CAUSE No. 03-13-00092-CR IN THE COURT OF APPEALS FORTHE THIRD COURT OF APPEALS DISTRICT AUSTIN, TEXAS
Dr. HOWARD THOMAS DOUGLAS, Appellant, 

## vs. THE STATE OF TEXAS, Appellee. On appeal from Cause No. D-l-DC-10-900204, in the 331 5tJudicial District Court, Travis County, Texas 

### APPELLANT'SMOTIONFORREHEARING AND MOTION FORREHEARINGENBANC
TO THE HONORABLE THIRD COURT OF APPEALS: COMES NOW, Appellant, Dr. Howard Thomas Douglas, and files his Motion for Rehearing and Motion for RehearingEn Banc, pursuantto 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 thejudgment against Appellant and render a verdict ofacquittal in his favor, and in supportthereof respectfully shows this Courtthe following:

APPELLANT'S MOTION FOR REHEARING PAGE 1 ACCEPTED 03-13-00092-CR 6875842 THIRD COURT OF APPEALS

AUSTIN, TEXAS 9/10/2015 4:58:17 PM JEFFREY D. KYLE

CLERK

### I. CourtErred In Holding That StateDid NotHave To Prove Value ofPecuniaryInterest Obtained By Fraud This appeal presents what appears to be a case offirst impression. In the prosecution for the offense ofsecuring execution ofa documentby 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 actuallysecuredbydeception? Stated another way, must the State prove the amount bywhich the victim

was defi-audedin order to detennine thejurisdictional amount ofthe offense, orthe degree offelony ofwhich the defendant is to be punished? The Court ofAppeals 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 mightbe deemed legitimate had WME filed legally." Op., at p. 12. The Court ofAppeals erred in holding that the state did not need to segregate the value ofthe property, service or pecuniary interestthatwas actuaHy secured by deception from the value ofthe property, service or pecuniary interestthatwas notsecured by deception. After rehearing, the Court ofAppeals should withdraw its current opinion,
reverse itsjudgment in this matter and render a verdict ofacquittal for Appellant

APPELLANT'S MOTION FOR REHEARING 2because the evidence was legally insufficientto establish the value ofthe prope1iy, service or pecuniary interest that was secured by deception. Because Appellant was charged with securing execution ofa document by deception as a third degree felony

-- $20,000 ormore but less than $100,000

-- the State was requiredto prove a value ofprope1iy, service orpecuniary interest that
was sufficient to satisfy thejurisdictional requirement ofits pleading. SeeLehman

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 ofthe pecuniary interest ofthe portion ofthe documents that were executed as a result of Appellant's deception had to have an aggregate value of$20,000 ormore but less than $100,000. Otherwise, the State would not have establishedthejurisdictional amount ofthe offense 

### (i.e., that it was a third degree felony) by legally sufficient evidence. In holding that the State was notrequired 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 Comidid not cite a single case, statute or other recognized legal authority that would obviate the State's requirement to prove the value ofthe 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 3offense 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 ofany 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 ifthe defendant, with intentto defraud orhann any person, andby deception, causes another to sign or execute any document affecting property or service orthe pecuniary interest ofany 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. refd); 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 ofthe State's need to first "detennine andthen segregate" the false amount from any legitimate amount ofthe prope1iy, service orpecuniary interest involved has removed the amount ofvalue 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 orpecuniary interest involved, solely to setthe 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 thatthe total value APPELLANT'S MOTION FOR REHEARING 4ofthe property, service or pecuniary interest involved

- regardless ofwhetherthat value was the result ofdeception

- falls within the particulardegree offelony for the State to satisfy its burden ofproof. In other words, ifthe State alleged that the pecuniary interest involved was between $1,500.00 and $20,000.00, a third degree felony, butthe evidence at trial showed that only $10.00 out ofthe total $1,500.00 ofthe pecuniary interest affected was the product ofdefendant's deception, and that the remaining value
was the product oflegitimate or non-deceptive conduct, then the hypothetical defendant would still be guilty ofthe third-degree felony for securing the execution ofadocument by deception. Such a result would be mandated ifthe State, as permitted by this Court of Appeals, did not have tofirst detennine and then segregate the false amount from the amount that might be deemed legitimate. See Op., at p. 12. This cannotbe the law. In fact, even the State did not believe this to be the law at the time oftrial because the State tried to segregate the value ofthe prope1iy, service orpecuniary interest obtained by deception from the value ofthe prope1iy, service orpecuniary interest that was obtained by legitimate ornon-deceptive conduct. [3 RR71-85] The State not only had to guess at the length ofthe actual functional capacity evaluations, but it also had to admit that a portion ofeach test was legitimate and,
APPELLANT'S MOTJON FORREHEARING 5therefore, not all ofthe payment was secured by alleged deception; rather, at least a portion ofeach 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 ofworkMuhr: 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 ofeach check paid by Texas Mutual Insurance Companyto Western Medical Evaluators ("WME") included billing and payment for services that were actually andproperly earned by WME. [3 RR 84 ("And so that's not saying that they didn't do any workwith these people."] As a result, even the State prosecuted this case with the beliefthat it hadto first determine and then segregate the value ofthe prope1iy, service orpecuniary interest that was actually obtainedby deception from the value ofthe prope1iy, service orpecuniary interest that was notobtained by deception. Compare with 

### Op., at p. 12.

APPELLANT'S MOTION FOR REHEARING 6Although 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 orpresumptions. Hooper v. State, 214 S.W.3 9, 13 (Tex. Crim. App. 2007); Appellant'sBrief, 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 thejurisdictional limits ofthis 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, butmust only prove a value sufficientto satisfy thejurisdictional requirement ofthe State's pleading). SeeNitcholas 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 ormotion for rehearing en bane and, on rehearing, reverse thejudgment ofthe Comi ofAppeals and render a verdict ofacquittal in favor ofAppellant.

APPELLANT'S MOTlON FOR REHEARING 7II. CourtEirired In Holding ThatAppellantWaived ComplaintAbout Amount OfRestitution. The Court also erred in holding that Appellant waived any complaint about the amount ofrestitution because he did not object to the amount ofrestitution ordered by the trial court. See Op., at p. 12. An appellate court reviews challenges to restitution under an abuse of discretion standard. One ofthe due process considerations underlying a review of restitution requires that the amount mustbejustand supp01ied by a factual basis within the record. Campbell v. State, 5 S.W.3d 693, 697 (Tex. Crim. App. 1999). In holdingthat 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 ofCriminal Appeals' decision in GutierrezRodriguez v. State, 444 S.W.3d 21 (Tex. Crim. App. 2014) (which was issued well afterthe trial in Appellant's case). See Op., at p. 12. The Court ofCriminal 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 ofrestitution. Gutierrez-Rodriguez, 444 S.W.3d at 23-24, n.20. Rather, the Comibased its decision on the assumption that a sentence of probation, confe1Ted by thejudge, "extends clemency to the defendant and creates

APPELLANT'S MOTION FOR REHEARING 8a sort ofcontractual relationship" betweenthe 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 ofthe probation "contract." Id. The Comi ofCriminal Appeals did not specify the method by which a defendant must object to or complain about restitution in orderto 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 ofprobation orto reconsiderthe appropriateness ofthe probation contract without the objected-to condition." Id., at 24 (citation omitted). In this case, Appellant did "object" that the amount ofrestitution imposedby the trial court was not supported by a factual basis within the record when he complained in his Motion for NewTrial that "there was no legally or factually sufficient evidence thatDefendant committed fraud in the amount as alleged in the indictment and as found by thejury." [CR 172] The trial court was, therefore, presented with the oppo1iunity to reconsider the condition or appropriateness ofthe amount ofrestitution imposed on Appellant, including whether

- as required by due process -- the amount ofrestitution imposed wasjust and suppmied by a factual basis within the record. Campbell, 5 S.W.3d at 697.

APPELLANT'S MOTION FOR REHEARING 9No 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 ofCriminal Appeals has stated that strict reliance on paiiicularphrases when making objections at trial are a thing ofthe past: To be sure, there are reported cases which seem to take a more slavish and unforgiving approach, butthese have dwindled in importance as they have in frequency. Contemporary examples are now few and far between, and it is our purpose thatthey 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 ofCriminal Appeals has stated that "magic words"
are not required to preserve error, and a complaint will be preserved if the substance ofthe 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 ofJudgment, that there was no factual supp01i in the record for a finding offraud 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 10As aresult, Appellant properly preserved his objection to the amount of restitution, and this Court ofAppeals should, after rehearing, reverse itsjudgment and reverse thejudgment on the grounds that no legally sufficient evidence supports the amount ofrestitution imposed and eitherrender ajudgmentthat no amount ofrestitution should be imposed or, in the alte111ative, remand this issue to the trial court for a new trial on the amount ofrestitution, ifany, to be imposed on Appellant. 

### III. PRAYERFORRELIEF WHEREFORE, PREMISES CONSIDERED, AppellantHowardDouglas, respectfully moves this Third Court ofAppeals to grant Appellant's Motion for Rehearing orMotion for Rehearing En Banc and, after rehearing, reverse the trial comi'sjudgment against Appellant and enter a verdict ofnot guilty in his favor or, in the alternative, reverse the imposition ofrestitution on Appellant and either enter
ajudgmentthat no restitution should be imposed orremand this matter to the trial comifor anew trial on whetherrestitution shouldbe imposed and, ifso, in what amount.

APPELLANT'S MOTION FOR REHEARING 11Respectfully submitted, /s/ Craig M. Price Craig M. Price State BarNo. 16284170 Email: cmp@hammerle.com HAMMERLE FINLEYLAWFIRM 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 ofthe 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 OFCOMPLIANCE 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 34words.
Craig

## M. Price "'

APPELLANT'S MOTION FOR REHEARING 12