Burns, Wesley Theodore, PD-1269-15

Wesley Burns was Galindo Properties’ property manager; his duties included depositing rent payments the day received and not accepting cash rent.
Multiple tenants paid Burns cash; those cash payments were not deposited to Galindo’s account or recorded in company books.
Burns admitted to an investigator he would have been the last person to possess the missing money; at trial he acknowledged responsibility for ensuring deposits but denied knowing where the cash went.
Indictment charged Burns with misapplication of fiduciary property under Tex. Penal Code §32.45(a)(2)(A); Burns did not challenge fiduciary status, existence of an agreement, or amount misapplied.
Procedurally Burns appealed, raising (1) jury-charge error (abstract definitions improperly included), (2) sufficiency of the evidence identifying him as the misapplying individual, and (3) ineffective assistance for eliciting prior convictions.
The Tenth Court of Appeals affirmed the trial court judgment; opinion delivered Aug. 27, 2015 (Do not publish).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence that Burns was the person who misapplied funds	Evidence insufficient to prove Burns was the individual who failed to deposit cash	State: circumstantial and direct evidence (access, last possession, unexplained missing deposits) sufficed	Court: Evidence sufficient; jury could reasonably infer Burns misapplied the cash
Jury-charge error: inclusion of theft/appropriation definitions in abstract portion	Inclusion allowed conviction on uncharged theft theory; caused egregious harm	State: definitions were erroneous but application paragraph properly tracked indictment; no egregious harm shown	Court: Error in abstract portion but not egregious; charge’s application paragraph controlled; no reversal
Ineffective assistance for eliciting four prior criminally negligent homicide convictions (Rule 609)	Counsel deficient for eliciting convictions that were inadmissible due to age and lack of moral turpitude	State: convictions are felonies (admissible under Rule 609(a)(1)); record lacks release/conviction dates to show 10-year bar; record insufficient to show deficient performance	Court: Record inadequate to demonstrate deficient performance or prejudice; claim overruled

Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for reviewing legal sufficiency of the evidence)
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) (circumstantial evidence equal to direct evidence for sufficiency reviews)
Lucio v. State, 351 S.W.3d 878 (Tex. Crim. App. 2011) (recitation of sufficiency review standard)
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (harm analysis for jury-charge error)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong standard for ineffective assistance of counsel)
Yzaguirre v. State, 394 S.W.3d 526 (Tex. Crim. App. 2013) (application paragraph controls jury authorization to convict)