Mark McCay v. State
05-12-01199-CR
| Tex. App. | Feb 11, 2015Background
- Appellant Mark Patrick McCay appealed a conviction arising from the filing for probate of a purported will (the “Baylor will”) signed by MaryEllen Bendtsen; the State prosecuted for attempted theft by causing Bendtsen to execute a will in favor of McCay and then filing it for probate.
- Earlier indictments included allegations the victim was elderly/diminished capacity, described specific property and identified an owner; the operative indictment at trial omitted allegations of diminished/testamentary incapacity, exploitation of an elderly person, any named owner, and a specific description of property.
- The State relied at trial on evidence of Bendtsen’s diminished capacity and on a videotaped hospital signing; the defense presented expert psychiatric testimony (Dr. Crowder) opining testamentary capacity based on continuity of intent.
- The State introduced extraneous-offense evidence (the Farrington matter); defense objected on multiple grounds and the trial court admitted it after a sub rosa hearing, finding similarity and that probative value outweighed prejudice.
- On appeal McCay argues (1) the indictment failed to allege essential elements (capacity, owner, property description, or statutorily pleaded elderly-exploitation theory) such that it fails to state an offense and deprives the court of jurisdiction; (2) the omissions cannot be cured by treating the charge as an attempted theft or by harmless-error analysis; (3) the expert opinion was admissible and properly considered; and (4) admission of the Farrington evidence was preserved and erroneous.
Issues
| Issue | State's Argument | McCay's Argument | Held / Relief Sought |
|---|---|---|---|
| Sufficiency of indictment to charge offense (capacity/undue influence) | Omitted allegations were not legally essential; State may rely on evidence of diminished capacity to prove intent | Indictment omitted essential elements (testamentary/diminished capacity or that McCay knew of it); without those allegations it fails to allege an offense and provides insufficient notice | McCay asks reversal/acquittal or dismissal; indictment void for failing to allege offense |
| Allegation of owner and description of property | Alleging “any person” or general “property” suffices when owners form an identifiable class or when property is generally described | Article 21.08/21.09 require naming owner or alleging unknown ownership and describing property; omission broadened prosecution and prejudiced defense | McCay asks reversal; omission not harmless and prejudiced preparation/notice |
| Alleged attempted-theft theory | Attempt pleading requirements suffice (intent + more than mere preparation); State may proceed on attempted theft without repeating prior specific theft pleadings | Attempt charge does not excuse statutory and case-law particularity required in theft indictments (ownership, property description, capacity/elder-exploitation theory) | McCay contends attempted-theft label cannot cure statutory pleading defects; requests dismissal/reversal |
| Admissibility & consideration of expert opinion on testamentary capacity | State attacked admission as beyond recognized expertise and unreliable | Dr. Crowder was a board-certified psychiatrist with substantial testamentary-capacity experience; State did not object to his capacity opinion at trial and thus cannot complain on appeal | McCay argues the expert testimony was properly admitted and should be considered in evaluating factual sufficiency |
| Admission of Farrington extraneous-offense evidence | State maintained admissibility under statutory similarity and Rule 404(b) purposes | Defense objected repeatedly (relevancy, character evidence, remoteness, prejudice); sub rosa hearing occurred; trial court ruled admissible | McCay preserves error and seeks reversal on admissibility grounds |
Key Cases Cited
- Adams v. State, 707 S.W.2d 900 (Tex. Crim. App. 1986) (harmless-error framework for notice defects in indictments)
- Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) (theft indictment pleading requirements and specificity)
- Teal v. State, 230 S.W.3d 172 (Tex. Crim. App. 2007) (whether indictment facially charges an offense and confers jurisdiction)
- Cook v. State, 902 S.W.2d 471 (Tex. Crim. App. 1995) (indictment charging and jurisdictional principles)
- Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990) (particularity in criminal pleadings)
- Green v. State, 578 S.W.2d 411 (Tex. Crim. App. 1979) (Article 21.09 requires identity/description of property)
- Croucher v. Croucher, 660 S.W.2d 55 (Tex. 1983) (civil will-contest standards: capacity/undue influence)
- Rothermel v. Duncan, 369 S.W.2d 917 (Tex. 1963) (will-contest authority on undue influence and capacity)
- Thomas v. State, 408 S.W.3d 877 (Tex. Crim. App. 2013) (preservation of error when trial court and parties understood objection basis)
- Zillender v. State, 557 S.W.2d 515 (Tex. Crim. App. 1977) (preservation principles)