Billy Womack v. State ( 2010 )

MEMORANDUM OPINION
No. 04-09-00587-CR
Billy WOMACK,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2008-CR-7075
Honorable Juanita A. Vasquez-Gardner, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: July 7, 2010
AFFIRMED
Billy Womack was indicted for misapplication of fiduciary property. After the trial court
denied Womack’s motion to quash the indictment, Womack pled no contest and was sentenced
in accordance with a plea bargain agreement. In this appeal, we are asked to determine whether
the trial court erred in concluding that an indictment tracking section 32.45 of the Texas Penal
Code, proscribing misapplication of fiduciary property, was sufficiently specific. We affirm the
trial court’s judgment.
04-09-00587-CR
FACTUAL AND PROCEDURAL BACKGROUND
Billy Womack, president of Alamo Grids Construction, contracted with Manuel and
Gloria Hofilena to build their home. The Hofilenas paid Womack $10,000.00 in earnest money
to begin the construction project.
The initial subcontractor failed to complete the excavation work according to
specifications. Thereafter, Womack subcontracted the excavation work to Dirt Works. Before
Womack hired Dirt Works, the Hofilenas’ lending institution paid Womack $68,250.00 for the
excavation of the site and other additional construction costs.
Although Womack paid Dirt Works $7,150.50, Dirt Works stopped work due to non-
payment. Dirt Works claimed that the total amount due was $41,097.50. Womack refused to pay
Dirt Works the remaining balance despite being instructed to do so by both the Hofilenas and
their lending institution.
The contract between the Hofilenas and Womack stated that construction was to begin on
October 4, 2007 and be completed by August 1, 2008. As of July 25, 2008, the only work
actually completed was a partial excavation of the Hofilenas’ property. The Hofilenas’ lending
institution paid Womack a total of $68,750.00. Taking into consideration the $7,150.50 paid to
Dirt Works and the $11,250.00 that Womack reimbursed the Hofilenas, Womack failed to
account for the remaining balance he was paid pursuant to the contract. As a result, Womack was
indicted for misapplication of fiduciary property.
Womack filed a motion to quash the indictment, claiming it failed to sufficiently specify:
(1) the theory under which he was a fiduciary; and (2) the transactions in which he allegedly
misapplied funds. The trial court denied the motion, and Womack appeals.
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DISCUSSION
Both the United States and Texas Constitutions set forth the right of an accused to be
informed of the nature and cause of allegations made against him. U.S. CONST. amend. VI; TEX.
CONST. art. I, § 10; Moff v. State, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004); Daniels v. State,
754 S.W.2d 214, 217 (Tex. Crim. App. 1988). This right of notice requires sufficient specificity
to afford the accused the opportunity to investigate the accusations and establish a defense. Moff,
154 S.W.3d at 602. Thus, the charging instrument must similarly be specific enough to inform
the accused of the nature of the allegation. Id. at 601. “The sufficiency of an indictment is a
question of law,” which is reviewed de novo. Moff, 154 S.W.3d at 601.
Generally, an indictment provides the accused with legally sufficient notice when it
tracks the language of the penal statute in question. Id. at 602; State v. Edmond, 933 S.W.2d 120,
128 (Tex. Crim. App. 1996); Bynum v. State, 767 S.W.2d 769, 778 (Tex. Crim. App. 1989);
DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988); Daniels, 754 S.W.2d at 218. In
Texas, the State is not required to plead non-essential evidentiary facts, nor the manner and
means of commission of an offense, to provide adequate notice to the defendant. Daniels, 754
S.W.2d at 218; Showery v. State, 678 S.W.2d 103, 108 (Tex. App.—El Paso 1984, pet. ref’d).
Moreover, the definitions of statutorily-defined terms and elements are considered evidentiary,
and need not be further alleged in the indictment. Daniels, 754 S.W.2d at 218.
An indictment for the misapplication of fiduciary property, pursuant to section 32.45 of
the Texas Penal Code, must allege that (1) a person (2) intentionally, knowingly, or recklessly
(3) misapplies (4) property he holds as a fiduciary or property of a financial institution (5) in a
manner that involves substantial risk of loss (6) to the owner of the property or to a person for
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whose benefit the property is held. See TEX. PEN. CODE § 32.45(b) (Vernon 2010); Bynum, 767
S.W.2d at 778.
In this case, the indictment stated:
On or about the 20th day of September, 2007, through on or about the 19th day of
June, 2008 Billy Womack, hereinafter referred to as a defendant, did
intentionally, knowingly, or recklessly misapply property namely: Lawful
Currency of the United States of America, having an aggregate value of Twenty
Thousand Dollars ($20,000.00) or more but less than One Hundred Thousand
Dollars ($100,000.00), that the defendant held as a fiduciary or as a person acting
in a fiduciary capacity, contrary to an Agreement Under Which the Defendant
Held the Property, and in a manner that involved substantial risk of loss of the
property to Gloria Hofilena and Manuel Hofilena, the owners of said property,
and the persons for whose benefit the property was held, by accepting payment
from Gloria and Manuel Hofilena and failing to perform construction as required
by a contract, and all the amounts alleged were misapplied pursuant to one
scheme or continuing course of conduct.
1. Fiduciary Relationship
Womack first attacks the sufficiency of the indictment on the grounds that it failed to
adequately allege the theory under which he was a fiduciary. Specifically, Womack argues there
are numerous statutory definitions of “fiduciary” under section 32.45 of the Texas Penal Code
and the indictment should have specifically alleged the applicable definition.
Section 32.45 of the Code provides, in pertinent part:
(a) For purposes of this section:
(1) “Fiduciary” includes:
(A) a trustee, guardian, administrator, executor, conservator, and receiver;
(B) an attorney in fact or agent appointed under a durable power of
attorney as provided by Chapter XII, Texas Probate Code;
(C) any other person acting in a fiduciary capacity, but not a commercial
bailee unless the commercial bailee is a party in a motor fuel sales
agreement with a distributor or supplier, as those terms are defined by
Section 153.001, Tax Code; and
(D) an officer, manager, employee, or agent carrying on fiduciary
functions on behalf of a fiduciary.
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TEX. PEN. CODE § 32.45 (Vernon 2010). Womack argues that the only statutory provision that
might apply to the factual situation of the present case is the first portion of section
32.45(a)(1)(C), defining a fiduciary as “any other person acting in a fiduciary capacity.” TEX.
PEN. CODE § 32.45(a)(1)(C). Womack contends this subsection is circular; therefore, referring to
this definition would not provide sufficient specificity to put him on notice as to the fiduciary
theory.
In response to Womack’s argument, the State points out that the mere failure to specify
one of the enumerated definitions of fiduciaries under section 32.45(a)(1) still leaves the accused
with general recourse to the lay definition of the term. Showery, 678 S.W.2d at 108. A person
need not be familiar with case law or treatises, but needs only to use a lay dictionary to discern
the meaning of the term “fiduciary.” Starnes v. State, 929 S.W.2d 135, 137 (Tex. App.—Fort
Worth 1996, no pet.); Talamantez v. State, 790 S.W.2d 33, 35 (Tex. App.—San Antonio 1990,
pet. ref’d). Therefore, in these circumstances, simply tracking the language of the statute is
sufficient to notify an accused of the nature of the duty allegedly breached. Showery, 678 S.W.2d
at 108.
Moreover, requiring the State to allege the details of the agreement would force the State
to plead its evidence. Romine v. State, 722 S.W.2d 494, 501 (Tex. App.—Houston [14th Dist.]
1986), pet. ref’d, 747 S.W.2d 382 (Tex. Crim. App. 1988); Daniels, 754 S.W.3d at 218;
Showery, 678 S.W.2d at 108. The indictment alleges that Womack held the property “in a
fiduciary capacity, contrary to an Agreement Under Which the Defendant Held the Property, and
in a manner that involved substantial risk of loss of the property to Gloria Hofilena and Manuel
Hofilena.” Clearly, the referenced agreement is the construction contract entered into by
Womack and the Hofilenas pursuant to which Womack obtained the money he held as a
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fiduciary. Requiring further details of the terms set forth in the agreement would be surplusage.
Kline v. State, 737 S.W.2d 895, 898 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d) (finding
no need for State to plead nature of agreement under which appellant held property).
2. Misapplication
Womack also attacks the indictment on the grounds that it failed to specify the
transactions in which he allegedly misapplied funds. Specifically, Womack argues that because
the indictment is based upon a number of separate transactions it would be unreasonable to
require him to gather evidence and prepare a defense for each separate transaction without notice
of which transactions are alleged to constitute a misapplication.
Womack bases this argument upon Moff v. State, 154 S.W.3d 599 (Tex. Crim. App.
2004). In Moff, the appellant was the chief appraiser for the county, and the indictment covered
all money and credit card purchases made over a period of seven years. Moff, 154 S.W.3d at 600.
The indictment alleged “that the illegal purchases occurred ‘on or about and between January 1,
1993 and December 31, 1999.’” Id. The court held that the trial court did not err in quashing the
indictment because it was unreasonable to require a defendant “to gather evidence and prepare a
defense for each of the credit card and cash transactions he made during the seven-year time
frame in the indictment.” Id. at 603. Thus, the court held that under the particular factual
situation in that case, the indictment’s tracking of the language of section 32.45 of the Code was
not sufficiently specific to fulfill the constitutional and statutory notice requirements. Moff, 154
S.W.3d at 603.
Unlike Moff, the indictment in the instant case covers only a period of approximately nine
months. Moreover, the indictment identifies the Hofilenas and refers to the money paid pursuant
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to Womack’s contract with the Hofilenas. Accordingly, given the factual situation in this case,
further specificity regarding the transactions involved was not required.
CONCLUSION
The indictment properly tracked the language of section 32.45(b) of the Code and
identified the property, the duty, the misapplication, and the owner or beneficiary with sufficient
specificity. The indictment sufficiently informed Womack of his alleged misapplication of
money paid to him pursuant to his contract with the Hofilenas. As a result, he had sufficient
notice of the transactions alleged to be a misapplication of fiduciary property, thereby enabling
him to prepare a defense. The trial court’s judgment is affirmed.
Catherine Stone, Chief Justice
DO NOT PUBLISH
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