Martinez v. State

• Decision Date: 31 May 1988
• Docket Number: No. 09-84-067,09-84-067
• Citation: 753 S.W.2d 165
• Parties: Billy Ray MARTINEZ, Appellant, v. The STATE of Texas, Appellee. CR. . Opinion on Motion for Rehearing
• Court: Texas Court of Appeals

Page 165

753 S.W.2d 165

Billy Ray MARTINEZ, Appellant, v. The STATE of Texas, Appellee.

No. 09-84-067 CR.

Court of Appeals of Texas,

Beaumont.

Opinion on Motion for Rehearing

May 31, 1988.

George H. Tyson, Jr., Colin B. Amann, Ramsey & Tyson, Houston, for appellant.

Peter Speers, III, Dist. Atty., Montgomery County, Conroe, for appellee.

OPINION ON MOTION FOR REHEARING

DIES, Chief Justice.

Appellant was indicted on two forgery counts, two counts of misapplication of fiduciary property, and one felony theft count. The State agreed to dismiss the two forgery counts after one of the State's attorneys tampered with and altered the original grand jury indictment. Appellant was convicted of both counts of misapplication and the felony theft count. On appeal, this court held the prosecutor's misconduct rendered the entire trial void ab initio. Martinez v. State, 700 S.W.2d 27, 28 (Tex.App.--Beaumont 1985). The Court of Criminal Appeals, however, vacated that judgment and remanded to this court for further proceedings on fourteen points of error which had not yet been considered. Martinez v. State, 742 S.W.2d 687 (Tex.Crim.App.1987). On remand, we summarily overruled Appellant's remaining fourteen points, but now reconsider that disposition on Appellant's motion for rehearing.

Under points of error seven, eight, and nine, Appellant attacks the sufficiency of the evidence to support his conviction under the first count of misapplication. There are five elements to the offense of misapplication of fiduciary property: a person must (1) intentionally, knowingly, or recklessly (2) "misapply" (3) property he holds as a "fiduciary" (4) in a manner that involves substantial risk of loss (5) to the "owner" of the property or to a person for whose benefit the property is held. TEX.PENAL CODE ANN. sec. 32.45 (Vernon 1974). The portion of the indictment alleging the first misapplication count reads:

"[Appellant] did then and there intentionally, knowingly and recklessly misapply property of a value of more than $10,000.00, to-wit: the approximate one half acre of land and improvements thereon including a building known as the Gospel Tabernacle in Willis, Montgomery County Texas, which said property the said [Appellant] held as a fiduciary, but not as a commercial bailee, to-wit: as a trustee for Gospel Tabernacle, in a manner that involved substantial risk of loss to the owner of said property, to-wit: the membership of Gospel Tabernacle, by then and there deeding said property to himself and buying said property for himself contrary to the provisions of the Texas Trust Act, Vernon's Ann. Civil Statutes, Art. 7425b-12, a law prescribing the disposition of the property."

In reviewing the sufficiency of the evidence, an appellate court must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. State, 672 S.W.2d 801, 803 (Tex.Crim.App.1984). A reviewing court will look at all the evidence in the light most favorable to the verdict. Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984).

In point of error seven, Appellant asserts that the State failed to prove Appellant misapplied property "contrary to the provisions of the Texas Trust Act, Vernon's Ann. Civil Statutes, Art. 7425b-12" since the evidence was insufficient to show the existence of an express trust. Duties imposed by the Texas Trust Act apply only to express trusts. TEX.REV.CIV.STAT.ANN. art. 7425b-2 (Vernon 1960). ¹ The real property in question was originally conveyed by Appellant's parents to "Franklin Wells, Curtis Nelson, and Billy Ray Martinez, as Trustees of Gospel Tabernacle." Point of error seven is overruled since we find the existence of a valid charitable trust. TEX.REV.CIV.STAT.ANN. 7425b-7 (Vernon 1960). ² Unthank v. Rippstein, 386 S.W.2d 134, 135 (Tex.1964). See also Hackfeld v. Ryburn, 606 S.W.2d 340, 342 (Tex.Civ.App.--Tyler 1980, writ dism'd), and Rice v. Morris, 541 S.W.2d 627 (Tex.Civ.App.--Corpus Christi 1976, writ dism'd by agr.).

In point of error eight, however, Appellant urges that the State failed to prove substantial risk of loss "to the owner of said property, to-wit: the membership of Gospel Tabernacle." Appellant's argument is based in part on the fact that Gospel Tabernacle had ceased to exist at the time any misapplication occurred. The evidence shows that Appellant's family first began conducting their own church services as Gospel Tabernacle in 1972. For the next few years, services were held at the Gospel Tabernacle four times a week. In 1978, however, due to a lack of interest and a dwindling congregation, the church members decided to cease conducting weekly worship services and liquidate church assets. In fact, considering that, at the time of misapplication, the church had ceased all of its regular functions of work and worship for approximately three years, a receiver could have been appointed to liquidate church assets. See TEX.REV.CIV.STAT. art. 2293a (Vernon 1971). ³ As such, the Gospel Tabernacle was not in existence as a matter of law. Liquidation of the assets of any entity cannot occur unless that entity is no longer in existence. Thus, the asset in question was not subject to disposition by a lawfully appointed receiver and was the subject of an express trust which had failed for want of beneficiary or trust purpose. The trust purpose could not have been reformed under the doctrine of cy pres since there was clearly no general charitable intent, but rather only a specific charitable intent expressed within the trust document. Foshee v. Republic Nat'l Bank of Dallas, 617 S.W.2d 675 (Tex.1981). When an express trust fails, a resulting trust arises in favor of the settlor. Id. Thus, the State failed to prove that the owner was "the membership of Gospel Tabernacle." Appellant's additional argument, however, that "owner" as it is defined under TEX.PENAL CODE ANN. 1.07(24) (Vernon 1974) cannot include a trust beneficiary as against his trustee, must be rejected as contrary to the broad interpretation of this section as one designed by the legislature "to protect all ownership interests in property from criminal behavior." See Freeman v. State, 707 S.W.2d 597 (Tex.Crim.App.1986). Also, by analogy, theft by one co-owner of property is prohibited even though the non-actor also holds title to the allegedly stolen property and may not have an exclusive right to possession. TEX.PENAL CODE ANN. arts. 31.03 & 31.10 comments (Vernon 1974). Appellant's eighth point of error is sustained.

Point of error nine, complaining that the State failed to prove allegations in the indictment that he held property as a trustee "for Gospel Tabernacle" must likewise be sustained since the membership of Gospel Tabernacle was not the equitable title holder at the time Appellant misapplied the property. This unproven allegation was descriptive of the necessary allegation that Appellant held the property as a fiduciary, and therefore, there is a fatal variance between the allegations and the proof. See Romay v. State, 442 S.W.2d 399 (Tex.Crim.App.1969). Appellant's conviction under the first count of misapplication of fiduciary property is reversed, and we order the trial court to enter an order of acquittal therein.

In points of error ten, eleven, twelve, and thirteen, Appellant challenges the sufficiency of the evidence to sustain his conviction under the second count of misapplication of fiduciary property. The portion of the indictment alleging the second count of misapplication reads:

"[Appellant] did then and there intentionally, knowingly and recklessly misapply property of a value of more than $10,000.00, to-wit: more than $99,000.00 dollars in United States currency, which property he held as a fiduciary, but not has [sic] a commercial bailee, to-wit: as a trustee for the Gospel Tabernacle in Willis, Texas, by transferring $30,000.00 to Paul Davis, $9,000.00 to Holly Moore, and by converting, spending and concealing the remainder of said funds, contrary to a law prescribing the disposition of said property, and he did then and there by such action create a substantial risk of loss to the person for whose benefit the property was held, to-wit: the membership of Gospel Tabernacle."

Appellant asserts in point of error twelve that the evidence was insufficient to prove its allegations that the property was being held "for the benefit of Gospel Tabernacle." We agree for the reasons discussed under the disposition of point of error nine. Appellant's point of error twelve is sustained. We reverse Appellant's conviction of the second count of misapplication of fiduciary property and instruct the trial court to enter an order of acquittal of this charge.

Points of error eleven and thirteen challenging the sufficiency of the evidence under the second count of misapplication to establish (1) an express trust and (2) that Appellant still possessed fiduciary duties as a trustee are overruled for reasons discussed in disposing of points of error seven and nine, respectively. Point of error ten asserting the State failed to establish that Appellant dealt with property "contrary to a law prescribing the disposition of the property" is overruled since the State proved a violation of TEX.PENAL CODE ANN. sec. 31.03 (Vernon 1974 & Vernon Supp.1988). Point of error ten is overruled.

In points of error five and six, Appellant asserts that the offenses of misapplication of fiduciary property and theft were improperly joined in the indictment and that the trial court erred in not granting Appellant's motion to compel the State to elect. Appellant is correct in asserting that the theft count was improperly joined in one indictment with the two counts of misapplication of fiduciary property. The general rule states that "regardless of the number of allegations in a charging instrument, the State may obtain only one conviction and one sentence thereon." Fortune v. State,...