Turner v. State
Decision Date | 06 February 1980 |
Docket Number | No. 2,No. 61522,61522,2 |
Parties | Suzanne Schiller TURNER, Appellant, v. The STATE of Texas, Appellee |
Court | Texas Court of Criminal Appeals |
Roy L. Merrill, Jr., Fred M. Bruner, Dallas, for appellant.
Henry M. Wade, Dist. Atty., Steve Wilensky, and Richard G. Worthy, Asst. Dist. Attys., Dallas, and Alfred Walker, Asst. Dist. Atty. and Robert Huttash, State's Atty., Austin, for the State.
Before ODOM, TOM G. DAVIS and CLINTON, JJ.
This is an appeal from a conviction for theft of $10,000 or over. Punishment was assessed by the jury at confinement for 15 years and 1 day and a $10,000 fine.
In her first ground of error appellant challenges the sufficiency of the evidence. The indictment alleges that appellant did:
"knowingly and intentionally exercise control over property, other than real property, to-wit: current money of the United States of America of the value of at least $10,000.00 without the effective consent of James P. Forrest, the owner thereof, and with intent to deprive James P. Forrest of said property...."
Specifically, appellant argues that the evidence is insufficient to show that James P. Forrest was the owner of the money.
Appellant owned and operated the Dallas Weight Control Clinic, with which Dr. Robert Craig was associated. She used Dr. Craig's Medicaid number and signature stamp to submit false claims for medical services never rendered. The claims and payment checks were processed through Blue Cross-Blue Shield, which was underwriting the Medicaid program in Texas at that time. The funds appellant was prosecuted for having stolen were Blue Cross-Blue Shield Medicaid funds.
V.T.C.A., Penal Code Sec. 1.07(a)(24) and (28) provide:
Forrest was the alleged owner of the money, and it was incumbent upon the State to prove his ownership in order to sustain its burden of proof. Blue Cross-Blue Shield, not Forrest, was title owner. The "greater right to possession" concept of ownership only applies in cases where both the accused and the complaining witness each have some possessory interest in the property. McGee v. State, (Tex.Cr.App.) 572 S.W.2d 723, 725. The issue in this case therefore turns on whether the evidence shows that Forrest had possession of the money, i.e., whether he had "actual care, custody, control, or management."
Forrest gave the following testimony describing his job and responsibilities:
It is clear that Forrest's responsibilities are to coordinate the prevention of fraud abuse. Although he testified that any fraudulent payments would be without his consent, the issues of consent and ownership are not the same. It is also true that Forrest testified he had authority to order that payment not be made if he were made aware of a fraudulent claim prior to payment. There obviously was no such exercise of authority in this case, as appellant was prosecuted for claims that were paid. Further, the authority to prevent payment of fraudulent claims is like the authority of the security guard in McGee v. State, supra, to stop shoplifters. There was no evidence that Forrest had a general power of care, control, custody or management over disbursement of the stolen funds; the last question in the excerpt above accurately describes his position as "guardian" of the funds. The exercise of true care, control, custody and management of the funds appears later in his testimony, where Forrest described how funds are actually paid:
This description shows that the actual care, custody, control and management of monies used for Medicaid payments is in the hands of the claims examiners, not Forrest, the program integrity specialist. The facts in McGee v. State, supra, are clearly analogous.
The defendant in McGee was charged with theft of property, belonging to Delene Dosher. The evidence showed that Dosher was a security guard in the store where the theft was committed and that her duties were "to watch out for and apprehend shoplifters, to take care of injured people, to file complaints if a shoplifter is caught, and to recover merchandise that is shoplifted." She did not have "care, custody, control or management" of the merchandise in the store. Likewise in this case, Forrest was "guardian" of the funds, with responsibilities, like those of a security guard, to protect against theft of the property of his employer. The "care, custody, control and management" of that property, on the other hand, was the responsibility of the claims examiners.
In its reply to this issue, the State asserts that the record shows Blue Cross-Blue Shield was the program underwriter, that Forrest was responsible for coordination of the systems to prevent fraud abuse, and that if money was fraudulently obtained it would be without Forrest's consent. The record does show these facts, yet, as shown above, none of these speak to the issue of whether Forrest had care, custody, control or management of the funds. The evidence simply does not show that Forrest was the owner, as alleged.
Because the evidence is insufficient, the conviction is set aside and the judgment is reformed to show an acquittal. Burks v. U.S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1; Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15.
Before the court en banc.
OPINIONON STATE'S MOTION FOR REHEARING
The appellant owned and operated the Dallas Weight Control Clinic with which Dr. Robert Craig was associated. Using Dr. Craig's Medicaid number and signature stamp the appellant submitted hundreds of Medicaid payment claims for medical services never rendered. These false claims were processed and paid by Blue Cross-Blue Shield which was underwriting the Medicaid program in Texas at that time. The appellant was found guilty of theft of $10,000 or over and punishment was assessed by the jury at confinement for 15 years and 1 day and a $10,000 fine.
In her first ground of error, the appellant challenges the sufficiency of the evidence. Specifically, the appellant argues that the evidence was insufficient to show that James P. Forrest was the owner of the stolen funds.
V.T.C.A., Penal Code, Sec. 1.07(a)(24) and (28) provide:
Thus, the Code provides three separate means of establishing ownership: that the alleged owner had (1) title, (2) possession, or (3) a right to possession superior to that of the appellant. In the instant case it was undisputed that Blue Cross-Blue Shield, not Forrest, was title owner of the...
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