Friday, December 17, 2010
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.