Kline v. State

• Decision Date: 10 September 1987
• Docket Number: No. 01-86-0382-CR,01-86-0382-CR
• Citation: 737 S.W.2d 895
• Parties: Rukmini Sukarno KLINE, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 895

737 S.W.2d 895

Rukmini Sukarno KLINE, Appellant, v. The STATE of Texas, Appellee.

No. 01-86-0382-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Sept. 10, 1987.

Robert C. Bennett, Shaffer, Bennett & Allshouse, Houston, for relator-appellant.

John B. Holmes, Jr., Harris County Dist. Atty., J. Harvey Hudson, Jose Gonzalez-Falla, Harris County Asst. Dist. Attys., Houston, for respondent-appellee.

Before EVANS, C.J., and HOYT and COHEN, JJ.

OPINION

HOYT, Justice.

This is an appeal from a conviction for the felony offense of misapplication of fiduciary property. A jury found the appellant guilty and assessed punishment at 14 years confinement and a $10,000 fine. Because of the complexity of this case, a lengthy recitation of the facts in the light most favorable to the verdict is required.

The record indicates that Ms. Rukmini Sukarno Kline, the appellant, was the owner of a Kansas corporation named Frankenburg Import-Export Ltd. ("Frankenburg Ltd."). On February 1, 1977, Petroleos Mexicanos ("PEMEX") forwarded a purchase order to Frankenburg Ltd. requesting various types and quantities of oil field pipe totalling the sum of $5,289,063.64. The purchase order apparently went unfilled until 1979, when the appellant contacted J.E. "Bud" Franklin, chairman of the board and principal shareholder of Aston Oil Field and Oil Well Equipment and Tubular Supply Company ("Aston Oil"), a Texas corporation located in Houston. Franklin reached an agreement with the appellant whereby his company would locate a supplier in exchange for 50% of any profit made on the sale. After a diligent search, Aston Oil concluded that the pipe was unavailable at the price that PEMEX was offering to pay. Jim Whalen, the president of Aston Oil, contacted the appellant concerning the problem. The appellant successfully sought and obtained a commitment from PEMEX to pay an increased price for pipes. Thereafter, Aston Oil located Nissho-Iwai American Corporation ("Nissho-Iwai"), a Japanese supplier of oil field pipes, to fill the order at a satisfactory price.

In order to facilitate their joint venture, the appellant and Aston Oil decided: (1) to create a new corporation in which each partner, Aston Oil and Frankenburg Ltd., would have a 50% interest; (2) to direct payment for the pipe to the new corporation; (3) to incorporate the new corporation in the Cayman Islands to take advantage of the considerable tax savings that could be achieved there; and (4) to give the new corporation a name so similar to the appellant's corporation that PEMEX would not be confused by a name significantly different from the one appearing on the original purchase order. Along these lines, Frankenburg Import-Export Limited ("Frankenburg Limited") was formed. The single difference in name between the new company and Frankenburg Ltd. was that the new company named ended with the word "Limited" spelled out, rather than abbreviated.

In February of 1980, Frankenburg Ltd. purchased 92,212.56 meters of oil field pipe from Nissho-Iwai for $5,660,522.92. Included in the price was a commission of $323,026.14 due Frankenburg Limited. It was also agreed among the parties that PEMEX, upon receipt of the pipe, would issue a check in the amount of $5,660,522.92, payable to Frankenburg Limited, and that the check would be deposited in a lockbox with the Bank of Tokyo Trust Company ("the Bank") in New York, New York. In conformity with the agreement, the appellant sent a letter of instruction to the Bank advising it that the Bank would soon receive a check from PEMEX in the amount of approximately $5,660,500 and that the Bank was to collect the check and credit the proceeds to the account of Nissho-Iwai. "Iwai. Nissho-Iwai, in turn, sent a letter of instruction to the Bank authorizing it to transfer 5% of the face value of the check, plus $40,000, to the Mercantile Bank & Trust Company in Kansas City, Missouri, for the account of Frankenburg Ltd.

However, before the check was issued by PEMEX, and without the knowledge of Nissho-Iwai, the appellant sent a letter to the Houston office of PEMEX instructing PEMEX to make their check payable to "Frankenburg Import-Export Ltd., 650 Westdale Drive, Wichita, Kansas, 67209," and to hold it for her personally to pick it up. PEMEX informed the appellant that it had signed a document agreeing to pay $5,660,500 to Frankenburg Limited and that the check was to be sent to New York. Furthermore, that it had agreed not to change any condition of the agreement without the joint instructions of Nissho-Iwai and Frankenburg Limited. Approximately 30 days later, on July 30, 1980, the appellant responded to PEMEX's notice and stated that because the original purchase order was issued to Frankenburg Ltd., her company was the sole owner of said purchase order. Apparently in response thereto, PEMEX issued a check for $5,584,392.04 on August 7, 1980, payable to "Frankenburg Import-Export Ltd., 650 Westdale Drive, Wichita, Kansas 67209." The record does not explain why the check was issued for an amount less than the agreed purchase price. On August 8, the appellant went to the Houston office of PEMEX and picked up the check. The appellant then took the check to New York, where she deposited it in the account of Frankenburg Ltd. and later spent the money as her personal funds.

In her first point of error, the appellant contends that the trial court lacked jurisdiction to adjudicate this case "because no essential element of the offense," misapplication of fiduciary property, occurred within the territorial limits of the State of Texas. Specifically, the appellant argues that: (1) she lawfully acquired the property at issue in Texas; (2) she used the property outside Texas; and (3) therefore, any misapplication of the property occurred outside Texas.

In order to acquire jurisdiction over a person accused of committing a crime, an element of the offense must be committed in the state. See Reger v. State, 598 S.W.2d 868, 871 (Tex.Crim.App.1980). Texas Penal Code § 1.04(a)(1) (Vernon 1974) provides in relevant part:

(a) This state has jurisdiction over an offense that a person commits by his own conduct or the conduct of another for which he is criminally responsible if:

(1) either the conduct or a result that is an element of the offense occurs inside this state....

Under the facts of this case, we conclude that a jury could have reasonably concluded that an element of the instant offense occurred in Texas. After notifying the Bank that a check was forthcoming from PEMEX and instructing the Bank as to the check's proper disposition, the appellant intercepted the check in Houston and deposited the proceeds to her corporate account. Based upon the subsequent disposition of the proceeds from the check, a jury could reasonably conclude that the appellant's intent and purpose for intercepting the check was to deny Nissho-Iwai and Aston Oil their portion of the proceeds from the sale, in the face of both express and implied trust agreements. On May 5, 1980, the appellant entered into an "Assignment and Security Agreement" with Nissho-Iwai. The obvious purpose of this agreement with Frankenburg Ltd., rather than Frankenburg Limited, was to protect Nissho-Iwai from the very act that occurred. In that agreement, the appellant agreed to act as "trustee for the assignee (Nissho-Iwai)" in recovering "all monies" due or to become due from PEMEX and to immediately deliver them to [Nissho-Iwai] without commingling. It is undisputed that the appellant breached that portion of the agreement. The jury could have also placed great weight on the appellant's statement to Whalen that she did not owe the money to Nissho-Iwai because the Japanese had tortured her family.

The appellant's first point of error is overruled.

In her second point of error, the appellant contends that the trial court erred in failing to grant her motion to set aside the indictment because the indictment failed to give her "sufficient notice of the charges against her." The appellant correctly asserts that she was charged with the offense of misapplication of fiduciary property "contrary to an agreement under which the defendant held the property as a fiduciary." However, she states that the "indictment failed to set out the agreement ... in its entirety." She contends that this "failure" is also a violation of Tex.Code Crim.P.Ann. arts. 21.04 and 21.11 (Vernon Supp.1987), because the indictment "did not set out the offense with such certainty that a presumptively innocent person may be informed of what he must defend against."

The indictment, in pertinent part, states as follows:

The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texas, RUKMINI SUKARNO KLINE hereafter styled the Defendant, heretofore on or about August 7, 1980, did then and there unlawfully, intentionally and knowingly misapply property, the defendant held as a fiduciary, namely, money, of the value of over ten thousand dollars, by dealing with the property contrary to an agreement under which the defendant held the property as a fiduciary, in a manner that involved a substantial risk of loss to Nissho-Iwai American Corporation, the owner of the property, without the effective consent of the said owner.

It is further presented that in Harris County, Texas, Rukmini Sukarno Kline, hereafter styled the Defendant, heretofore on or about August 7, 1980, did then and there unlawfully, intentionally and knowingly misapply property, the defendant held as a fiduciary, namely, money of the value of over ten thousand dollars, by dealing with the property contrary to an agreement under which the defendant held the property as a fiduciary, in a manner that involved a substantial risk of loss to Nissho-Iwai American Corporation, a person for whose benefit the property was held, without the effective consent of Nissho-Iwai American Corporation...