                                                                                                 ACCEPTED
                                                                                             03-13-00092-CR
                                                                                                     6875842
                                                                                  THIRD COURT OF APPEALS
                                                                                             AUSTIN, TEXAS
                                                                                        9/10/2015 4:58:17 PM
                                                                                           JEFFREY D. KYLE
                                                                                                      CLERK

                       CAUSE No. 03-13-00092-CR
                      IN THE COURT OF APPEALS
                                                       FILED IN
              FOR THE THIRD COURT OF APPEALS DISTRICT
                                                 3rd COURT OF APPEALS
                                                     AUSTIN, TEXAS
                           AUS TIN, TEXAS
                                                                 9/10/2015 4:58:17 PM
                                                                   JEFFREY D. KYLE
                                                                         Clerk
                      Dr. HOWARD THOMAS DOUGLAS,
                                Appellant,

                                        vs.
                             THE STATE OF TEXAS,
                                   Appellee.

On appeal from Cause No. D-l-DC-10-900204, in the 331 5t Judicial District Court,
                            Travis County, Texas

             APPELLANT'S MOTION FOR REHEARING AND
                 MOTION FOR REHEARING EN BANC


TO THE HONORABLE THIRD COURT OF APPEALS:
      COMES NOW, Appellant, Dr. Howard Thomas Douglas, and files his

Motion for Rehearing and Motion for Rehearing En Banc, pursuant to Texas R.

App. P. 49.1 and 49.7, and states that this Comi should grant a rehearing or, in the

alternative, rehearing en bane, and after rehearing reverse the judgment against

Appellant and render a verdict of acquittal in his favor, and in support thereof

respectfully shows this Court the following:




APPELLANT'S MOTION FOR REHEARING                                         PAGE 1
                                            I.

             Court Erred In Holding That State Did Not Have To Prove
                  Value of Pecuniary Interest Obtained By Fraud

         This appeal presents what appears to be a case of first impression. In the

   prosecution for the offense of securing execution of a document by deception,

   pursuant to Texas Penal Code Sec. 32.46(b )(5), must the State prove the value of

   the prope1iy, service or pecuniary interest that was actually secured by deception?

         Stated another way, must the State prove the amount by which the victim

   was defi-auded in order to detennine the jurisdictional amount of the offense, or the

   degree of felony of which the defendant is to be punished?

         The Court of Appeals answered this question "no" when it held that the

   "State was not required to detennine and then segregate the false amount from the

   amount that might be deemed legitimate had WME filed legally." Op., at p. 12.

         The Court of Appeals erred in holding that the state did not need to

   segregate the value of the property, service or pecuniary interest that was

   actuaHy secured by deception from the value of the property, service or

   pecuniary interest that was not secured by deception.

         After rehearing, the Court of Appeals should withdraw its current opinion,

   reverse its judgment in this matter and render a verdict of acquittal for Appellant




APPELLANT'S MOTION FOR REHEARING                                   2
   because the evidence was legally insufficient to establish the value of the prope1iy,

   service or pecuniary interest that was secured by deception.

         Because Appellant was charged with securing execution of a document by

   deception as a third degree felony -- $20,000 or more but less than $100,000 -- the

   State was required to prove a value of prope1iy, service or pecuniary interest that

   was sufficient to satisfy the jurisdictional requirement of its pleading. See Lehman

   v. State, 792 S.W.2d 82, 84 (Tex. Crim. App. 1990); Simmons v. State, 109 S.W.3d

   469, 472 (Tex. Crim. App. 2003). See also Lee v. State, 29 S.W.3d 70, 575 (Tex.

   App.-Dallas 2000). In other words, the State had to prove that the value of the

   pecuniary interest of the portion of the documents that were executed as a result of

   Appellant's deception had to have an aggregate value of $20,000 or more but less

   than $100, 000. Otherwise, the State would not have established the jurisdictional

   amount of the offense (i.e., that it was a third degree felony) by legally sufficient

   evidence.

         In holding that the State was not required to determine and then segregate

   the false amount from the amount that might be deemed legitimate had WME filed

   legally, see Op., at p. 12, this Comi did not cite a single case, statute or other

   recognized legal authority that would obviate the State's requirement to prove the

   value of the property, service or pecuniary interest secured by Appellant's alleged

   deception. See Tex. Pen Code Ann., sec. 32.46(a)(l) ("A person commits an

APPELLANT'S MOTION FOR REHEARING                                     3
   offense if, with intent to defraud or harm any person, he, by deception, causes

   another to sign or execute any document affecting "property or service or the

   pecuniary interest of any person .... ") (emphasis added).

         The distinction between any false amounts and any legitimate amounts must

   be relevant because the offense requires that the offense is committed only if the

   defendant, with intent to defraud or hann any person, and by deception, causes

   another to sign or execute any document affecting property or service or the

   pecuniary interest of any person. Id. In other words, to be an offense, the alleged

   victim would not have acted but for the defendant's deception. See Goldstein v.

   State, 803 S.W.2d 777, 791 (Tex. App.-Dallas 1991, pet. ref d); Smith v. State,

   681 S.W.2d 71, 75-76 (Tex. App.-Houston [141h Dist.] 1983), ajf'd, 722 S.W.2d

   408 (Tex. Crim. App. 1986).

         Presumably, this Court's dismissal of the State's need to first "detennine

   and then segregate" the false amount from any legitimate amount of the prope1iy,

   service or pecuniary interest involved has removed the amount of value as an

   essential element from an offense stated in Texas Penal Code Section 32.46.

   Rather, according to the Comi's logic, the State need only allege a random value to

   the prope1iy, service or pecuniary interest involved, solely to set the degree of

   felony with which the State seeks to charge the defendant. See Tex. Penal Code

   Ann., Sec. 32.4(b )(5). Then, at trial, the State need only prove that the total value

APPELLANT'S MOTION FOR REHEARING                                    4
   of the property, service or pecuniary interest involved - regardless of whether that

   value was the result of deception - falls within the particular degree of felony for

   the State to satisfy its burden of proof.

         In other words, if the State alleged that the pecuniary interest involved was

   between $1,500.00 and $20,000.00, a third degree felony, but the evidence at trial

   showed that only $10.00 out of the total $1,500.00 of the pecuniary interest

   affected was the product of defendant's deception, and that the remaining value

   was the product of legitimate or non-deceptive conduct, then the hypothetical

   defendant would still be guilty of the third-degree felony for securing the execution

   of a document by deception.

         Such a result would be mandated if the State, as permitted by this Court of

   Appeals, did not have to first detennine and then segregate the false amount from

   the amount that might be deemed legitimate. See Op., at p. 12.

         This cannot be the law.

         In fact, even the State did not believe this to be the law at the time of trial

   because the State tried to segregate the value of the prope1iy, service or pecuniary

   interest obtained by deception from the value of the prope1iy, service or pecuniary

   interest that was obtained by legitimate or non-deceptive conduct. [3 RR 71-85]

         The State not only had to guess at the length of the actual functional capacity

   evaluations, but it also had to admit that a portion of each test was legitimate and,

APPELLANT'S MOTJON FOR REHEARING                                     5
   therefore, not all of the payment was secured by alleged deception; rather, at least a

   portion of each document was based on legitimate entitlement to payment:

         State:     Okay. The first one [reviewing State's Ex. 15, p. 4], it says
         TMI, two units. Is that giving [WME] credit for doing two units' wmih of
         work-

         Muhr: Yes. 30 minutes.

             ***
         State: And so that's not saying that they didn't do any work with these
         people. That's giving them credit for either 30 minutes to an hour. Is that
         correct?

         Muhr: That is c01Tect.

   [3 RR 83-85 (emphasis added)]

         There is no question that a p01iion of each check paid by Texas Mutual

   Insurance Company to Western Medical Evaluators ("WME") included billing and

   payment for services that were actually and properly earned by WME. [3 RR 84

   ("And so that's not saying that they didn't do any work with these people."]

         As a result, even the State prosecuted this case with the belief that it had to

   first determine and then segregate the value of the prope1iy, service or pecuniary

   interest that was actually obtained by deception from the value of the prope1iy,

   service or pecuniary interest that was not obtained by deception. Compare with

   Op., at p. 12.



APPELLANT'S MOTION FOR REHEARING                                    6
         Although the State acknowledged its burden to segregate the value obtained

   by deception from the value obtained by legitimate or non-deceptive conduct, the

   State failed to discharge that burden because its testimony about the value obtained

   by deception constituted nothing more than mere speculation or factually

   unsupported inferences or presumptions. Hooper v. State, 214 S.W.3 9, 13 (Tex.

   Crim. App. 2007); Appellant's Brief, pp. 11-17.

         Because the State failed to fully segregate the properly billed amounts from

   the amounts that were based on alleged deception or fraud, there was no legally

   sufficient evidence to establish the jurisdictional limits of this offense, and the

   State failed to satisfy its burden. See Sowders v. State, 693 S.W.2d 448, 450 (Tex.

   Crim. App. 1985) (when the State alleges an exact value for stolen prope1iy, it

   need not prove the exact value pled, but must only prove a value sufficient to

   satisfy the jurisdictional requirement of the State's pleading). See Nitcholas v.

   State, 524 S.W.2d 689, 691 (Tex. Crim. App. 1975). See Lehman, 792 S.W.2d at

   84; Simmons, 109 S.W.3d at 472; Lee, 29 S.W.3d 75. See also Appellant's Brief,

   pp.11-17.

         This Comi should grant Appellant's motion for rehearing or motion for

   rehearing en bane and, on rehearing, reverse the judgment of the Comi of Appeals

   and render a verdict of acquittal in favor of Appellant.



APPELLANT'S MOTlON FOR REHEARING                                     7
                                              II.

                   Court Eirired In Holding That Appellant Waived
                     Complaint About Amount Of Restitution.

         The Court also erred in holding that Appellant waived any complaint about

   the amount of restitution because he did not object to the amount of restitution

   ordered by the trial court. See Op., at p. 12.

         An appellate court reviews challenges to restitution under an abuse of

   discretion standard. One of the due process considerations underlying a review of

   restitution requires that the amount must be just and supp01ied by a factual basis

   within the record. Campbell v. State, 5 S.W.3d 693, 697 (Tex. Crim. App. 1999).

         In holding that Appellant waived any complaint about restitution by not

   objecting to the amount ordered by the trial comi, this Comi simply cited, without

   any analysis, the Texas Comi of Criminal Appeals' decision in Gutierrez-

   Rodriguez v. State, 444 S.W.3d 21 (Tex. Crim. App. 2014) (which was issued well

   after the trial in Appellant's case). See Op., at p. 12.

         The Court of Criminal Appeals did not distinguish between an argument that

   restitution is not authorized versus an argument that the evidence is not sufficient

   to support the amount of restitution. Gutierrez-Rodriguez, 444 S.W.3d at 23-24,

   n.20. Rather, the Comi based its decision on the assumption that a sentence of

   probation, confe1Ted by the judge, "extends clemency to the defendant and creates


APPELLANT'S MOTION FOR REHEARING                                   8
   a sort of contractual relationship" between the defendant and the trial comi. Id.

   Based on this contractual relationship, then, the defendant must     o~ject   to the

   imposition ofrestitution or otherwise accept the terms of the probation "contract."

   Id.

         The Comi of Criminal Appeals did not specify the method by which a

   defendant must object to or complain about restitution in order to preserve eITor.

   Rather, the Court explained that a defendant should object about restitution to the

   trial court in order to give the trial comi "the opp01iunity to reconsider the

   condition of probation or to reconsider the appropriateness of the probation

   contract without the objected-to condition." Id., at 24 (citation omitted).

         In this case, Appellant did "object" that the amount of restitution imposed by

   the trial court was not supported by a factual basis within the record when he

   complained in his Motion for New Trial that "there was no legally or factually

   sufficient evidence that Defendant committed fraud in the amount as alleged in the

   indictment and as found by the jury." [CR 172] The trial court was, therefore,

   presented with the oppo1iunity to reconsider the condition or appropriateness of the

   amount of restitution imposed on Appellant, including whether - as required by

   due process -- the amount of restitution imposed was just and suppmied by a

   factual basis within the record. Campbell, 5 S.W.3d at 697.



APPELLANT'S MOTION FOR REHEARING                                    9
         No talismanic words are needed to preserve error as long as the court can

   understand what the complaint is from the context. Clark v. State, 365 S.W.3d

   333, 337 (Tex. 2012). See also Bedolla v. State, 442 S.W.3d 313, 316 (Tex. Crim.

   App. 2014). The Texas Court of Criminal Appeals has stated that strict reliance on

   paiiicular phrases when making objections at trial are a thing of the past:

         To be sure, there are reported cases which seem to take a more slavish and
         unforgiving approach, but these have dwindled in importance as they have in
         frequency. Contemporary examples are now few and far between, and it is
         our purpose that they become even less common in the future.

   Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (emphasis added).

         More recently, the Comi of Criminal Appeals has stated that "magic words"

   are not required to preserve error, and a complaint will be preserved if the

   substance of the complaint is conveyed to the trial judge. Bennett v. State, 235

   S.W.3d 241, 243 (Tex. Crim. App. 2007).

         Appellant clearly objected, in his Motion for New Trial/AJTest of Judgment,

   that there was no factual supp01i in the record for a finding of fraud in the amount

   found by the jmy, which necessarily included a complaint about the amount of

   restitution imposed by the trial court. To hold otherwise, would require a slavish

   and unforgiving approach to preservation of a complaint about restitution.

   Lankston v. State, 827 S.W.2d at 909.




APPELLANT'S MOTION FOR REHEARING                                   10
         As a result, Appellant properly preserved his objection to the amount of

   restitution, and this Court of Appeals should, after rehearing, reverse its judgment

   and reverse the judgment on the grounds that no legally sufficient evidence

   supports the amount of restitution imposed and either render a judgment that no

   amount of restitution should be imposed or, in the alte111ative, remand this issue to

   the trial court for a new trial on the amount of restitution, if any, to be imposed on

   Appellant.

                                            III.

                                PRAYER FOR RELIEF

         WHEREFORE, PREMISES CONSIDERED, Appellant Howard Douglas,

   respectfully moves this Third Court of Appeals to grant Appellant's Motion for

   Rehearing or Motion for Rehearing En Banc and, after rehearing, reverse the trial

   comi's judgment against Appellant and enter a verdict of not guilty in his favor or,

   in the alternative, reverse the imposition of restitution on Appellant and either enter

   a judgment that no restitution should be imposed or remand this matter to the trial

   comi for a new trial on whether restitution should be imposed and, if so, in what

   amount.




APPELLANT'S MOTION FOR REHEARING                                     11
                                                 Respectfully submitted,
                                                 /s/ Craig M. Price
                                                 Craig M. Price
                                                 State Bar No. 16284170
                                                 Email: cmp@hammerle.com
                                                 HAMMERLE FINLEY LAW FIRM
                                                 2871 Lake Vista Dr., Suite 150
                                                 Lewisville, Texas 75067
                                                 Tel: (972) 436-9300
                                                 Fax: (972) 436-9000
                                                 Attorney for Appellant

                             CERTIFICATE OF SERVICE

           This is to ce1iify that on September 10, 2015, a true and correct copy of the

   above and foregoing document was served on the Travis County District Attorney's

   Office, Travis County, PO Box 1748, Austin, Texas 78767, by facsimile 512-854-

   9789.


                                               Craig M. Price

                           CERTIFICATE OF COMPLIANCE

            The undersigned counsel hereby ce1iifies, pursuant to Tex. R. App.
    9.4(i)( 4 ), that the foregoing Motion for Rehearing, et al., contains a total of
    2, 5 3 4words.



                                                 Craig M. Price          "'




APPELLANT'S MOTION FOR REHEARING                                    12
