Skillern v. State

• Decision Date: 23 June 2011
• Docket Number: 01–07–01015–CR.,01–07–01011–CR,01–07–01013–CR,01–07–01012–CR,01–07–01014–CR,Nos. 01–07–00997–CR,s. 01–07–00997–CR
• Citation: 355 S.W.3d 262
• Parties: Melissa Ann SKILLERN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

355 S.W.3d 262

Melissa Ann SKILLERN, Appellant,

v.The STATE of Texas, Appellee.

Nos. 01–07–00997–CR

01–07–01011–CR

01–07–01012–CR

01–07–01013–CR

01–07–01014–CR

01–07–01015–CR.

Court of Appeals of Texas, Houston (1st Dist.).

June 23, 2011.

Aug. 17, 2011.

Discretionary Review Refused March 7, 2012.

Rehearing En Banc Overruled

Rosa Alexander Eliades, Houston, for Appellant.

John J. Harrity III, Gail Kikawa McConnell, Asst. Dist. Atty's, Richmond, for Appellee.

Panel consists of Justices KEYES, SHARP, and MASSENGALE.

EVELYN V. KEYES, Justice.

Appellant, Melissa Ann Skillern, was convicted by a jury of a single count of misapplication of fiduciary property valued between $20,000 and $100,000 from an elderly person.¹ The jury assessed her punishment at fifty-four months' confinement and a $10,000 fine and recommended that the prison term be suspended. The trial court pronounced the sentence in accordance with the jury's verdict, suspended appellant's prison term for ten years, and set the conditions of appellant's community supervision, which included $24,000 in restitution and 90 days in jail. In twelve issues, appellant asks us to determine whether (1) the trial court erred in not conducting a hearing pursuant to Batson v. Kentucky; (2) the trial court erred in overruling objections to the State's questions regarding appellant's attorney-client privileged communications; (3) and (4) the evidence was legally and factually insufficient to prove appellant misapplied greater than $20,000 of fiduciary property when she transferred money from the joint account into her bank account; (5) the trial court violated appellant's right to present a defense by refusing to allow her to present relevant testimony regarding the nature of the joint account agreement, the authority she had over the complainant's money, and her character; (6) the trial court erroneously overruled appellant's objections to the State's improper jury argument; (7) the trial court erred in refusing a "mistake of fact" instruction; (8) the trial court erred in sustaining the State's objection to appellant's definition of recklessness during voir dire; (9) appellant was denied due process and a fair trial due to the prosecutor's conduct at trial; (10) appellant was denied a fair trial as a result of judicial bias; (11) the trial court erred in failing to refer appellant's motion to recuse during its consideration of the motion for new trial; and (12) the trial court erred in overruling appellant's objection to the State's comment on her Fifth Amendment right to remain silent.

We reverse the judgment of the trial court and render a judgment of acquittal.

Background

At the end of 2001 or the beginning of 2002, appellant's grandfather, Kenneth Skillern ("Kenneth"), was admitted into Silverado Senior Living Houston, Inc. ("Silverado"). Silverado is an assisted-living facility specializing in the care of people with some sort of dementia.

When Kenneth was first admitted to Silverado, his bills were paid by his daughter-in-law, Peggy Skillern ("Peggy"), appellant's mother. Because there was a finite amount of money and some concern about how long Kenneth could afford to stay at Silverado, Charlotte Wilson, a social worker employed by Silverado, aided Peggy in securing health-care benefits from the U.S. Veteran's Administration ("V.A."). The V.A. benefits, along with Social Security and pension payments, were deposited directly into Kenneth's bank account, which Peggy held jointly with Kenneth (the "Joint Account"). In June 2003, appellant was added as an owner of the Joint Account. The Joint Account provided for a right of survivorship such that, upon the death of one joint owner, the funds in the account became the property of the surviving owner of the account.

Peggy died in the spring of 2004. After several of Kenneth's scheduled payments to Silverado became past due, Wilson referred the case to Adult Protective Services ("APS"). Sheryl Norman, an investigator with APS, began an investigation of the matter. Based upon the results of that investigation, she contacted Detective Stepp of the Missouri City Police Department. Detective Stepp investigated Norman's allegation that appellant was not paying her grandfather's bills. Following Detective Stepp's investigation, appellant was indicted on several counts of theft and misapplication of fiduciary property.

At trial, the prosecutor asked Rhonda Lowery, accounting manager for Silverado, who had taken over Kenneth's account with Silverado after Peggy died. She testified that appellant took over. Lowery further testified that after that time, appellant made three payments on Kenneth's account, totaling $8,000, but that $22,000 of Kenneth's bills to Silverado were unpaid. She tried to contact Kenneth's family by certified letter to get the matter resolved, but the letters were returned.

Wilson also testified that, after Peggy Skillern's death, she understood that appellant was in charge of Kenneth's finances. On cross-examination, however, Wilson testified that as far as she knew, appellant had never signed anything that reflected that she was the responsible party. Wilson tried to telephone appellant several times over a matter of months. Wilson testified that she was eventually able to speak to appellant and inquire about the past due bills. According to Wilson, appellant told her that checks had been stolen from the bank account and that she was "trying to get it fixed."

Lowery also testified that, two months after appellant's phone conversation with Wilson, appellant told Lowery that "some checks were stolen." Neither Wilson nor Lowery heard from appellant again. Wilson testified that, because she was concerned that Kenneth might be discharged from the facility or cut off from getting his medication, she recommended calling APS.

Detective Stepp, the police officer who took over the investigation from APS, also testified on behalf of the State regarding her investigation of appellant. Detective Stepp discovered that Kenneth's V.A. and Social Security benefits were being deposited into the Joint Account on which appellant was a joint owner and that appellant was withdrawing money from that account and depositing it into her personal account. Detective Stepp testified that, from November 10, 2003 through September 13, 2004, the time period alleged in the indictment, appellant transferred more than $32,000 from the Joint Account to her personal account. She further testified that appellant had no primary income during that time. Detective Stepp testified that during that time appellant paid $8,000 towards Kenneth's expenses at Silverado. She also reviewed the bank records and concluded that appellant spent more than $16,500 from her personal account on herself during that time frame. Detective Stepp testified that the remaining $15,500 spent during that time could have been expended for Kenneth's benefit. Detective Stepp further testified that appellant held the same rights and privileges to the money in the Joint Account as Kenneth.

The only document pertaining to the financial relationship between Kenneth and appellant that was admitted into evidence was the application for joint ownership of account signed by Kenneth, Peggy, and appellant. None of the witnesses in this case testified that they had seen or knew about any document, other than this application, signed by Kenneth or appellant concerning an agreement between Kenneth and appellant. None of the witnesses testified that Kenneth had specifically entered into any agreement with appellant concerning the use of his monies.

Dr. Dawn Nguyen testified as to Kenneth's increasing dementia. Her first notes on the subject were dated March 2002, close to the time Kenneth was admitted to Silverado. She testified that dementia can diminish a person's mental capacity to make a decision. Wilson, the social worker at Silverado, testified that Silverado was a specialty assisted-living facility dedicated to caring for people who have some type of dementia. According to Wilson, only people who have a diagnosis of dementia-related problems can live there. Norman, the investigator with APS, testified that she met with Kenneth and asked him if he knew what was going on with his finances. She testified that he initially told her that his son was handling his finances, but later stated that perhaps it was his granddaughter. She further testified that the staff at Silverado had told her that Kenneth had dementia and that she knew that only people with dementia were allowed to live at that facility.

Michael Skillern, appellant's brother, testified that the family tried to help each other out regarding their finances. He further testified that his mother took over the family finances after his grandmother died and that his sister took over after their mother died. Kenneth always recognized him and the family and never seemed confused about who he was talking to. He testified that Kenneth would never have discussed his finances with a stranger. He also testified that there was never a threat that Kenneth was going to be evicted from Silverado.

Appellate Cause Nos. 01–07–01011–CR, 01–07–01012–CR, 01–07–01013–CR, 01–07–01014–CR, and 01–07–01015–CR

The indictment charged appellant with a total of six offenses of theft and misapplication of fiduciary property. Appellant was tried on all six counts under one cause number in the trial court. The jury convicted appellant only of count III, misapplication of fiduciary property valued between $20,000 and $100,000 from an elderly person. The judgment from which appellant appeals reflects only that conviction.

Upon the filing in this Court of appellant's notice of appeal from her single conviction, the clerk of the court assigned appellate cause number 01–07–00997–CR to that appeal. The clerk also assigned five additional appellate cause numbers to the five other counts listed in the indictment: counts I, II, IV, V, and VI. The judgment of the trial court,...