Karl Keene v. State
04-11-00661-CR
Tex. App.Jun 12, 2013Background
- Keene was convicted of misapplication of fiduciary property, greater than $1,500 but less than $20,000, and sentenced to two years with restitution of $54,944.
- Keene contracted with Lorraine Baker and Glen Clarke to build pools; both payments were to be made before major construction stages.
- Baker paid $34,944 (out of $43,468) and the gunite was never poured; Clarke paid $52,240 (out of $54,000) and the grotto was never completed.
- Evidence showed funds were used to pay for construction stages but the pools were not completed, and the money did not benefit the projects as agreed.
- The State argued those funds were entrusted for specific construction purposes, creating a fiduciary relationship under Tex. Penal Code § 32.45.
- The trial court ordered restitution totaling $34,944 to Baker and $20,000 to Clarke; the court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for fiduciary misapplication | Keene acted as fiduciary by accepting funds for construction. | No fiduciary relationship existed; funds were profits or earned by Keene. | Legally sufficient evidence supported fiduciary misapplication. |
| Restitution amount relative to verdict | Campbell allows restitution based on record evidence, not strictly the verdict amount. | Restitution should not exceed the jury-determined amount or be beyond criminal responsibility. | Trial court did not abuse discretion; restitution amounts are supported by the record. |
| Factual basis for specific restitution awards | Amounts reflect actual losses to Baker and Clarke from incomplete projects. | Insufficient basis to award the full claimed losses. | There is a factual basis for $34,944 to Baker and $20,000 to Clarke. |
Key Cases Cited
- Merryman v. State, 391 S.W.3d 261 (Tex. App.—San Antonio 2012) (fiduciary includes any person acting in a fiduciary capacity)
- Campbell v. State, 5 S.W.3d 693 (Tex. Crim. App. 1999) (restitution may extend beyond verdict if supported by record)
- Meyer v. Cathey, 167 S.W.3d 327 (Tex. 2005) (informal fiduciary duty requires trust and confidence context)
- Coplin v. State, 585 S.W.2d 734 (Tex. Crim. App. 1979) (undefined fiduciary term interpreted by plain meaning)
- Gonzalez v. State, 954 S.W.2d 98 (Tex. App.—San Antonio 1997) (fiduciary capacity in construction funds context)
- Jackson v. Virginia, 443 U.S. 307 (1981) (sufficiency review standard for criminal convictions)