McCay, Mark, PD-1306-15

Background

In 2005, 88-year-old Mary Ellen Bendtsen executed a hospital will (the “Baylor will”) leaving most of her estate to Mark McCay and Justin Burgess; a 2002 Florida will named her daughter Frances Giron as sole beneficiary.
Bendtsen died March 2, 2005; McCay and Burgess filed the Baylor will for probate the next day; the probate court later gave effect to the Florida will.
McCay was indicted (after multiple indictments/amendments) for attempted theft under Tex. Penal Code §31.03, based on allegations that he “caused” Bendtsen to execute the Baylor will and then filed it for probate, intending to deprive others of the estate.
At trial the State introduced evidence alleging McCay isolated Bendtsen, procured powers of attorney, orchestrated the hospital will execution, and had similar conduct with another elderly couple; defense presented contrary testimony including video of the will execution and evidence that Bendtsen expressed intent to leave property to McCay.
A jury convicted McCay of attempted theft (value > $200,000); sentence: 10 years, probated 4 years, $1,000 fine. The Fifth Court of Appeals affirmed; McCay sought discretionary review.

Issues

Issue	McCay’s Argument	State’s Argument	Held
1. Whether “theft by will” is a cognizable offense / indictment alleged an offense	Indictment fails because causing execution of a will and filing it for probate are not inherently illegal; no statute criminalizes “theft by will.”	The theft statute is broad; if those acts are done with specific intent to steal an estate they constitute (attempted) theft; indictment need allege only attempted-theft elements.	Court of Appeals: Indictment sufficiently alleged attempt to commit theft; conduct + intent can constitute criminal attempt under §31.03.
2. Whether indictment must allege testamentary capacity or undue influence	These civil-law concepts are essential to notice; without alleging absence of capacity or undue influence the State fails to plead the basis that negates effective consent.	Those are proof issues in criminal case; the State need not plead particular manner/means (testamentary-capacity or undue-influence language) to state an attempted theft.	Court of Appeals: Not required to plead those civil probate labels; State may prove lack of effective consent as proof of unlawful appropriation.
3. Whether an attempted-theft indictment may omit identification of owner and description of property	Indictment lacked named owner and description of property (only alleged “any other person having a greater right” and “her property at her death”); valuation cannot be determined.	For attempt, indictment need not replicate all constituent theft elements; referring to Bendtsen’s estate (property at death) and statutory owner-definition sufficed for notice.	Court of Appeals: Indictment provided sufficient notice; property identified as whatever comprised Bendtsen’s estate and owner defined by statute.
4. Whether the court of appeals applied proper sufficiency review of the evidence	Appellate court erred by considering only State evidence and ignoring extensive defense evidence (contradicting intent and lack of undue influence); Jackson/Brooks require review of all evidence.	The appellate court applied Jackson—viewing evidence in the light most favorable to verdict—and found probative evidence of intent and lack of effective consent.	Court of Appeals: Affirmed conviction; held evidence (including circumstantial and extraneous-offense evidence) was sufficient. McCay urges CCA review as the court below allegedly ignored defense evidence.

Key Cases Cited

Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for appellate sufficiency review: whether any rational trier of fact could have found guilt beyond a reasonable doubt)
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (appellate sufficiency review requires considering all record evidence and deference to jury on credibility)
Inman v. State, 650 S.W.2d 417 (Tex. Crim. App. 1983) (an indictment for attempt need not allege all constituent elements of the substantive offense)
Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) (requirements for pleading ownership in theft prosecutions)
Wirth v. State, 361 S.W.3d 694 (Tex. Crim. App. 2012) (appellate courts must not selectively emphasize record snippets that favor their holding)
Merritt v. State, 368 S.W.3d 516 (Tex. Crim. App. 2012) (reversal where court of appeals misapplied Jackson by ignoring contrary evidence)
Crabtree v. State, 389 S.W.3d 820 (Tex. Crim. App. 2012) (judicial restraint and limits on creating new crimes from the bench)
Lee v. Lee, 424 S.W.2d 609 (Tex. 1968) (testamentary capacity consequences in probate law)
Turner v. Cross, 18 S.W. 578 (Tex. 1892) (appellate courts must apply law as written and not legislate from the bench)