d 879, 884 (Tex. App.—

Houston [14th Dist.] 2006, pet. ref’d). “When the record supports conflicting inferences, we

19 presume that the jury resolved the conflicts in favor of the verdict and defer to that

determination.” Merritt v. State, 368 S.W.3d 516, 525-26 (Tex. Crim. App. 2012).

Appellate courts must “determine whether the necessary inferences are reasonable

based upon the combined and cumulative force of all the evidence when viewed in the light

most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007).

Appellate courts also must bear in mind that “direct and circumstantial evidence are treated

equally” and that “[c]ircumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor” and “can be sufficient” on its own “to establish guilt.” Kiffe v. State,

361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). The evidence is legally

insufficient if “the record contains no evidence, or merely a ‘modicum’ of evidence, probative of

an element of the offense” or if “the evidence conclusively establishes a reasonable doubt.” Id.

at 107 (quoting Jackson, 443 U.S. at 320).

Under the Penal Code, a person commits the offense of misapplication of

fiduciary property if the person “intentionally, knowingly, or recklessly misapplies property he

holds as a fiduciary . . . in a manner that involves substantial risk of loss to the owner of the

property or to a person for whose benefit the property is held.” Tex. Penal Code § 32.45(b).

The term “[f]iduciary” includes “an officer, manager, employee, or agent carrying on fiduciary

functions on behalf of a fiduciary.” Id. § 32.45(a)(1); see also Southwest Livestock & Trucking

Co. v. Dooley, 884 S.W.2d 805, 809 (Tex. App.—San Antonio 1994, writ denied) (explaining

that “[c]orporate officers and directors” have fiduciary relationship with corporation). In this

context, the term “‘[m]isapply’ means deal with property contrary to: (A) an agreement under

which the fiduciary holds the property; or (B) a law prescribing the custody or disposition of the

property.” Tex. Penal Code § 32.45(a)(2). Further, under the Business Organizations Code, a

20 director, officer, or member of a nonprofit may not receive payment from the corporation’s

income but may receive payment for services provided to the corporation. Tex. Bus. Orgs.

Code §§ 22.053-.054.

Moreover, as specified in the jury charge in this case, “[a] person is criminally

responsible as a party to an offense if the offense is committed by his own conduct, by the

conduct of another for which he is criminally responsible, or by both,” Tex. Penal Code § 7.01,

and “[a] person is criminally responsible for an offense committed by the conduct of another if

. . . acting with intent to promote or assist the commission of the offense, he solicits, encourages,

directs, aids, or attempts to aid the other person to commit the offense,” id. § 7.02(a)(2). “To

prove the intent-to-promote-or-assist element, the State must show that it was the defendant’s

conscious objective or desire for the primary actor to commit the crime.” Metcalf v. State,

597 S.W.3d 847, 856 (Tex. Crim. App. 2020). When reviewing the record for evidence of intent,

appellate courts look to events occurring before, during, or after the offense. Id.

The indictment in this case alleged that from October 18, 2018, and continuing to

December 16, 2019, Little, “pursuant to one scheme and continuing course of conduct,”

“intentionally, knowingly, and recklessly” misapplied United States currency “of the value of

$30,000 or more but less than $150,000” that he “held as a fiduciary” contrary to provisions of

the Business Organization Code governing disposition of that property “and in a manner that

involved substantial risk of loss to the members of the Barnhart Water Supply Corporation, the

owners of the property, and the persons for whose benefit the property was held, by making

and receiving personal payments with said United States currency, not in conformity with

the corporation’s purposes.” Further, the indictment listed the payments made or received

as follows:

21 Institution Acct Date Ref Payee Description Credit Debit Memo Line Signatory Wells Fargo xxxx 9/5/2019 xxxx Barron check deposit 28,500.00 Reimbursement for backhoe Wells Fargo xxxx 9/5/2019 xxxx Little check paid 28,500.00 Lawyer fees Barron Security Bank xxxx 10/31/2019 xxxx Little check paid 5,000.00 Attorney at Law Barron October Litigation Security Bank xxxx 11/1/2019 xxxx Barron withdrawal 10,000.00 Barron Security Bank xxxx 12/10/2019 xxxx Little check paid 1,000.00 Barron

Total: 44,500.00

In his first issue, Little asserts that the evidence is insufficient to support his

conviction for misapplication of fiduciary property valued at $30,000 or more but less than

$150,000 because the evidence does not establish that BWSC was at substantial risk of losing at

least $30,000. See Tex. Penal Code § 32.45. More specifically, he contends that there is

insufficient evidence to support a determination that he misapplied the $28,500 alleged in the

indictment. Building on this premise, he asserts that this differential and the remaining value of

the funds allegedly misapplied ($16,000) could not support a misapplication of more than

$30,000 and that, therefore, the evidence was insufficient to support his conviction.

Relatedly, in his second issue on appeal, Little contends that the evidence was

insufficient to support his conviction because the evidence did not establish “any criminal

conduct in payment of $16,000 in BWSC funds to” him. When presenting this issue, he does not

dispute that the evidence showed that a $5,000 check from October 2019, a $10,000 cashier’s

check from November 2019, and a $1,000 check from December 2019 were written on the

BWSC account; that those checks correspond to three of the checks alleged in the indictment; or

that he received the $16,000. Instead, he asserts that the evidence showed that the checks were

written after the civil suit was filed by residents seeking control over BWSC, that Barron’s

22 testimony established that those checks were written on behalf of BWSC for attorney’s fees, and

that Barron and he as directors had the discretion to use BWSC’s money to fund a defense

against the civil suit. Further, Little argues that BWSC was required to defend itself in the

lawsuit and could pay him a reasonable fee for providing his legal services, that he could also

represent and defend Barron in the proceeding in Barron’s capacity as director, and that the

fees he was paid were reasonable. See Tex. Bus. Orgs. Code §§ 8.104, 22.054; Tex. Water

Code § 67.013. Additionally, Little contends that no evidence was introduced indicating that the

$16,000 “was expended for anything besides attorney[’s] fees.”

In his third issue, Little argues that the evidence was insufficient to support his

conviction because the evidence failed to show that he had the requisite intent to commit an

offense. As support for this argument, he notes that no evidence was presented showing that he

was present when Barron asked Baumann to write him a check, that he was present when Barron

wrote the $28,500 check from BWSC’s account after Baumann refused to help, or that he was

involved in the process of writing and cashing that check. Similarly, Little emphasizes that the

check that Barron subsequently wrote from his personal account to Little noted that the money

was for attorney’s fees, that there was no testimony indicating that Little was present when

Barron wrote that check or knew where the funds came from, and that Barron testified that it was

his decision to sell the backhoe to BWSC. Regarding the bill of sale prepared by him and the

email in which he informed Barron that he voted to approve the purchasing of the backhoe, Little

contends that the bill of sale sufficiently set out the value of the backhoe and could not support

an inference that he knew of any “fraud underlying the transaction.” Further, Little contends that

there was nothing unusual about Barron paying him by check for legal services because the

evidence showed that Barron wrote several checks to him, including some for attorney’s fees.

23 Building on this foundation, Little asserts that there was insufficient evidence to

establish his guilt as a primary actor for the misapplication of the $28,500 taken by Barron.

Regarding the law of parties, Little contends that the evidence was also insufficient because the

State had the burden but failed to prove that he had the “specific intent to commit the result of

the offense, which is misapplying property in a manner that involves substantial risk [of loss] to

the BWSC.” More specifically, he argues that the State failed to show that he participated in an

alleged offense or did any act evidencing “his intent that an offense be committed,” meaning that

the funds be misapplied. Additionally, he contends that the evidence did not establish that he

had any intent to facilitate the offense before Barron committed any alleged misapplication and

that evidence regarding events occurring after the alleged misapplication could not serve to

establish any culpable intent. For all these reasons, Little urges that his conviction should be

reversed and that this Court should render a judgment of acquittal.

As an initial matter, we note that Lisson, who testified as an expert on nonprofit

corporations, explained that if a lawyer wants to have a nonprofit pay attorney’s fees, the lawyer

should set up a retainer agreement specifying the terms of the representation, the lawyer’s fees,

and the scope of the lawyer’s duty. Although Little produced an invoice, no record regarding

any retainer agreement or a resolution agreeing to pay attorney’s fees was presented at trial, and

witnesses testified that BWSC’s records do not provide any information regarding any alleged

service performed by him on behalf of BWSC. Further, Little and Barron both testified that they

returned all records in their possession to BWSC.

Additionally, Lisson testified that anyone who receives service from a water

supply corporation is a member of that corporation and that the assets of a water supply

corporation must be used solely to benefit the corporation and its members. Moreover, the

24 original articles of incorporation explained that the purpose of BWSC was to furnish water to

individuals residing in Barnhart and to the surrounding rural area, and the original bylaws

specified and witnesses testified that anyone owning or having a right to occupy property in the

governing area has the right to become a member by paying a membership fee used for

connecting to the BWSC system. The evidence also showed that the residents of Barnhart and

surrounding areas were customers of BWSC and were connected to the system, and the jury was

free to infer from this evidence that the residents were members of BWSC. In addition, the

bylaws stated that even if the bylaws were subsequently amended by a vote of the members, the

bylaws could not be amended to deprive any members of his or her rights as a member.

Despite the language of the bylaws and articles of incorporation and the fact

that multiple residents were receiving water service from BWSC, Little drafted a resolution

identifying Barron, Smith, and him as the only members of BWSC and transferring authority and

control over its assets to them without a vote by the residents. Smith testified that Little never

mentioned that he was going to prepare a document naming Barron, Smith, and Little as the only

members. The resolution effectively deprived the residents of their rights as members of BWSC.

Moreover, although there was conflicting evidence, two of the previous directors testified that

they did not sign the unanimous resolution. In addition, Little testified that he personally drafted

his own membership certificate as well as the membership certificates for Barron and Smith.

Similarly, prior to the alleged misapplication of money, Little drafted and voted to approve

amended bylaws giving Barron the power to sign checks on behalf of BWSC without the need

for another officer or director’s approval. The amended bylaws also named Barron, Smith, and

Little as officers and directors even though Little did not receive water service from BWSC and

even though the bylaws were not voted on by the residents. Further, as set out previously, on the

25 recording of the October meeting, Little stated that the former board sold away the residents’

rights to control BWSC, that the customers were not members, and that Barron and he were

“lining our pockets.”

Additionally, the auditor with the Attorney General’s Office, Downman, testified

that BWSC typically spent money on vendors, maintenance, and a salary for the bookkeeper but

that the expenditures changed when Barron and Little became directors. Specifically, Downman

related that BWSC started paying for things that seemed unrelated to BWSC’s purposes.

Moreover, regarding the backhoe sale, Downman explained that on the same day that Barron

received $28,500, he wrote Little a check for the same amount ostensibly for attorney’s fees.

However, Downman testified that there were no legal events involving BWSC at that time and

that Barron had previously hired Little to defend him in his aggravated-assault case but had not

paid him for those services. Moreover, evidence presented at trial, including Barron’s testimony,

established that the payment of the $28,500 at that time was unusual because Barron had in the

past paid attorney’s fees when legal services were rendered.

In addition, although Barron testified that he purchased the backhoe to help

facilitate BWSC’s purposes, other evidence was introduced contradicting that assertion. For

example, the current president of BWSC, Barrera, testified that Barron used BWSC funds to

purchase the backhoe after he was unable to sell it for several months, that the purchase was a

waste of money for BWSC because it rarely needs to use that type of equipment and can rent the

equipment when needed or rely on one of the residents to donate their equipment for a project,

that BWSC did not use the backhoe after Barron sold it, that BWSC had no place to store the

backhoe, and that the backhoe deteriorated while outside. In addition, Smith, who was the third

director with Barron and Little, testified that Barron used the backhoe on his personal property

26 and that Barron used the backhoe for his personal use as well as for BWSC purposes. Similarly,

the former bookkeeper, Baumann, explained that Barron instructed her to write him a check from

BWSC’s account for an amount that he specified the backhoe was worth but that the backhoe

was unnecessary because their water system was new and because residents would donate their

time and equipment for water projects.

Regarding Little, Baumann testified that he informed her by email that Barron and

he authorized the purchase and transfer of the funds as directors and that he terminated her

employment after she refused to write Barron the check without approval by the residents. In the

email Little wrote to Barron attaching a bill of sale for the backhoe, Little wrote that he voted

in favor of the acquisition, and the attached bill of sale stated that the purchase price was

$28,500. However, Baumann related that an individual who sells backhoes informed her that the

backhoe was not worth the price suggested by Barron and that the bill of sale did not provide

enough information to determine its value or its condition. The current secretary for BWSC,

Kuykendall, explained that BWSC rarely had to use equipment and that Barron used the backhoe

on his personal property. Further, Barron wrote a check to Little for the exact same amount on

the same day that Barron deposited the funds.

In his testimony, Barron admitted that he wrote himself a check from BWSC’s

account to purchase the backhoe because he needed money for back surgery, that he wrote a

check to Little for the same amount on the same day, that he did not remember if he paid Little

for defending him in the aggravated-assault case, that the $28,500 check may have been

compensation for Little representing him in the criminal case, and that there was no legal

business related to BWSC occurring at that time. Moreover, Little admitted that he fired

27 Baumann and received those funds after preparing the bill of sale for the backhoe, and he

testified that Barron did not have any money of his own at the time.

Regarding the $16,000 that Little asserts were payment for attorney’s fees for the

civil lawsuits, we note as set out above that there was no retainer or other agreement in BWSC’s

records approving the payment of fees or setting out the terms of Little’s representation, the

scope of the representation, or the manner in which he would be compensated. Moreover, as

discussed above, Little drafted the resolution and amended bylaws giving Barron and himself

authority over BWSC’s assets, and Little stated during the meeting with the residents that Barron

and he took over BWSC to “lin[e] our pockets” before accepting the $16,000. In addition,

regarding the civil suit initiated by the residents of Barnhart who were customers of BWSC,

evidence was presented showing that the suit was prompted when BWSC funds were used to

purchase the backhoe and that the suit was filed to prevent Barron and Little from draining

any more of BWSC’s assets. However, prior to an injunction being issued, Barron continued to

make withdrawals from BWSC’s account and transfer the money to Little. Further, evidence

showed that after the customers filed suit, Little filed suit against the customers of BWSC on

behalf of Barron and BWSC, and the jury could reasonably infer that this lawsuit was not

consistent with BWSC’s purpose of providing water service to the residents of Barnhart.

Additionally, Barron admitted that he did not know if the $10,000 cashier’s check was issued for

the benefit of BWSC or its members.

Based on the preceding, we must conclude that a reasonable jury could have

determined that Barron intentionally, knowingly, or recklessly misapplied BWSC’s property

with a value of more than $30,000 but less than $150,000 that he held as a fiduciary, that the

misapplication involved a substantial risk of loss of the funds to BWSC, that the misapplication

28 occurred in a manner that was not necessary or consistent with BWSC’s purpose of providing

water service to the residents of Barnhart, and that the misapplication was inconsistent with the

directives of the Business Organizations Code provisions prohibiting officers and directors from

receiving profits from a nonprofit organization. See Tex. Bus. Orgs. Code §§ 22.053-.054; Tex.

Penal Code § 32.45. Further, we also conclude that a reasonable jury could have determined that

Little acted with the intent to promote or assist the misapplication of the property and aided

Barron to commit the offense and was, therefore, liable under the law of parties. See Tex. Penal

Code § 7.02(a)(2); see also Amaya v. State, 733 S.W.2d 168, 174 (Tex. Crim. App. 1986)

(explaining that individual can be held accountable as party where there is “indication that they

knew that they were assisting in the commission of an offense”).

In his first issue, Little presents another argument regarding the $28,500.

Specifically, Little notes that Barron sold the backhoe to BWSC for $28,500 and argues that at

the point of sale, the backhoe became the property of BWSC and one of its assets as listed in the

settlement agreement executed. Further, Little emphasizes that the backhoe was later sold for

$24,000. In light of the preceding, Little contends that at most there is a price differential of

$4,500, that the only risk to BWSC was the loss of this differential, and accordingly that the full

value of the backhoe could not have been misapplied. Building on this premise, Little asserts

that this differential and the remaining value of the funds allegedly misapplied ($16,000)

could not support a misapplication of more than $30,000 and that, therefore, the evidence was

insufficient to support his conviction. Further, Little contends that unlike theft, which requires

proof of an intent to deprive rather than an actual deprivation, see Tex. Penal Code § 31.03,

misapplication of fiduciary property requires a completed misapplication.

29 Although Little suggests that there should be some sort of offset if an entity

whose property has been misapplied is able to recoup some value following the misapplication,

he has not referred to any cases supporting his interpretation of the statute, and the language of

the statute is not amenable to that interpretation either. Cf. Liverman v. State, 470 S.W.3d 831,

836 (Tex. Crim. App. 2015) (noting that “[i]n some cases, . . . a sufficiency-of-the-evidence issue

turns on the meaning of the statute under which the defendant has been prosecuted” and that

“[t]hat question, like all statutory construction questions, is a question of law, which we review

de novo”). As set out above, an individual commits the offense of misapplication of fiduciary

property if he misapplies property “in a manner that involves substantial risk of loss to the owner

of the property or to a person for whose benefit the property is held” and specifies that the

offense is a third-degree felony “if the value of the property misapplied is $30,000 or more but

less than $150,000.” Tex. Penal Code § 32.45(b), (c)(5). The language of the statute focuses on

the manner in which the alleged offender handled the property rather than requiring an accounting

to determine if the victim was able to recoup some value following the misapplication.

This construction is consistent with how the Court of Criminal Appeals has

construed the phrase “substantial risk of loss” and with the way courts have addressed the issue

of recoupment for similar offenses. In Casilias v. State, the Court of Criminal Appeals explained

that “substantial risk of loss” implies “a ‘real possibility’ of loss,” meaning one that “exists but

does not rise to the level of a substantial certainty.” 733 S.W.2d 158, 164 (Tex. Crim. App.

1986). In other words, it does not have to be “‘unlikely’ that the property will be recovered, but

the risk of loss does have to be a positive possibility,” meaning “more likely than not.” Id.;

Black v. State, 551 S.W.3d 819, 831 (Tex. App.—Corpus Christi-Edinburg 2018, no pet.)

(explaining that statute only requires proof of substantial risk of loss to owner, “not actual loss,”

30 and that jury could infer that initiating transaction placed funds at substantial risk of loss even

though transactions were ultimately undone). However, the Court also clarified that the amount

of proof needed to satisfy “the substantial risk of loss” is less than what is needed to show

that someone had been “deprive[d]” of property in a theft offense where the alleged offender

intended to dispose of property in a manner making its recovery “unlikely.” Casilias, 733 S.W.2d

at 164 (discussing section 31.01 of Penal Code pertaining to theft offenses).

Moreover, although Little focuses on the “intent to deprive” element for theft

offenses to distinguish it from misapplication offenses, theft still requires that the defendant

“unlawfully appropriate[] property” by bringing about a transfer of the title or other

nonpossessory interest in the property or acquire or exercise control over the property, see Tex.

Penal Code §§ 31.01(4), .03, which is similar to the requirement for the offense in question that

the person misapply the property, see id. § 32.45. Additionally, for theft offenses, our sister

court has explained that the later repayment of the money does not render insufficient the

evidence supporting a conviction for theft. See Ellis v. State, 714 S.W.2d 465, 475 (Tex. App.—

Houston [1st Dist.] 1986, pet. ref’d) (holding “that the temporary deprivation of the funds”

supports conviction); see also Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981)

(explaining that “[t]he fact that the deprivation later became temporary does not automatically

mean that there was no intent to deprive permanently or for so long as to satisfy the statutory

definition”).

Given the construction of the phrase “substantial risk of loss” adopted by the

Court of Criminal Appeals, the Court’s explanation that the evidence needed to establish that

element is less than the evidence needed to establish deprivation of property for theft offenses,

and the legal determination by courts establishing that the repayment or recoupment of funds

31 does not render evidence insufficient to support a conviction for similar offenses, we conclude

that the evidence establishing that BWSC was able to sell the backhoe for $24,000 does not

without more render the evidence insufficient to support the jury’s determination that Little

misapplied property in a manner creating a substantial risk that BWSC would lose $30,000

or more but less than $150,000 of its funds. Cf. Demond v. State, 452 S.W.3d 435, 448 (Tex.

App.—Austin 2014, pet. ref’d) (observing that even if defendant provided some value, jury

could still infer that defendant misapplied funds).

For all these reasons, we overrule Little’s first three issues on appeal.

Evidence Concerning Currency

In his fourth issue on appeal, Little notes that the indictment alleged that he

misapplied “property, namely United States Currency, of the value of $30,000 or more but less

than $150,000”; however, he contends that the evidence from trial showed that “the means of

misapplication of fiduciary property” for some of the property was executed “by [a] check drawn

on the [BWSC] account made payable to Michael Barron” for $28,500. After emphasizing the

evidence pertaining to the check made out to Barron, Little contends that he “did not have any

signatory authority over the BWSC account or Barron’s bank account” and, therefore, “never

had any control over the misappropriated funds” because he did not and could not have cashed

the check misappropriating money. Although Little concedes that a person “who converts a

check made out to him into cash could certainly be said to exercise control over the currency

represented by the check,” he asserts that did not happen in this case because the “check was

made out to a third party passed through the third party’s hands and then allegedly to [him] in the

form of another check.” “In other words,” Little argues that he “may have exercised control over

32 a subsequent check, but not the currency represented by the original check to Barron,” did

not misapply the currency as alleged, and could not have exercised “control over the [original]

check to the extent that it could be treated as money.” Relatedly, Little contends that because the

State alleged the misappropriation of “United States Currency” as opposed to cash or money, this

case presents a different situation than other appellate cases concluding that a person who

exercises control over a check also exercises control over the money it represents. Little asserts

that although BWSC may have had assets of value, there was no evidence that it “held any

‘United States Currency’ that [he] exercised control over.” Moreover, Little urges that the

variance between the allegations and the evidence at trial renders the evidence insufficient to

support his conviction and requests that this Court reverse his conviction and render a judgment

of acquittal.

As an initial matter, we note that “courts have repeatedly held that there is

no variance between an indictment that alleges theft of ‘money’ and proof at trial that

establishes theft of a ‘check.’” See Chachere v. State, 811 S.W.2d 135, 136 (Tex. App.—

Houston [1st Dist.] 1991, pet. ref’d); see also Jackson v. State, 646 S.W.2d 225, 226 (Tex. Crim.

App. 1983) (overruling sufficiency challenge arguing evidence was insufficient because

indictment alleged theft of money but evidence showed theft of check that had been cashed by

defendant); Grogen v. State, 745 S.W.2d 450, 451 (Tex. App.—Houston [1st Dist.] 1988, no

pet.) (same). This is because “a check is considered the same as cash” in most cases “due to the

ease of negotiating the check into cash,” Chachere, 811 S.W.2d at 136, and due to the fact that

checks are simply the instrumentality by which someone receives cash, Jackson, 646 S.W.2d

at 226; Kirkpatrick v. State, 515 S.W.2d 289, 293 (Tex. Crim. App. 1974). Moreover, in this

case, the indictment specified that the “making and receiving” of the currency was effectuated

33 through the five checks discussed above. Cf. Compton v. State, 607 S.W.2d 246, 252 (Tex.

Crim. App. 1979) (on reh’g) (explaining that once defendant negotiates check, he exercises

control over it and its proceeds). Furthermore, although Little contends that there is a significant

distinction between the term “currency” as alleged in the indictment and the terms “money”

and “cash” rendering the above cases and others inapplicable, we do not agree with that

distinction because currency is a synonym for cash and money. See Cash, Currency, and

Money, Thesaurus.com, https://www.thesaurus.com (last visited March 7, 2023); see also

Cash, Dictionary.com, https://www.dictionary.com/browse/cash (defining cash as “money

or an equivalent, as a check”) (last visited March 7, 2023); Currency, Dictionary.com,

https://www.dictionary.com/browse/currency (defining currency as “something that is used

as a medium of exchange; money”) (last visited March 7, 2023); Money, Dictionary.com,

https://www.dictionary.com/browse/money (defining money as “any circulating medium of

exchange, including coins, paper money, and demand deposits” and “checks”) (last visited

March 7, 2023).

Accordingly, to the extent that Little is asserting that there is a variance between

the allegations in the indictment and the proof offered at trial because the indictment alleged

misapplication of currency rather than misapplication of checks, money, or cash, we cannot

agree with Little’s assertion that the alleged variance renders the evidence presented insufficient

to support his conviction. Moreover, as set out above, the jury charge included instructions on

the law of parties, and for the reasons discussed previously, the evidence was sufficient to allow

the jury to reasonably infer that Little acted with the intent to promote or assist Barron in the

misapplication of BWSC’s property, including the $28,500 in funds transferred from BWSC to

Barron, and aided Barron to commit the offense. See Tex. Penal Code § 7.02(a)(2); see also

34 Ammons v. State, 782 S.W.2d 539, 541 (Tex. App.—Houston [14th Dist.] 1989, no pet.)

(explaining that “a party to an offense may be charged without alleging facts which make the

defendant a party to the offense and criminally responsible for the conduct of another” and

noting “that an indictment which does not give reference [to] the law of parties does not present

a constitutional infirmity”).

For these reasons, we overrule Little’s fourth issue on appeal.

Indictment Amendment

In his final issue on appeal, Little asserts that the trial court erred by allowing the

State to amend the indictment. Specifically, he notes that the trial court agreed to amend the

indictment by adding language stating that the allegedly improper payments made and received

were “particularly described on Attachment A” and attaching to the indictment a list of the five

checks discussed above. However, Little asserts that the amendment was improper because the

incorporation of the list of checks in Attachment A was not part of the face of the indictment, an

interlineation of the original indictment, or an amended photocopy of the original indictment.

Instead, he contends that Attachment A was a separate document that was not part of the

indictment and, therefore, could not be considered a valid amendment. Further, he argues that

the trial court’s authorization of the amendment harmed him because the amendment “goes to the

heart of the contested issues” at trial, which he contends were the amount of money allegedly

misapplied, whether he had the requisite intent to commit an offense, and whether there had been

a misapplication. Additionally, he contends that the invalidly amended indictment did not allow

him to prepare a defense prior to trial and allows for the possibility of him being prosecuted

35 again for the same offense. Accordingly, Little asserts that this Court should reverse his

conviction and remand the case with instructions for the trial court to dismiss the case.

In response to the State’s motion to amend the indictment, Little filed a reply

asserting that the proposed amendments did not provide him notice of what he was accused, that

the shorter time period identified in the attachment in which the allegedly improper transfers

occurred was not consistent with the longer time period alleged in the indictment, and that the

amended indictment did not inform him how he acted recklessly. Little also argued that the

payments he received were for reasonable attorney’s fees and reasserted his claim from earlier

motions that the trial court should quash the indictment. During the hearing on the State’s

motion to amend, Little’s motion to quash, and other motions, Little asserted that indictment did

not specify how he recklessly spent the allegedly misapplied money, that the amount of money

allegedly misapplied fell below the $30,000 minimum listed in the indictment, that the evidence

will show that he did not misapply money, and that the State failed to comply with various

discovery requests. However, Little did not make any assertion regarding the propriety of

amending the indictment to include Attachment A.

Under article 1.14 of the Code of Criminal Procedure, a defendant “waives and

forfeits the right to object” “to a defect, error, or irregularity of form or substance in an

indictment” and “may not raise the objection on appeal” if he “does not object to [the] defect,

error, or irregularity . . . before the date on which the trial on the merits commences.” Tex. Code

Crim. Proc. art. 1.14(b); see Jones v. State, 907 S.W.2d 850, 857 (Tex. App.—Houston [1st

Dist.] 1995, pet. ref’d); see also Ex parte Jessep, 281 S.W.3d 675, 680 (Tex. App.—Amarillo

2009, pet. ref’d) (noting that “[t]he statute serves the purpose of ensuring that indictment defects

may be objected to and repaired pretrial but would not invalidate an otherwise valid conviction if

36 not raised before trial”). Little’s complaint concerns an alleged “defect, error, or irregularity

of form or substance in the” amended indictment, and he was therefore “required to raise an

objection prior to trial.” Jones, 907 S.W.2d at 858. By failing to object before trial to the

allegedly improper amendment on the grounds presented on appeal, Little is prohibited from

presenting those arguments here. See Tex. Code Crim. Proc. art. 1.14(b); Tex. R. App. P. 33.1;

Duffy v. State, 33 S.W.3d 17, 26 (Tex. App.—El Paso 2000, no pet.); see also Jenkins v. State,

592 S.W.3d 894, 902 (Tex. Crim. App. 2018) (recognizing that Texas law requires defendant to

object to any error in indictment before trial).

Even if Little’s objections could be construed as attacking the propriety of

amending the indictment to include Attachment A, we would be unable to sustain his fifth

issue. The Court of Criminal Appeals has explained that making interlineations in the original

indictment is an acceptable but not exclusive way to properly amend an indictment and expressly

overruled prior cases requiring actual physical interlineation of the original indictment. See

Riney v. State, 28 S.W.3d 561, 565-66 (Tex. Crim. App. 2000). In that case, the Court also

approved the filing of an interlineated photocopy of the indictment. Id. In light of the analysis

from Riney, our sister court has interpreted the case “as allowing flexibility in amending

indictments provided that the method of amendment employed produces an amended copy

of the indictment incorporated into the record under the direction of the trial court sufficient

to give the defendant fair notice of the charges,” see Harrison v. State, No. 05-07-00453-CR,

2008 WL 2514333, at *1 (Tex. App.—Dallas June 25, 2008, no pet.) (op., not designated for

publication), and we agree with that interpretation, see Tex. Code Crim. Proc. art. 28.11

(explaining that indictment amendments “shall be made with the leave of the court and under

its direction”).

37 In this case, the State set out the proposed changes in its motion to amend,

including Attachment A, and the proposed amendment to the indictment was approved by the

trial court after it was discussed during a hearing in which the parties were given the opportunity

to present argument regarding the propriety of the proposed changes. Like the original

indictment, the amended indictment was made part of the clerk’s record. As discussed above,

the proposed changes included Attachment A and the interlineations made to a copy of the

indictment clarifying that the allegedly improper payments made and received were described

in Attachment A. Both the interlineation on the copy of the indictment and Attachment A bear

the trial judge’s initials and date of the modification. On this record, we conclude that the

amendments met the objectives for an amendment set out in Riney. See Barfield v. State,

202 S.W.3d 912, 920-21 (Tex. App.—Texarkana 2006, pet. ref’d) (upholding amendment made

by attaching copy of language from State’s motion to order granting amendment and stating

“SEE ATTACHED” in order); Westmoreland v. State, 174 S.W.3d 282, 287 (Tex. App.—Tyler

2005, pet. ref’d) (concluding that trial court’s order granting State’s motion to amend was

sufficient to amend indictment where State’s motion included original indictment language

and proposed changes, where defendant was present at hearing and had notice of amendment,

and where order granting motion included amended language to original indictment requested

by State).

For these reasons, we overrule Little’s fifth issue on appeal.

CONCLUSION

Having overruled Little’s five issues on appeal, we affirm the trial court’s

judgment of conviction.

38 __________________________________________ Thomas J. Baker, Justice

Before Justices Baker, Kelly, and Smith

Affirmed

Filed: March 9, 2023

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