Davis v. State

68 S.W.3d 273, 2002 Tex. App. LEXIS 1047, 2002 WL 193194
CourtCourt of Appeals of Texas
DecidedFebruary 8, 2002
Docket05-00-01205-CR to 05-00-01210-CR
StatusPublished
Cited by39 cases

This text of 68 S.W.3d 273 (Davis v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. State, 68 S.W.3d 273, 2002 Tex. App. LEXIS 1047, 2002 WL 193194 (Tex. Ct. App. 2002).

Opinion

OPINION

FRANCIS, Justice.

After a trial before the court, Michael Lee Davis appeals his one conviction for securing execution of documents by deception (SEDD) and five convictions for money laundering. The trial court assessed punishment for each conviction, enhanced by a prior felony conviction, at sixty years in prison and a $10,000 fine. Appellant was also ordered to pay restitution in the amount of $3,674,859.59. In four points of error, appellant complains the evidence was factually insufficient to support the convictions and insufficient to corroborate accomplice-witness testimony. In an additional four points of error, appellant contends the trial court erred in admitting certain testimony during the punishment hearing, the SEDD statute is unconstitutionally vague, and the trial court’s award of restitution is erroneous. We agree that the trial court’s restitution award is improper and, therefore, reverse that portion of the trial court’s judgment awarding restitution and remand these cases to the trial court for a hearing so the trial court may determine a just amount of restitution to be paid to each victim of the offenses. We affirm the trial court’s judgments in all other respects.

This appeal arises out of a highly complex scheme to defraud insurance companies that was carried out within the context of the viatical settlement industry. A viatical settlement is a transaction in which a terminally ill person insured by an existing life insurance policy sells the policy at a discount from its face value based on the insured’s life expectancy. The purchaser becomes the policy beneficiary, receiving the policy proceeds upon the insured’s death.

Dale Barron, chief counsel in the fraud unit of the Texas Department of Insurance, testified that several entities may be involved in a viatical transaction. The terminally ill insured, known as the “viator,” often contracts with a viatical settlement broker that assembles the necessary documents and facilitates the sale of the policy. Typically, the policy is sold to a viatical settlement company, which may hold the *277 policy or resell it to investors. A viatical settlement company, unlike a viatical broker, may escrow funds from investors for the purchase of life insurance policies or their death benefits. At some point during a viatical settlement, an independent review of the viator’s medical records is conducted to determine the viator’s life expectancy. This review, known as a “mortality profile,” drives the bidding and ultimate sale price for each policy.

Barron noted that while there is nothing unlawful about viatical settlements in general, the underlying scheme in this appeal involved the procurement and sale of new life insurance policies by individuals who had been previously diagnosed with a terminal illness. According to Barron, from April 1997 through October 1998, individuals who were HIV positive or had AIDS applied for life insurance with various companies but concealed their illnesses by answering falsely to the medical questions on the applications, a process described by Barron as “clean sheeting.” The fraudulently obtained policies were then sold to unsuspecting purchasers through a viatical settlement company owned by appellant.

In his first and third points of error, appellant contends his convictions must be reversed because the evidence was factually insufficient to establish he knew of, or participated in, the alleged scheme to defraud the insurance companies or that the five checks forming the basis of the money laundering offenses were the proceeds of criminal activity.

A person commits SEDD if, with intent to defraud or harm, he causes another to sign or execute any document affecting property or service or the pecuniary interest of any person. Tex. Pen.Code Ann. § 32.46(a)(1) (Vernon Supp.2002). The intent to defraud or harm may be established by circumstantial evidence. See Williams v. State, 688 S.W.2d 486, 488 (Tex.Crim.App.1985); Obigbo v. State, 6 S.W.3d 299, 305 (Tex.App.-Dallas 1999, no pet.). Moreover, a person is criminally responsible for the conduct of another if, acting with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Pen.Code Ann. § 7.02(a)(2) (Vernon 1994). A person commits the offense of money laundering if he “knowingly: (1) acquires or maintains an interest in, receives, conceals, possesses, transfers, or transports the proceeds of criminal activity; (2) conducts, supervises, or facilitates a transaction involving the proceeds of criminal activity; or (3) invests, expends, or receives, or offers to invest, expend, or receive, the proceeds of criminal activity or funds that the person believes are the proceeds of criminal activity.” Tex. Pen. Code Ann. § 34.02(a) (Vernon 1994).

Appellant does not dispute that the insurance policies listed in the SEDD indictment were fraudulently obtained or that the funds from the five checks identified in the money laundering indictments were derived from the sale of fraudulently obtained policies. Instead, he argues the evidence established others fraudulently obtained the policies while he merely acquired the policies after the fact, totally unaware of the fraudulent scheme at the time he sold the policies.

In a factual sufficiency review, we determine whether a neutral review of all the evidence establishes that (1) the proof of guilt is so obviously weak as to undermine confidence in the fact finder’s verdict, or (2) the proof of guilt, even if sufficient standing alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). In performing this review, however, we may not substitute *278 our judgment for that of the fact finder or substantially intrude upon its role as the sole judge of the weight and credibility to be given witness testimony. See Johnson, 23 S.W.3d at 6. In order to address appellant’s complaints, we must first outline the details of the underlying scheme and its many participants, as revealed by the evidence at trial.

In March 1996, Hoyt Wauhob registered Southwest Viatical, Inc. as a viatical settlement broker with the Texas Department of Insurance. Wauhob was owner and president of Southwest Viatical. Appellant joined Southwest Viatical as vice president of marketing shortly before the company was registered with the State. Southwest Viatical’s registration documents list appellant under the “key personnel” section. Excerpts from appellant’s October 22,1997 deposition, taken in connection with a Texas Department of Insurance investigation, were read into evidence. In the deposition, appellant stated that as vice president of marketing, he solicited potential viators to sell their policies to Southwest Viatical by speaking to persons at AIDS resource centers, attending AIDS-related functions, and talking with social workers at various hospitals.

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Bluebook (online)
68 S.W.3d 273, 2002 Tex. App. LEXIS 1047, 2002 WL 193194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-state-texapp-2002.