PD-0176-15 COURT OF CRIMINAL APPEALS PD-0176-15 AUSTIN, TEXAS Transmitted 2/13/2015 8:29:59 AM Accepted 2/13/2015 10:13:06 AM ABEL ACOSTA CLERK NO. ________________
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
DAVID AUSTIN PRICE, Appellant
VS.
THE STATE OF TEXAS, Appellee
On Petition for Discretionary Review from The Fourteenth Court of Appeals in No. 14-13-00487-CR Affirming The 185th Criminal District Court of Harris County, Texas, Cause No. 1368261, Honorable Susan Brown, Judge Presiding
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Crespin Michael Linton 440 Louisiana, Suite 900 Houston, Texas 77002 February 13, 2015 Texas Bar No. 12392850 (713) 236-1319 (713) 236-1242 (FAX) crespin@hal-pc.org Counsel for Appellant Oral Argument Waived INDEX PAGE
Index 2
Names of All Parties 3
List of Authorities 4
Statement Regarding Oral Argument 5
Statement of the Case 5
Procedural History 5
GROUND FOR REVIEW 6
THE COURT OF APPEALS ERRED IN DETERMINING THAT THE EVIDENCE WAS SUFFICIENT TO SUPPORT APPELLANT’S CONVICTION FOR THEFT
Reason for Review 6
Statement of Facts 7
Arguments and Authorities 9
Prayer for Relief 12
Certificate of Compliance 12
Certificate of Service 12
Appendix A 13 Opinion, Price v. State
2 NAMES OF ALL PARTIES
Pursuant to Tex. R. App. P. 38.1(a), the following are interested parties:
Presiding Judge: Susan Brown 185th Criminal District Court 1201 Franklin Street, 17th Floor Houston, Texas 77002
Appellant: Mr. David Price 5810 Coral Ridge Houston, Texas 77069
Attorneys for State: Mr. Stan Clark District Attorney's Office 1201 Franklin Street, Suite 600 Houston, Texas 77002
Mr. Alan Curry (on appeal) District Attorney's Office 1201 Franklin Street, Suite 600 Houston, Texas 77002
Attorneys for Appellant: Mr. Lott J. Brooks, III (trial) 1314 Texas Ave., Suite 710 Houston, Texas 77002
Mr. Crespin Michael Linton (appeal) 440 Louisiana Street, Suite 900 Houston, Texas 77002
3 LIST OF AUTHORITIES
CASES PAGE
Brooks v. State, 323 S.W.3d 893……………………………… 10 (Tex. Crim. App. 2010)
Wirth v. State, 361 S.W.3d 694…………………………………… 11 (Tex. Crim. App. 2012)
STATUTES
TEX. Pen. Crim., Section 31.03(e)(7) ..….…………….…………….. 10
RULES
TEX. R. App. Proc., Rule 38.1(a)…………………………………….……………………………. 3
4 STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Rule 39.1, Appellant waives the right to oral argument.
STATEMENT OF THE CASE
The Appellant was charged with Aggregate Theft Over $200,000.00.
After a jury trial, the jury found Appellant guilty of Aggregate Theft Over
$200,000.00. The jury sentenced him to a term of 5 years in the Texas
Department of Criminal Justice - Institutional Division.
PROCEDURAL HISTORY
All points of error were affirmed by the Fourteenth Court of Appeals on
January 15, 2015, in a published opinion. No motion for rehearing was
filed.
5 GROUND FOR REVIEW
GROUND FOR REVIEW
THE COURT OF APPEALS ERRED IN DETERMINING THAT THE EVIDENCE WAS SUFFICIENT TO SUPPORT APPELLANT’S CONVICTION FOR THEFT.
REASON FOR REVIEW
THE COURT OF APPEALS HAS DEPARTED SO FAR FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS OR SO FAR SANCTIONED SUCH A DEPARTURE BY A LOWER COURT, AS TO CALL FOR AN EXERCISE OF THE COURT OF CRIMINAL APPEAL’S POWER OF SUPERVISION.
6 STATEMENT OF FACTS
In 2007, Appellant and his business partner, Wesley Simmons, founded a small dental clinic known as Lupe’s Wonderful Smiles. After they submitted the appropriate documentation to a state agency, the dental clinic qualified as a dental Medicaid provider. Appellant and Simmons then hired a dentist named Dr. Joon Kim to serve as the dentist for the clinic. Dr. Kim treated the patients and forwarded the dental charts to Appellant and Simmons for billing to Medicaid. Although Appellant was involved with the billing process when the clinic first opened, that responsibility shifted entirely to Simmons. Dr. Kim left the clinic in June of 2008 after disagreements with Appellant and Simmons, but Medicaid was billed for services using Dr. Kim’s Medicaid provider number for the next 2 years with various temporary dentists performing the dental services. After a complaint to Medicaid from a former patient about incorrect billing practices, Medicaid auditors determined that at least $1.2 million in represented services had never been rendered. Simmons pleaded guilty to Theft and testified at Appellant’s trial that Simmons was responsible for the fraudulent billing. Simmons also testified about his extravagant spending with the fraudulently acquired money from the dental clinic. Appellant testified that he did not perform fraudulent billing and did not financially gain from the fraud. The State argued through its witnesses that Appellant knew that the clinic was receiving an inordinate
7 amount of money from Medicaid, but Appellant chose to ignore Simmons’ spending habits, used company accounts for his own personal expenses, and never reviewed the clinic’s bank statements even though he was a founding partner.
8 ARGUMENTS AND AUTHORITIES
GROUND FOR REVIEW ONE
THE COURT OF APPEALS ERRED IN DETERMINING THAT THE EVIDENCE WAS SUFFICIENT TO SUPPORT APPELLANT’S CONVICTION FOR THEFT.
THE COURT OF APPEALS HAS SO FAR DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS OR SO FAR SANCTIONED SUCH A DEPARTURE BY A LOWER COURT, AS TO CALL FOR AN EXERCISE OF THE COURT OF CRIMINAL APPEAL’S POWER OF SUPERVISION.
9 DISCUSSION
The Court of Appeals incorrectly held that the evidence was sufficient
to convict Appellant of Theft Over $200,000.00.
The test for reviewing the insufficiency of the evidence where a
defendant has been found guilty is for the reviewing court to determine
whether, after viewing the relevant evidence in the light most favorable to the
verdict, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893
(Tex. Crim. App. 2010)
Section 31.03 (e)(7) of the Texas Penal Code provides that a person
commits the first degree felony offense of Theft if he unlawfully
appropriates over $200,000 of property with the intent to deprive the owner
of the property. (West 2013) “A claim of theft made in connection with a
contract, however, requires proof of more than intent to deprive the owner
of property and subsequent appropriation of the property. In that
circumstance, the State must prove that the appropriation was the result of
a false pretext, or fraud. Moreover, the evidence must show that the
accused intended to deprive the owner of the property at the time the
10 property was taken.” Wirth v. State, 361 S.W.3d 694, 697 (Tex. Crim.
App. 2012).
The Court of Appeals erred in its analysis by determining that the
State proved Appellant’s theft beyond a reasonable doubt even when
viewing the following evidence in the light most favorable to the verdict: 1)
Appellant did not perform the fraudulent billing, 2) Appellant was not active
participant in the dental business, 3) Appellant earned the $203,000.00
attributable to him as salary over the course of 3 ½ years, and 4) The State
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PD-0176-15 COURT OF CRIMINAL APPEALS PD-0176-15 AUSTIN, TEXAS Transmitted 2/13/2015 8:29:59 AM Accepted 2/13/2015 10:13:06 AM ABEL ACOSTA CLERK NO. ________________
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
DAVID AUSTIN PRICE, Appellant
VS.
THE STATE OF TEXAS, Appellee
On Petition for Discretionary Review from The Fourteenth Court of Appeals in No. 14-13-00487-CR Affirming The 185th Criminal District Court of Harris County, Texas, Cause No. 1368261, Honorable Susan Brown, Judge Presiding
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Crespin Michael Linton 440 Louisiana, Suite 900 Houston, Texas 77002 February 13, 2015 Texas Bar No. 12392850 (713) 236-1319 (713) 236-1242 (FAX) crespin@hal-pc.org Counsel for Appellant Oral Argument Waived INDEX PAGE
Index 2
Names of All Parties 3
List of Authorities 4
Statement Regarding Oral Argument 5
Statement of the Case 5
Procedural History 5
GROUND FOR REVIEW 6
THE COURT OF APPEALS ERRED IN DETERMINING THAT THE EVIDENCE WAS SUFFICIENT TO SUPPORT APPELLANT’S CONVICTION FOR THEFT
Reason for Review 6
Statement of Facts 7
Arguments and Authorities 9
Prayer for Relief 12
Certificate of Compliance 12
Certificate of Service 12
Appendix A 13 Opinion, Price v. State
2 NAMES OF ALL PARTIES
Pursuant to Tex. R. App. P. 38.1(a), the following are interested parties:
Presiding Judge: Susan Brown 185th Criminal District Court 1201 Franklin Street, 17th Floor Houston, Texas 77002
Appellant: Mr. David Price 5810 Coral Ridge Houston, Texas 77069
Attorneys for State: Mr. Stan Clark District Attorney's Office 1201 Franklin Street, Suite 600 Houston, Texas 77002
Mr. Alan Curry (on appeal) District Attorney's Office 1201 Franklin Street, Suite 600 Houston, Texas 77002
Attorneys for Appellant: Mr. Lott J. Brooks, III (trial) 1314 Texas Ave., Suite 710 Houston, Texas 77002
Mr. Crespin Michael Linton (appeal) 440 Louisiana Street, Suite 900 Houston, Texas 77002
3 LIST OF AUTHORITIES
CASES PAGE
Brooks v. State, 323 S.W.3d 893……………………………… 10 (Tex. Crim. App. 2010)
Wirth v. State, 361 S.W.3d 694…………………………………… 11 (Tex. Crim. App. 2012)
STATUTES
TEX. Pen. Crim., Section 31.03(e)(7) ..….…………….…………….. 10
RULES
TEX. R. App. Proc., Rule 38.1(a)…………………………………….……………………………. 3
4 STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Rule 39.1, Appellant waives the right to oral argument.
STATEMENT OF THE CASE
The Appellant was charged with Aggregate Theft Over $200,000.00.
After a jury trial, the jury found Appellant guilty of Aggregate Theft Over
$200,000.00. The jury sentenced him to a term of 5 years in the Texas
Department of Criminal Justice - Institutional Division.
PROCEDURAL HISTORY
All points of error were affirmed by the Fourteenth Court of Appeals on
January 15, 2015, in a published opinion. No motion for rehearing was
filed.
5 GROUND FOR REVIEW
GROUND FOR REVIEW
THE COURT OF APPEALS ERRED IN DETERMINING THAT THE EVIDENCE WAS SUFFICIENT TO SUPPORT APPELLANT’S CONVICTION FOR THEFT.
REASON FOR REVIEW
THE COURT OF APPEALS HAS DEPARTED SO FAR FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS OR SO FAR SANCTIONED SUCH A DEPARTURE BY A LOWER COURT, AS TO CALL FOR AN EXERCISE OF THE COURT OF CRIMINAL APPEAL’S POWER OF SUPERVISION.
6 STATEMENT OF FACTS
In 2007, Appellant and his business partner, Wesley Simmons, founded a small dental clinic known as Lupe’s Wonderful Smiles. After they submitted the appropriate documentation to a state agency, the dental clinic qualified as a dental Medicaid provider. Appellant and Simmons then hired a dentist named Dr. Joon Kim to serve as the dentist for the clinic. Dr. Kim treated the patients and forwarded the dental charts to Appellant and Simmons for billing to Medicaid. Although Appellant was involved with the billing process when the clinic first opened, that responsibility shifted entirely to Simmons. Dr. Kim left the clinic in June of 2008 after disagreements with Appellant and Simmons, but Medicaid was billed for services using Dr. Kim’s Medicaid provider number for the next 2 years with various temporary dentists performing the dental services. After a complaint to Medicaid from a former patient about incorrect billing practices, Medicaid auditors determined that at least $1.2 million in represented services had never been rendered. Simmons pleaded guilty to Theft and testified at Appellant’s trial that Simmons was responsible for the fraudulent billing. Simmons also testified about his extravagant spending with the fraudulently acquired money from the dental clinic. Appellant testified that he did not perform fraudulent billing and did not financially gain from the fraud. The State argued through its witnesses that Appellant knew that the clinic was receiving an inordinate
7 amount of money from Medicaid, but Appellant chose to ignore Simmons’ spending habits, used company accounts for his own personal expenses, and never reviewed the clinic’s bank statements even though he was a founding partner.
8 ARGUMENTS AND AUTHORITIES
GROUND FOR REVIEW ONE
THE COURT OF APPEALS ERRED IN DETERMINING THAT THE EVIDENCE WAS SUFFICIENT TO SUPPORT APPELLANT’S CONVICTION FOR THEFT.
THE COURT OF APPEALS HAS SO FAR DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS OR SO FAR SANCTIONED SUCH A DEPARTURE BY A LOWER COURT, AS TO CALL FOR AN EXERCISE OF THE COURT OF CRIMINAL APPEAL’S POWER OF SUPERVISION.
9 DISCUSSION
The Court of Appeals incorrectly held that the evidence was sufficient
to convict Appellant of Theft Over $200,000.00.
The test for reviewing the insufficiency of the evidence where a
defendant has been found guilty is for the reviewing court to determine
whether, after viewing the relevant evidence in the light most favorable to the
verdict, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893
(Tex. Crim. App. 2010)
Section 31.03 (e)(7) of the Texas Penal Code provides that a person
commits the first degree felony offense of Theft if he unlawfully
appropriates over $200,000 of property with the intent to deprive the owner
of the property. (West 2013) “A claim of theft made in connection with a
contract, however, requires proof of more than intent to deprive the owner
of property and subsequent appropriation of the property. In that
circumstance, the State must prove that the appropriation was the result of
a false pretext, or fraud. Moreover, the evidence must show that the
accused intended to deprive the owner of the property at the time the
10 property was taken.” Wirth v. State, 361 S.W.3d 694, 697 (Tex. Crim.
App. 2012).
The Court of Appeals erred in its analysis by determining that the
State proved Appellant’s theft beyond a reasonable doubt even when
viewing the following evidence in the light most favorable to the verdict: 1)
Appellant did not perform the fraudulent billing, 2) Appellant was not active
participant in the dental business, 3) Appellant earned the $203,000.00
attributable to him as salary over the course of 3 ½ years, and 4) The State
provided no proof that Appellant spent the company money for personal
expenses unlike Simmons did. Therefore, the Court of Appeals erred in
determining that Appellant the evidence was sufficient to convict Appellant
of Theft Over $200,000.00.
11 PRAYER FOR RELIEF
For the reasons stated, Appellant Price prays the Court to grant his Petition For Discretionary Review, and after considering the grounds for review, reverse the judgment of the court of appeals and grant the relief requested. Respectfully submitted, _/s/ Crespin Michael Linton_ Crespin Michael Linton 440 Louisiana, Suite 900 Houston, Texas 77002 Texas Bar No. 12392850 (713) 236-1319 (713) 236-1242 (Fax)
CERTIFICATE OF COMPLIANCE
I hereby certify that Appellant’s Brief, as calculated under Texas Appellate Rule of Appellate Procedure 9.4, contains 1,346 words as determined by the Word program used to prepare this document.
_/s/ Crespin Michael Linton Crespin Michael Linton
CERTIFICATE OF SERVICE
I do hereby certify that on this the 13th day of February 2015, a true and correct copy of the foregoing Appellant’s Brief was served by E-service in compliance with Local Rule 4 of the Court of Appeals or was served in compliance with Article 9.5 of the Rules of Appellate Procedure delivered to the Assistant District Attorney of Harris County, Texas, 1201 Franklin Street, Suite 600 Houston, TX 77002 at curry_alan@dao.hctx.net and the State Prosecuting Attorney, P.O. Box 12405 Austin, Texas 78711 at information@spa.texas.gov.
__/s/_Crespin Michael Linton__ Crespin Michael Linton 12 APPENDIX A
Opinion In the Court of Appeals
For The Fourteenth District of Texas
No. 14-13-00487-CR
David Austin Price, Appellant v.
State of Texas, Appellee