NUMBER 13-22-00038-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOANIE MARTINEZ COSPER, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 377th District Court of Victoria County, Texas.
OPINION
Before Justices Longoria, Silva, and Peña Memorandum Opinion by Justice Peña
Appellant Joanie Martinez Cosper appeals her convictions for one count of
misapplication of fiduciary property with a value of $150,000 or more but less than
$300,000, and one count of exploitation of an elderly individual. See TEX. PENAL CODE
ANN. §§ 32.45(c)(6), 32.53(b), (c). Both offenses were enhanced by reason of a prior
felony conviction, with Cosper being found guilty of a first-degree felony for misapplication of fiduciary property and a second-degree felony for exploitation of an elderly person. See
id. §§ 32.45(d), 12.42(a). A jury found Cosper guilty as charged in the indictment and the
trial court sentenced her to forty years’ imprisonment as to count one and twenty years’
imprisonment as to count two, to be served concurrently. As to count one, Cosper argues
that there was insufficient evidence to show that she misapplied fiduciary property or that
the misapplication was in excess of $150,000. As to count two, Cosper argues that there
was insufficient evidence to show that she made illegal or improper use of the resources
of the complainant, Myrl Cosper, who was eighty-seven years old on the date alleged in
the indictment. We affirm in part, reverse in part, and render a judgment of acquittal as to
the charge of misapplication of fiduciary property.
I. BACKGROUND
Cosper was hired as a caregiver on March 24, 2020 by the company Senior
Helpers. As part of her employment, Cosper was placed in the home of Norma Jean
Cosper, for whom she was to provide caretaking services for, including help with
ambulation, feeding, giving medication reminders, and light housekeeping. Senior
Helpers had been hired by Norma Jean’s husband, Myrl. Senior Helpers soon became
aware that Myrl was asking several of the caretakers from Senior Helpers assigned to
Norma Jean to work privately, in violation of company policy and procedures.
Nineteen days after being hired, on April 12, 2020, Cosper effectively ended her
employment with Senior Helpers, citing a family medical emergency. Senior Helpers soon
became aware that Cosper had in fact accepted private employment from Myrl to care for
Norma Jean. Myrl and Norma Jean’s daughter, Carol Davis, who lived in the
neighborhood next to her parents with her husband Paul Davis, would visit her mother at
2 home while Cosper was working, unaware of Cosper’s private employment arrangement.
It was not until Cosper contacted Carol telling her that she had been fired from Senior
Helpers that Carol and Paul became aware that Senior Helpers was no longer providing
services for Norma Jean. At first, although Carol and Paul found this situation problematic,
they knew that Myrl got along with only a few people, and they were happy that at least
Myrl had found somebody he liked to care for Norma Jean.
Carol soon became concerned with the entire arrangement when she noticed an
unusual $5,000 cash withdrawal from Myrl’s Wells Fargo bank account, which he shared
with Carol and Norma Jean. Soon after, Myrl transferred the remaining balance from this
account, amounting to $45,296.34, to a new Wells Fargo account opened only in his
name. Bank records show that on this new Wells Fargo account multiple in-store cash
withdrawals were made throughout the year 2020, including a cash withdrawal of $28,000
in June, a total of $16,500 cash withdrawals in July, $7,500 cash withdrawals in August,
$15,000 cash withdrawals in September, and a $5,000 cash withdrawal in October. Also,
during this time, there were multiple transfers from Myrl’s Edward Jones investment
account into his new Wells Fargo account, including a $25,000 transfer on June 30, 2020,
and a $78,480.61 transfer the following month.
On August 3, 2020, Carol filed an application for guardianship of Myrl, citing her
fear that he was unable to safely drive and noting that on April 9, 2020, Myrl’s doctor, Dr.
Henry Grant, diagnosed Myrl with “severe” dementia. A few weeks after Carol’s
guardianship application was filed, Myrl hired attorney Leslie Werner to draft the following
documents: a statutory durable power of attorney naming his daughter Leslie Holmes as
initial agent and Cosper as successor agent; a medical power of attorney naming Cosper
3 as initial agent and Leslie Holmes as successor agent; and a new will that no longer had
Norma Jean as the sole beneficiary, but instead named Holmes as sole beneficiary with
Cosper as successor beneficiary. Around that same time, Myrl saw another doctor, Dr.
Eliezer Castaneda, who examined Myrl and diagnosed him within the cognitive range of
“normal older adult” and as having “early dementia.” Shortly thereafter, at the end of the
month, Carol dismissed her guardianship suit.
On October 21, 2020, Norma Jean died. Sixteen days later, Cosper and Myrl were
married on November 6th, and on November 9th, Cosper was added to Myrl’s new Wells
Fargo account. From the date of their marriage until the end of November, in-store cash
withdrawals were made from the Wells Fargo account totaling $41,500. And in December,
there was a $10,777 in-store cash withdrawal from the account. Also, on November 10th,
Myrl hired Werner to prepare the following documents: a statutory durable power of
attorney naming Cosper as initial agent and Holmes as successor agent; a gift deed giving
Cosper an undivided one-half interest in Myrl’s residence in Inez, Texas (Inez property),
valued at approximately $332,310; and a new will naming Cosper as sole beneficiary,
with Holmes as successor beneficiary.
The State further presented evidence that around this same time, Cosper and Myrl
went to Edward Jones with their marriage certificate so that she could be added to his
investment account as a beneficiary. Myrl’s financial advisor at Edward Jones, Robert
Gomez, testified that because he knew that Myrl’s wife had just died, Gomez alerted his
field supervisor, and the account was frozen the next day. He also contacted Adult
Protective Services. According to Gomez’s testimony, Cosper later came to his office with
4 a “Power of Attorney” 1 and attempted to liquidate the assets in the investment account
but was unable to because the account had been frozen. Cosper further attempted to
gain authorization to liquidate by having Myrl call Gomez and by showing Gomez a
prerecorded video of Myrl in a hospital bed telling Gomez to liquidate the account. At the
time of the attempted liquidation, Gomez stated that there was around $300,000 in the
investment account but noted that he could not “recall” precisely.
Two of the $10,000 November withdrawals triggered suspicious activity reports,
and along with Carol contacting the authorities, lead to an investigation of Cosper and her
eventual arrest. During this time period, in December of 2020, Carol again filed an
application for guardianship of Myrl and also filed and received a temporary restraining
order against Cosper. After her arrest, Cosper deeded back her interest in the Inez
property to Myrl.
At trial, the State presented the bank records from both of Myrl’s Wells Fargo
accounts for the relevant time periods. These records only show the date of the
withdrawals, the amount withdrawn, and describe the transaction as “Withdrawal Made
in A Branch/Store.” The State did not provide any evidence of Cosper’s own bank activity.
Lead Investigator Anthony Daniel of the Victoria County Sherriff’s Office affirmed that he
did not obtain any evidence as to who made the in-store cash withdrawals from Wells
Fargo, or where that money went. When asked whether he could “produce any
documents to the jury that say[] [Cosper] withdrew that [$]150,000” as alleged,
Investigator Daniel answered “No.” Additionally, Myrl was not called to testify as to whom
1 The statutory durable power of attorney under which Cosper was initial agent only came into effect
upon Myrl’s disability or incapacity. See TEX. EST. CODE ANN. § 751.0021(a)(3) (requiring that a durable power of attorney include language addressing the consequence of disability or incapacity of the principal).
5 withdrew the money or where it went, as his dementia diagnosis rendered him
incapacitated. The State, however, presented two checks made from Myrl to Cosper
during the month of August 2020, totaling $3,020. The State also presented evidence that
shortly after the $28,000 cash withdrawal in June of 2020, Cosper purchased a Toyota
RAV4 for $25,900, and paid in cash. Myrl reportedly told Investigator Daniel that Myrl
withdrew the money so that Cosper could purchase a vehicle. Gomez also testified that
when Myrl separately transferred $25,000 and $78,480 in late June of 2020 out of his
Edward Jones account, that the money was for a “new vehicle.”
A jury found Cosper guilty as charged in the indictment and the trial court
sentenced her to forty years’ imprisonment on count one and twenty years’ imprisonment
on count two, to be served concurrently. This appeal followed.
II. STANDARD OF REVIEW
“Under the Due Process Clause, a criminal conviction must be based on legally
sufficient evidence.” Harrell v. State, 620 S.W.3d 910, 913 (Tex. Crim. App. 2021) (citing
Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015)). Evidence is legally
sufficient if “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Joe v. State, 663 S.W.3d 728, 731–32 (Tex. Crim. App.
2022) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Under a legal sufficiency
review, we view the evidence in the light most favorable to the verdict, while recognizing
that “[t]he trier of fact is responsible for resolving conflicts in the testimony, weighing the
evidence, and drawing reasonable inferences from basic facts to ultimate facts.” Id. at
732.
6 We measure the evidence produced at trial against the essential elements of the
offense as defined by a hypothetically correct jury charge. David v. State, 663 S.W.3d
673, 678 (Tex. Crim. App. 2022) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.
App. 1997)). “A hypothetically correct jury charge ‘accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s burden of proof
or unnecessarily restrict the State’s theories of liability, and adequately describes the
particular offense for which the defendant was tried.’” Id. (quoting Malik, 953 S.W.2d at
240).
III. DISCUSSION
A. Misapplication of Fiduciary Property
Cosper argues that the evidence presented at trial was insufficient because she
was neither a “fiduciary,” nor did she “misapply” property, as those terms are defined in
the statute of conviction. See TEX. PENAL CODE ANN. § 32.45(a)(1), (2). Cosper further
argues that even if the State did prove her fiduciary status and misapplication, the
evidence was insufficient to prove that the property misapplied was in excess of
$150,000. Under a hypothetically correct jury charge, the State must prove beyond a
reasonable doubt that Cosper (1) intentionally, knowingly, or recklessly, (2) misapplied
(3) property she held as a fiduciary or property of a financial institution, (4) in a manner
that involves substantial risk of loss, (5) to the owner of the property or to a person for
whose benefit the property is held. Id. § 32.45(b); see Skillern v. State, 355 S.W.3d 262,
268 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (defining the elements of
misapplication of fiduciary property). Because we find that the State presented insufficient
7 evidence of misapplication, we assume without deciding that Cosper was a fiduciary for
the relevant time periods relied upon by the State.
A person “misapplies” fiduciary property when he or she “deal[s] 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 ANN.
§ 32.45(a)(2); see id. § 31.01 (5)(C) (noting that money is considered “property” under
the penal code); see also Deal, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining the
verb “deal” as “to distribute (something),” “to transact business with (a person or entity),”
or “to conspire with (a person or entity)” (cleaned up)). The State does not argue that
Cosper’s actions violated any statute. See TEX. PENAL CODE ANN. § 32.45(a)(2)(B). For
example, the State does not allege that any of Cosper’s actions violate the Texas Probate
Code. See Black v. State, 551 S.W.3d 819, 822 (Tex. App.—Corpus Christi–Edinburg
2018, no pet.) (affirming conviction of appellant who was indicted for violating the “Texas
Probate Code, Durable Power of Attorney Act”). 2 Thus, for each alleged instance of
misapplication, the State had the burden to prove that (1) Cosper and Myrl had an
agreement as to how she was to use the property, and (2) Cosper’s actions violated that
agreement. See Skillern, 355 S.W.3d at 268. “Agreement” means “the act of agreeing or
coming to a mutual agreement; a harmonious understanding; or an arrangement (as
between two or more parties) as to a course of action.” Bynum v. State, 711 S.W.2d 321,
2 The Texas Probate Code imposes affirmative duties on an attorney in fact to “inform and to
account for actions taken [pursuant to] the power of attorney.” TEX. EST. CODE ANN. § 751.101. Such affirmative duties imposed by law are especially relevant where, as here, the State alleges that a complainant’s diminished capacity complicates his or her ability to enter into an agreement at all, as required by the alternative subsection of the statute. See TEX. PENAL CODE ANN. § 32.45(a)(2)(A).
8 323 (Tex. App.—Amarillo 1986), aff’d, 767 S.W.2d 769 (Tex. Crim. App. 1989) (citation
omitted).
For several of the alleged acts of misapplication, the evidence is insufficient
because the State’s evidence shows that Cosper was, in fact, acting in accordance with
a “mutual agreement,” “harmonious understanding,” or “an arrangement” with Myrl. Id. A
major piece of evidence in the State’s case was Myrl’s withdrawal of $28,000 in June of
2020 and Cosper’s subsequent cash purchase of a vehicle for $25,900. Myrl reportedly
told Investigator Daniel that he gave Cosper the money for the express purpose of
purchasing the vehicle. He also told Gomez that the money taken out of his investment
account was for a “new vehicle.”
Another critical piece of evidence in the State’s case was the gift deed transfer of
an undivided one-half interest in the Inez property, which was valued at $332,310. Both
the cash and the interest in the Inez property were gifts, and thus, the State cannot show
that Cosper acted contrary to an agreement under which she held the property, nor even
that she “held” such property, as a fiduciary or otherwise. See TEX. PENAL CODE ANN.
§ 32.45(a)(2)(A); see also Bailey v. State, No. 03-02-00622-CR, 2003 WL 22859984, at
*5 (Tex. App.—Austin Dec. 4, 2003, pet. ref’d) (mem. op., not designated for publication)
(noting that the evidence could not show that appellant, who was accused of coercing
victim to deed over property to her, “held [property] in any capacity, fiduciary or otherwise,”
because the victim alone held title to the property and is the one who signed the deed
transferring his own interest in the property).
Likewise, the State cannot rely on any monetary interests that Cosper arguably
may have gained when Myrl named her as a beneficiary or agent under various legal
9 documents to demonstrate an actionable misapplication of property. Again, the voluntary
nature of Myrl’s actions show that Cosper was acting in accordance with an agreement
with Myrl. Each relevant power of attorney and testamentary document was prepared by
Werner who testified that she prepared each document at Myrl’s request. Further, Gomez
testified that Myrl came into his office with Cosper so that she could be added as a
beneficiary on his investment account. Thus, the State cannot show that Cosper’s actions
were contrary to any agreement with Myrl, see TEX. PENAL CODE ANN. § 32.45(a)(2)(A),
and the State’s misapplication claim necessarily fails. 3
For the remainder of the alleged acts of misapplication of fiduciary property, the
evidence is insufficient because the State failed to prove that Cosper and Myrl had any
agreement at all as to how to use the property. The State argues that the in-store cash
withdrawals from Wells Fargo satisfy the statute. The State failed to show, however, that
Cosper and Myrl had entered into any agreement as to how that money was to be used,
or proof that she acted contrary to any such agreement. In Skillern, the State alleged that
appellant misapplied her grandfather’s money that he had in a joint banking account with
appellant, and
The only evidence of a written agreement that the State presented at trial to support its contention that appellant owed an established duty to [her grandfather] under an agreement or statute and handled the money in contravention of that agreement was the fact that appellant was a joint owner of the Joint Account with [her grandfather], that [her grandfather]’s checks were the only funds deposited into the account, and that appellant
3 Such actions may have supported a conviction for fraudulent securing of document execution.
See TEX. PENAL CODE ANN. § 32.46. This statute criminalizes “caus[ing] another person . . . to sign or execute any document affecting property or service or the pecuniary interest of any person.” Id. § 32.46(a)(1). The statute further provides that “[c]onsent is not effective if: (A) induced by deception or coercion; (B) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable property dispositions; or (C) given by a person who by reason of advanced age is known by the actor to have a diminished capacity to make informed and rational decisions about the reasonable disposition of property.” Id. § 32.46(d)(3).
10 paid several of [her grandfather]’s bills . . . while spending other money on her own bills.
355 S.W.3d at 268.
Despite testimony from witnesses that they understood appellant to have “taken
over” her grandfather’s finances, the court of appeals in Skillern concluded that such
testimony, together with the lack of evidence of any agreement between the appellant
and her grandfather, was insufficient to support conviction and concluded that “the record
contains no evidence probative of the element of misapplication of property under an
agreement.” Id. at 270. Likewise, here, the State failed to present any evidence that
Cosper and Myrl entered into an agreement under which she held the funds in their joint
bank account. See TEX. PENAL CODE ANN. § 32.45(a)(2)(A).
This same logic applies with equal force to any reliance by the State on Cosper’s
attempt to liquidate Myrl’s Edward Jones account. The State failed to present any
evidence that Cosper and Myrl had an agreement as to how the funds in the Edward
Jones account were to be used, or that Cosper acted contrary to any such agreement
under which she held the property. See id. Further, even if we were to conclude that
Cosper in fact “held” the property at all, such property was never at “a substantial risk of
loss.” TEX. PENAL CODE ANN. § 32.45(b); see Black, 551 S.W.3d at 831 (finding substantial
risk of loss of fiduciary property where appellant used power of attorney to “initiate” the
transfer of money online from the victim’s bank account to purchase various things online
for her and her family, which the State supported by showing the charges made and
corresponding amounts, but where the bank canceled the online transactions); Demond
v. State, 452 S.W.3d 435, 460 (Tex. App.—Austin 2014, pet. ref’d) (finding that
misapplication was “complete” when appellant “authorized . . . funds to be transferred”);
11 see also United States v. Cauble, 706 F.2d 1322, 1354 (5th Cir. 1983) (noting that under
the federal offense of willful misapplication of bank funds, “the crime is complete at the
time the misapplication occurs,” and that “[t]he gravamen of the offense . . . is the
defendant’s depriving the bank of its right to have custody of its funds”) (citation omitted).
For all the above reasons, we find that the State failed to present sufficient
evidence to support conviction for misapplication of fiduciary property. We sustain
Cosper’s first issue. 4
B. Exploitation of an Elderly Individual
Cosper argues that there was insufficient evidence to support her conviction for
exploitation of an elderly individual. See TEX. PENAL CODE ANN. § 32.53. To find her guilty
of this offense, the State was required to prove beyond a reasonable doubt that (1) Cosper
(2) intentionally, knowingly, or recklessly (3) caused the exploitation of (4) Myrl, an elderly
person, (5) by illegally or improperly (6) using Myrl or his resources (7) for monetary or
personal benefit, profit, or gain. See id. § 32.53(a), (b). We note that this offense has no
monetary threshold, and thus any instance of exploitation will uphold a conviction for
count two.
The State failed to present any evidence that Cosper illegally used Myrl’s funds,
such as would be the case if there were proof that she made the in-store cash withdrawals
4 We note that after Cosper was arrested, the Legislature created a new penal offense: financial
abuse of an elderly induvial. See TEX. PENAL CODE ANN. § 32.55. This new offense does not require proof of a fiduciary relationship, only that the individual “has a relationship of confidence or trust with the other person.” Id. § 32.55(a)(3). The statute then enumerates several classes of individuals who are deemed to have “a relationship of confidence or trust with the other person,” including “a paid or unpaid caregiver of the other person.” Id. § 32.55(b)(5). The statute further creates “a rebuttable presumption that any transfer, appropriation, or use of an elderly individual’s money or other property by a person described by Subsection (b)(5) is wrongful . . . if it is shown on the trial of the offense that the actor knew or should have known that, at the time of the offense, the elderly individual had been diagnosed with dementia, Alzheimer’s disease, or a related disorder.” Id. § 32.55(f).
12 before being added to Myrl’s account and without his authorization. Thus, the State must
show that Cosper “improper[ly] use[d]” Myrl or his resources “for monetary or personal
benefit, profit, or gain.” Id. § 32.53(a)(2). The statute does not define the term “improper,”
and so we interpret that phrase in accordance with its plain meaning. See Ex parte
Valdez, 401 S.W.3d 651, 655 (Tex. Crim. App. 2013) (“We construe a statute in
accordance with the plain meaning of its text unless the plain meaning leads to absurd
results that the legislature could not have possibly intended.”). “‘Improper’ is commonly
defined as ‘not in accord with propriety, modesty, good manners, or good taste,’ or ‘not in
accordance with good manners, modesty, or decorum; unbecoming, unseemly;
indecorous, indecent[.]’” United States v. Stagno, 839 Fed. Appx. 112, 114 (9th Cir. 2020)
(citing Improper, OXFORD ENGLISH DICTIONARY (2nd ed. 1989)).
The evidence shows that Myrl withdrew $28,000 on June 17, 2020, when he was
eighty-six years old. On that same day, Cosper purchased a vehicle. Myrl reportedly told
Investigator Daniel that he withdrew the money so that Cosper could purchase the
vehicle. Gomez also testified that the large sums of money transferred out of Myrl’s
investment account were for “a new vehicle.” This evidence was sufficient for a rational
trier of fact to conclude that (1) Cosper (2) received a monetary benefit or gain (3) from
Myrl, an elderly individual. See TEX. PENAL CODE ANN. § 32.53(a); see also Marks v. State,
280 Ga. 70, 72, 623 S.E.2d 504, 507 (2005) (finding sufficient evidence of exploitation
under Georgia’s exploitation of an elder person statute, which is substantially similar to
the Texas statute, 5 based on evidence that the appellant persuaded the elderly victim to
5 Both Georgia and Texas law define “exploitation” similarly. In Georgia, it is a felony to knowingly
and willfully exploit an elder person, where the statute defines “exploitation” as “the illegal or improper use of a disabled adult or elder person or that person’s resources through undue influence, coercion, harassment, duress, deception, false representation, false pretense, or other similar means for one’s own
13 make a down payment on a new Ford Thunderbird on behalf of a co-conspirator, to sign
a buyer’s agreement to pay the balance in cash, and where the appellant took possession
of the title to the victim’s Oldsmobile, among other evidence).
The State’s evidence also showed that the $28,000 gift to Cosper ran contrary to
Myrl’s typical behavior, as several witnesses testified that Myrl was self-conscious and
conservative with his finances. Moreover, on April 9, 2020, more than two months prior
to Myrl’s $28,000 gift to Cosper, Dr. Grant diagnosed Myrl with “severe” dementia, finding
that his cognitive deficits rendered him unable to: “[m]ake complex business, managerial,
and financial decisions”; “[m]anage a personal bank account”; “[s]afely operate a motor
vehicle”; “[v]ote in a public election”; “[m]ake decisions regarding marriage”; “[d]etermine
[his own] residence”; “[a]dminister [his] own medications on a daily basis”; or to consent
in medical, psychological or psychiatric treatment. Notably, several months after the funds
for the vehicle were purportedly gifted to her, Cosper contacted multiple persons,
including Dr. Castaneda, seeking to have Myrl deemed incompetent and committed.
Thus, a jury could conclude that Cosper “intentionally, knowingly, or recklessly
cause[d] the exploitation” of Myrl by improperly influencing Myrl in his diminished capacity
at the time he provided her with the funds to purchase the vehicle. See TEX. PENAL CODE
ANN. § 32.53(a)(2) (defining “exploitation”); see also Escamilla v. State, 344 Ga. App. 654,
656, 811 S.E.2d 77, 79 (2018) (finding sufficient evidence of “improper influence” under
Georgia’s exploitation of an elder statute where the evidence showed that appellant
assisted the victim, who suffered from dementia, in removing large sums from the victim’s
account and to write a check for cash to her as a gift and where the evidence showed
or another’s profit or advantage.” GA. CODE ANN. § 30-5-3; see Bell v. State, 362 Ga. App. 631, 633, 869 S.E.2d 576, 578–79 (2022).
14 that the victim “had never before given such a large monetary gift,” among other
evidence).
Finally, Cosper’s necessary mental state may be inferred from the circumstantial
evidence presented by the State. See Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim.
App. 2018) (“[C]ircumstantial evidence is as probative as direct evidence in establishing
a defendant’s guilt, and circumstantial evidence can alone be sufficient to establish
guilt.”); Duntsch v. State, 568 S.W.3d 193, 216 (Tex. App.—Dallas 2018, pet. ref’d)
(noting that proof of mental state will almost always depend upon circumstantial
evidence); Walter v. State, 581 S.W.3d 957, 972 (Tex. App.—Eastland 2019, pet. ref’d)
(noting that mental state is a fact question to be determined by the jury from all the
circumstances). When reviewing the sufficiency of evidence as to intent, “we should look
at ‘events occurring before, during and after the commission of the offense and may rely
on actions of the defendant which show an understanding and common design to do the
prohibited act.’” Wirth v. State, 361 S.W.3d 694, 697 (Tex. Crim. App. 2012) (citation
The State presented the following evidence relevant to Cosper’s intent in taking
the $28,000 gift from Myrl to purchase a vehicle: proof that Cosper received training from
Senior Helpers covering the topic of exploitation prior to accepting the gift, including her
acknowledgment she understood that “[e]xploitation means improper use of [a] client’s
funds, property, or assets”; proof that Cosper violated the terms of her employment in
order to work for Myrl privately, quitting only nineteen days after being hired; proof that
Cosper lied to Senior Helpers when she resigned, stating falsely that she had a “family
emergency”; proof that when Senior Helpers was caring for Norma Jean multiple
15 caregivers were assigned to her, but after Cosper was hired to work privately she was the
only person to provide care; testimony from Carol and Paul that after Myrl hired Cosper
to work privately they had less access to Myrl and thought he was acting differently;
testimony from neighbor Sheila Alvarez that Cosper did not act like an employee around
Myrl and acted as though “she was the woman of the house”; testimony that Cosper
contacted multiple persons, including Dr. Castaneda, seeking to have Myrl deemed
incompetent and committed; and an overall course of conduct that included being named
a beneficiary on Myrl’s investment account, his will, being given medical power of attorney
and general power of attorney, and attempting to liquidate his investment account.
The “cumulative effect” of this evidence was sufficient for a rational trier of fact to
conclude that Cosper acted with the requisite intent. See Guevara v. State, 152 S.W.3d
45, 49 (Tex. Crim. App. 2004) (“Each fact need not point directly and independently to the
guilt of the appellant, as long as the cumulative effect of all the incriminating facts are
sufficient to support the conviction.”) (citation omitted); see also Law v. State, 349 Ga.
App. 823, 824, 824 S.E.2d 778, 781 (2019) (finding sufficient evidence of intent under
Georgia’s exploitation of an elder statute where the State presented evidence that the
appellant, knowing that the victim suffered from dementia, “isolated his mother from other
family members, took control of her life and finances, and personally gained from doing
so to the detriment of” other family members, including executing several legal documents
naming the appellant as the mother’s attorney in fact, the executor of her estate, and
transferring title in her residence over to the appellant, among other evidence).
To the extent Cosper argues that the conviction for count two must be overturned
because the State failed to prove that she was a fiduciary, such proof is not a necessary
16 element of the offense and the State abandoned such language from the indictment, with
approval from the trial court. See TEX. PENAL CODE ANN. § 32.53(a)(2). Finally, Cosper
argues that after her marriage to Myrl, any funds she allegedly misappropriated would be
considered “community property.” However, we need not address this argument because
we conclude the gift money from Myrl to Cosper to purchase a vehicle could have served
as the basis of the conviction, which occurred prior to Cosper and Myrl’s marriage. See
TEX. R. APP. P. 47.1 (requiring the court of appeals to “hand down a written opinion that
is as brief as practicable but that addresses every issue raised and necessary to final
disposition of the appeal”). Appellant’s second issue is overruled.
IV. CONCLUSION
We affirm in part, reverse in part, and render a judgment of acquittal as to the
charge of misapplication of fiduciary property.
L. ARON PEÑA JR. Justice
Publish. TEX. R. APP. P. 47.2(b).
Delivered and filed on the 26th day of January, 2024.