
NO. 07-01-0309-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

AUGUST 7, 2002

______________________________


JAMISON PAUL MURPHEY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE


_________________________________

FROM THE 9TH DISTRICT COURT OF WALLER COUNTY;

NO. 00-06-10283; HONORABLE JOHN DELANEY, JUDGE

_______________________________

Before BOYD, C.J., and QUINN and REAVIS, JJ.
	Upon a plea of not guilty, a jury convicted appellant Jamison Paul Murphey of
misapplication of fiduciary property.  The trial court assessed punishment at two years
confinement, but suspended the sentence, imposing five years community supervision with
sixty days confinement in the county jail to be served on weekends, a $2,500 fine, and
$48,010 in restitution.  Presenting four points of error, appellant claims (1) the indictment
is defective as to both form and substance and the misapplication charge in the indictment
is unconstitutionally vague and such error is fundamental; (2) the verdict is contrary to the
law and evidence in the case; (3) the trial court erred in failing to instruct the jury on the
law as it applies to "fiduciary relationships" and what conduct of appellant as a "fiduciary,"
if any, would be proscribed by the statute; and (4) the trial court erred in overruling his
objections to the jury charge that "fiduciary" was incorrectly defined.  Based upon the
rationale expressed herein, we reverse and remand. 
	In October 1998, appellant, complainant and complainant's wife, executed a written
contract by which appellant agreed to construct a new kitchen, family room, bathroom,
staircase, front and back exteriors, and garage at complainant's residence. (1)  By the
contract, complainant agreed to pay $43,010 in three installments, to-wit: $25,806 as a
deposit to begin the work, $7,630 after completion of the garage and back exterior, and
the balance of $9,574 upon completion.  By cashier's check dated December 1, 1998,
complainant paid appellant $30,000, and work was scheduled to begin in January 1999. 
After work commenced, in April 1999, appellant approached complainant and requested
payment of the balance of the contract price claiming a supply shortage and a personal
financial emergency.  As requested by appellant, complainant paid the balance owing, but
while the project remained incomplete, in August 1999, appellant informed complainant
that he would be unable to complete the project due to lack of funds.  On or about June
20, 2000, appellant was indicted for misapplication by a fiduciary of property of a value
over $1,500 but less than $20,000 held for the benefit of complainant.  Tex. Pen. Code
Ann. § 32.45 (Vernon Supp. 2002).
	By his first point, appellant contends the indictment is defective as to both form and
substance and the misapplication charge in the indictment is unconstitutionally vague and
such error is fundamental, and further asserts (a) the misapplication charge in the
indictment does not give appellant notice of conduct that might constitute an offense; (b)
the misapplication charge in the indictment is vague as to the "manner and means" of the
commission of the offense; and (c) the misapplication charge in the indictment charges
conduct, and the State urged conviction under a theory of an offense, where such conduct
is not unlawful.  We disagree.
	The State contends that because appellant did not present any objection to the
indictment in the trial court as required by article 1.14(b) of the Texas Code of Criminal
Procedure Annotated (Vernon Supp. 2002), the contention is not preserved for review. 
Article 1.14(b) requires that all defects of form or substance in an indictment are waived
unless presented by a pretrial objection.  See Ieppert v. State, 908 S.W.2d 217, 227
(Tex.Cr.App. 1995).  Moreover, the indictment alleges the essential elements of the
offense.  Bynum v. State, 767 S.W.2d 769, 778 (Tex.Crim.App. 1989) (en banc).
Appellant's first point is overruled.
	We next consider appellant's fourth point, by which he contends the trial court erred
in overruling his objections to the jury charge because it incorrectly defined "fiduciary" and
its language that referenced appellant's actions as being subject to a theory of
"construction payments as trust funds" as set out in the Property Code, was an
impermissible comment on the evidence, misstated the law, mislead the jury, and denied
him a fair trial.  We agree.
	As material here, the charge instructed the jury as follows:
	Construction payments made to a contractor under a construction contract
for the improvement of specific real property in this state are trust funds.  A
contractor who receives trust funds is a trustee of the trust funds.

During the charge conference, defense counsel objected to the charge and expressly
objected to the inclusion of the definition or instruction dealing with construction payments
and contractor defined as a trustee as provided by chapters 160 and 162 of the Property
Code.  The State acknowledges that chapter 162 was the source of the instruction or
definition contained in the court's charge.  We must determine whether chapter 162
applies to a prosecution where the indictment charges misapplication of funds held for the
benefit of the owner of the property, who was not an unpaid supplier, subcontractor, or 
laborer on the construction project. 
	Section 162.001(a) (Vernon Supp. 2002) declares that construction payments are
trust funds and section 162.002 provides that a contractor who has control or direction of
trust funds is a trustee of the trust funds.  The beneficiaries of these trust funds according
to section 162.003 include
	[a]n artisan, laborer, mechanic, contractor, subcontractor, or materialman
who labors or who furnishes labor or material for the construction or repair
of an improvement on specific real property . . . .  	

Although sections 53.258 (a) and (f) and 53.259 (a) and (c) apply to transactions between
a contractor and an owner, (2) the relationship of trustee and beneficiary contemplated by the
above-referenced sections do not apply to an owner/contractor relationship.  Accordingly,
because the owner was charged to be the beneficiary of the trust funds and paragraph 4
of the charge expressly inquired whether appellant held the funds for the "benefit" of
complainant, appellant's fourth point is sustained.  
	Our sustension of appellant's fourth point pretermits our consideration of points two
and three.  Tex. R. App. P. 47.1.  Accordingly, the judgment of the trial court is reversed
and the cause is remanded for further proceedings.
						Don H. Reavis
						    Justice


Publish.
1. Appellant and complainant did not create a lien on the homestead by complying
with the provisions of sections 53.251 and 53.254 of the Texas Property Code Annotated
(Vernon Supp. 2002).
2. We express no opinion as to whether sections 53.258(f) or 53.259(c) may be
implicated upon retrial.   

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NO. 07-11-00198-CV
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL B
 

JUNE
9, 2011
 

 
PLAINS BUILDERS, INC., ET AL, APPELLANTS
 
v.
 
STEEL SOURCE, INC., ET AL, APPELLEES 

 

 
 FROM THE 251ST DISTRICT COURT OF
POTTER COUNTY;
 
NO. 95,423-C; HONORABLE ANA ESTEVEZ, JUDGE

 

 
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
 
 
ORDER
 
Appellants Plains Builders, Inc. and
Travelers Casualty & Surety Company of America have filed a motion
requesting a thirty day abatement of this appeal so that additional or amended
findings of fact and conclusions of law may be requested.  See
Tex. R. Civ. P. 298.  A certificate of
conference attached to the motion indicates appellees
Steel Source, Inc. and Steel Source, a division of Lloyd N. Moreau, L.L.C.,
agree with the requested abatement. 
According to the motion, appellants timely requested findings and gave
timely notice of past due findings.  They
did not receive a copy of findings from the trial court, however.  See
Tex. R. Civ. P. 297.  Subsequently, while
preparing the clerks record, appellants discovered the trial court had filed
findings.  
            We
abate the appeal and remand the cause to the trial court solely for the purpose
of allowing the parties an opportunity to request additional or amended
findings of fact and conclusions of law. 
Cf. Tex. R. App. P. 44.4.[1]  Within ten days of the date of this order,
any party may request additional or amended findings of fact and conclusions of
law under Rule of Civil Procedure 298. 
Tex. R. Civ. P. 298.  If a party
requests additional or amended findings and conclusions, the parties and the
trial court shall proceed according to Rule 298.  The trial court and parties shall ensure that
the clerks record, when filed, includes any request for additional or amended
findings and all responsive documents signed by the trial court.  
            The
abatement herein ordered will dissolve automatically on July 11, 2011, and the
appeal will thereupon be reinstated, without further notice.  The record shall be filed on or before August
15, 2011.
            It
is so ordered.
                                                                                                            Per Curiam
 
 
 




[1] We have no record before us and are acting solely on
the parties agreed motion. By our issuance of this order, we intend no finding
that the trial court has committed error. 
Except as expressly stated in this order, we do not direct action by the
trial court or the parties. By this order we do not direct the parties to
request additional or amended findings and conclusions, nor do we direct the
trial courts response to any such request that may be made by the
parties.  


