Gonzalez v State

Decision Date29 November 2001
Docket NumberNo. 14-97-00745-CR,14-97-00745-CR
Citation63 S.W.3d 865
Parties<!--63 S.W.3d 865 (Tex.App.-Houston 2001) ALFONSO GONZALEZ, Appellant v. THE STATE OF TEXAS, Appellee Court of Appeals of Texas, Houston (14th Dist.)
CourtTexas Court of Appeals

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Panel consists of Justices Lee, Amidei, and Hutson-Dunn.*

OPINION ON REHEARING

Norman Lee, Justice

Alfonso Gonzalez appeals his conviction for engaging in organized criminal activity resulting in the theft of over $200,000. The jury assessed his punishment at 20 years imprisonment and a $10,000 fine. On appeal, appellant contends: (1) that the evidence is legally and factually insufficient to support the verdict; (2) that the trial court erred in disqualifying his original attorney; (3) that the trial court improperly commented on the constitutional rights of defendants; and (4) that the trial court erred in refusing to instruct the jury that a particular witness was an accomplice witness. We withdraw our prior opinion, overrule the motion for rehearing, and issue this opinion on rehearing. The judgment of the trial court is affirmed.

I. Background

Appellant was charged by indictment with the offense of engaging in organized criminal activity resulting in the theft of over $200,000. Appellant's case was consolidated for trial with several co-defendants: Tan Kien Tu, Randy Jarnigan, Thomas Henry Gemoets, and Leighann Phan. At trial, the State presented evidence to show that the defendants were involved in a combination that stole over $200,000 from five insurance companies between October 9, 1993, and January 19, 1995. Fulfillment of the fraud scheme required, inter alia, the staging of car accidents and the falsification of injury and treatment reports, which were submitted to the insurance companies for payment.

Appellant and Gemoets were licensed physicians who treated patients at two separate clinics reportedly owned or financed by Tu. Jarnigan was an attorney who represented the alleged victims of the car accidents. The scheme also included a number of other people, not prosecuted in this consolidated trial, who were involved in activities ranging from posing as accident victims to preparing falsified documents. Percy Gonzalez, the key witness against the appellant, participated in a staged wreck and then subsequently worked at appellant's medical clinic falsifying documents. His testimony helped link the appellant to the combination. Tu, Jarnigan, and Gemoets have also appealed their convictions to this court, as follows: Tan Kien Tu v. State, C14-97-00745-CR; Jarnigan v. State, C14-97-00445-CR; Gemoets v. State, C14-97-00174-CR.

II. Analysis
A. Legal Sufficiency of the Evidence
1. Standard of Review

Appellant first contends that the evidence was not legally sufficient to support the verdict. In reviewing legal sufficiency, we examine the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found all of the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Santellan v. State, 939 S.W.2d 155, 160 (Tex. Crim. App. 1997). We accord great deference to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences therefrom. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). We further presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we must defer to that resolution. See id. at 133, n.13. In conducting this review, the appellate court is not to re-evaluate the weight and credibility of the evidence, but must act only to ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993);Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). In making its determination, the jury can infer knowledge and intent from the acts, words, and conduct of the accused. Johnson v. State, 32 S.W.3d 388, 393 (Tex. App.-Houston [14th Dist.] 2000, no pet. h.)(citing Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982)).

A defendant commits the offense of engaging in organized criminal activity if, intending to establish, maintain, or participate in a combination or in the profits of a combination, he commits or conspires to commit one or more of the listed offenses, including theft. Tex. Pen. Code Ann. § 71.02(a)(1) (Vernon 1994 & Supp. 2000). A "combination" is defined as three or more persons who collaborate in carrying on criminal activities, although: (1) the participants may not know each other's identities; (2) membership may change from time to time; and (3) participants may stand in a wholesaler-retailer or other arm's-length relationship in illicit distribution operations. Id. § 71.01(a). A determination of guilt in regard to organized criminal activity requires two ingredients: (1) an intent to participate in a criminal combination and (2) the performance of some act, although not necessarily criminal in itself, in furtherance of the agreement. See Barber v. State, 764 S.W.2d 232, 235 (Tex. Crim. App. 1988). Because direct evidence is rarely available to prove the existence of an agreement, circumstantial evidence is sufficient and is almost always needed. Carlson v. State, 940 S.W.2d 776, 779 (Tex. App.-Austin 1997, pet. ref'd). It is permissible to infer an agreement among a group working on a common project when each person's action is consistent with realizing the common goal. McGee v. State, 909 S.W.2d 516, 518 (Tex. App.-Tyler 1995, pet. ref'd).

2. The Evidence

The State presented evidence at trial to prove that appellant was part of an accident-fixing ring, which perpetrated thefts against insurance companies totaling over $200,000. Oscar Phu testified that in 1991 he was receiving compensation for referring accident victims to Tan Tu, who told Phu he was working for an attorney. In 1992, Phu began recruiting people to be in fake auto accidents staged by Tu. Phu described the methods and procedures employed by Tu, including the use of particular attorneys and medical doctors to make the false insurance claims. He explained that there was always a need for at least two doctors because there were two cars and two groups of people in each accident. Phu stated that Tu told him that the doctors would be paid, usually in cash, 40 to 50 percent of the amount recovered from the insurance companies on the medical bills.

Phu further testified that in 1993 Tan Tu split with a business associate and subsequently formed a new ring. He purchased the clinic where Gemoet's worked and financed appellant's clinic. Tu told Phu that appellant's clinic was actually run by Angie Mong. Phu stated that Tu asked him to train Angie in the insurance scheme, and Tu referred to her as Phu's replacement, because Phu continued to work for Tu's former associate.

Charles Patberg, a Harris County Sheriff's deputy, testified that he first learned of the insurance fraud ring from an informant in March 1994. The informant introduced him to Angie Mong, who explained to him how the insurance scam worked. Basically, two vehicles would be crashed together at a remote location, then the vehicles and the resulting debris would be moved to an intersection, where the accident would be recreated and the police called. When the police arrived, one of the "drivers" would admit fault in the accident. Patberg himself participated in a staged accident, which was covertly videotaped by a member of the Auto Crimes Task Force and shown to the jury. Patberg was paid $600 for his involvement. After the accident, Patberg went to see both Dr. Gemoets and the appellant. He said that Angie asked him to see appellant after he had already seen Gemoets because there had been some kind of a mix-up at Gemoets' office. She offered him a bonus of $60 to see appellant, and she paid it at appellant's office before the examination. Patberg testified that the appellant asked him what happened and then had him do some basic motion exercises. The whole examination took approximately five to ten minutes. Patberg told the appellant that he was in a car accident. Appellant asked him if he wanted any medication, and Patberg asked for and received a prescription. Appellant did not offer a diagnosis, did not request a follow-up visit, and did not prescribe any physical therapy. Patberg ultimately participated in a total of four staged accidents.

Mary Pressley testified that she infiltrated the ring as a paid informant for Deputy Patberg. She participated in a staged accident and then went to appellant's clinic, where she was examined by Sekibo Williams, who was a doctor from another country and was not licensed in Texas. He examined her and then wrote out a prescription which appellant signed. Manuel Cordero testified that he saw appellant after he participated in a staged accident. He complained to the appellant of neck pain and the appellant had him remove his shirt and then felt his shoulders. Cordero said the whole examination took five minutes at the most. After the examination, he was paid by Angie.

The State's medical expert testified that certain medical reports generated from appellant's office were fraudulent. He based his conclusion largely on the striking uniformity of symptoms and the listing of inappropriate treatments. The State also introduced into evidence a "Money Trails" binder, which described and traced the money received for each of eight staged accidents, three of which were linked to appellant as the medical provider.

The main witness against the appellant was Percy Gonzalez. Percy testified that he first became involved in the scam when his roommate convinced him to be a passenger in one of the staged accidents. At the time of the wreck, Percy claims he was eating in a...

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