Affirmed and Opinion filed January 15, 2015.

In The

Fourteenth Court of Appeals

NO. 14-13-00487-CR

DAVID AUSTIN PRICE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1368261

O P I N I O N

Appellant was found guilty of unlawfully appropriating at least $200,000. 

The only question on appeal is whether the evidence is legally sufficient to support 

the conviction. We conclude that the evidence is sufficient and we affirm the trial 

court’s judgment.
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BACKGROUND

This case is about a scheme of fraudulently billing Medicaid. The fraud 

occurred in a small dental clinic known as Lupe’s Wonderful Smiles, which was 

founded by appellant and his business partner, Wesley Simmons, neither of whom 

is a dentist.

In 2007, appellant and Simmons submitted an application to the Texas 

agency responsible for administering Medicaid, requesting that their clinic be 

registered as a Medicaid provider. By signing the application form, appellant and 

Simmons agreed to comply with all Medicaid rules and regulations. One such rule 

required that they would certify the correctness of any claims they submitted to 

Medicaid. The Texas agency approved the application, even though it was 

incomplete, and despite regulations prohibiting the ownership of clinics by nondentists.

After registering the clinic as a Medicaid provider, appellant and Simmons 

hired Dr. Joon Kim to serve as the dentist of the clinic. The parties agreed that Dr. 

Kim would have complete control over the practice of dentistry while appellant 

and Simmons handled the business side of the operation.

Dr. Kim treated patients with all types of insurance, but his clients were 

primarily Medicaid recipients. After recording the services he performed, Dr. Kim 

would forward his charts to appellant and Simmons, who then proceeded to bill 

Medicaid. Appellant was involved with the billing process when the clinic first 

opened, but over time, that responsibility shifted entirely to Simmons.

Dr. Kim eventually grew frustrated with the operation because appellant was

seldom in the office. Dr. Kim was also concerned because he lacked access to the 

clinic’s bank statements. Dr. Kim devised a plan to leave the clinic and open his 
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own practice, and he shared that information with one of his dental assistants. 

When appellant received word of this intent, he became angry and physically 

shoved Dr. Kim out the door. Dr. Kim left the clinic in June 2008.

After Dr. Kim’s exit, appellant and Simmons hired temporary dentists to 

work at the clinic. Before settling on a permanent dentist to hire, they continued to 

submit bills using Dr. Kim’s Medicaid provider number, falsely representing that 

Dr. Kim was the dentist who had rendered the services. Simmons approached 

appellant about this continued use of Dr. Kim’s Medicaid provider number, and 

appellant told Simmons to keep the business “under the radar” until a new dentist

could be hired.

Appellant and Simmons stopped using Dr. Kim’s Medicaid provider number 

in May 2010, when they hired Dr. Jennifer Molandes. By that time, the clinic had 

received more than $1.6 million from Medicaid for services that had been billed 

falsely under Dr. Kim’s name.

In 2011, a woman entered the clinic, complaining that the clinic had billed 

Medicaid for services that had never been provided to her children, who were 

former patients. The woman was distressed because she had taken her children to 

another clinic, and the dentist there was unable to provide the children with 

necessary treatment because records indicated that Medicaid had already paid for 

the treatment. A dental assistant referred the matter to Dr. Molandes, who collected 

a sample of patient charts and their accompanying bills. When she realized that the 

files did not match because the clinic was overbilling, Dr. Molandes reported the 

fraud to Medicaid. She quit shortly thereafter.

Auditors pored through the clinic’s records and confirmed the reports of 

fraud. Of all the money that the clinic had received from Medicaid after Dr. Kim’s 
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exit, the auditors determined that at least $1.2 million represented services that had 

never been rendered.

Appellant and Simmons were both charged with theft, but Simmons pleaded 

guilty and testified during appellant’s trial. Simmons confessed that he was 

responsible for the fraudulent billings and that he had used the clinic’s bank 

accounts for personal purposes. Simmons’s spending was extravagant: it included 

tickets to NBA basketball games and trips to Florida, New York, and California. 

Simmons paid for appellant to accompany him on all of these excursions, but as 

soon as the fraud was reported, appellant expected Simmons to “fall down on the 

sword.”

Appellant testified in his own defense. He claimed that he never submitted a 

fraudulent bill to Medicaid for services that had not been performed. Appellant 

blamed Simmons for that malfeasance. Appellant admitted, however, that he knew 

that the clinic had continued to use Dr. Kim’s Medicaid provider number long after 

Dr. Kim had left the clinic. Appellant attempted to explain that this use was 

permitted under an agreement with Dr. Kim, despite Medicaid regulations to the 

contrary.

The State produced evidence that tended to show appellant’s complicity in 

the fraud. This evidence included testimony that appellant received a salary as high 

as $3,000 per week, even though appellant only appeared in the clinic once every 

month. The State further demonstrated that appellant had used the clinic’s bank 

account for his own purposes, including to pay for a mortgage, a car, a party venue, 

and various home services.

The State also elicited testimony about appellant’s prior experience. Before 

opening the clinic, appellant had served as the office manager of another dental 

practice that was legally owned and operated by a licensed dentist. In this other 
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job, appellant regularly created production reports that showed the amount of 

billing performed by the office’s two practicing dentists. After their services were 

combined, the two dentists rarely billed more than $100,000 per month, except for 

during the busy summer months. Appellant’s clinic, by contrast, had the capacity 

for only a single practicing dentist, yet the clinic frequently billed in excess of 

$100,000 each month. At its apex in January 2011, the clinic received more than 

$140,000 from Medicaid. Appellant had access to all of the billings that were 

submitted by the clinic, but he never reviewed them. The State suggested that 

appellant was willfully turning a blind eye because he knew the billings were 

fraudulent.

To buttress this theory, the State elicited additional evidence that, in 2010, 

appellant had called a meeting with Simmons and Simmons’s parents to address 

Simmons’s extreme spending habits. The meeting occurred shortly after Simmons 

had returned from a trip to Europe to see a long-jump competition. Appellant knew 

that Simmons had been drawing on the clinic’s bank accounts for personal 

purposes, but despite his concern for Simmons’s spending habits, appellant 

testified that he never reviewed the clinic’s bank statements. As before, the State 

intimated that appellant had chosen to ignore the bank statements because he knew 

that the clinic was receiving an inordinate amount of disbursements from 

Medicaid.

APPLICABLE LAW AND STANDARD OF REVIEW

Cases of alleged Medicaid fraud may be prosecuted under the general theft 

statute. Cf. Odelugo v. State, 443 S.W.3d 131, 133 n.4 (Tex. Crim. App. 2014) 

(defendant was charged with engaging in organized criminal activity by unlawfully 

appropriating at least $200,000 from Medicare and Medicaid); Turner v. State, 636 

S.W.2d 189, 192 (Tex. Crim. App. 1980) (op. on reh’g) (defendant was charged 
6

with unlawfully appropriating at least $10,000 from Blue Cross-Blue Shield, which 

was underwriting Medicaid). A person commits a theft if the person unlawfully 

appropriates property with the intent to deprive the owner of the property. See Tex. 

Penal Code § 31.03(a). An appropriation of property is unlawful if it is without the 

owner’s effective consent or if the property is stolen and the actor appropriates the 

property knowing that it was stolen by another. Id. § 31.03(b)(1)–(2). Consent is 

not effective if it is induced by deception or coercion. Id. § 31.01(3). If the theft 

occurs in connection with a contract, there must be proof that the appropriation 

was the result of a false pretext, or fraud, and that the person intended to deprive 

the owner of the property at the time the property was taken. See Taylor v. State, 

No. PD-0051-14, — S.W.3d —, 2014 WL 6983938, *5 (Tex. Crim. App. Dec. 10, 

2014); Wirth v. State, 361 S.W.3d 694, 697 (Tex. Crim. App. 2012).

When determining the grade of theft, the amounts taken may be aggregated 

if the amounts were unlawfully appropriated pursuant to one scheme or continuing 

course of conduct. See Tex. Penal Code § 31.09. Here, appellant was charged with 

the aggregate theft of at least $200,000, which is the highest grade of theft 

proscribed under our penal system. Id. § 31.03(e)(7). To obtain a conviction, the 

State accordingly had to prove that appellant unlawfully appropriated at least 

$200,000 from Medicaid with intent to deprive Medicaid of that amount.

Intent may be inferred from the surrounding circumstances. See Smith v. 

State, 965 S.W.2d 509, 518 (Tex. Crim. App. 1998). Where, as here, a person is 

also charged as a party to an offense, the person may be criminally responsible for 

an offense even if the unlawful act was performed by another. See Tex. Penal Code 

§ 7.01(a). A person is criminally responsible for an offense committed by another 

if, while acting with intent to promote or assist the commission of the offense, he 

solicits, encourages, directs, aids, or attempts to aid the other person to commit the 
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offense. Id. § 7.02(a)(2). A person also bears criminal responsibility for an offense 

committed by the conduct of another if, while having a legal duty to prevent 

commission of the offense and acting with intent to promote or assist its 

commission, he fails to make a reasonable effort to prevent commission of the 

offense. Id. § 7.02(a)(3).

When reviewing the legal sufficiency of the evidence, we examine all of the 

evidence in the light most favorable to the verdict and determine whether a rational 

trier of fact could have found the essential elements of the offense beyond a 

reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 

2013). The evidence is insufficient when the record contains no evidence, or 

merely a “modicum” of evidence, probative of an element of the offense. See 

Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012).

Although we consider everything presented at trial, we do not reevaluate the 

weight and credibility of the evidence or substitute our judgment for that of the fact 

finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). 

Because the jury is the sole judge of the credibility of witnesses and of the weight 

given to their testimony, any conflicts or inconsistencies in the evidence are 

resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. 

Crim. App. 2000). Our review includes both properly and improperly admitted 

evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We 

also consider both direct and circumstantial evidence, as well as any reasonable 

inferences that may be drawn from the evidence. Id. Circumstantial evidence is as 

probative as direct evidence in establishing the guilt of an actor, and circumstantial 

evidence alone can be sufficient to establish guilt. See Hooper v. State, 214 S.W.3d 

9, 13 (Tex. Crim. App. 2007).
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ANALYSIS

The parties do not dispute that Simmons committed an aggregate theft of 

$200,000 or more. The question we consider is whether there is legally sufficient 

evidence that appellant acted as a party to that theft. The State asserts that appellant 

may be criminally responsible under two separate theories of culpability. The first 

theory focuses on appellant’s knowledge of the fraudulent use of Dr. Kim’s 

Medicaid provider number, and the second theory focuses on his failure to prevent

the fraudulent billing of services never rendered. We examine each of these 

theories in turn.

A. Fraudulent Provider Number

Appellant agreed to follow all Medicaid rules and regulations when he 

submitted an application to register his clinic as a Medicaid provider. One of these 

rules required him to certify that any claim submitted by the clinic was “true, 

accurate, and complete,” and that the services reported on the claim “were 

personally rendered by the billing provider or under the personal supervision of the 

billing provider.” See 2008 Texas Medicaid Provider Procedures Manual § 1.2.7; 

see also 1 Tex. Admin. Code § 354.1001.

In this case, the clinic submitted claims for more than $1.6 million in 

services that were falsely billed under Dr. Kim’s Medicaid provider number. 

Appellant testified that he knew the clinic had been using Dr. Kim’s Medicaid 

provider number even though Dr. Kim no longer worked there. However, appellant 

insisted that this practice was authorized under an agreement with Dr. Kim.

A reasonable juror could determine that appellant knew that the practice was 

unauthorized. Simmons testified that he approached appellant about the continued 

use of Dr. Kim’s Medicaid provider number during the interim period in which the 
9

clinic lacked a permanent dentist. Instead of instructing Simmons to stop the 

prohibited practice, appellant advised him to keep the business “under the radar.” 

From this statement, a juror could reasonably infer that appellant knew his 

operation was illegal. See Wirth, 361 S.W.3d at 697 (fraud may be demonstrated 

by evidence that the defendant acted with “an understanding and common design 

to do the prohibited act”). There would have been no need for furtive action if, as 

appellant suggested at trial, the clinic was acting within the scope of Medicaid 

rules and regulations by submitting claims under Dr. Kim’s name.

The evidence accordingly supports a finding that appellant encouraged 

Simmons to deceive Medicaid, and therefore, that appellant acted as a knowing 

party to theft. See Tex. Penal Code § 7.02(a)(2) (discussing a person’s party 

liability); id. § 31.01(1)(A) (providing that a person acts by “deception” if he 

creates a false impression through words or conduct that is likely to affect the 

judgment of another in a transaction, and that the person does not believe to be 

true); cf. Nwosoucha v. State, 325 S.W.3d 816, 840–41 (Tex. App.—Houston [14th 

Dist.] 2010, pet. ref’d) (conviction for engaging in organized criminal activity was 

supported by evidence that the defendant had falsified information that was 

submitted to Medicaid).

B. Services Never Performed

Appellant also bears criminal responsibility for Simmons’s fraudulent billing 

of services that were never performed, a theft valued at more than $1.2 million. As 

stated above, a person is criminally responsible for an offense committed by the 

conduct of another if while “having a legal duty to prevent commission of the 

offense and acting with intent to promote or assist its commission, he fails to make 

a reasonable effort to prevent commission of the offense.” See Tex. Penal Code 

§ 7.02(a)(3).
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In this case, it is undisputed that appellant, as an owner of the clinic, owed a 

legal duty to Medicaid to verify that all claims submitted by Simmons were “true, 

accurate, and complete.” See 2008 Texas Medicaid Provider Procedures Manual 

§ 1.2.7; see also 1 Tex. Admin. Code § 354.1001. Despite this duty, as well as 

evidence that appellant made the ultimate business decisions for the clinic, 

appellant testified that he never reviewed the claims that had been submitted by 

Simmons. Appellant also admitted that he implemented no safeguards that would 

have prevented the submission of fraudulent claims.

A reasonable juror could determine that appellant failed to take action 

because he intended to promote or assist the commission of Simmons’s $1.2 

million theft. The evidence showed that appellant knew from prior experience what 

a small clinic would normally bill in a month, and that he was aware of Simmons’s 

lavish spending habits from the clinic’s bank accounts. Appellant and Simmons 

each had access to the clinic’s accounts, and they both drew on the accounts for 

personal purposes. In some instances, with appellant’s knowledge, Simmons even 

used a clinic account to pay for appellant to accompany him on trips. The jury 

could have reasonably found that appellant took no action to prevent Simmons’s 

theft because appellant knew that he was sharing in the fruits of the crime. See 

Medrano v. State, 612 S.W.2d 576, 578 (Tex. Crim. App. [Panel Op.] 1981) 

(noting that a night watchman or policeman would be criminally responsible as a 

party to an offense if he purposefully neglected his duty with the intent to assist the 

perpetuating party in the commission of an offense).

C. Appellant’s Counterargument

Appellant contends that the trial court’s judgment should be reversed 

because the evidence in support of his conviction is “overwhelmingly 

outweigh[ed]” by four factors. The factors are as follows: (1) Simmons, rather than 
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appellant, was the person who had actually performed the fraudulent overbilling; 

(2) appellant was not actively involved in the management of the clinic; (3) an 

auditor testified that appellant’s salary may have been only $65,000 per year, 

meaning that his weekly pay was much less than $3,000; and (4) the State was 

unable to prove with certainty whether appellant or Simmons was responsible for 

using the clinic’s debit card for a select group of non-business transactions.

Appellant’s argument is misplaced. In a legal sufficiency challenge, we do 

not weigh the evidence in support of the conviction against any controverting 

evidence that may be in the record. Rather, we view all of the evidence in the light 

most favorable to the verdict and determine whether a rational jury could have 

found all elements of the offense beyond a reasonable doubt. See Gear v. State, 

340 S.W.3d 743, 746 (Tex. Crim. App. 2011). For the reasons explained above, we 

conclude that the jury in this case could have found every element of theft beyond 

a reasonable doubt.

CONCLUSION

The trial court’s judgment is affirmed.

/s/ Tracy Christopher

Justice

Panel consists of Chief Justice Frost and Justices Christopher and Busby.

Publish — Tex. R. App. P. 47.2(b).