Bowen v. State, 322 S.W.3d 435 (Tex. App.—Eastland 2010), rev'd, 374 S.W.3d 427 (Tex. Crim. App. 2012).
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.