Bruce Randol Merryman v. State
2012 Tex. App. LEXIS 9838
| Tex. App. | 2012Background
- Merryman, doing business as Care Construction Service, faced six felonies: three counts of misapplication of fiduciary property and three counts of theft by deception arising from multiple 2008–2009 construction projects.
- Contracts with Clifton (hair salon), Morgado (home addition), Costa (fire damage repair), and Dodwell (pool access) required upfront and weekly payments; Merryman allegedly used funds for personal expenses and unfinished work.
- Evidence showed Merryman deposited payments into a business account, used funds for personal living expenses, and failed to pay subcontractors or complete projects.
- Clifton and spouse testified they paid Merryman about $48,360 for a project ultimately only ~10% complete; Morgado, Costa, and Dodwell similarly paid substantial sums and received little or incomplete work.
- The State aggregated payments across alleged scheme(s) and the jury convicted Merryman on all six counts; restitution totaling $68,000 was ordered.
- At punishment, the jury recommended concurrent multi-year terms, and Merryman challenged the sufficiency of the evidence, elder-victim enhancements, and trial-court responses to jury questions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for misapplication counts | Merryman held funds in fiduciary trust and misapplied them. | No fiduciary relationship or misapplication proven with these contracts. | Sufficient evidence to support misapplication convictions. |
| Sufficiency of evidence for theft by deception counts | Deception and intent to deprive shown by pattern of actions and use of funds. | Failure-to-perform alone not enough; no deception evidence. | Sufficient evidence to support theft convictions. |
| Elderly-victim enhancement validity | Richard Clifton qualified as an elderly owner; enhancement proper. | Clifton acted as officer of Hair Art, LLC; enhancement improper. | Elderly-victim enhancement valid; sentences increased to second degree where applicable. |
| Judicial responses during punishment deliberations | Responses to bankruptcy and probation conditions were proper guidance. | Responses #3 and #4 constituted substantive instructions that harmed him. | Responses were not reversible error; no egregious harm established. |
| Ownership of funds and liability for elderly-victim counts | Money paid to Merryman belonged to Clifton and Hair Art, LLC; owner established. | Owner was the corporation, not Clifton personally; elderly-victim enhancement misplaced. | Evidence shows Clifton as owner/beneficiary; elderly-victim findings proper. |
Key Cases Cited
- Skillern v. State, 355 S.W.3d 262 (Tex. App.—Houston [1st Dist.] 2011) (agreement and fiduciary funds required; funds dissipated breach sufficient)
- Gonzalez v. State, 954 S.W.2d 98 (Tex. App.—San Antonio 1997) (fiduciary defined by trust and confidence)
- Wirth v. State, 361 S.W.3d 694 (Tex. Crim. App. 2012) (theft requires deception and intent to deprive at time of taking; pretext evidence)
- Ehrhardt v. State, 334 S.W.3d 849 (Tex. App.—Texarkana 2011) (deception as element of theft; promise to perform without intent to perform)
- Ngo v. State, None (Tex. Crim. App. 2005) (preservation and harm analysis for jury-charge error)