                                                                                     ACCEPTED
                                                                                 03-14-00605-CR
                                                                                         6699641
                                                                      THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
                                                                           8/28/2015 12:12:40 PM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK
                              NO. 03-14-00605-CR

                      IN THE COURT OF APPEALS                   FILED IN
                                                         3rd COURT OF APPEALS
                                                              AUSTIN, TEXAS
                      THIRD DISTRICT OF TEXAS            8/28/2015 12:12:40 PM
                                                             JEFFREY D. KYLE
                               AUSTIN, TEXAS                      Clerk



HOWARD THOMAS DOUGLAS                 §                       APPELLANT

VS.                                   §

THE STATE OF TEXAS                    §                         APPELLEE

         APPEAL FROM THE 331ST JUDICIAL DISTRICT COURT

                       TRAVIS COUNTY, TEXAS

                      CAUSE NO. D-1-DC-12-900059


                               STATE’S BRIEF


                                          ROSEMARY LEHMBERG
                                          District Attorney
                                          Travis County, Texas

                                          Lisa Stewart
                                          Assistant District Attorney
                                          State Bar No. 06022700
                                          Lisa.Stewart@traviscountytx.gov
                                          AppellateTCDA@traviscountytx.gov
                                          P.O. Box 1748
                                          Austin, Texas 78767
                                          (512) 854-9400
Oral Argument Not Requested               Fax No. 854-4810


                                      1
                                           TABLE OF CONTENTS




TABLE OF CONTENTS .............................................................................................. 2

INDEX OF AUTHORITIES ......................................................................................... 3

STATEMENT OF THE CASE ..................................................................................... 4

STATEMENT OF FACTS FROM GUILT/INNOCENCE ......................................... 5

SUMMARY OF THE ARGUMENTS ........................................................................ 25

STATE’S REPLY TO APPELLANT’S FIRST POINT OF ERROR....................... 28
   The evidence was legally sufficient to establish beyond a reasonable doubt that appellant
   committed securing execution of a document by deception as alleged in the indictment. .......28

State’s Reply to Appellant’s Second Point of Error................................................... 39

   Appellant failed to preserve any alleged error for review, as his claim on appeal differs from
   his trial objection. Alternatively, the trial judge did not abuse his discretion in excluding
   irrelevant evidence of TMIC’s funding of the Workers’ Compensation Fraud Unit................39

PRAYER ...................................................................................................................... 44

CERTIFICATE OF COMPLIANCE ......................................................................... 45

CERTIFICATE OF SERVICE................................................................................... 45




                                                               2
                                             INDEX OF AUTHORITIES
Cases
Adelman v. State, 828 S.W.2d 418 (Tex.Crim.App. 1992) .........................................................29
Barnes v. State, 62 S.W.3d 288 (Tex.App. – Austin 2001, pet.ref’d.) ........................................30
Bennett v. Grant, 460 S.W.3d 220 (Tex.App. - Austin 2015, pet. filed) .....................................36
Bowden v. State, 628 S.W.2d 782 (Tex.Crim.App. 1982) ..........................................................29
Briones v. State, 76 S.W.3d 591 (Tex. App. - Corpus Christi 2002, no pet.) ..............................36
Cain v. State, 958 S.W.2d 404 (Tex.Crim.App. 1997) ...............................................................29
Dillon v. State, 574 S.W.2d 92 (Tex.Crim.App. 1978)...............................................................29
Douglas v. State, No. 03-13-00092-CR, delivered August 26, 2015 (memorandum opinion) ....35,
   43
Dues v. State, 634 S.W.2d 304 (Tex.Crim.App. 1982)...............................................................30
Goldstein v. State, 803 S.W.2d 771 (Tex.App. – Dallas 1991, pet.ref’d.) ................. 25, 30, 35, 36
Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App. 2001) ...........................................................37
Green v. State, 934 S.W.2d 92, 101-102 (Tex. Crim. App. 1996), cert.denied, 520 U.S. 1200
   (1997) ...................................................................................................................................42
Hill v. State, 161 S.W.3d 771 (Tex.App. – Beaumont 2005, no pet.)..........................................29
Hooper v. State, 214 S.W.3d 9 (Tex.Crim.App. 2007)...............................................................28
In re E.P., 185 S.W.3d 908 (Tex. App. - Austin 2006, no pet.) ..................................................30
Jackson v. Virginia, 443 U.S. 307 (1979) ..................................................................................28
Margraves v. State, 34 S.W.3d 912 (Tex.Crim.App. 2000) (Johnson, J., concurring).................31
Matson v. State, 819 S.W.2d 839 (Tex.Crim.App. 1991) ...........................................................29
McCain v. State, 22 S.W.3d 497 (Tex.Crim.App. 2000) ............................................................28
Mills v. State, 722 S.W.2d 411 (Tex.Crim.App. 1986)...............................................................33
Moore v. State, 969 S.W.2d 4 (Tex.Crim.App. 1998) ................................................................29
Norwood v. State, 135 Tex. Crim. 406, 120 S.W.2d 806 (Tex.Crim.App. 1938) ........................30
Oler v. State, 998 S.W.2d 363 (Tex. App. - Dallas 1999, pet.ref'd., untimely filed) ...................30
Rogers v. State, 111 S.W.3d 236, 243 (Tex. App. – Texarkana 2003, no pet.)............................42
Russo v. State, 228 S.W.3d 779 (Tex.App. – Austin 2007, pet.ref’d.) ........................................29
Turro v. State, 867 S.W.2d 43 (Tex.Crim.App. 1993)................................................................28
Willbur v. State, 729 S.W.2d 359 (Tex.App. – Beaumont 1987, no pet.)....................................30
Wilson v. State, 71 S.W.3d 346 (Tex.Crim.App. 2002) ..............................................................41


Statutes
V.T.C.A. Penal Code §1.07(a)(25) ............................................................................................31
V.T.C.A. Penal Code §31.01 .....................................................................................................33
V.T.C.A. Penal Code §32.46 ..............................................................................................passim


Rules
Tex.R.App.Proc. 33.1................................................................................................................42
Tex.R.App.Proc. 9.4(e) .............................................................................................................45
Tex.R.App.Proc. 9.4(i)(2)(A) ....................................................................................................44
Tex.R.Evid. 403 ..................................................................................................................40, 41


                                                                      3
                              NO. 03-14-00605-CR

                         IN THE COURT OF APPEALS

                         THIRD DISTRICT OF TEXAS

                                AUSTIN, TEXAS

HOWARD THOMAS DOUGLAS                    §                            APPELLANT

VS.                                      §

THE STATE OF TEXAS                       §                              APPELLEE

             APPEAL FROM THE 331ST JUDICIAL DISTRICT COURT

                           TRAVIS COUNTY, TEXAS

                         CAUSE NO. D-1-DC-12-900059

TO THE HONORABLE COURT OF APPEALS:

      Now comes the State of Texas and files its brief in response to that of the

appellant.


                         STATEMENT OF THE CASE


      The State indicted appellant for the third-degree-felony of securing

execution of a document by deception. V.T.C.A. Penal Code §32.46(b)(5). (CR

12-18). Appellant pled not guilty and had a jury trial on guilt/innocence. (RR II:

7, 23). The jury found appellant guilty of securing execution of a document by

deception as alleged in the indictment. (CR 182; RR VI: 47-48). The trial judge



                                         4
assessed appellant’s punishment at five years confinement in the Texas

Department of Criminal Justice – Institutional Division. (CR 194). Appellant

timely filed a motion for new trial, which was overruled by operation of law. (CR

202-206). Appellant timely filed notice of appeal. (CR 207). The trial judge

certified appellant’s right to appeal. (CR 186).


           STATEMENT OF FACTS FROM GUILT/INNOCENCE

Designated-Doctor Examinations (DDEs) and Functional Capacity
Evaluations (FCEs)

      Dr. Daniel Boudreau was a designated doctor for the State of Texas. (RR II:

60). He explained that a designated doctor was a physician who evaluated injured

workers and was encouraged to be an independent evaluator. (RR II: 60). Dr.

Boudreau referred to his designated-doctor patients as “claims” as they were

assigned by the Texas Department of Insurance, Division of Workers’ Comp. (RR

II: 60-61). He had no doctor-patient relationship with the claims. (RR II: 61).

      Dr. Boudreau worked with North Texas Medical Evaluators (NTME) in

what he thought was an independent contractor capacity. (RR II: 61). He worked

with NTME from 2007 to 2009. (RR II: 64-65). He gave NTME his medical

license number for reports and billing and a signature stamp. (RR II: 69-70, 72-

72). But, he did not recall giving NTME a power of attorney. (RR II: 69-70). Dr.




                                          5
NTME did not assign patients to Dr. Boudreau, but it assisted him with scheduling

patients and submitting designated-doctor reports. (RR II: 62).

         For designated-doctor appointments, Dr. Boudreau received 60% of the

money collected and NTME took 40% for doing the paperwork and collections.

(RR II: 65). Dr. Boudreau received none of the money collected for FCEs. (RR II:

65). Dr. Boudreau generally ordered an FCE where a person had a

musculoskeletal or limb problem, but he did not order them as a matter of course.

(RR II: 66, 69). He only “might” order an FCE on a person who had already

returned to work. (RR II: 69). If Dr. Boudreau had an issue with being paid by

NTME, he contacted appellant.1 (RR II: 62).

         The designated-doctor evaluation was completely separate from the FCE.

(RR II: 80). A technician who conducted the FCEs attended the appointments.

(RR II: 67). The technician sent the results of the FCEs to Dr. Boudreau via email.

(RR II: 78). FCEs generally took 30-40 minutes to complete; Dr. Boudreau had

never known an FCE to take 4 hours. (RR II: 68).

         State’s exhibit 29 contained a letter presumably written by Dr. Boudreau

ordering an FCE for Barbara Boles. (RR XII: 266). Dr. Boudreau thought the

signature on the letter was very similar to his own, but he could not tell at the time

of trial whether the signature was his or made by the signature stamp. (RR II: 71-

1
    Dr. Boudreau identified appellant in the courtroom. (RR II: 63).



                                                  6
72). The letter had Dr. Boudreau’s name at the top, but Dr. Boudreau did not

generate that document. (RR II: 72). The letter, dated April 15, 2009, reflected

that he ordered an FCE on Barbara Boles after doing a designated-doctor exam on

“him.” (RR II: 72). A second page of the document showed that the FCE lasted for

3 ½ hours, but Dr. Boudreau had never seen an FCE last that long. (RR II: 72).

      State’s exhibit 30, medical billing documents for Jimmy Gomez, also

contained a document with a signature similar to Dr. Boudreau’s, but again he

could not verify if that were his actual signature or a signature stamp because he

did not generate that document either. (RR II: 73). The document bore letterhead

from “Marconi Physical Performance Testing,” a company which Dr. Boudreau

did not know existed until recently. (RR II: 79-80). Dr. Boudreau did not work

for Marconi Physical Performance Testing or recall ever going to their offices.

(RR II: 63-64). State’s exhibit 30 also reflected an FCE lasting from 10:30 a.m. to

2:30 p.m., but Dr. Boudreau did not recall the occurrence of that FCE. (RR II: 73).

Dr. Boudreau had no knowledge that FCEs were being billed out at 16 units per

patient. (RR II: 80).

      Martha Luevano managed the Division of Worker’s Compensation, medical

fee dispute resolution, for the Texas Department of Insurance (TDI). (RR III: 10).

The TDI and the Division of Workers’ Compensation regulated the Texas Mutual




                                          7
Insurance Company (TMIC). (RR III: 16). Luevano testified as an expert in

medical billing based on her training and experience. (RR III: 12).

       Luevano explained the many acronyms used during this trial and that the

CPT2 code for an FCE was 97750. (RR III: 13-14). “HCFA” was an acronym

used for the Centers for Medicare and Medicaid Services before it took on that

name. (RR III: 14). HCFA stood for Health Care Finance Administration before

the name change, and it typically referred to a paper billing form, the HCFA 1500.

(RR III: 14). The CMS 1500 was also a paper billing form that was used to bill for

certain professional medical services. (RR III: 15). Luevano used interchangeably

the terms CMS 1500 and HCFA 1500 in explaining their purpose. (RR III: 15).

Texas Workers’ Compensation used “DDE” for designated-doctor examination,

and it had its own CPT code and rules for billing and reimbursement. (RR III: 15-

16).

       Luevano explained that an FCE was a technical examination that was billed

and paid separately from a DDE. (RR III: 16). With regard to CPT code 97750,

the AMA CPT code book for 2007 (SX 28) required “one-on-one patient contact, .

. . , physical performance test or measurement, with written report each 15

minutes.” (RR III: 20). The CPT code book for 2008 also required “direct one-on-


2
 “CPT” stands for American Medical Association Current Procedural Terminology. (RR III:
14).



                                            8
one patient contact, physical performance test or measurement, with report each 15

minutes.” (RR III: 20-21; SX27). The 2009 CPT code book required the same.

(RR III: 21; SX32). The code books for 2006-2009 all required the same direct

one-to-one patient contact, face-to-face, where the patient actually performed the

physical acts of the examination. (RR IV: 7-8).

      On cross-examination, Luevano explained that SX26, the billing

documentation or Joann Jackson, was “technically” not an HCFA 1500 but rather

the more modern version of it, known as the CMS 1500. (RR II: 70-71; RR III:

27-28). Luevano added that Form 1500 was prepared by the healthcare provider

and sent to the insurance carrier. (RR III: 28). Based on that form, the insurance

carrier determined what payment to make; the form contained a medical diagnosis

via certain codes. (RR III: 28).

      As for CPT code 97750, Medicare policy dictated that a healthcare provider

could bill one unit for each 15 minutes spent in direct, one-on-one contact with a

patient. (RR III: 38-39). Any time that a patient was not actively engaged in the

physical performance examination, tests or measurements was not billable. (RR

III: 47, 48). Code 97750 required the healthcare provider to prepare a written

report for a FCE, which differed from the report written by the designated doctor.

(RR III: 39, 40).




                                         9
         Luevano further explained on redirect examination that a healthcare provider

could not bill for the time spent preparing the written report, reviewing medical

records, or travelling to the location for an FCE. (RR III: 41-42, 48; RR IV: 8).

The maximum allowable units that could be legally billed were 16, which equaled

4 hours, for an FCE. (RR III: 42). Medicare policy allowed for rounding up to

one 15-minute increment, viz: eight minutes spent with a patient could be rounded

up to one 15-minute allowable unit. (RR III: 42). The healthcare provider was

responsible for correctly coding and billing for services. (RR III: 42-43).

         Kathleen Haden, a senior investigator for TMIC, had been the supervisor for

the Healthcare Fraud and Abuse Unit in February of 2012. (RR III: 53). 3 Haden

identified SX30 as an HCFA 1500, a health insurance claim form that all doctors

and medical providers used nationally to bill their services. (RR III: 54). State’s

Exhibit 30 was designated “1500” at the top of the page, but it reflected “CMS

1500” at the bottom right in small print. Haden noted it used to be HCFA Form

1500, but the name of the form changed to CMS 1500 when the Centers for

Medicaid and Medicare took over for the Health Care Finance Administration.

(RR III: 54). Persons in the business still called the CMS 1500 form by the name

HCFA 1500. (RR III: 54, 127). The term “HCFA” was commonly used within the



3
    Haden confirmed that TMIC was located in Austin, Travis County, Texas. (RR III: 54).


                                               10
industry. (RR III: 55). The HCFA form would be sent to the TMIC to trigger a

payment of some sort. (RR III: 55).

        Haden explained that TMIC received notice from the TDI when a patient

was scheduled for a designated-doctor examination. (RR III: 60). The TDI then

chose the doctor and coordinated the date and time of the appointment. (RR III:

60). The TDI notified TMIC of this appointment via an EES-14 form, which

reflected the appointment time and date. (RR III: 60-61). The injured worker was

required to show up at that date and time. (RR III: 61).

Testimony from Injured Workers Who Received FCEs

        On July 20, 2007, Jerry Dockray sustained a significant injury to his back,

four discs in his spine, and his shoulders from a hay-wrapping machine. (RR II:

108-109). Dockray’s employer had Worker’s Compensation insurance with

TMIC, and Dockray filed a claim. (RR II: 109, 114). Almost a year after his

injury, Dockray had surgery on his neck and then later on his shoulder. (RR II:

109).

        After his surgeries, in February of 2009, Dockray travelled from his home in

Paris, Texas, to Sulphur Springs, Texas, for an appointment with a doctor that he

had not seen before.4 (RR II: 110, 116). The appointment was not in a doctor’s


4
  The doctor was also not from Sulphur Springs and had travelled there for the appointment. (RR
II: 117).


                                              11
office or a hospital but in a fitness center “or something like that.” (RR II: 110).

The office space consisted of an office on one side, a waiting room in front, and a

small examination room with no equipment. (RR II: 110). The doctor explained

the purpose of the examination to Dockray, to-wit: to determine the extent of his

injury. (RR II: 111). Dockray spent only 5-10 minutes with the doctor. (RR II:

113).

        An assistant then had Dockray perform a few tests such as lifting his arm

without assistance and sliding his arm up a wall to determine his range of motion.

(RR II: 111, 112). These tests took about 20 minutes, and the doctor did not

observe Dockray perform these tests. (RR II: 113). Dockray was not asked to lift

anything such as weights or pull anything. (RR II: 112). He did not walk on a

narrow beam or a treadmill or ride a stationary bike. (RR II: 112). He did not tell

the medical personnel that he could lift 62 pounds or pull 85 pounds. (RR II: 111,

112). Dockray’s entire appointment lasted only about 45 minutes. (RR II: 112). 5

        Brad Ettinger, owner of a power washing business in Bulverde, Texas,

injured his shoulder on the job in 2007. (RR III: 133-134). Ettinger sought

medical treatment and filed a Worker’s Comp claim. (RR III: 134). Ettinger




5
 Dockray testified that Sulphur Springs was about an hour from Paris, and he recalled
commenting to his wife that it took him longer to get to the appointment than it did for the
examination. (RR II: 110, 112).


                                                12
underwent reconstructive surgery on his shoulder and several weeks of

rehabilitation. (RR III: 135).

      At some point, Ettinger received a letter instructing him to see a doctor that

he had not previously seen. (RR III: 135). He travelled more than an hour to a

small office in Seguin. (RR III: 136). After waiting for about an hour, Ettinger

finally saw appellant. (RR III: 137). Appellant asked Ettinger a few questions and

told him a technician would conduct some assessments on his mobility and

strength. (RR III: 137). Appellant did not conduct any of the assessments. (RR

III: 137). A technician had Ettinger perform range of motion and strength tests.

(RR III: 138). The physical part of the exam took less than one hour. (RR III:

138). The records of Ettinger’s examination and the corresponding claim forms

submitted to TMIC were admitted into evidence as SX36, which reflected that

appellant billed for 16 units of time. (RR III: 204; RR XII: 248).

      On January 23, 2009, Joann Jackson suffered an injury to her knee while

working as a school crossing guard. (RR II: 49-50). Jackson’s employer filed a

worker’s compensation claim and sent her to a doctor for designated-doctor exams

in March and April. (RR II: 50). Jackson underwent an FCE in which the doctor

raised her leg and bent her knee while she laid on a table. (RR II: 50-51). As part

of the FCE, Jackson also stood beside the examination table, lifted her leg, and




                                         13
bent her knee. (RR II: 51). She did not get on a treadmill or carry anything for the

doctor’s evaluation. (RR II: 51).

      Documents contained in State’s exhibit 26 reflected that Jackson’s FCE

lasted four hours, from 12:00 to 4:00 p.m., but Jackson testified that “no way” was

she there for four hours. (RR II: 52, 54). The exhibit further reflected that Jackson

underwent various tests, which she wholly denied. (RR II: 52-54). Specifically,

Jackson was not asked to stand for over 30 minutes, sit for over 30 minutes, walk

three miles, push or pull anything, get on a bike or a treadmill, or lift any weights.

(RR II: 52-53). Jackson did not discuss her lifting capacity with the doctor or tell

him that her capacity was either 42 or 86 pounds. (RR II: 53).

Appellant’s Business and Improper Billing Practices

      Tamara Wells worked for appellant at NTME from 2009 to 2011 doing his

accounts receivable i.e., billing, calling insurance companies regarding submitted

bills, and checking if accounts were paid. (RR IV: 32, 44). Appellant ran NTME,

which was a designated doctor scheduling company. (RR IV: 33). Appellant

initially had approximately 30 doctors working for him as independent contractors.

(RR IV: 34). As part of that employment arrangement, appellant required the

doctors to give him and NTME a power of attorney and their medical license and

social security numbers so that NTME could bill under the doctors’ names along




                                          14
with the company, sign the doctors’ names to reports, do FCEs, and do the doctors’

scheduling without actually contacting the doctors. (RR IV: 34, 73).

          NTME rented space all over Texas for the DDEs and the FCEs. (RR IV:

61). The rentals were done on an hourly basis, and the maximum time spent on a

rental for a day was between two to three hours. (RR IV: 61). NTME had five

rental facilities at the most on any given day. (RR IV: 62).

          Javier Jimenez worked for NTME as a licensed FCE technician from 2009

to 2011. (RR II: 82, 90). Jimenez recognized State’s exhibits 11 and 13 as articles

of incorporation for NTME and Marconi Physical Performance Testing, LLC,

respectively. (RR II: 88). Appellant was associated with both companies as

manager or owner. (RR II: 88). Jimenez testified, based on his conversations with

appellant6, that NTME had difficulty collecting from TMIC so appellant created

Marconi so that TMIC would pay for the FCEs. (RR II: 88-89). If a patient were a

TMIC patient, then Jimenez used Marconi letterhead in conjunction with the FCEs.

(RR II: 89).

          As a technician for NTME, Jimenez performed FCEs, range of motion tests,

and occasionally nerve-conducting tests. (RR II: 90). NTME technicians utilized

a one-page form when evaluating each patient. (RR II: 90-91). Appellant

instructed Jimenez to have the patient answer each question on the form, enter the

6
    Jimenez identified appellant in court. (RR II: 92-93).



                                                  15
information into the program, and email the report to the designated doctor and to

NTME. (RR II: 92, 105). The designated doctor for each patient did not direct the

examination because “that’s what the sheet of paper was for.” (RR II: 104).

Appellant told Jimenez to do an FCE on every patient. (RR II: 100, 105, 106).

      Jimenez conducted FCEs all over the state of Texas for NTME. (RR II: 91).

The examinations were conducted in rented spaces in chiropractic offices, doctors’

offices, or standard office space. (RR II: 95). The facilities did not have weights,

stationary bikes, treadmills, or any type of exercise equipment. (RR II: 95).

Jimenez conducted the FCEs only with “a big object that we used to measure the

pushing, pulling, grasping.” (RR II: 94). NTME paid for the rental expenses and

Jimenez’s travel expenses. (RR II: 93). NTME also paid Jimenez an incentive of

$25 for each FCE he conducted. (RR II: 94). Jimenez did not know the number of

FCEs he conducted for NTME, but he testified that “whenever we would get a set

of five, that’s how many we would do for the day.” (RR II: 103).

      Jimenez never spent four (4) hours conducting an FCE. (RR II: 94).

Jimenez took only 15 to 40 minutes to conduct an FCE, depending on the patient’s

injury, and approximately 10-15 minutes to input the information into the

computer. (RR II: 94, 106). The FCE was done according to NTME’s one-page

protocol. (RR II: 95). Jimenez recorded the start and stop times for each FCE on

the one-page protocol. (RR II: 96). Jimenez did not know who put the start and



                                         16
stop times on the FCE Statement of Medical Necessity included in SX30, the

billing documents for Jimmy Gomez, but it was not the correct time. (RR II: 97).

         Toward the end of Jimenez’s employment with NTME, appellant and Lena

Shockley7 told Jimenez not to perform FCEs on TMIC patients because NTME

wasn’t being paid for them. (RR II: 92). Jimenez quit NTME in December of

2011 because he was not being paid. (RR II: 104-105).

         Jose Saldivar worked for NTME from March of 2009 to December of 2011

as a medical technician. (RR III: 140-141, 154). Appellant hired him. (RR III:

141-142). He assisted physicians with range of motion evaluations and girth

measurements. (RR III: 141, 144, 147-148). Saldivar was familiar with Marconi

as the company used to bill for the FCEs, but he did not work for that company.

(RR III: 140, 142).

         When asked if he conducted FCEs, Saldivar answered, “Well, what we did is

we filled out a template” provided by NTME. (RR III: 141). The template was

one page. (RR III: 155). Appellant had a standing order that a template would be

filled out for each NTME patient. (RR III: 143). That template was then

converted into an FCE, so that an FCE was done on every patient. (RR III: 143-

144). It took Saldivar 10-15 minutes at the least to 30 minutes at the most to fill

out the template, i.e. to do an FCE. (RR III: 143). He knew the time because “we

7
    Shockley handled accounts receivable for appellant. (RR IV: 65).


                                                17
would just keep an eye on [the clock], because we knew the time we walked into

that clinic and the time we left.” (RR III: 154). Saldivar never spent 4 hours doing

an FCE. (RR III: 143).

      Saldivar performed FCEs done at the main office of NTME. (RR IV: 35).

Approximately eight patients were seen on a daily basis. (RR IV: 35). The

patients spent “15 minutes at the most” in the examination room actually getting an

FCE. (RR IV: 36). In spite of this, appellant directed Tamara Wells to bill for 16

units, or 4 hours, for the FCE. (RR IV: 36). Wells had never seen a patient stay

for 4 hours. (RR IV: 37). All the money from the FCEs went to appellant. (RR

IV: 61).

      Wells knew that appellant’s manner of billing was wrong. (RR IV: 39). She

felt particularly uncomfortable when the company billed under the doctors’ names,

as she had to copy and paste the doctors’ signatures from their contracts to the

billing documents. (RR IV: 39). Wells felt that she was forging the W-9s that had

to be sent with the reports. (RR IV: 39-40).

      Appellant hired Lena Shockley to do accounts receivable for NTME in

October of 2008. (RR IV: 65). Shockley quit in January of 2012 when NTME had

no doctors or technicians left, her paycheck bounced, and appellant accused her of

improprieties with money. (RR IV: 66-67, 86). Shockley admitted that she

fabricated facts for appellant when she first met with investigators and the



                                         18
prosecutor in this case. (RR IV: 67). Shockley lied and told the State that she

knew nothing about the FCEs, about how they were done, or how they were billed.

(RR IV: 68-69). Later, Shockley called the prosecutor, admitted that she had been

lying, and now wanted to tell the truth about NTME. (RR IV: 69).

      In truth, Shockley knew that an FCE was being done on every patient. (RR

IV: 69). Per appellant’s orders, Shockley instructed the technicians to conduct an

FCE on every patient except for TMIC patients because in 2009 TMIC wouldn’t

pay for the FCEs. (RR IV: 69-70). So, appellant created Marconi Physical

Performance Testing to trick TMIC into paying for FCEs. (RR IV: 71). Shockley

and appellant created letterhead and revised the FCE to “try to throw Texas Mutual

off[,]” but TMIC still did not pay. (RR IV: 71).

      Wells was also familiar with appellant’s Marconi company, which was

created to bill for FCEs. (RR IV: 37). Appellant instructed Wells not to bill TMIC

under NTME. (RR IV: 38). Appellant wanted all FCEs that were done for TMIC

to be billed under Marconi to see if they could get paid. (RR IV: 37). Wells

believed that Marconi was created to “throw off” TMIC. (RR IV: 38-39).

      Appellant had further instructed Shockley to call TMIC to discuss the

denials with them. (RR IV: 72). Appellant told Shockley what to say, viz: that the

doctors wanted the FCEs done and that in order to complete a DDE, the FCE was

required. (RR IV: 71-72). Shockley spoke with Haden at TMIC about patient



                                         19
Janet Stover and told Haden that Stover had completed all the steps of the FCE.

But, Shockley was not telling the truth. (RR IV: 73). TMIC said the FCE reports

were not accurate or truthful. (RR IV: 81).

      Despite learning that NTME could only bill for face-to-face contact on an

FCE, NTME did not change its billing practices. (RR IV: 85-86). Appellant knew

that the FCEs that were submitted for payment were wrong and included physical

tests that were never done. (RR IV: 87). Shockley even read the rule book

regarding billing with appellant. (RR IV: 86).

      Corroborating testimony from Wells, Shockley confirmed that FCEs were

done at the NTME main office in Corinth. (RR IV: 74). Shockley actually saw

patients enter the exam room for the FCEs, and she observed that the FCEs lasted

10 minutes at the most. (RR IV: 74). Patients typically spent five to ten minutes

waiting for the doctor to arrive and do his designated-doctor report before the FCE.

(RR IV: 75). Appellant’s policy regarding FCEs was that one was to be done on

each patient and the FCEs were to be billed at the maximum amount of 16 units

“as if they were there for four hours.” (RR IV: 75). Appellant told Shockley that

the time spent talking with the patient, preparing the report, and sending out the

report could be included in the 16 units. (RR IV: 75). But, it never took four hours

to do all those activities. (RR IV: 75-76).




                                          20
      Shockley also testified that NTME paid for the rental of facilities for the

FCEs and DDEs. (RR IV: 76). NTME rented the facilities for two hours at most.

(RR IV: 76). NTME determined the times on the reports for the four-hour window

for the FCEs based on the time NTME had rented the facility. (RR IV: 76). In

other words, if NTME rented a facility from 8:00 a.m. to 10:00 a.m., they recorded

the time on the FCE as “8:00-12:00” since it had to be four hours. (RR IV: 76).

Appellant paid the designated doctors a certain amount for the DDEs, but he did

not pay them for FCEs. (RR IV: 77).

      Shockley confirmed that appellant created a template for the FCEs. (RR IV:

77). To complete the template for the FCE form, NTME merely copied and pasted

a patient’s name onto the form. (RR IV: 77). Shockley completed the FCE forms

after the FCE, and it took her about ten minutes to do one report. (RR IV: 79).

Appellant trained the technicians and paid them an incentive for doing FCEs. (RR

IV: 77-78).

TMIC’s Investigation into Appellant for Fraud

      Haden began investigating appellant for fraud November 1, 2008, when data

mining revealed suspicious patterns in his billing. (RR III: 56-57). The data

mining showed that NTME always billed 16 units, the maximum allowable

amount, for their FCEs. (RR III: 59). Further inquiry also revealed billings for

overlapping times for one doctor, i.e., two patients having FCEs at the same time



                                         21
when an FCE was a one-on-one service. (RR III: 60). From reviewing EES-14

forms related to appellant, Haden observed that many designated-doctor

appointments fell within the middle of the time reported for the FCEs. (RR III:

62). Haden also reviewed the FCE reports and found that the reports were virtually

identical except for the patient’s name, date of injury, personal information and

diagnosis code. (RR III: 63).

Undercover Investigation of Appellant

       Haden then coordinated an undercover investigation of appellant. (RR III:

63). Bonita Reid8 acted as the patient, and Regina Martinez acted as her sister and

accompanied Reid on her appointments. (RR III: 64-65). G&S Staffing, one of

TMIC’s policyholders, was listed as Reid’s employer. (RR III: 64). Medical bills

generated under the investigation were to be submitted directly to the Special

Investigations Department of the TMIC. (RR III: 67).

       A TMIC adjuster also assisted in the investigation. (RR III: 66). For the

undercover investigation, the adjuster requested a required medical examination on

Reid acting as the injured worker. (RR III: 66). Reid had this required medical

examination with Dr. Boudreau on March 9, 2009. (RR III: 199). Then, Reid had

a second appointment for an FCE at a different location. (RR III: 199).

8
 Reid was a Senior Investigator for TMIC’s Claimant Fraud Unit with 19 years’ experience.
(RR III: 197). Reid had previously been a Dallas police officer, working undercover in vice and
narcotics, and an investigator for the Dallas County District Attorney’s Office on death penalty
cases. (RR III: 198).

                                               22
        William Muhr, a Senior Health Care Fraud Investigator for TMIC,

conducted the second aspect of the undercover operation with Haden, Reid and

Martinez on May 28, 2009, at a facility on Westheimer Road in Houston. (RR III:

66, 177, 181). Muhr had two types of recording devices; he gave a digital

recording device to Reid and a radio frequency transmitter to Martinez. (RR III:

179, 182). State’s exhibit 8, the recording of Reid’s appointment, was admitted

into evidence and played for the jury. (RR III: 183).

       Reid arrived for her appointment at 12:58 p.m. and was called in for the

appointment at 1:12 p.m. (RR III: 200). The examination took approximately 18

minutes.9 (RR III: 202). State’s exhibit 31 showed that Reid’s FCE was billed at

16 units, meaning 4 hours. (RR III: 69-70; SX31). On a page entitled “North

Texas Medical Evaluators,” the FCE was reported as occurring from 3:00 p.m. to

7:00 p.m., with the same boilerplate language regarding tests and measurements

that Haden found in all the reports. (RR III: 70).

       Reid reviewed the billing submitted for her FCE (SX31), and testified that

she did not arrive at 3 p.m. and leave at 7 p.m. as it reflected. (RR III: 202).

Technician Jimenez testified that he did not spend from 3:00 p.m. to 7:00 p.m. on

that FCE for Bonita Reid. (RR II: 99).


9
 On the recording, Reid stated “that only took 25 minutes,” verbalizing that she had been at the
appointment a very short time. (RR III: 202).


                                               23
Pecuniary Losses

      After this undercover operation, Muhr interviewed Dr. Boudreau and nine

injured workers as part of his investigation. (RR III: 184-185). Once TMIC

determined it had enough evidence, it denied all of NTME’s bills for FCEs. (RR

III: 113). Muhr also assisted in preparing SX5, the spreadsheet of the billings for

the FCE patients that were paid by TMIC. (RR III: 185-186). Based on the results

of their investigation, TMIC calculated the fraudulent payments based on either 2

units of credit or 4 units of credit for time spent with patients on FCEs. (RR III:

115). Based on TMIC’s calculations for the 2 units, or 30 minutes, appellant was

overpaid $71,416.42 in fraudulent amounts. (RR III: 103). Where TMICC gave

appellant credit for spending 4 unit’s time, or one hour, the damage in fraudulent

payments was $61,214.07. (RR III: 104). If TMIC gave appellant no credit for

time with patients on FCEs, the full 16 units (4 hours) fraudulently billed would

have amounted to $81,618.75. (RR III: 104) The spreadsheet reflecting these

calculations for each patient named in the indictment was admitted into evidence.

(SX5; RR III: 100). Haden did not know the actual amount of time spent on FCEs

for each patient in the indictment. (RR III: 116).

Evidence from Appellant’s Defensive Case-in-Chief

      Appellant presented evidence in his defense. On the State’s cross-

examination of Shelly Estrada, appellant’s former office manager, Estrada testified



                                          24
that she billed every one of appellant’s FCEs at 16 units, i.e. the maximum time.

(RR V: 144). Estrada believed that she could bill for time that was not spent face-

to-face with the patient. (RR V: 147-148). Appellant told Estrada that she could

calculate FCE time outside of the face-to-face contact with the patient. (RR V:

151).


                       SUMMARY OF THE ARGUMENTS
State’s Reply to Appellant’s First Point of Error: In his first point of error,

appellant challenges the legal sufficiency of the evidence on three elements of the

offense, to-wit: intent to harm or defraud, deception, and jurisdictional value

amount. He also contends that there was a variance between the State’s pleading

and proof. Viewing the evidence in the light most favorable to the verdict, a

rational jury could have found the elements of securing execution of a document

by deception beyond a reasonable doubt. Appellant’s arguments are without merit.

        Intent to defraud or harm, as used in Penal Code §32.46, is a question of fact

to be determined from all the facts and circumstances. Goldstein, 803 S.W.2d at

791. Deception, as alleged in this case, meant creating or confirming by words or

conduct a false impression of law or fact that is likely to affect the judgment of

another in the transaction, and that the actor does not believe to be true. Penal

Code §§31.01, 32.46(d)(1).




                                          25
      The State presented overwhelming evidence that appellant created a false

impression of fact in his creation and filing of fraudulent FCEs and form 1500s to

obtain payment from TMIC. Appellant directed his employees to conduct an FCE

on every patient and to submit bills to TMIC for 16 units’ time (4 hours) for each

patient, regardless of the time actually required to complete the FCE. The

submitted 1500 forms also included billings for tests, measurements, and physical

performances by patients that were not done. Appellant knew that his billing

practices were improper and refused to change. When TMIC began to refuse

payment to appellant’s company NTME based on the fraudulent FCEs and 1500

forms, appellant created a new company, Marconi, in an effort to trick TMIC into

for paying the fraudulent FCE claims. The State’s evidence further showed that

the value of TMIC’s pecuniary interest affected by appellant’s deception was

$81,618.75 for the 16 units billed, $71,416.42 if TMIC gave appellant credit for 2

units, and $61,214.07 if TMIC gave appellant credit for 4 units of time for the

FCEs. Under any scenario, the value of TMIC’s affected pecuniary interest fell

within the range for a third degree felony.

      Finally, there was no variance between the State’s pleading and proof at

trial. The State alleged in the indictment that appellant submitted an HCFA 1500,

but the documentation admitted into evidence at trial was labelled CMS 1500.

Evidence from multiple witnesses established that the CMS 1500 was the more



                                         26
modern version of the HCFA 1500, and the name of the form changed when the

Health Care Finance Administration changed its name to the Center for Medicaid

and Medicare Services. Nevertheless, persons in the industry commonly referred

to the CMS 1500 as the HCFA, and witnesses at trial used the terms

interchangeably to refer to the same document. Additionally, exhibits admitted at

trial showed that appellant’s employees referred to the submitted health insurance

claim form as the HCFA 1500. Thus, the State’s pleading did not vary from its

proof.

         Appellant’s legal insufficiency arguments are without merit and should be

overruled.

State’s Reply to Appellant’s Second Point of Error: Appellant failed to preserve

any alleged error for review, as his argument on appeal does not comport with his

objection at trial. Additionally, appellant did not object at trial to the timeliness of

the State’s disclosure of the information that the TMIC funded the Workers’ Comp

Fraud Unit of the District Attorney’s Office. Finally, the trial court did not err in

excluding evidence of that funding, as the trial judge did not abuse his discretion in

determining that that evidence was not relevant to any issue in this cause, viz:

whether appellant committed securing execution of a document by deception.

Appellant’s second point of error has no merit.




                                           27
      STATE’S REPLY TO APPELLANT’S FIRST POINT OF ERROR

      The evidence was legally sufficient to establish beyond a
      reasonable doubt that appellant committed securing execution of a
      document by deception as alleged in the indictment.

Standard of Review

      In determining whether the evidence is sufficient to support a conviction, an

appellate court must review the evidence in the light most favorable to the verdict

by asking whether any rational trier of fact could have found the appellant guilty of

the elements of the crime beyond a reasonable doubt. McCain v. State, 22 S.W.3d

497, 503 (Tex.Crim.App. 2000) (citing Jackson v. Virginia, 443 U.S. 307 (1979)).

This familiar standard gives full play to the responsibility of the trier of fact to

fairly resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic to ultimate facts. Jackson v. Virginia, 443 U.S. at

319. “Each fact need not point directly and independently to the guilt of the

appellant, as long as the cumulative force of all the incriminating circumstances is

sufficient to support the conviction.” Hooper v. State, 214 S.W.3d 9, 13

(Tex.Crim.App. 2007).

      While evidence presented at trial may offer conflicting accounts, the

introduction of conflicting evidence is not enough to render the evidence

insufficient as a whole. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993).

It is within the province of the jury, as fact-finder, to judge the weight and



                                           28
credibility to be accorded witness testimony, and the appellate court must defer to

the jury's determination concerning what weight to give contradictory testimonial

evidence. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997);

Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App. 1982). The trier of fact, not

the appellate court, determines whether to accept or reject any or all of a witness's

testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson

v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). The appellate court’s duty is

to determine if both the explicit and implicit findings of the trier of fact are rational

by viewing all of the evidence admitted at trial in the light most favorable to the

verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the

evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843.

      1. Intent to Defraud or Harm

      Mental states are almost always inferred from acts and words. Hill v. State,

161 S.W.3d 771, 775 (Tex.App. – Beaumont 2005, no pet.), citing Moore v. State,

969 S.W.2d 4, 10 (Tex.Crim.App. 1998). The courts have long recognized that

mental culpability is of such a nature that it generally must be inferred from the

circumstances under which the prohibited act occurred. Dillon v. State, 574

S.W.2d 92, 94 (Tex.Crim.App. 1978); Russo v. State, 228 S.W.3d 779, 793

(Tex.App. – Austin 2007, pet.ref’d.). A culpable mental state may be inferred by

the trier of fact from the acts, words, and conduct of the accused. Dues v. State,



                                           29
634 S.W.2d 304, 306 (Tex.Crim.App. 1982); Barnes v. State, 62 S.W.3d 288, 298

(Tex.App. – Austin 2001, pet.ref’d.). Indeed, the Court of Criminal Appeals stated

long ago that a defendant’s mental state is “concealed within his own mind and can

only be determined from his words, acts, and conduct.” Moore, 969 S.W.2d at 10

(quoting Norwood v. State, 135 Tex. Crim. 406, 120 S.W.2d 806, 809

(Tex.Crim.App. 1938). "Intent to defraud and harm" as used in Penal Code §32.46

is a question of fact to be determined from all the facts and circumstances.

Goldstein v. State, 803 S.W.2d 771, 791 (Tex.App. – Dallas 1991, pet.ref’d.),

citing Willbur v. State, 729 S.W.2d 359, 361 (Tex.App. – Beaumont 1987, no pet.).

      The State alleged, in relevant part, in the indictment that appellant acted with

intent to defraud and harm the Texas Mutual Insurance Company. (CR 12). The

Penal Code does not define "defraud." In that situation, the appellate courts give

the word its "plain meaning unless the statute clearly shows that [it was] used in

some other sense." In re E.P., 185 S.W.3d 908, 910 (Tex. App. - Austin 2006, no

pet.). The appellate court looks to the dictionary or other similar sources to

determine the word's definition. See Oler v. State, 998 S.W.2d 363, 368 (Tex.

App. - Dallas 1999, pet.ref'd., untimely filed). According to merriam-

webster.com/dictionary, “defraud” means to trick or cheat someone or something

in order to get money or use fraud in order to get money from a person, an

organization, etc. See also Margraves v. State, 34 S.W.3d 912, 923



                                          30
(Tex.Crim.App. 2000) (Johnson, J., concurring) (thesaurus gives the synonyms of

dupe, swindle, cheat, or deceive). “Harm” is defined by the Penal Code as

“anything reasonably regarded as loss, disadvantage, or injury, including harm to

another person in whose welfare the person affected is interested.” V.T.C.A. Penal

Code §1.07(a)(25).

      The State presented substantial evidence from which a rational jury could

infer beyond a reasonable doubt that appellant acted with the intent to harm and

defraud the TMIC. Testimony established that appellant directed his employees to

bill for 16 units or 4 hours for each FCE and that he required an FCE on every

patient. Yet, Dr. Boudreau and appellant’s medical technicians all testified that

they had never conducted an FCE that lasted as long as 4 hours. Testimony from

Dockray and Ettinger, two employees injured on their jobs, established that their

FCEs lasted less than one hour each, but both FCEs were billed at 4 hours.

Jackson, another patient, confirmed that her FCE did not last 4 hours, even though

appellant submitted paperwork reflecting that it did. The undercover investigation

revealed that appellant billed for 4 hours for the FCE with Bonita Reid, which in

reality lasted only 18 minutes.

      Additional evidence showed that appellant rented facilities for FCEs for only

two to three hours at most, yet he billed for 20 hours of FCEs each day. Appellant

calculated the 4-hour timeframe on the FCEs based on the time a facility was



                                         31
rented, i.e. if a facility were rented from 8 a.m. to 10 a.m. for FCEs, appellant

recorded the time for an FCE as 8 a.m. to 12 p.m. Appellant’s billing documents

also reflected multiple FCEs being conducted simultaneously, which was not

permissible as billing for an FCE under CPT code 97750 required one-on-one

patient contact.

      Furthermore, evidence showed that appellant knew his billing practices were

wrong, but he refused to change them. Shockley confirmed that appellant knew

that the FCEs that were submitted for payment were wrong and included physical

tests that were never done. Appellant instructed Shockley to call TMIC regarding

the denied payments to NTME and told her what to say, viz: that the FCEs were

required as part of the DDE. When TMIC refused to pay, appellant created

another company, Marconi, under which to bill for TMIC patients in an attempt to

“throw off” TMIC and “trick” them into paying, according to appellant’s

employees.

      From this evidence, the jury could infer appellant acted with intent to

defraud and/or harm TMIC.

      Appellant contends the evidence is legally insufficient to support the mens

rea element because he presented evidence that he believed he had actually

rendered 16 units of compensable time. Appellant’s argument lacks merit because

any inconsistencies in the evidence are resolved in favor of the verdict. Matson,



                                          32
819 S.W.2d at 843. It was the jury’s responsibility to fairly resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic to

ultimate facts. Jackson v. Virginia, 443 U.S. at 319. The jury’s determination that

appellant acted with intent to defraud and/or harm TMIC was supported by

overwhelming evidence of appellant’s known and repeated improprieties in his

billing for FCEs. Therefore, the evidence was legally sufficient.

      2. Deception

      Penal Code §32.46 was intended to proscribe conduct that is deceptive.

Mills v. State, 722 S.W.2d 411, 416 (Tex.Crim.App. 1986). Pursuant to

§32.46(d)(1), “deception” has the meaning assigned by V.T.C.A. Penal Code

§31.01. That section provides, in relevant part, that “deception" means (A)

“creating or confirming by words or conduct a false impression of law or fact that

is likely to affect the judgment of another in the transaction, and that the actor does

not believe to be true.”

      The State alleged in relevant part in the indictment that appellant, by

deception, created and confirmed by words and conduct a false impression of fact

by causing an HCFA Form 1500 to be submitted to TMIC for payment of services

under CPT code 97750 for 16 units of service that were not rendered on multiple

persons listed in the indictment. (CR 12-18). Appellant contends that the State




                                          33
failed to establish that TMIC would not have executed the documents at issue but

for appellant’s actions and that, therefore, the evidence is legally insufficient.

      Testimony from medical billing expert Luevano established that an HCFA

1500, also known as a CMS 1500, was a paper billing form used to bill for

professional services. The Form 1500 was prepared by the healthcare provider and

submitted to the insurance company for payment. The insurance carrier

determined what to pay the healthcare provider based on the information in that

form. FCEs were billed via a Form 1500 under CPT code 97750. Thus, it was the

filing of that claim form that initiated the payment to the healthcare provider.

      Overwhelming evidence in this case established that appellant created a false

impression of fact in his creation and filing of fraudulent FCEs and form 1500s to

obtain payment from TMIC. Appellant created a template for the FCEs, and, to

complete the template, NTME employees merely copied and pasted a patient’s

name onto the form. The FCEs from appellant included the same language

regarding physical tests and examinations performed during the FCEs, but this

information was false, as those tests and examinations were never done. Appellant

billed all FCEs at 16 units of time, although no single FCE took that much time.

Furthermore, after TMIC discovered appellant’s fraudulent billing practices and

refused to pay on the FCEs, appellant created a new company called Marconi

Physical Performance Testing to dupe TMIC into paying for the FCEs.



                                           34
       A person causes the execution of a document if the victim would not have

executed that document but for the actions of the defendant. Goldstein, 803

S.W.2d at 7911. The evidence showed that appellant directed his employees to bill

4 hours for each FCE. His employees submitted these bills based on his directive,

and TMIC executed checks based on those bills. Viewing all the evidence in the

light most favorable to the verdict, a rational trier of fact could have concluded

beyond a reasonable doubt that appellant, by deception, caused TMIC to pay for

numerous FCEs based on fraudulently created claim forms.

       3. Jurisdictional Amount of Pecuniary Loss

       Appellant next contends that the State failed to present legally sufficient

evidence to support this third degree felony because the State should have

segregated the value of the properly billed FCEs from the value of the fraudulently

billed FCE services. Appellant’s brief at p. 13.10

       Under Penal Code §32.46, a person commits an offense if, with intent to

defraud or harm any person, he, by deception, causes another to execute any

document affecting the pecuniary interest of any person. An offense under this

section is a third degree felony if the value of the pecuniary interest is $20,000 or

more but less than $100,000. The term "pecuniary interest" is not defined by the


10
  This Court rejected this same argument in affirming appellant’s prior conviction in Douglas v.
State, No. 03-13-00092-CR, delivered August 26, 2015 (memorandum opinion), pp. 11-12.



                                               35
statute; therefore, courts have defined the term using its common meaning of

having a "financial stake" in a matter. See Bennett v. Grant, 460 S.W.3d 220, 243

(Tex.App. - Austin 2015, pet. filed), citing Briones v. State, 76 S.W.3d 591, 595

(Tex. App. - Corpus Christi 2002, no pet.); Goldstein, 803 S.W.2d at 791.

      The State submits that it was not required to segregate the false amounts

from the amounts that might be deemed legitimate. The evidence showed that

TMIC was defrauded into paying NTME based upon falsified form requests, viz:

the health insurance claim forms billing for 16 units for FCEs. That a portion of

that payment may have been legitimate did not render valid the claim for the full

16 units. Thus, each claim submitted on behalf of appellant by NTME contained

false information. The State proved that the pecuniary value of the payments made

by TMIC to NTME based on the fraudulent claims for 16 units was $81,618.75.

Thus, the evidence was legally sufficient to prove that the value of TMIC’s

affected pecuniary interest was within the range of a third degree felony.

      Nevertheless, TMIC calculated its pecuniary losses based on giving

appellant credit for 2 units of service and 4 units service. Based on 2 units,

appellant was overpaid $71,416.42 in fraudulent amounts, and based on 4 units,

appellant was overpaid $61,214.07 in fraudulent amounts. Thus, even with the

allegedly legitimate amounts segregated from the fraudulent amounts, the value of




                                          36
TMIC’s affected pecuniary interest still fell within the range for a third degree

felony. Appellant’s claim is wholly without merit.

      4. No Variance Between the Pleading and Proof

      A "variance" occurs when there is a discrepancy between the allegations in

the charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243,

246 (Tex.Crim.App. 2001). In a variance situation, the State has proven the

defendant guilty of a crime, but has proven its commission in a manner that varies

from the allegations in the charging instrument. Id. Appellant contends the

evidence established that the actual form submitted by NTME to TMIC for

payment was a CFS form, not an HCFA 1500 form as pled in the indictment.

Appellant’s brief at p. 22.

      The State addressed this issue at trial. Luevano explained that HCFA was the

acronym for the Centers for Medicare and Medicaid Services before it took that

name. The CMS 1500 form was the more modern version of the HCFA 1500; both

were the paper billing form used nationally by medical providers to bill for their

services. Luevano used the two terms interchangeably in her testimony.

Furthermore, Haden identified SX30 as an HCFA 1500, even though technically it

was a CMS 1500 form, as labelled in the bottom right-hand corner. Haden noted

that the claim form used to be a HCFA Form 1500 but the name of the form

changed to CMS 1500 when the Centers for Medicare and Medicaid took over for



                                          37
the Health Care Finance Administration. The term HCFA was commonly used in

the industry to refer to the CMS 1500.

      Significantly, the documents used by NTME in their billing for the FCEs

showed that NTME in fact referred to the CMS 1500 form as an “HCFA.” State’s

exhibit 29 contained the claim forms and billing documents for the FCE done on

Barbara Boles. Within SX29 is a facsimile cover sheet for a corrected FCE claim.

This cover sheet, from Tamara Wells, reflected that NTME was submitting a

“corrected HCFA.” (RR 12: 179; SX29). This “corrected HCFA” was in

reference to the original submitted claim form, a CMS 1500. And, in SX36, the

facsimile cover sheet shows that an “HCFA 1500” in included in the fax, when the

document used is actually labelled “CMS 1500.” (RR XII: 225; SX36).

      Finally, the State notes that the claim form bears only the designation

“1500” at the top of the document. Whether called an HCFA 1500 or a CMS

1500, it was the same form, viz, a health insurance claim form. The evidence

showed that the witnesses considered the forms to be the same thing. Thus, there

was no variance between the State’s pleading and its proof.

      Appellant’s legal insufficiency claims are without merit, and his first point

of error should be overruled in its entirety.




                                           38
               State’s Reply to Appellant’s Second Point of Error

      Appellant failed to preserve any alleged error for review, as his
      claim on appeal differs from his trial objection. Alternatively, the
      trial judge did not abuse his discretion in excluding irrelevant
      evidence of TMIC’s funding of the Workers’ Compensation Fraud
      Unit.

Statement of Facts

      Donna Crosby, one of the prosecutors in this case, testified that she had

worked at the District Attorney’s Office since 1990, the majority of that time in the

Public Integrity Unit. (RR V: 60). Crosby informed appellant that TMIC provided

some funding for her division at the DA’s Office. (RR V: 60-61). Crosby testified

that TMIC paid for the Workers’ Comp Fraud Unit and had done so since its

inception, approximately 14 years ago. (RR V: 61, 68). The Unit consisted of two

attorneys and a paralegal. (RR V: 62). Crosby did not know how much money

TMIC provided. (RR V: 63).

      Crosby had prosecuted Workers’ Comp fraud cases that involved an

insurance carrier other than TMIC in the past and planned to do so in the future.

(RR V: 64-65). Crosby did not spend 100% of her time prosecuting cases

involving TMIC. (RR V: 65). But, when she prosecuted workers’ compensation

fraud cases, TMIC was always an alleged victim. (RR V: 67). Crosby always

prosecuted cases involving TMIC in Travis County. (RR V: 68). She presented

her cases to the Grand Jury. (RR V: 70).



                                         39
      The fact that the unit received funding from TMIC did not affect Crosby’s

decision on which cases to prosecute or how to handle them. (RR V: 69). In that

regard, the DA’s Office maintained its autonomy. (RR V: 69). Crosby listened to

TMIC’s recommendations and opinions, but the ultimate decision on who to

prosecute remained within her discretion as a prosecutor. (RR V: 69-70).

      Appellant contended Crosby’s testimony should be admissible before the

jury because it was relevant and exculpatory as motivation for this lawsuit. (RR V:

71). Crosby contended her testimony was irrelevant, and the trial judge

commented that it was certainly not exculpatory. (RR V: 71). Appellant vacillated

on whether Crosby’s testimony was exculpatory, but he was steadfast in his

contention that it was relevant. (RR V: 71). The trial judge did not consider the

evidence relevant to whether appellant committed the crime alleged in the

indictment. (RR V: 77-78).

      The trial judge also noted that appellant’s argument suggested that this was a

malicious prosecution, which would allow the State to rebut that allegation with

proof of appellant’s prior conviction for the same crime with a different company

he had. (RR V: 80). The trial judge also believed the appellant’s proffered

evidence would be excludable under Tex.R.Evid. 403. (RR V: 81). Therefore, the

trial judge did not allow appellant to call Crosby as a witness before the jury. (RR

V: 81).



                                         40
      Despite his issue with the relevancy of the proffered testimony, the trial

judge suggested appellant could attempt to present the evidence through another

witness. (RR V: 81). Ultimately, though, the trial judge ruled that the proffered

evidence of the funding by TMIC of the District Attorney Office’s Workers’ Comp

Fraud Unit was not relevant, and, if it were, Rule 403 required its exclusion. (RR

V: 83).

Preservation of Error

      To preserve error for appellate review the complaining party must make a

timely objection specifying the grounds for the objection if the grounds are not

apparent from the context. Tex.R.App.Proc. 33.1. Additionally, to preserve error,

the complaining party must obtain an adverse ruling from the trial court, and the

issue on appeal must correspond to the objection made at trial. See

Tex.R.App.Proc. 33.1; Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002).

      In this point of error, appellant contends the trial judge erred in not allowing

him to present evidence that TMIC funded the Workers’ Comp Fraud Unit of the

District Attorney’s Office. In his brief, appellant argues that American Bar

Association ethical standards prohibiting conflicts of interest between the State and

an alleged victim rendered this evidence relevant in this case. But, appellant did

not make that argument in the trial court. Appellant therefore presents no alleged

error for review because his argument on appeal differs from his objection in the



                                         41
trial court. Tex.R.App.Proc. 33.1; Rezac v. State, 782 S.W.2d 869 (Tex.Crim.App.

1990) (where the objection at trial differs from the argument on appeal, no error is

presented for appellate review).

      Appellant also complains in his brief of the timeliness of the State’s

disclosure of the funding by TMIC, but he does not present an appellate issue

regarding it. And, appellant did not object to the timeliness of the disclosure in the

trial court, so no alleged error is preserved for review. Tex.R.App.Proc. 33.1.

Standard of Review and Application of Law to Fact

      An appellate court reviews the trial court’s decision to admit or exclude

evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92,

101-102 (Tex.Crim.App. 1996), cert.denied, 520 U.S. 1200 (1997). A trial court

abuses its discretion when it acts without reference to any guiding rules and

principles or acts arbitrarily or unreasonably. Montgomery, 810 S.W.2d 372, 380

(Tex.Crim.App. 1991). “The mere fact that a trial judge may decide a matter

within its discretionary authority in a different manner than an appellate judge in a

similar circumstance does not demonstrate that an abuse of discretion has

occurred.” Rogers v. State, 111 S.W.3d 236, 243 (Tex.App. – Texarkana 2003, no

pet.), quoting Montgomery, 810 S.W.2d at 380.

      Under these guiding principles of law, the trial judge did not abuse his

discretion in excluding the evidence that TMIC provided funding for the Workers’



                                          42
Comp Fraud Unit. The record reflects that trial judge heard testimony, considered

the arguments of counsel, and determined that the proffered testimony was not

relevant to any fact of consequence in this trial, viz: whether appellant committed

the charged crime.

        Appellant contends the evidence was relevant because the jury could have

inferred that the DA’s Office acted as the “personal attorneys for TMIC” and that

“such a revelation” would have complemented his defensive theory that TMIC was

“strong-arming” appellant because it didn’t want to compensate him for the full 16

units. Appellant’s brief at p. 36. Appellant’s arguments are without merit, as there

was no evidence that the prosecutors acted as attorneys for TMIC. Crosby

established that she worked for the DA’s Office, not TMIC, that she maintained

her prosecutorial discretion over all TMIC cases and had the final decision on

which cases were prosecuted, and that the grand jury indicted these fraud cases. It

was not a reasonable inference that the prosecutors were the personal attorneys for

TMIC. Additionally, as the trial judge noted, if appellant presented this proffered

testimony in support of his strong-arming defensive theory, he opened the door to

evidence of his prior conviction for the same type of fraud.11 Finally, the State

notes that, regardless of the trial court’s ruling excluding his proffered evidence,



11
  This Court recently affirmed that conviction. Douglas v. State, No. 03-13-00092-CR, delivered August 26, 2015
(memorandum opinion).



                                                      43
appellant argued to the jury that this prosecution was motivated by the relationship

between TMIC and the District Attorney’s Office. See (RR VI: 22, 31).

      The trial judge did not abuse his discretion in excluding appellant’s

proffered evidence. Appellant’s second point of error is without merit and should

be overruled.


                                      PRAYER
      WHEREFORE, PREMISES CONSIDERED, the State prays this Court to

overrule the appellant’s points of error and to affirm the trial court’s judgment.

                                               Respectfully submitted,

                                               ROSEMARY LEHMBERG
                                               District Attorney
                                               Travis County, Texas


                                               /s/ Lisa Stewart
                                               Lisa Stewart
                                               Assistant District Attorney
                                               State Bar No. 06022700
                                               P.O. Box 1748
                                               Austin, Texas 78767
                                               Lisa.Stewart@traviscountytx.gov
                                               AppellateTCDA@traviscountytx.gov
                                               (512) 854-9400
                                               Fax No. 854-4810




                                          44
                       CERTIFICATE OF COMPLIANCE
      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(2)(A), the State

certifies that the length of this brief is 9,457 words. The State also certifies,

pursuant to Texas Rule of Appellate Procedure 9.4(e), a conventional typeface 14-

point was used to generate this brief.

                                                /s/ Lisa Stewart
                                                Lisa Stewart
                                                Assistant District Attorney



                          CERTIFICATE OF SERVICE
      I hereby certify that, on the 28th day of August, 2015, a true and correct copy

of this brief was served, by U.S. mail, electronic mail, facsimile, or electronically

through the electronic filing manager, to the Appellant’s attorney, Craig M. Price,

Hammerle Finley Law Firm, 2871 Lake Vista Drive, Suite 150, Lewisville, Texas

75067, cmp@hammerle.com.



                                                      /s/ Lisa Stewart
                                                      Lisa Stewart
                                                      Assistant District Attorney




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