Skillern v. State

Citation890 S.W.2d 849
Decision Date07 December 1994
Docket NumberNo. 3-91-432-CR,3-91-432-CR
PartiesThermon Maurice SKILLERN, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas

Roy E. Greenwood, Austin, for appellant.

Ronald Earle, Dist. Atty., Karrie Key, Mark Lane, Asst. Dist. Attys., Austin, for appellee.

Before POWERS, JONES and ONION *, JJ.

ONION, Justice (Retired).

This appeal is taken from a conviction for the second-degree felony offense of theft of property having an aggregate value of $20,000 or more. 1 Act of May 27, 1985, 69th Leg.R.S., ch. 599, § 1, 1985 Tex.Gen.Laws 2244, 2245 (Tex.Penal Code Ann. § 31.03(a), (e)(5)(B), since amended); Tex.Penal Code Ann. § 31.09 (West 1994). Appellant Thermon Maurice Skillern was tried separately from his co-defendants because of his prior conviction. The jury found appellant guilty, and the trial court, finding the enhancement paragraph allegations to be true, assessed punishment at twenty-five years' confinement.

Appellant's counsel on appeal advances sixteen points of error and belatedly urges a seventeenth point. Appellant first complains that the trial court erred in overruling his motion to quash the indictment because the face of the instrument showed that venue was in Harris County without allegations of justification for trying the case in Travis County. Appellant next challenges the constitutionality of Senate Bill 1685 of the 71st Legislature adding certain articles to the Texas Insurance Code because the bill contained more than one subject. Tex.Const. art. III, § 35(a). In two other points, appellant attacks the venue provisions of Senate Bill 1685, alleging violations of the ex post facto principles of the federal and state constitutions. Four points of error address evidentiary rulings by the trial court. Another five points attack the trial court's charge to the jury. Three other points challenge the sufficiency of the evidence to sustain the conviction. Lastly, appellant urges consideration of a supplemental point of error claiming that a prior conviction alleged and used for enhancement of punishment was void as a matter of law. We will affirm the conviction.

BACKGROUND

The facts of this complex white-collar theft case found in this voluminous 2,000 page Greed is the name of the scenario. Few actors appeared on stage with clean hands. Many even had dirt under their fingernails. We view the evidence in the light most favorable to the jury's verdict. Appellant and a co-defendant, Louis Harris, president of American Teachers Life Insurance Company, caused the insurance company to issue approximately 131 single-premium immediate annuities each with a face value of $100,000 without the annuities being funded. Seventy-five of these annuities later become important to the facts of the instant case. When an insurance company issues a single-premium immediate annuity, the total premium is collected upon issuance, and the insurance company assumes a corresponding liability on its books. Such an annuity constitutes a representation on the part of the insurance company that it has received $100,000 from the annuity holder.

record are not easily summarized. We shall set forth such facts as are necessary to place the points of error in proper perspective. Other facts will appear in the discussion of the various points of error.

The evidence credits appellant with the plan to issue the unfunded annuities, which were designed to enhance the financial standing of the insurance company. Appellant "sold" or had his associates "sell" these annuities to friends, relatives, and employees of the insurance company without collecting any premiums. Each annuitant was led to believe that he or she would receive a $100,000 retirement fund without cost and an additional free life insurance policy. No money exchanged hands during these transactions. Each annuitant signed a $90,000 promissory note to appellant's corporation, General Mercantile Finance Company. 2 This left the impression that each annuitant had paid $10,000 in cash and borrowed $90,000 from appellant's finance company. Under the terms of the promissory note, each annuitant pledged the $100,000 annuity as collateral for indebtedness to the finance company. Each annuitant also signed a second promissory note to cover the cost of the additional life insurance policy. The annuitants were led to believe that somehow the first promissory notes would be sold and the interest earned would be used to make all necessary payments on the notes without any cost to them.

Then, from the wings, co-defendant Ray Rankin approached center stage. As president of Energy Impact Company, Rankin was eager to improve the financial standing of his company. He knew of appellant's plan, and he was acquainted with Bruce McLain, president of Premier Bank, whom he knew was seeking greater capitalization for the bank. Here the plot thickens. Rankin conferred with McLain and introduced him to appellant. Eventually over a period of time, Premier Bank purchased at a discount 75 of the first promissory notes secured by the annuities. The bank officials reasoned that the annuities were good collateral because they could not have been issued without complete funding and were redeemable upon demand. Specific assurances were given to the bank officials that the annuities had been funded. Appellant never informed the bank officers that the annuities were not funded.

Premier Bank paid a total of $5,175,000 for the notes. Appellant received income producing real property worth $2,100,000 as partial payment. The deeds named Gulf States Corporation, one of appellant's companies as grantees. The bank paid the balance in cash to the General Mercantile Finance Company, which paid $2,000,000 to Energy Impact, which in turn sent $2,000,000 back to Premier Bank in exchange for personal promissory notes from McLain and some members of the bank's board of directors enabling them to purchase bank stock and aid the bank in its recapitalization. Like the United States cavalry, the federal bank examiners arrived on stage near the end of the melodrama, viewing with disdain the evil they uncovered. The bank examiners found that the annuities had never been funded and so informed McLain. The State Board of Insurance was also advised. It began its own investigation Appellant met with Rankin and McLain. In an effort to cover the missing premiums, appellant wrote approximately fourteen million dollars in checks drawn on his General Mercantile Finance Company account payable to American Teachers Life Insurance Company. Appellant did not have the funds to cover these checks. They were never negotiated. However, Louis Harris, co-defendant and president of the insurance company, endorsed the checks over to the Madison County Land Company, another of appellant's companies. In return, appellant had the land company give the insurance company 104 first lien mortgage loan notes on nonexistent greenhouses (referred to as "growth chambers") in Madison County. These worthless notes were listed as assets on the insurance company books at face value. The examiners quickly determined that these notes were worthless. Appellant also hastened to send the bank a check for over six million dollars which was never negotiated. The State traced the money from the Premier Bank into the bank account of General Mercantile Finance Company. It then showed twenty withdrawals from this account by appellant on various dates for personal use such as the purchase of luxury cars and the payment of personal debts. Appellant's expenditure of approximately $930,000 was alleged to be the money taken from the bank and insurance company. Given this general background of this complex affair, we now turn to appellant's points of error.

of the insurance company. The sound of the feet moving across the stage became deafening.

MOTION TO QUASH INDICTMENT

In point of error one, appellant contends that:

The trial court erred in denying appellant's motion to quash the indictment for the reason that the indictment, on its face, shows that the venue of this case is in Harris County, not Travis County, and that said indictment fails to allege either factual or legal justification for returning this indictment in Travis County, thus rendering the Travis County prosecution voidable, and requiring the conviction to be reversed and dismissed.

The first count of the indictment alleged a felony theft of the second degree where the value of the property (United States currency) unlawfully appropriated (with the intent to deprive the owner of the property) was of the aggregated value of $20,000 or more under the penal statutes in effect at the time of the commission of the offense. 3 The alleged owners were American Teachers Life Insurance Company and Premier Bank. The indictment averred that consent was induced "by deception, namely, said defendants created and confirmed by words and conduct, a false impression of fact, not believing it to be true that was likely to affect and did affect the judgment of said owner [sic] in the transactions." There were further allegations that the property was obtained pursuant to one scheme and continuing course of conduct. The offense was alleged to have occurred in Harris County, but the indictment was returned by a Travis County grand jury into a Travis County district court. The indictment also alleged that the offense occurred while the named defendants "were engaged in the business of insurance." 4

In his motion to quash, appellant argued that count one of the indictment was "defective because it fails to show the place where the offense was committed is within the jurisdiction of this court." Appellant cited articles 13.18 and 21.02(5) of the Texas Code of Criminal Procedure in support of his contention. Article 13.18 provides: "If venue is not specifically stated,...

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