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Bowen v. State, 322 S.W.3d 435 (Tex. App.—Eastland 2010, pet. filed).

Trusts

Criminal Liability

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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