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Skillern v. State

Upon the filing in the court of appeals 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 does not contain any convictions for counts I, II, IV, V or VI. Those five appeals are dismissed for lack of jurisdiction. Because the record contains no evidence probative of an element of the offense of misapplication of fiduciary property, the jury could not have rationally found appellant guilty of that offense. The trial court's judgment is reversed and a judgment of acquittal is rendered. Houston's 1st Court of Appeals, No. 01-07-00997-CR, 06-23-2011.

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OPINION

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.*fn1 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.

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