CAUSE No. 03-13-00092-CR 

IN THE COURT OF APPEALS 

FOR THE THIRD COURT OF APPEALS DISTRICT 

A US TIN, TEXAS 

Dr. HOW ARD THOMAS DOUGLAS, 

Appellant, 

vs. 

THE STATE OF TEXAS, 

Appellee. 

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

Travis County, Texas 

APPELLANT'S MOTION FOR REHEARING AND 

MOTION FOR REHEARING EN BANC 

TO THE HONORABLE THIRD COURT OF APPEALS: 

COMES NOW, Appellant, Dr. Howard Thomas Douglas, and files his 

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

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

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

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

respectfully shows this Court the following: 

APPELLANT'S MOTION FOR REHEARING PAGE 1 

ACCEPTED

03-13-00092-CR

6875842

THIRD COURT OF APPEALS

AUSTIN, TEXAS

9/10/2015 4:58:17 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 9/10/2015 4:58:17 PM JEFFREY D. KYLE Clerk
I. 

Court Erred In Holding That State Did Not Have To Prove 

Value of Pecuniary Interest Obtained By Fraud 

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

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

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

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

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

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

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

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

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

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

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

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

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

pecuniary interest that was not secured by deception. 

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

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

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

service or pecuniary interest that was secured by deception. 

Because Appellant was charged with securing execution of a document by 

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

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

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

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

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

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

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

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

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

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

evidence. 

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

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

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

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

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

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

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

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

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

The distinction between any false amounts and any legitimate amounts must 

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

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

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

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

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

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

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

408 (Tex. Crim. App. 1986). 

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

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

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

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

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

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

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

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

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

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

the State to satisfy its burden of proof. 

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

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

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

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

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

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

of a document by deception. 

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

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

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

This cannot be the law. 

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

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

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

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

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

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

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

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

State: Okay. The first one [reviewing State's Ex. 15, p. 4], it says 

TMI, two units. Is that giving [WME] credit for doing two units' wmih of 

workMuhr: Yes. 30 minutes. 

* * * 

State: And so that's not saying that they didn't do any work with these 

people. That's giving them credit for either 30 minutes to an hour. Is that 

correct? 

Muhr: That is c01Tect. 

[3 RR 83-85 (emphasis added)] 

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

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

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

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

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

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

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

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

Op., at p. 12. 

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

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

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

by deception constituted nothing more than mere speculation or factually 

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

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

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

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

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

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

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

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

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

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

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

pp.11-17. 

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

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

and render a verdict of acquittal in favor of Appellant. 

APPELLANT'S MOTlON FOR REHEARING 7 
II. 

Court Eirired In Holding That Appellant Waived 

Complaint About Amount Of Restitution. 

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

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

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

An appellate court reviews challenges to restitution under an abuse of 

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

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

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

In holding that Appellant waived any complaint about restitution by not 

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

any analysis, the Texas Comi of Criminal Appeals' decision in GutierrezRodriguez v. State, 444 S.W.3d 21 (Tex. Crim. App. 2014) (which was issued well 

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

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

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

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

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

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

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

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

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

Id. 

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

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

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

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

condition of probation or to reconsider the appropriateness of the probation 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

To be sure, there are reported cases which seem to take a more slavish and 

unforgiving approach, but these have dwindled in importance as they have in 

frequency. Contemporary examples are now few and far between, and it is 

our purpose that they become even less common in the future. 

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

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

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

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

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

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

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

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

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

and unforgiving approach to preservation of a complaint about restitution. 

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

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

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

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

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

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

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

Appellant. 

III. 

PRAYER FOR RELIEF 

WHEREFORE, PREMISES CONSIDERED, Appellant Howard Douglas, 

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

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

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

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

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

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

amount. 

APPELLANT'S MOTION FOR REHEARING 11 
Respectfully submitted, 

/s/ Craig M. Price 

Craig M. Price 

State Bar No. 16284170 

Email: cmp@hammerle.com 

HAMMERLE FINLEY LAW FIRM 

2871 Lake Vista Dr., Suite 150 

Lewisville, Texas 75067 

Tel: (972) 436-9300 

Fax: (972) 436-9000 

Attorney for Appellant 

CERTIFICATE OF SERVICE 

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

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

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

9789. 

Craig M. Price 

CERTIFICATE OF COMPLIANCE 

The undersigned counsel hereby ce1iifies, pursuant to Tex. R. App. 

9.4(i)( 4 ), that the foregoing Motion for Rehearing, et al., contains a total of 

2, 5 3 4words. 

Craig M. Price "' 

APPELLANT'S MOTION FOR REHEARING 12