                                                                               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.

REASON FOR REVIEW

    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




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