Randy Jarnigan v. the State of Texas

• Decision Date: 09 August 2001
• Docket Number: No. 14-97-00445-CR,14-97-00445-CR
• Citation: 57 S.W.3d 76
• Parties: <!--57 S.W.3d 76 (Tex.App.-Houston 2001) RANDY JARNIGAN, Appellant v. THE STATE OF TEXAS, Appellee Court of Appeals of Texas, Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 76

57 S.W.3d 76 (Tex.App.-Houston [14th Dist.] 2001)

RANDY JARNIGAN, Appellant v THE STATE OF TEXAS, Appellee

No. 14-97-00445-CR

Court of Appeals of Texas, Houston (14th Dist.)

August 9, 2001.

On Appeal from the 337th District Court Harris County, Texas Trial Court Cause No. 727,800

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

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

OPINION

Norman Lee, Justice (Assigned).

Randy Jarnigan, appellant in this case, was indicted for engaging in organized criminal activity by committing theft of more than $200,000. Tex. Pen. Code Ann. § 71.02 (Vernon 1994 & Supp. 2000). He was convicted by a jury, which sentenced him to thirty years' confinement. Appellant brings nine points of error. He first contests the legal and the factual sufficiency of the evidence to support his conviction (points 1 and 2). He next contends the trial court erred: in not instructing the jury that certain witnesses were accomplices (points 3, 4 and 5); (6) in admitting a chart into evidence before the jury; (7) in not quashing the indictment; (8) in denying his motion to sever; (9) in telling the venire that they could consider the defendant's failure to call witnesses. We affirm.

Background

Appellant was convicted for his part in a scheme which staged automobile accidents between October 9, 1993 and January 19, 1995 in order to collect insurance proceeds. He was jointly tried with Tan Kien Tu, Drs. Thomas Gemoets and Alfonso Gonzalez, and Leighann Phan. Tu was the owner of two medical clinics and was the alleged ringleader of the organization. Drs. Goemets and Gonzalez worked at those clinics and treated persons involved in the staged accidents. Phan was an employee at one of the medical clinics. Tu, Gonzalez, and Gemoets have also appealed their convictions to this court, as follows: Tan Kien Tu v. State, 14-97-00436-CR, ___S.W.3d___, 2001 WL 893631; Gonzalez v. State, 14-97-00745-CR, ___S.W.3d___, 2001 WL 893699; Gemoets v. State, 14-97-00174-CR, ___S.W.3d___, 2001 WL 893524.

The State relied on eight particular accidents to establish a theft of $218,562.55 in insurance proceeds; appellant was attorney of record on three of these accidents. He negotiated recoveries of $77,281.41 from three different insurance companies in the accidents. The "victims" received no part of the settlement proceeds. All the participants were paid only a few hundred dollars cash for their participation in the automobile wrecks. Someone other than the "victims" signed the insurance settlement checks and the subsequent checks made out to them by appellant. Appellant's checks to the participants were all cashed at a drive-in grocery store by unknown persons.

The Evidence

Because appellant challenges the sufficiency of the evidence to support his conviction, we will set forth the relevant facts in some detail.

Oscar Phu testified he acted as Tu's "agent" and gave an overview of the scheme. Phu said he started out referring legitimate cases to Tu and progressed, at Tu's direction, to staging accidents. As the "agent," Phu had to provide both defendants and plaintiffs, so that the operation could make money from both sides of the accident. He said Tu gave him powers of attorney and data sheets for the "victims" to sign, and that Tu determined which attorneys got which "victims." Phu also would check to be sure that the "victims" were insured and would sometimes buy the insurance policies for the cars himself. Finally, when Phu decided to work for a ring engaged in similar operations, he trained Angie Mong as his replacement "agent." He said that client-passengers would get one-third of the money, the attorneys would get one-third of the money and the doctors would get one-third of the money. He said Tu would get kickbacks of fifty percent from both the doctors and from attorneys.

Charles Patberg, a Harris County sheriff's deputy, participated in one of the staged wrecks. He said he met with Angie Mong, Michael Ford, Kenneth Johnson and Mary Pressley at a restaurant. (Johnson had tipped Patberg as to the existence of the ring.) Ford gave him money to purchase insurance on a vehicle. Patberg said that when the insurance went into effect, he contacted Mong, who "set the wheels in motion to have the accident." His car was designated as the "girl car," the car which would be hit and which would have a driver and three passengers in it at the time; the "boy car" would have only a driver and would do the colliding. The accident, which was videotaped by police, took place on a freeway feeder road; when the collision was done, he said, he was instructed to honk the horn twice so that Mong would call the police. The driver of the "boy car" admitted to police that he ran a stop sign and was ticketed. After the collision, the participants met at another restaurant, where Mong had the occupants of the "girl car" fill out forms, including a power of attorney. Patberg said the power of attorney was blank when he signed it, and that Mong didn't say who his lawyer would be. Patberg was given $600 to distribute among the passengers of the "girl car." Patberg said this accident was typical of the enterprise as described by Mong.

After the accident, the "victims" were directed to go to the clinic where Goemets, one of appellant's codefendants, was practicing. There Patberg told the receptionist that they were "sent there by Angie to see the doctor;" his blood pressure was checked and one of his shoulders was X-rayed. Patberg was then ushered in to see Goemets, who asked him if he had been in an accident and recommended he take an over-the-counter medication for the pain. Patberg said Goemets never got out of his chair and never examined him.

After that visit, Patberg said, he and the other officers went to another restaurant to eat. While they were there, Mong told them there had been a mix-up, that they needed to go over to another doctor, and offered a $25 bonus if they would do so. She drew them a map and told them to ask for "Leighann" but did not make an appointment. So the officers went to that office and told the receptionist, "Angie sent us, and we need to see Leighann." The officers were ushered out of the regular waiting room and into an office where Leighann Phan was waiting. Phan had them sign in and then sign "about 30" forms. At that point, Mong showed up and started going over the paperwork. Patberg said Gonzalez had him do basic flexing and stretching exercises and asked him if he needed a prescription for the pain. When Patberg said yes, Gonzalez wrote him two prescriptions for narcotic medication.

Patberg testified he went on to conduct surveillance on three other "accidents" set up by the group. Appellant was the attorney of record on one of those accidents, which included an undercover officer, James Howard, as one of the passengers. Patberg said he never saw any of the money which may have been paid as a part of any insurance settlement in his staged accident.

Thomas J. Pearson was an attorney who employed Jarnigan when Tu began bringing accident cases to his office. Pearson said Tu was introduced to him as a paralegal who worked for another law firm; Tu said he had substantial contacts with body shop owners who referred cases to him, that he was dissatisfied with the results obtained by his employer and that he wanted a better lawyer. Soon after the meeting, Pearson agreed to work with Tu on his referrals.

At that time, appellant was working for Pearson as an associate. Pearson oversaw the handling of the cases brought in by Tu while appellant oversaw day-to-day operations. The information sheet for each case would come from Tu, who would also have the clients sign a power of attorney. The firm would then send a demand letter to the relevant insurance company, along with a copy to the client, and would send the treating physician a letter of protection guaranteeing payment.

Pearson said he originally paid Tu an hourly wage, but it soon became clear to him that Tu wanted a share of the attorney's fees. Pearson refused. As a result of this impasse, Tu was not paid any money for seven months. Pearson finally relented and gave him a payment of about $30,000, a figure which included a settlement Pearson obtained for Tu's daughter.

Pearson said he instructed appellant to reject cases and return files in which insurance companies sought to take sworn statements from claimants. He reasoned that it was more important to maintain the firm's reputation with the insurance companies than to press cases which the companies found questionable enough to require examination under oath. In light of this cautious attitude, it was not long before Pearson began to have problems with cases brought in by Tan Tu. In one case, Pearson sent a demand letter, with a copy sent to a claimant; the claimant's father called asking who he was, denied that Pearson was his son's attorney, and denied that his son had been involved in an accident. In a second case brought in by Tu, the insurance company refused to pay because they believed the accident to be staged; Pearson returned that file. In a third case, an insurance adjustor called to point out inconsistencies in the evidence. Pearson said he examined the evidence and became convinced that a double impact had occurred, contrary to the claimant's version of events. He told appellant to send that case back. Finally, Pearson rejected a case in which the claimants appeared to be driving from Beaumont to Houston three or four times per week to see a doctor. Pearson said he found this unbelievable.

After the double-impact case, Pearson said he called Tu into his office and asked him for an explanation. Tu told Pearson that he would have to discuss the matter with his "agent." Pearson said he "threw a fit" and pressed Tu to explain what kind of "agent" he was talking about. Tu did not explain. After this meeting, Pearson...