Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Friday, December 17, 2010

Sloppy indictment allows wicked trustee to walk free


In Bowen v. State, 322 S.W.3d 435 (Tex. App.—Eastland 2010, pet. filed), a jury convicted Trustee of misapplication of fiduciary property valued at over $200,000 under Penal Code § 32.45.  Trustee was then sentenced to eight years in prison, fined $10,000, and ordered to pay $350,000 in restitution.  Trustee appealed.

The appellate court agreed there was substantial evidence that Trustee misapplied well over $200,000 of trust assets.  However, the indictment specifically stated that these trust assets were owned by one named beneficiary or held for her benefit; it did not list all of the beneficiaries.  Because only about $100,000 was held in trust for the named beneficiary and because the jury charge did not include a lesser included offense, Trustee’s conviction was reversed.

Moral:  An indictment for misapplication of fiduciary property should list all beneficiaries as the owners of the property and a jury charge should include a lesser included offense.


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