Howard Thomas Douglas v. State

ACCEPTED

03-14-00605-CR

5021070

THIRD COURT OF APPEALS

AUSTIN, TEXAS

April 24, 2015 4/24/2015 11:14:28 AM

CAUSE No. 03-14-00605-CR JEFFREY D. KYLE

CLERK

IN THE COURT OF APPEALS

FOR THE THIRD COURT OF APPEALS DISTRICT

AUSTIN, TEXAS

Dr. HOWARD THOMAS DOUGLAS

Appellant,

v

THE STATE OF TEXAS

Appellee.

On appeal from Cause No. D-1-DC-12-900059, in the 331st District Court,

Travis County, Texas

APPELLANT’S BRIEF

HAMMERLE FINLEY LAW FIRM

Craig M. Price

State Bar No. 16284170

2871 Lake Vista Drive, Suite150

Lewisville, Texas 75067

Telephone: 972-436-9300

Telecopier: 972-436-9000

cmp@hammerle.com

ATTORNEY FOR APPELLANT

I.

Identity of Parties and Counsel

Trial Judge: Honorable Robert A. Perkins

331st Judicial District Court

1104 Nueces, Suite 203

Austin, Texas 78701

Defendant: Dr. Howard Thomas Douglas

391 E. Las Colinas Blvd, Suite 130-614

Irving, Texas 75039

Counsel: Craig M. Price,

E-Mail: cmp@hammerle.com

HAMMERLE & FINLEY, LLC

2871 Lake Vista Drive, Suite 150

Lewisville, Texas 75067

SBN 16284170

State: Donna Crosby,

Travis County Criminal District Attorney

509 West 11th Street

Austin, Texas 78701

SBN 05118700

i

II.

Table of Contents

Identity of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Index of Statues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Appellant’s Brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

vi

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Statement of facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Issue one. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Evidence was legally insufficient to support Jury’s verdict. . . . . . . . . . . . 5

ii

1. No legally sufficient evidence supports a finding of intent to

defraud or harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2. No legally sufficient evidence supports a finding that Appellant

engaged in deception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

3. No legally sufficient evidence exists that Appellant caused to be

submitted a form HCFA 1500 seeking payment for services

rendered. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

4. No legally sufficient evidence exists, other than uncorroborated

testimony of accomplice witness, that Appellant caused TMIC

to execute any document. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

5. No legally sufficient evidence supports the jurisdictional amount

for a third degree felony because the State did not segregate the

proper amount billed from allegedly fraudulent amounts billed. . . 12

6. No legally sufficient evidence supports the amount of restitution. . 16

Issue Two . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Appellant was denied a fair trial because of ineffective assistance of

counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

A. Standard of Review . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . 17

B. Appellant’s trial counsel was ineffective throughout . . . . . . . . . . . 18

iii

III.

Table of Authorities

Jackson v. Virginia, 443 U.S. 307, 313 (1979) . . . . . . . . . . . . . . . . . . . 5

Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) . . . . . . . . 5

Jackson, 443 U.S. at 319. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Brooks v. State, 323 S.W.3d 893, 903, 912 (Tex. Crim. App. 2010) . . . 5

Wise v. State, 364 S.W.3d 900, 903 (Tex.Crim.App. 2012) . . . . . . . . . . 5

Winfrey v. State, 323 S.W.3d 875, 882 . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 20

Williams v. State, 235 S.W.2d 742, 750 (Tex. Crim. App. 2007) . . . . . . 5

Cada v. State, 334 S.W.3d 766, 773 (Tex. Crim. App. 2011) . . . . . . . . . 6

Goldstein v. State, 803 S.W.2d 777, 791 (Tex. App.—Dallas 1991, pet

ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Goldstein, 803 S.W.2d at 701. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Lamar v. State, Cause No. 05-09001315- CR No.; -01316; 01317, (Tex.

App.—Dallas 2010, ) (not published) . . . . . . . . . . . . . . . . . 9, 10

Mosley v. State, Cause No. 05-09-001315- CR No. 01316-CR No.;

01317-CR No. . . . . . . . . . .. . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . 11, 12

Cathey v. State, 992 S.W.2d 460, 463, n.2 (Tex. Crim. App. 1999), cert.

denied, 528 U.S. 1082, 120 S.Ct. 805, 145 L.Ed.2d 678 (2000). . . 11

Blake v. State, 971 S.W.2d 451, 455 (Tex.Crim.App. 1998) . . . . . . . . . . 11

Moore v. State, 984 S.W.2d 783, 787 (Tex.App.—Waco 1999, no pet.) . 11

Beathard v. State, 767 S.W.2d 423, 430 (Tex. Crim. App. 1989), cert.

denied, 528 U.S. 954, 120 S.Ct. 380, 145 L.Ed.2d 296 (1999) . . . 12

iv

Smith v. State, 681 71, 75-76 (Tex. App.—Houston [14th Dist.] 1983),

aff’d, 722 S.W.2d 408 (Tex. Crim. App. 1986) . . . . . . . . . . . . . . . 11, 14

Lehman v. State, 792 S.W.2d 82, 84 (Tex. Crim. App. 1990) . . . . . . . . 13, 15

Simmons v. State, 109 S.W.3d 469, 472 (Tex. Crim. App. 2003) . . . . . 13,15

Lee v. State, 29 S.W.3d 70, 575 (Tex. App.—Dallas 2000) . . . . . . . . . 14, 22

Fisher v. State, 803 S.W.2d 828, 830 (Tex. App.—Dallas 1991, pet. ref’d) 21

Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980) . . . . 16

Thompson v. State, 9 S.W.3d (Tex.Crim.App. 1999) . . . . . . . . . . . . . . . 17,18

Aldrich v. State, 296 S.W.3d 225 (Tex.App.—Fort Worth 2009, pet. ref’d)

(op. on reh’g en banc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002) . . . . . . . . . . . . 18

Andrews v. State, 159 S.W.3d 98, 101-02 (Tex.Crim.App. 2005) . . . . . . . 18, 19

Cannon v. State, 252 S.W.3d 342, 349-50 (Tex.Crim.App. 2008) . . . . . . . 18, 21

United States v. Cronic, 466 U.S. 648, 658-59 (1984) . . . . . . . . . . . . . . . . 18, 21

Strickland v. Washington, 466 U.S. 668, 692 (1984) . . . . . . . . . . . . . . . . . 18

Vaughn & Sons, Inc. v. State, 750 S.W.2d 17, 18 (Tex. App.—Texarkana

1988, ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Young v. State, 957 S.W.2d 923 (Tex.App.—Texarkana 1997) . . . . . . . . 21

Fuller v. State, 73 S.W.3d 250, 257 (Tex. 2002) . . . . . . . . . . . . . . . . . . . 22

Montgomery v. State, 810 S.W.2d 272, 291 (Tex.Crim.App. 1990)

(op’n on rehearing). . . . . . . . . . . . . .. . . . . . . . . . . . . .. . . . . . . . . . . . 35

v

Statutes:

Tex. R. App. P. 38.1(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Texas Penal Code Ann. §32.46(a)(1) (Vernon Supp. 2002) . . . . . . . . . 7, 15

Tex. Penal Code Ann., §32.46(b)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tex. Penal Code Ann., §6.03(a) (Vernon 2012). . . . . . . . . . . . . . . . . . . 8

Tex. Penal Code Ann., §31.01(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Tex. Code of Crim. Proc. Ann., Sec. 38.14. . . . . . . . . . . . . . . . . . . . . . . 11

Tex. Penal Code Ann., Sec. 8.02[a] . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Tex. Penal Code Ann., Sec. 803[b][1] . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Texas Penal Code Sec. 7.24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

STATEMENT OF THE CASE

Appellant appeals his conviction by a jury in Travis County, Texas, for the

third degree felony offense of securing execution of a document by deception.

Appellant was sentenced by the judge to 5 years in prison. [CR 190]

vi

CAUSE No. 03-14-00605-CR

IN THE COURT OF APPEALS

FOR THE THIRD COURT OF APPEALS

DISTRICT AUSTIN, TEXAS

Dr. HOWARD THOMAS DOUGLAS,

Appellant,

VS.

THE STATE OF TEXAS,

Appellee.

On appeal from Cause No. D-1-DC-12-900059, in the 331st District Court, Travis

County, Texas

APPELLANT’S BRIEF

TO THE HONORABLE THIRD COURT OF APPEALS:

COMES NOW, Appellant, Dr. Howard Thomas Douglas (hereafter

“Appellant”), and files his Appellant’s Brief, and in support thereof

respectfully shows the following:

I.

STATEMENT OF FACTS

Appellant is a medical doctor. He had incorporated a company known as

North Texas Medical Evaluators (hereafter “NTME”), which provided medical

APPELLANT’S BRIEF PAGE 1 OF 39

services in the worker’s compensation sector to various entities that were

insured by Texas Mutual Insurance Company (hereafter “TMIC”). [5 RR 128-

129, 132-43] Among the services it provided, NTME would perform Functional

Capacity Evaluations (hereafter “FCEs”) for individuals to determine their ability

to return to work or to perform certain jobs. [4 RR 120-42; 5 RR 89-103]

Employees of NTME would perform these FCEs, then prepare their reports,

which were reviewed by physicians employed by NTME, and then the reports

would be submitted by NTME to TMIC. [ 4 RR 156-76] NTME would bill

TMIC for these services according to certain authorized billing codes, and TMIC

would then issue a check to NTME based on their audit of NTME’s bills.

NTME’s invoices were divided into increments, as permitted by the industry,

so that they would bill for “units” of time based on the actual amount of time spent

on the patient’s FCE, including time spent preparing and reviewing a report. [5 RR

20-46; 6 RR 166] NTME took the position that it was permitted by industry

standards to bill for a maximum of 16 units – with each unit representing a

quarter hour (15 minutes) -- if the NTME agents spent that amount of time working

on the FCE file, regardless of whether the agent was meeting face-to-face with the

patient. [6 RR 166] However, TMIC took the position that NTME could bill

only for the amount of time that NTME’s representative, whether it was a

physician, a technician or some other employee, spent in a face-to-face consultation

APPELLANT’S BRIEF PAGE 2 OF 39

or meeting with the person for whom the FCE was being conducted (i.e., the

patient). [3 RR 42, 47-49]

During the course of an audit of NTME’s billings, TMIC determined that

NTME was improperly billing it for time that was not compensable; i.e., any

portion of the FCE that was not spent face-to-face with the patient. [ 3 RR 57-59]

TMIC’s in-house investigators spoke with several people who had received FCEs

from NTME-affiliated doctors, and TMIC believed that NTME was billing it for

time that was not compensable. TMIC then conducted a “sting” operation in which

they sent one of its investigators, Bonita Reid, posing as a patient, to an NTME-

affiliated doctor, who ordered that Ms. Reid have an FCE. Ms. Reid then went to

an NTME technician for the FCE. According to its investigation, TMIC determined

that the face-to-face portion of Ms. Reid’s FCE did not last the amount of time for

which NTME billed TMIC – 16 units (four hours). Based on its investigation,

TMIC apparently filed a complaint with the Travis County Criminal District

Attorney’s Office, and this prosecution resulted. [5 RR 60-83]

Appellant was charged in his individual capacity in Cause No. D1-DC-12-

900059, while NTME was charged in its corporate capacity in a different matter.

[CR 5] NTME was not indicted in the same cause number as Appellant, but

was indicted in Cause No. D-1-DC-10900206.

During trial, Appellant’s attorney discovered for the first time, and not from

APPELLANT’S BRIEF PAGE 3 OF 39

any disclosure initiated by the State, that TMIC provides the financial funding for

the two prosecutors with the Workers’ Compensation Fraud Unit of the Travis

County Criminal District Attorney’s Office who prosecuted this case, Ms. Donna

Crosby and Ms. Meg Brooks, as well as for one paralegal and one part-time staff

person in that unit. [5 RR 60-83] Appellant attempted to introduce into evidence

the existence of this financial relationship between TMIC and the State, but the trial

court denied Appellant’s request. [5 RR 82-83] Therefore, the jury never heard of

this relationship.

II.

SUMMARY OF THE ARGUMENT

Appellant moves this Court to reverse the judgment against him because

there is no legally sufficient evidence to support the jury’s verdict against

Appellant with respect to the finding that Appellant acted with the intent to

defraud or harm; that he engaged in deception that caused Texas Mutual Insurance

Company to execute any document. There also is no legally sufficient evidence

that the pecuniary value of the amount of such document(s) satisfied the

jurisdictional amount for a third degree felony, and a fatal , material variance

existed in the pleading and the proof. Appellant also seeks a new trial on the

grounds that the trial court erred in excluding information about a financial

relationship between the State and Texas Mutual Insurance Company, the alleged

“victim.”

APPELLANT’S BRIEF PAGE 4 OF 39

III.

ARGUMENT AND AUTHORITIES

Issue One

The evidence was not legally sufficient to support the jury’s verdict on

securing execution of a document by deception.

A. Standard of Review.

Due process requires that the State prove every element of the crime

charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 313

(1979); Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011). When

reviewing the sufficiency of the evidence to support a conviction, the reviewing

court examines the evidence in the light most favorable to the verdict to determine

whether any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Brooks v. State, 323

S.W.3d 893, 903, 912 (Tex. Crim. App. 2010); Wise v. State, 364 S.W.3d 900, 903

(Tex.Crim.App. 2012). The sufficiency standard is the same for both direct and

circumstantial evidence. Wise, 364 S.W.3d at 903.

It is the obligation and responsibility of appellate courts to ensure that the

evidence presented actually supports a conclusion that the defendant committed the

crime that was charged. Winfrey v. State, 323 S.W.3d 875, 882; Williams v. State,

235 S.W.2d 742, 750 (Tex. Crim. App. 2007). The appellate court should measure

the sufficiency of the evidence by the elements of the offense as defined by a

APPELLANT’S BRIEF PAGE 5 OF 39

hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773 (Tex.

Crim. App. 2011).

B. Evidence was not legally sufficient to support the verdict.

The evidence was n o t legally sufficient to support the jury’s guilty

verdict against Appellant for securing the execution of a document by

deception, and this Court should reverse the judgment against Appellant and

render a judgment of not guilty in Appellant’s favor.

Securing execution of a document by deception is proscribed by section

32.46 of the Texas Penal Code:

A person commits an offense if, with intent to defraud or harm any person,

he, by deception causes another to sign or execute any document affecting

the pecuniary interest of any person.

Texas Penal Code Ann. §32.46(a) (1) (Vernon Supp. 2002) (emphasis

added). The value alleged in the indictment and c o u r t ’ s charge made the

offense a third degree felony. See Tex. Penal Code Ann., Sec. 32.46 (b) (5). [CR

5]

The application paragraph of the trial court's charge tracked the indictment,

and permitted the jury to convict if it found beyond a reasonable doubt that

Appellant, “did then and there with intent to defraud and harm the TEXAS

MUTUAL INSURANCE COMPANY, by deception create and confirm by words

or conduct a false impression of fact, to wit: the said Howard Thomas Douglas

APPELLANT’S BRIEF PAGE 6 OF 39

caused to be submitted to the TEXAS MUTUAL INSURANCE COMPANY a

form HCFA (Health Care Financing Administration) 1500 seeking payment for

services rendered, said services were as follows: 16 units billed under CPT (current

procedural terminology) code 97750, when in fact, 16 units of service were not

rendered in accordance with the Texas Workers Compensation Medical Fee

Guidelines not believing it to be true, that was likely to affect the judgment of the

said Texas Mutual Insurance Company in the transaction which deception caused

the Texas Mutual Insurance Company to sign or execute documents affecting its

property, service or pecuniary interest, where the value of the property, service or

pecuniary interest was more than $20,000 but less than $100,000 . . . .” [CR 172

(emphasis added)] The State did not allege that Appellant acted negligently or

recklessly; only that he acted with intent to defraud and harm. [CR 5]

As stated by Martha Luevano, the State’s first witness, the FCE billing

practice that the State considered to be fraudulent was the billing for time during

which there was no face-to-face contact with the patient. [3 RR 47-49] In other

words, the State alleged that the fraud occurred because NTME billed for the time

spent for work related to an FCE if that work was not spent in face-to-face

interaction with the patient. [3 RR 47-49; CR 5]

1. No legally sufficient evidence supports a finding

of intent by Appellant to defraud or harm.

APPELLANT’S BRIEF PAGE 7 OF 39

According to the State’s allegation in its indictment, the question is whether

the cumulative force of the facts in the record supports a deduction by any rational

finder of fact of the logical consequence or conclusion that:

• Appellant did,

• with intent to defraud and harm

• the TEXAS MUTUAL INSURANCE COMPANY,

• by deception create and confirm by words or conduct a false impression of

fact, to wit: the said Howard Thomas Douglas caused to be submitted to the

TEXAS MUTUAL INSURANCE COMPANY a form HCFA (Health Care

Financing Administration) 1500 seeking payment for services rendered, said

services were as follows: 16 units billed under CPT (current procedural

terminology) code 97750, when in fact, 16 units of service were not rendered

in accordance with the Texas Workers Compensation Medical Fee Guidelines,

• not believing it to be true,

• that was likely to affect the judgment of the said Texas Mutual Insurance

Company in the transaction, [and]

• which deception caused the Texas Mutual Insurance Company to sign or

execute documents affecting its property, service or pecuniary interest, where

the value of the property, service or pecuniary interest was more than $20,000

but less than $100,000 . . . .

[CR 5; 172 (emphasis added)]. In other words, the State alleged – and had to prove –

that Appellant caused HCFA 1500 forms to be submitted by NTME seeking payment

for 16 units of service by NTME when 16 units of service were not rendered in

accordance with the Texas Workers Compensation Medical Fee Guidelines, and that

Appellant did not believe that 16 units of service had been properly rendered when

APPELLANT’S BRIEF PAGE 8 OF 39

the forms were submitted to TMIC. [CR 5]

However, the evidence showed that Appellant did believe that NTME had

actually rendered 16 units of compensable service, and Appellant did believe that

NTME could properly bill TMIC for the time related to preparing a written FCE

report, as well as for other time related to the FCE, even if such time was not spent

face-to-face with the patient. [4 RR 156-73; 4 RR 204-12; 5 RR 20-46; 6 RR 166]

There was no legally sufficient evidence adduced at trial that Appellant knew

that billing for time spent writing an FCE report, even if conducted outside the

presence of the patient, was not permitted by the Texas Workers Compensation

Medical Fee Guidelines. A person acts intentionally, or with intent, with respect to

the nature of his conduct or with respect to a result of his conduct when it is his

conscious objective or desire to engage in the conduct or cause the result. Tex.

Penal Code Ann., Sec. 6.03(a) (Vernon 2012). Intent to deceive can be inferred

from acts, words and conduct of the accused. Goldstein v. State, 803 S.W.2d 777,

791 (Tex. App.—Dallas 1991, pet ref’d).

The conclusion that Appellant possessed the mens rea for the offense of

securing execution of a document by deception was simply theorizing or guessing by

the jury as to the meaning of Appellant’s alleged “directive” for NTME employees to

bill for 16 units of an FCE, even though portions of the services billed were not

conducted face-to-face with the patient. Such a conclusion is not a logical deduction

APPELLANT’S BRIEF PAGE 9 OF 39

from that conduct. See Megan Winfrey, 393 S.W.3d at 771. See also Hacker, 389

S.W.3d at 874 (recognizing that without proof of wrongful conduct “all of this

evidence was mere ‘suspicion linked to other suspicion’”); Richard Winfrey, 323

S.W.3d at 882 (holding that evidence giving rise to only a suspicion of guilt, even a

strong one, is insufficient to support a conviction); cf. Patrick, 906 S.W.2d at 487

(holding evidence sufficient to support mens rea for murder).

Viewing all of the circumstantial evidence and any reasonable inferences from

that evidence in the light most favorable to the State, the cumulative force of that

evidence is insufficient to convince any rational factfinder beyond a reasonable doubt

that Appellant acted with the requisite mens rea necessary to support his conviction

for securing execution of a document by deception. See, e.g., DeLay v. State, Cause

No. 03-11-00087-CR, at p. 21 (Tex. App.—Austin, Sept. 19, 2013, pet. granted)

(lack of legally sufficient evidence that funds were “proceeds of criminal activity”

requires an acquittal). See also Stobaugh v. State, Cause No. 02-11-00157-CR, at *

p. 172 (Tex. App.—Denton, Jan. 23, 2014, pet. denied) (reversing conviction for

murder because there was no legally sufficient evidence of intent to cause serious

bodily injury to victim by committing an act clearly dangerous to human life that

resulted in her death or that he intentionally or knowingly killed the victim).

Likewise, there was no testimony that TMIC would not have executed any

checks payable to NTME but for Appellant’s conduct. See Goldstein, 803 S.W.2d at

APPELLANT’S BRIEF PAGE 10 OF 39

701; Mosley v. State, Cause No. 05-09-001315- CR No. 01316-CR No.; 01317-CR

No., (Tex. App.—Dallas 2010, no pet.) (not published) (“Based on the record before

us, we conclude a rational jury could find that but for appellant’s actions, there would

have been no lease.”). See also Smith v. State, 681 S.W.2d 71, 75-76 (Tex. App.—

Houston [14th Dist.] 1983), aff’d, 722 S.W.2d 408 (Tex. Crim. App. 1986)

(misrepresentations cause victim to sign contract).

As a result, this Court should reverse the trial court‘s judgment and render a

judgment of acquittal. See Tex. R. App. P. 43.2(c), 51.2(d); Greene v. Massey, 437

U.S. 19, 24–25, 98 S. Ct. 2151, 2154–55 (1978); Burks v. United States, 437 U.S. 1,

16–18, 98 S. Ct. 2141, 2150–51 (1978); Megan Winfrey, 393 S.W.3d at 774.

In this case, there exists no legally sufficient evidence – direct or

circumstantial – that Appellant took any action with the required mens rea: with the

intent to defraud and harm TMIC by deception. At best, the evidence showed that

Appellant believed that NTME could legitimately bill TMIC for time related to an

FCE even if such time was not spent face-to-face with the patient. [4 RR 156-73; 6

RR 166]

2. No legally sufficient evidence supports a finding that

Appellant engaged in deception.

A person engages in deception by creating or confirming by words or

conduct a false impression of law or fact that is likely to affect the judgment of

another in the transaction, and that the actor does not believe to be true. Tex. Penal

APPELLANT’S BRIEF PAGE 11 OF 39

Code Ann., Sec. 31.01(1)(A) (emphasis added). The victim’s testimony that he

would not have executed the document but for the accused’s conduct is

sufficient to establish the element of deception. See Goldstein, 803 S.W.2d at 701.

See also Mosley v. State, CR No. 01316-CR No.; 01317-CR No., (Tex. App.—

Dallas 2010, no pet.) (not published) (“Based on the record before us, we

conclude a rational jury could find that but for appellant’s actions, there would

have been no lease.”).

Appellant’s witnesses testified that industry standards allow companies like

NTME to bill for a maximum of 16 units – with each unit representing a quarter hour

-- if the NTME agents spent that amount of time working on the FCE file, regardless

of whether the agent was meeting face-to-face with the patient. [4 RR 156-73; 5 RR

20-46; 6 RR 166] Additionally, Shelly Estrada, NTME’s office manager, testified

that NTME would not have billed for time spent preparing the report, which occurred

beyond the face-to-face time spent with the patient unless such a practice was

allowed [6 RR 166].

Additionally, in cases involving securing the execution of a document by

deception, the State typically must prove that the victim would not have executed

the document but for the accused’s conduct in order to establish the element of

deception. See Goldstein, 803 S.W.2d at 701. See also Cause No. 05-09-001315-

CR No. 01316-CR No.; 01317-CR No., (Tex. App.—Dallas 2010, no pet.) (not

APPELLANT’S BRIEF PAGE 12 OF 39

published) (“Based on the record before us, we conclude a rational jury could find

that but for appellant’s actions, there would have been no lease.”)

Similarly, the State should have established that TMIC would not have

executed the documents at issue but for the actions of Appellant. However, no

evidence supports that conclusion, and no legally sufficient evidence exists to

support the jury’s verdict.

As a result, this Court should reverse the judgment against Appellant and

render a not guilty verdict in his favor.

3. No legally sufficient evidence supports the

jurisdictional amount because the State

did not segregate the proper amount

billed from allegedly fraudulent amounts

billed.

The State also failed to adduce any legally sufficient evidence of the

difference between the value of allegedly fraudulent FCE services that were

performed and billed by NTME and the value of the properly billed FCE testing

services performed and billed by NTME. Therefore, the State failed to establish

the jurisdictional amount of the offense by legally sufficient evidence.

In other words, the State had to prove that the pecuniary value of the

portion of the documents that were signed as a result of fraud and deception had

to have an aggregate value of $20,000 or more but less than $100,000.

Otherwise, the State would not have established, by legally sufficient evidence,

APPELLANT’S BRIEF PAGE 13 OF 39

that Appellant’s alleged conduct rose to the level of a third degree felony.

The State relied on numerous checks to establish the jurisdictional value of

this offense. In order for Appellant to be convicted of the offense of securing

execution of a document by deception, the State had to establish by legally

sufficient evidence the portion of the amount of each check relied upon in the

indictment that was executed as a result of Appellant’s deception and fraud. In

other words, the State had to prove, beyond a reasonable doubt, the amount of each

check that did not represent the value of services actually rendered by co-

defendant NTME, and, therefore, was paid as a result of fraud.

Appellant does not argue that the statute requires the State to prove that

actual harm resulted from the intent to defraud. See Smith v. State, 681 S.W.2d

71, 75-76 (Tex. App.—Houston [14th Dist.] 1983), aff’d, 722 S.W.2d 408 (Tex.

Crim. App. 1986). However, 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 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).

The State presented testimony that NTME could not properly bill for time

in which the physician or other healthcare provider (i.e., nurse, technician, etc.)

APPELLANT’S BRIEF PAGE 14 OF 39

was not in the presence of the patient. Additionally, the State presented evidence

that NTME had, in fact, billed TMIC for time that was not spent in a face-to-

face meetings or consultations with each patient. However, there is no question

that a portion of each check paid by TMIC to NTME, and each invoice from

NTME on which those checks were based, included billing and payment for

services that were actually and properly earned by NTME [5 RR 108-116; State’s

Ex. 5]. As a result, the State should have segregated the value of each document

executed that was allegedly induced by Appellant’s allegedly deceptive conduct.

The State essentially admitted at trial that it did not know the specific amount

or portion of any document that allegedly was executed by deception. In fact, the

State conceded that a portion of each check was induced by a legitimate amount of

money owed to NTME, and not entirely by deception. [State’s Ex.5] As a result, the

State created an average amount of purported fraud on which to base its jurisdictional

allegations. Kathleen Haden, TMIC’s senior investigator, testified that she only

spoke with a handful of the more than 135 patients named in the indictment:

Q: Now, so of those, let’s say, 138 people, you talked to six people that you

can remember?

A: Off the top of my head, yes. But I think, in total, I spoke with around 10

myself.

[3 RR 108]

Ms. Haden admitted that TMIC was just guessing about the amount of time

APPELLANT’S BRIEF PAGE 15 OF 39

actually spent during the FCEs:

Q: You don’t know the exact amount of time that was spent in an FCE for

somebody you didn’t talk to you, do you?

A: No, I do not.

[3 RR 112]

Q: So is there a -- there’s three columns, one for you giving credit to the

healthcare provider [NTME] for 2 units, correct?

A: Yes.

Q: And another column giving them 4 units of credit, correct?

A: Yes.

Q: And the third column is giving them no credits, correct?

A: Well, the third column is the actual amount they charged and the actual

amount we paid.

Q: So it’s based on 16 units?

A: Correct.

Q: So in the columns where you give the healthcare provider 2 units of credit

and 4 units of credit – look for Mr. Ettinger.

A: Okay.

Q: Do you know how much time was actually spent on Mr. Ettinger’s FCE?

A: I would have to review my interview summary.

Q: Okay. But the number assigned to his FCE in those two columns may not

be the actual amount of time he spent on his FCE, correct?

A: It’s possible, if we did the calculation for every single patient, giving credit

APPELLANT’S BRIEF PAGE 16 OF 39

for 2 units or giving credit for an hour.

[3 RR 114-15] Ms. Haden resisted stating the obvious about the State’s calculations:

that TMIC (in other words, the State) was just guessing:

Q: Right. So the ones where you give [NTME] credit for 2 units and 4 units,

that’s your hypothetical, correct?

A: It’s not a hypothetical. It’s based on the results of our investigation.

Q: Well, for Mr. Ettinger, it’s hypothetical because it’s not the actual time he

told you, is it?

Q: On your chart, it does not reflect the actual amount of time that Mr.

Ettinger spent in his FCE, does it?

A: No. There is not a column with that information in it.

Q: You just decide a figure, based on your analysis, that it could have taken 2

units or it could have taken 4 units?

A: I didn’t actually do the calculations, but that’s what the spreadsheet

reflects. We did calculations for giving credit of 2 units and calculations for

giving credit of 4 units.

Q: So at least as far as you’re concerned, of the 147 entries in the indictment,

you don’t know how much time was spent on each one of their FCE’s do you?

A; On every single patient, no.

[3 RR 115-16 (emphasis added)] Rather, Ms. Haden admitted that she would only

know the specific amount of time expended on the FCE’s for those patients that she

spoke with, personally, which was less than ten people. [3 RR, 108- 116]

TMIC even paid a claim for Bonita Reid, which was set up as a false claim

pursuant to TMIC’s undercover investigation:

APPELLANT’S BRIEF PAGE 17 OF 39

Q: And how much did you pay her for it?

A: We paid for 16 units.

Q: And why did you do that?

A: That’s part of our undercover operation. It needs to appear as a normal

claim.

[3 RR 129-30]

Even the State’s bank records, which showed payments from TMIC to NTME,

cannot identify the actual amounts paid to NTME for allegedly fraudulent invoices:

Q: So all you can tell from Exhibits 15A and 15B is these were checks from

Texas Mutual Insurance Company that were deposited in a North Texas

Medical Evaluators bank?

A: Yes, sir.

Q: Okay. Ms. [Wendy] Rasmussen, did you check to see what services relate

to these deposits – what medical services relate to these deposits?

A: No, sir. I had the bank records. And I transferred the information on the

bank records into a spreadsheet.

Q: Okay. So there is no way for you to tell, from Exhibits 15A and 15B,

whether these payments are for FCEs or for some other service, correct?

A: No, sir.

Q: Okay. And you don’t know if North Texas Medical Evaluators billed

Texas Mutual Insurance Company for any other services, besides FCEs, do

you?

A: No, sir.

[3 RR 174] No other witness testified that TMIC was billed by NTME only for

FCEs, nor did any witness testify that TMIC only paid for allegedly fraudulent FCEs.

APPELLANT’S BRIEF PAGE 18 OF 39

William Muhr, TMIC’s senior fraud investigator, also participated in the

investigation of NTME. Mr. Muhr stated that he spoke – either by telephone or in

person -- with approximately nine of the workers who had FCEs performed. [3 RR

186] However, Mr. Muhr could only identify the names of two of those people

during trial. [3 RR 186-87] Mr. Muhr also admitted that there was no rhyme nor

reason behind which people he actually spoke with:

Q: Okay. You didn’t try to talk to everybody, did you?

A: No, I did not.

Q: What determined who you tried to talk to?

A: There was no stipulation, just call people and find out how long the

examination took.

[3 RR 188]

As a result, the State’s investigator gave several different hypothetical

amounts that could have constituted the amount of TMIC’s property that was based

on alleged fraud; the State certainly did not know. [3 RR108-16; State’s Ex. 5]

The State not only had to guess at the length of the actual FCEs, but it also had to

admit that a portion of each test was legitimate and, 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.

There is no question that a portion of each check paid by TMIC to NTME,

and each invoice from NTME on which those checks were based, included billing

APPELLANT’S BRIEF PAGE 19 OF 39

and payment for services that were actually and properly earned by NTME [ ].

The State simply never bothered to accurately segregate the amount of the checks

that were procured lawfully, and without deception, from the amount of the checks

that allegedly were induced by Appellant’s purported deception. As a result, the

testimony showed that the State’s statistical underpinnings that allegedly made up

its proposed amount of purported fraud were clearly based on convenient and

rudimentary math and not on actual conduct. In other words, the jury was simply

guessing about the amounts of the documents that allegedly were secured by

deception.

Circumstantial evidence alone can be sufficient to establish guilt. Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Juries are permitted to draw

multiple reasonable inferences as long as each inference is supported by the evidence

presented at trial, but juries are not permitted to come to conclusions based on mere

speculation or factually unsupported inferences or presumptions. See, e.g., Megan

Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013). “‘[A]n inference is a

conclusion reached by considering other facts and deducing a logical consequence

from them,’ while ‘[s]peculation is mere theorizing or guessing about the possible

meaning of facts and evidence presented.’” Id. (quoting Hooper, 214 S.W.3d at 16).

A conclusion reached by speculation is not sufficiently based on facts or evidence to

support a finding beyond a reasonable doubt. Id. (citing Hooper, 214 S.W.3d at 16).

APPELLANT’S BRIEF PAGE 20 OF 39

If the evidence presented at trial raises only a suspicion of guilt, even a strong one,

then that evidence is insufficient to convict. Richard Winfrey v. State, 323 S.W.3d

875, 882 (Tex. Crim. App. 2010). In circumstantial evidence cases, it is unnecessary

for every fact to point directly and independently to the defendant‘s guilt; it is

enough if the finding of guilt is warranted by the cumulative force of all of the

incriminating circumstances. Megan Winfrey, 393 S.W.3d at 778; Temple v. State,

390 S.W.3d 341, 359 (Tex. Crim. App. 2013).

An alternative - but equally fatal for the State - way of viewing this issue is

to argue that the evidence was legally insufficient to show that TMIC’s pecuniary

interest had a value of $20,000 or more but less than $100,000. Section 32.46 of

the Texas Penal Code, regarding securing execution of a document by deception,

does not define the term “pecuniary interest.” See Tex. Penal Code Ann., Sec.

32.46(a)(1). Thus, the term is to be given its plain and ordinary meaning. See

Goldstein, 803 S.W.2d at 791. The Dallas court of appeals has stated that

“pecuniary” is a synonym for “financial” and that “pecuniary interest” means a

direct interest related to money. Fisher v. State, 803 S.W.2d 828, 830 (Tex.

App.—Dallas 1991, pet. ref’d).

Logic demands that the State bear the burden of segregating the valid work

from the allegedly fraudulent work. See Sowders v. State, 693 S.W.2d 448, 450

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

APPELLANT’S BRIEF PAGE 21 OF 39

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).

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. Sowders, 693 S.W.2d at 450; Nitcholas, 524 S.W.2d at

691. See Lehman, 792 S.W.2d at 84; Simmons, 109 S.W.3d at 472. See also Lee, 29

S.W.3d at 75. To hold otherwise would allow the jury to convict Appellant on

conduct that was decidedly not fraudulent or deceptive. Rather, the jury had to

speculate as to the amounts that were proper by giving “credits” to NTME. See

Lehman, 792 S.W.2d at 84; Simmons, 109 S.W.3d at 472. See also Lee, 29 S.W.3d

at 75.

4. A fatal variance existed between the State’s

pleading and proof regarding the form HCFA 1500.

The undisputed evidence established that the actual form submitted by NTME,

and on which TMIC based its decision to pay NTME, was a CFS form, not an HCFA

1500 form. [3 RR14, 16, 27; State’s Exhibit 3]

The variance at issue is a non-statutory fact defining an allowable unit of

prosecution. See Fuller v. State, 73 S.W.3d 250, 257 (Tex. 2002) (Keller, P.J.,

concurring). The question is the method by which Appellant is alleged to have

APPELLANT’S BRIEF PAGE 22 OF 39

committed an act of deception on which TMIC relied when executing a document.

The testimony of Lena Shockley, NTME’s office manager, illustrates that Appellant

did not know why NTME’s claims were being denied. [5 RR 60-68] Therefore,

this Court should not conclude that the variance was immaterial; rather, this Court

should enter a judgment of acquittal on this charge. Id., at 257.

ISSUE TWO

The trial court erred in refusing to admit evidence that TMIC

provided funding to the State’s prosecutors who prosecuted Appellant.

A. A financial relationship exists between the State and TMIC.

A financial relationship existed between the Travis County Criminal District

Attorney’s Office, and particularly with respect to the two prosecutors who handled

this case against Appellant, and the alleged victim, Texas Mutual insurance

Company (“TMIC”). TMIC pays for the salaries of two prosecutors, one paralegal

and one part-time staff within the Workers’ Compensation Fraud Unit of the DA’s

Public Integrity Unit. [5 RR 60-68] As a result, TMIC, the alleged victim in this

case, actually pays the salaries of the two prosecutors – Ms. Donna Crosby and Ms.

Meg Brooks – who prosecuted Appellant for this matter.

That financial relationship should have been disclosed to Appellant’s counsel

before trial. Furthermore, when Appellant’s counsel learned that the purported

“victim” of Appellant’s alleged misconduct had funded the very staff that

APPELLANT’S BRIEF PAGE 23 OF 39

prosecuted Appellant for this case, Appellant was entitled to present evidence to the

jury of the financial relationship between TMIC and the State.

Based on the discovery of this information, Defendant’s counsel informed the

trial court of his desire to question Ms. Crosby, in front of the jury, about the

financial relationship between TMIC and the DA’s Office. [5 RR 60-83] However,

the trial court denied Appellant the right to present evidence to the jury of the

financial relationship between TMIC and the State. [5 RR 83]

By refusing to permit Appellant to present such evidence to the jury, the trial

court committed reversible error.

1. Appellant first learned of a financial relationship

between State and TMIC during trial.

At some point during the trial, and for reasons that Appellant’s counsel cannot

specifically recall, Appellant’s counsel asked Ms. Donna Crosby, the lead attorney

for the State, if there was some sort of relationship between TMIC and the Travis

County Criminal District Attorney’s Office (“DA’s Office”). The record does not

reflect whether Appellant’s counsel asked Ms. Crosby specifically if TMIC

provided funding to the DA’s Office, or if he asked her a more general question that

led to Ms. Crosby’s eventual revelation that TMIC provides financial funding to the

DA’s office to prosecute allegations of worker’s compensation fraud. Before that

moment during trial, neither Ms. Crosby nor any other person representing the State

had ever revealed to Appellant’s counsel that TMIC provides funding to the DA’s

APPELLANT’S BRIEF PAGE 24 OF 39

office specifically for the salaries of Ms. Crosby and Ms. Brooks, and for the

salaries of any other employees of the DA’s office. [5 RR 60-68]

Before calling one of the State’s witnesses out of order, and after the State had

initially rested, State’s attorney Donna Crosby informed the Court about

Appellant’s counsel’s desire to call Ms. Crosby as a witness at trial:

Ms. Crosby (to Court):. [Defense] Counsel has indicated that he wants to call

me as a witness. I would request that be outside the hearing of the jury.

Court: That’s fine.

[5 RR 4]

After testimony from other witnesses, the trial court excused the jury and

allowed testimony from Ms. Crosby regarding the State’s unusual (and previously

undisclosed) relationship with TMIC:

Appellant’s counsel (“Q”): And what division are you assigned to, or what

section of the DA’s office are you assigned to?

Ms. Crosby (“A”): The Public Integrity Unit.

Q: And how long have you been in that unit?

A: Oh, I’d be guessing, but I’d say the bulk of my time in the DA’s office has

been in the Public Integrity Unit.

Q: Now, you indicated to me that Texas Mutual Insurance Company provides

funding for your position. Did I understand that correctly?

A: My division.

Q: Can you tell me how Texas Mutual Insurance Company provides funding

for your division?

APPELLANT’S BRIEF PAGE 25 OF 39

A: I really don’t know, because I don’t get myself involved in that process. I

think that they deal with our admin people. Our admin people deal with

whatever budget we’re going to have, and they get that budget cleared with

whoever they deal with over at TMI.

Q: What do you mean they get with budget people at TMI?

A: Well, TMI pays for the unit, but the administrative division of our office

deals with that issue. I don’t ever get involved in budget issues.

Q: Is it your understanding that Texas Mutual Insurance Company pays for

the entire Public Integrity Unit?

A: No, not for the entire Public Integrity Unit.

Q: What is your understanding of what they pay for?

A: That would be speculation. All I know is that they pay for the unit, that

being Worker’s Comp Fraud Unit.

Q: Well, who is in the Worker’s Comp Fraud Unit?

A: Well, my question – because I think it was a very broad question, and I’m

trying to figure out – because I don’t want to give misinformation.

Court: Are you asking how many attorneys work –

Q: I’m asking how many staff or attorneys are in the Worker’s Comp Fraud

Unit that Texas Mutual Insurance Company pays for.

A: Okay. There are two attorneys, currently a paralegal. And I think we still

have a position open for a part-time office specialist. And I said “I think”

because that particular position may change.

Q: And do you know how much it is – how much money it is each year that

Texas Mutual Insurance Company provides?

A: No.

APPELLANT’S BRIEF PAGE 26 OF 39

Q: But my question is: Of those three-and-a-half people, Texas Mutual

Insurance Company provides 100 percent of the financing for them?

A: That could be true, but with a qualifier. There are other people who assist

me, too, that are not funded by Texas Mutual.

Q: And do you prosecute workers’ comp fraud cases when the carrier is

different than Texas Mutual Insurance Company?

A: I have in the past. And I will do so in the future, if it’s a situation where

we can prosecute it.

Q: What percentage of your time do you think you spend on cases in which

Texas Mutual Insurance Company is the victim, or the alleged victim, of

insurance fraud?

A: So it depends on which case I’m working on at any particular time. . . . .

But, if I had to do percentages this year, I think the bulk of my time this year has

been spent on Texas Mutual cases. . . .

Q: Have you ever prosecuted – I don’t mean go to trial, but have you ever

prosecuted a case in which Texas Mutual Insurance Company was not at least

one of the alleged victims? In other words, in all your cases, is Texas Mutual

always involved in the workers’ comp fraud cases?

A: With regard to workers’ comp fraud, if I’m understanding your question, I

have worked with other carriers, but I wouldn’t say that it’s the bulk of my

workload. . . .

Q: When you work with other carriers, is Texas Mutual Insurance Company

always involved in those cases, also.

A: I believe so.

Q: With the exception of that case that you tried, when you prosecute

workers’ compensation fraud case, is Texas Mutual Insurance Company

always one of the alleged victims in that case?

A: Yes, one of the alleged victims, but there could be other victims.

APPELLANT’S BRIEF PAGE 27 OF 39

Q: And how long has Texas Mutual Insurance Company been providing

funding for your division.

A: Since it’s inception.

Q: Since the inception of the unit?

A: Yes. In fact, I started the unit.

Q: So when did you start the Workers’ Comp Fraud Unit?

A: I don’t know. I think I’ve been doing it about 14 years.

Q: And Texas Mutual Insurance Company has always provided funding at

that time?

A: Yes.

Q: And the Workers’ Comp Fraud Unit is a subsection of the Public Integrity

Unit?

A: Yes.

[5 RR 60-68] Ms. Crosby also testified that she presents her cases to the Grand

Jury. [5 RR 70]

Following brief direct examination of Ms. Crosby by her co-counsel, the trial

court had a long discussion with all counsel regarding whether the information

about the financial relationship between TMIC and the Travis County Criminal

District Attorney’s Workers’ Compensation Fraud Unit – as revealed by Ms.

Crosby during her testimony – should be presented to the jury. [5 RR 70- 83]

Appellant’s counsel argued that such information was highly relevant to the case

and should be admitted:

APPELLANT’S BRIEF PAGE 28 OF 39

Appellant’s counsel: Judge, I’ll tell you, I tried to subpoena the General

Counsel of Texas Mutual Insurance Company. She’s out of the country. I

didn’t know this information, until Monday or Tuesday. It somehow came out

in our discussion.

Ms. Crosby: It’s not something I would hide, so I just told you.

Appellant’s counsel: Well, it’s certainly exculpatory, and the jury should

know this information. It’s certainly relevant. If it’s not exculpatory, it

certainly is relevant to the motivation of this lawsuit.

Court: Well, it’s certainly is not exculpatory.

Appellant’s counsel: It’s not exculpatory. It’s relevant. I guess it could be

considered exculpatory, if the jury believes that it diminishes the reasons why

this case is brought in the first place. And that’s going to fit into my

argument. I promise you that. So I think it should come in. It’s absolutely

relevant. I’ve never heard it happen in any other criminal case, where you

have the alleged victim providing the funding for the prosecutors who are

bringing the case against your client. That just doesn’t happen, outside of this

context. And it’s not something that was available from Texas Mutual’s

website, or from any of the blurbs on the blogs or press releases that they issue

on their various successes from Ms. Crosby on behalf of the Texas Mutual

Insurance Company. It was not clear to me that there was that connection. So

I didn’t find about it, until Monday or Tuesday [trial started on Monday].

Court: All right. So you think that it’s important to get in front of the jury

the fact that the prosecutor is paid her salary, basically, by virtue of Texas

Mutual Insurance?

Appellant’s counsel: Not only that they pay her salary, but that the majority

of cases she works on, the vast majority of the cases she works on, include

Texas Mutual Insurance Company as one of the alleged victims.

[5 RR 68–73] The parties argued strenuously over whether information about the

State’s financial relationship with the alleged victim, TMIC, should be admitted

into evidence:

APPELLANT’S BRIEF PAGE 29 OF 39

Ms. Crosby: Well, how is that relevant as to whether or not he committed the

crime?

Court: Right. I guess that’s the issue.

Appellant’s counsel: I don’t mean any offense, but I certainly can make the

argument: If you’ve got your own counsel, who can come and use the threat

of criminal prosecution, as opposed to just a civil fraud case, as your attorney,

because you’re paying for them, you are supporting this unit, that is powerful

information that the jury ought to find out.

Ms. Crosby: I work for the DA’s office. I don’t work for Texas Mutual.

Appellant’s counsel: And she gets to tell them that, Your Honor. But they

ought to at least have that information to say: Hey, if the only tool in the

toolbox is a hammer, maybe everybody looks like a nail. You know, if

they’ve got somebody who is willing to use criminal prosecution as a threat to

these folks out here who are doing stuff, that’s a pretty powerful incentive.

[5 RR 73-74]

The Court stated that he would not permit such information to be admitted in

front of the jury, even if Appellant tried to call a witness other than the prosecutor,

Ms. Crosby, to testify about the relationship between TMIC and the State:

Appellant’s counsel: So you’re granting the State’s motion to exclude any

evidence about the relationship between the DA’s office and Texas Mutual

Insurance Company, in which Texas Mutual Insurance Company provides

funding for two prosecutors and one paralegal and a part-time person in the

Workers’ Comp Fraud Unit?

Court: It does seem to me that it is irrelevant. And in terms of Rule 401, it’s

not relevant. Also, even if relevant, it clearly is a violation of 403, so I will be

excluding that.

[5 RR 77-83]

2. Ethical standards prohibiting conflicts of interest between State

APPELLANT’S BRIEF PAGE 30 OF 39

and an alleged victim made TMIC’s relationship relevant.

The American Bar Association (“ABA”) Criminal Justice Standards.

According to these standards:

If the law of the jurisdiction permits the acceptance of financial or resource

assistance from non-governmental sources, the decision to accept such

assistance should be made with caution by the chief public prosecutor or an

accountable designee after careful consideration of:

(i) The extent to which the law of the jurisdiction permits the acceptance of

financial or resource assistance;

(ii) The extent to which the offer is in the public interest, as opposed to an

effort to achieve the limited private interests of the non-governmental

sources;

(iii) The extent to which acceptance may result in foregoing other cases;

(iv) The potential adverse impact on the equal administration of the criminal

law;

(v) The extent to which the character and magnitude of the assistance might

unduly influence the prosecutor’s subsequent exercise of investigative

and prosecutorial discretion;

(vi) The likelihood that the community may view accepting the assistance as

inconsistent with the fair and equal administration of criminal justice;

(vii) The likelihood that accepting assistance from private sources may

create an appearance of undue influence over law enforcement; and

(viii) The extent to which financial or resource assistance would enhance or

enable the investigation of criminal activity.

Standards, Section 2.17(b), a true and correct copy of which is attached hereto as

Appendix 1.

APPELLANT’S BRIEF PAGE 31 OF 39

The ABA’s Standards go on to state:

The prosecutor, consistent with the law of the jurisdiction, should disclose

significant non-governmental assistance to relevant legislative or public

bodies having oversight over the prosecutor’s office and, when appropriate,

the public.

ABA Standards, Section 2.17(e) (emphasis added).

More importantly, the ABA Standards also state:

Non-governmental assistance should be disclosed to affected parties as part of

the discovery process.

ABA Standards, Section 2.17(f) (emphasis added).

The actions of the State in accepting a grant from TMIC to fund the very

prosecution at issue in this case essentially constitutes an improper delegation of the

prosecutor’s public duties to a private attorney for TMIC. Even though Ms. Crosby

is, ostensibly, an employee of the DA’s office and not of TMIC, it is clear that a

primary part of her duties as a prosecutor for the Travis County Criminal District

Attorney’s Office is to prosecute allegations of fraud against TMIC. (TMIC is

always a “victim” in cases that Ms. Crosby prosecutes involving workers’

compensation fraud).

The decisions made by a prosecutor in setting enforcement priorities have far

reaching impact on commerce, politics, and the everyday lives of those who must

order their conduct and behave accordingly. Roger A. Fairfax, Jr., “Delegation of

the Criminal Prosecution Function to Private Actors,” 43 University of California-

APPELLANT’S BRIEF PAGE 32 OF 39

Davis L. J. 411, 428 (2009). Prosecutorial decisions regarding whether and what to

investigate and what tactics and tools to use in the course of an investigation can

have grave consequences for those who fall under the government’s scrutiny. Id.

Virtually all of the decisions made by a prosecutor to prosecute an individual

for alleged criminal activity are, “for the most part, unreviewable.” Id., at p. 429.

As a result, a public prosecutor has a remarkable impact on the lives and liberty of

those in society who fall within the law’s mandates. Id., at p. 430. The United

States Supreme Court observed the unique position of the public prosecutor in

Berger v. United States:

The United States attorney is the representative not of an ordinary party to a

controversy, but of a sovereignty whose obligation to govern impartially is as

compelling as the obligation to govern at all; and whose interest, therefore, in

a criminal prosecution is not that it shall win a case, but that justice shall be

done.

295 U.S. 78, 88 (1935). Fifty years after its decision in Berger, the Supreme Court

affirmed the obligation of a public prosecutor to strive toward justice above all else:

Between the private life of the citizen and the public glare of criminal

accusation stands the prosecutor. That state official has the power to employ

the full machinery of the state in scrutinizing any given individual. Even if a

defendant is ultimately acquitted, forced immersion in criminal investigation

and adjudication is a wrenching disruption of everyday life. For this reason,

we must have assurance that those who would wield this power will be guided

solely by their sense of public responsibility for the attainment of justice.

Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 814 (1987)

(emphasis added).

APPELLANT’S BRIEF PAGE 33 OF 39

According to Professor Fairfax, the impartiality to be exercised by a public

prosecutor constitutes a bedrock principle of our criminal justice system:

[T]he public prosecution norm – the notion that criminal prosecution authority

properly rests exclusively with the state – is a source of legitimacy for the

criminal justice system. The fact that prosecutions are brought not in the

name of an individual but in the name of the state both requires and produces

public confidence in the criminal process. In the same vein, that the actor

wielding criminal prosecutorial authority is a public lawyer is of tremendous

significance.

Fairfax, “Delegation,” 43 UC-Davis L. J. at p. 433. As Professor Fairfax stated,

“[I]t does not take much imagination to envision the potential for corruption and

conflicts of interest when a lawyer who controls the tremendous power of criminal

investigation and prosecution also represents private clients.” Id., at p. 438 (citation

omitted).

Professor Fairfax’s article addressed the potential for conflicts of interest in a

jurisdiction that permits its public prosecutor to maintain a part-time private

practice, which is not the case here. See Id., at p. 413. However, the facts, adduced

outside the presence of the jury during the middle of trial, and discovered by

Appellant’s counsel quite by accident, reveals that the State has a unique financial

arrangement with the alleged “victim,” TMIC, and should be treated as if the State

acted in this case as TMIC’s private counsel.

It follows that if an alleged crime victim provides financial support to a state

prosecuting authority, a defendant who is being prosecuted by that state prosecuting

APPELLANT’S BRIEF PAGE 34 OF 39

authority should: (1) be informed prior to trial of the financial relationship between

the alleged crime victim and the prosecutor; and (2) be permitted to adduce

evidence at trial of the financial relationship between the prosecutor and the alleged

crime victim.

Such information is not only relevant; it may be among the MOST relevant

information in the case.

3. Trial court committed harmful error by refusing

to permit Defendant to present evidence of

the relationship between the State and TMIC.

Evidentiary rulings admitting or excluding evidence are committed to the trial

court’s sound discretion. Reasonable minds can differ on issues such as the

relevance of a particular piece of evidence, and as long as the trial court’s ruling was

at least within the zone of reasonable disagreement, an appellate court should not

substitute its reasonable perception for that of the trial judge. See Montgomery v.

State, 810 S.W.2d 272, 291 (Tex.Crim.App. 1990) (op’n on rehearing).

In this case, the trial court’s exclusion of evidence about the financial

relationship between the State and TMIC, the alleged victim, was painfully relevant.

The jury should have been allowed to know that TMIC paid the salaries of the two

prosecutors who were prosecuting Appellant for his alleged fraudulent conduct

against TMIC, especially when in-house fraud investigators from TMIC, rather than

an independent law enforcement agency, had conducted the investigation that led to

APPELLANT’S BRIEF PAGE 35 OF 39

Appellant being indicted by Ms. Crosby, who testified that she presents her own

cases to the Grand Jury. A jury reasonably could have inferred that the DA’s office

acted as the personal attorneys for TMIC with respect to this case, and such a

revelation would have complemented Appellant’s argument that TMIC was strong-

arming Appellant because it did not want to compensate him for the full 16 units that

Appellant believed was compensable.

The State should have disclosed information about its financial

relationship with TMIC to Appellant well before trial, but the trial court certainly

should have allowed Appellant to present to the jury evidence of the relationship

between TMIC and the two prosecutors who brought this case.

No judgment may be reversed on appeal on the ground that the trial court

made an error of law unless the error complained of probably caused the rendition of

an improper judgment. Tex. R. App. P. 44.1(a)(1). See Horizon/CMS Healthcare

Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); Beam v. A.H. Chaney, Inc., 56

S.W.3d 920, 924 (Tex. App.—Fort Worth 2001, pet. denied) (court found no harmful

error after holding that evidence should have been excluded pursuant to Rule

193.6[a]).

The trial courts exclusion of any testimony regarding the financial relationship

between TMIC and the State constituted harmful error, and this matter should be

reversed and remanded for a new trial.

APPELLANT’S BRIEF PAGE 36 OF 39

IV.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant Howard Thomas

Douglas moves this Court to reverse the verdict and judgment of the trial court and

render a verdict of not guilty in favor of Appellant,; or, in the alternative, find that

the trial court erred in excluding evidence of the financial relationship between the

State and the alleged victim, and remand this matter to the trial court for a new

trial.

Respectfully submitted,

/S/ Craig M. Price

Craig M. Price

State Bar No. 16284170

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

APPELLANT’S BRIEF PAGE 37 OF 39

CERTIFICATE OF SERVICE

This is to certify that on April 23, 2015, a true and correct copy of the

above and foregoing document was served on the District Attorney's Office,

Travis County, PO Box 1748, Austin, Texas 78767, by electronic e-service.

/S/ Craig M. Price

Craig M. Price

CERTIFICATE OF COMPLIANCE

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

9.4(i)(4), that the foregoing Appellant’s Brief contains a total of 11, 395

words.

/S/ Craig M. Price

Craig M. Price

APPELLANT’S BRIEF PAGE 38 OF 39

APPENDIX

1. Judgment of Conviction by Jury

2. Charge of the Court

3. ABA Standards on Prosecutorial Investigations

APPELLANT’S BRIEF PAGE 39 OF 39

CASE No, D-1-DC-12-900059 couNT I

INCIDENT NO./TRN: 0119803593

~r

THE.STATE OF TEXAS § IN THE 33JST DISTRICT

§

V. § COURT

§

HOWARD THOMAS DOUGLAS § TRAVIS COUNTY, TEXAS

§

STATE lD No.: TX05456675 §

JUDGMENT OF CONVICTION BY JURY

Judge Presiding: HoN. BOB PERKINS Entered:

6/19/2014

Attorney for

Attorney for State: DONNA CROSBY Defendant:

CRAIG PRICE

Offense for which Defendant Convicted:

SECURING EXECUTION OF A DOCUMENT BY DECEPTION

Charging Instrument: Statute for Offense:

INDICTMENT 32.46 (b)(5) Penal Code

Date of Offense:

12/20/2007 THROUGH 12/16/2009

Degree of Offense: Plea to Offense:

3RD DEGREE FELONY NOT GUILTY

Verdict of Jury: Findings on Deadly Weapon:

GUILTY N/A

Plea to 1•• Enhancement Plea to 2nd Enhancement/Habitual

Paragraph: NIA Paragraph: N/A

Findings on 1•• Enhancement Findings on znd

Paragraph: __N/~ Enhancement/Habitual Paragraph: N/A

Punished Assessed by: Date Sentence Imposed: Date Sentence to Commence:

COURT 6/19/2014 6/19/2014

Punishment and Place

FIVE (5) YEARS INSTITUTIONAL DIVISION, TDCJ

THIS SENTENCE SHALL RUN CONCURRENTLY.

SENTENCE OF CONFINEMENT SUSPENDED, DEFENDANT PLACED ON COMMlJNI'l'Y SUPERVISION FOR

Court Costs: Restitution Payable to:

-------

$ $354.00 $ 0 VICTIM (see below) [83 AGENCY/AGENT (see below)

~ Attachment A, Order to Withdraw Funds, is incorporated into this judgment and made a part _hereof.

Sex Offender Registration Requirements do not apply to the Defendant. TEX. CODE CRIM. PROC. chapter 62.

The age of the victim at the time of the offense was N/A .

If Defendant is to serve sentence in TDCJ. enter incarceration periods in chronological order.

From 6/6/2013 to 61812013 From to From to

Time From to From to From to

Credited:

If Defendant is to serve sentence in county jail or is given credit toward fine and costs. enter days credited below.

N/A DAYS NOTES: N/A

All pertinent information, names and assessments indicated above are incorporated into the language of the judgment below by reference.

This cause was called for trial in Travis County, Texas. The State appeared by her District Attorney.

Counsel/ Waiver of Counsel (select oruD

IX! Defendant appeared in person with Counsel.

0 Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel in writing in open court.

It appeared to the Court that Defendant was mentally competent and had pleaded as shown above to the charging

instrument. Both parties announced ready for trial. A jury was selected, impaneled, and sworn. The INDICTMENT was read to the

jury, and Defendant entered a plea to the charged offense. The Court received the plea and entered it of record.

The jury heard the evidence submitt.ed and argument of counsel. The Court charged the jury as to its duty to determine the

guilt or innocence of Defendant, and the jury retired to consider the evidence. Upon returning to open court, the jury delivered its

verdict in the presence of Defendant and defense counsel, if any.

190

Judgment_of_Convict>on_by _Jury doc

APPENDIX 1

Page I of2

I

~

The Court received the verdict and ORDERED it entered upon the minutes of the Court

Punishment Assessed by Jury I Court I No election_{select one)

0 Jury. Dlrt'endant entered a plea and filed a written election to have the jury assess punishment. The jmy heard evidence relative to

the q~stion of ptmishment. The Court charged the jury and it retired to consider the question of punishment. After due deliberation,

the jury was brought into Court, and. in open court, it returned ita verdict as indicated above.

~ Court. Defendant elected to have the Court assess punishment. After hearing evidence relative to the question of punishment, the

Court assessed Defendant's punishment as indicated above.

0 No Election. Defendant did not file a written election as to whether the judge or jury should assess punishment. After hearing

evidence relative to the question of punishment, the Court assessed Defendant's punishment as indicated above.

The Court FINDS Defendant committed the above offense and ORDERS, ADJUDGES AND DECREES that Defendant is

GUILTY of the above offense. The Court FINDS the Presentence Investigation, if so ordered, was done according to the applicable

provisions of TEX. CODE CRIM. PROC. art. 42 . 12 § 9.

The Court ORDERS Defendant punished as indicated above. The Court ORDERS Defendant to pay all fines, court costs, and

restitution as indicated above.

Punishment Options (select one)

fSI Confinement in State Jail or Institutional Division. The Court ORDERS the authorized agent of the State of Texas or the

Sheriff of this Co1mty to take, safely convey, and deliver Defendant to the Director, Institutional Division, TDCJ. The Court

ORDERS Defendant to be confined for the period and in the manner indicated above. The Court ORDERS Defendant remanded to the

custody of the Sheriff of this county until the Sheriff can obey the directions of this sentence . The Court ORDERS that upon release

from confinement, Defendant proceed immediately to the TRAVTS COUNTY DISTRICT CLERK'S OFFICE, 509 WEST 11TH ST.

SUITE 1.400. Once there, the Court ORDERS Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court

costs, and restitution as ordered by the Court above

0 County Jail-Confinement I Confinement in Lieu of Payment. The C,ourt ORDERS Defendant immediately committed to

the custody of the Sheriff of Travis County, Texas on the date the sentence is to commence. Defendant shall be confined in the

Travis County Jail for the period indicated above. The Court ORDERS that upon release from confinement, Defendant shall proceed

immediately to the TRAVIS COUNTY SHERIFF'S BONDING OFFICE, 509 WEST 11TH ST. SUITE 1.600. Once there, the C..ourt

ORDERS Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the

Court above.

0 Fine Only Payment. The punishment assessed against Defendant is for a FINE ONLY. The Court ORDERS Defendant to proceed

immediately to the Office of the Travis County Sheriff. Once there, the Court ORDERS Defendant to pay or make arrangements to

pay all fines and court costs as ordered by the Court in this cause.

Execution I Suspension of Sentence (select one)

~ The Court ORDERS Defendant's sentence EXECUTED.

0 The Court ORDERS Defendant's sentence of confinement SUSPENDED. The Court ORDERS Defendant placed on community

supervision for the adjudged period (above) so long as Defendant abides by and does not violate the terms and conditions of

community supervision. The order setting forth the terms and conditions of community supervision is incorporated into this

judgment by reference.

The Court ORDERS that Defendant is given credit noted above on this sentence for the time spent incarcerated.

Furthermore, the following special findings or orders a.IH!~

Signed and entered on .June 23, 2014 x-d-~-

331ST

JUDGE PRESIDING

Clerk: MM

Right Thumbprint

191

Judgment_of_Convlction_by _Jury doc !'nge 2 of2

DC BK14139 PG346

DlDC 12 900059

THE STATE OF TEXAS )( IN THE 33lst DISTRICT

vs. )( COURT OF

HOWARD THOMAS DOUGLAS )( TRAVIS COUNTY, TEXAS

CHARGE OF THE COURT

Ladies and Gentlemen of the Jury:

The defendant, HOWARD THOMAS DOUGLAS, stands charged by indictment with the

offense of securing execution of document by deception, alleged to have been committed in

Travis County, Texas, beginning on or about the 201h day of December, 2007, and continuing

to on or about the 161h day of December, 2009. To this charge the defendant has pleaded not

guilty. You are instructed that the law applicable to this case is as follows:

I.

A person commits the offense of securing the execution of a document by deception 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.

II.

"Deception" means creating or confirming by words or conduct a false impression oflaw

or fact that is likely to affect the judgment of another, in the transaction, and that the

defendant does not believe to be tme;

III.

A person acts intentionally, or with intent, with respect to the nature of his conduct or to a

result of his conduct when it is his conscious objective or desire to engage in the conduct or

cause the result.

IV.

A person is criminally responsible if the result would not have occurred but for his

conduct, operating either alone or concurrently with another cause, unless the concurrent

cause was clearly sufficient to produce the result and the conduct of the actor was clearly

insufficient.

A person is nevertheless criminally responsible for causing a result if the only difference

between what actually occurred and what he desired, contemplated, or risked is that:

( l) a different offense was committed; or

(2) a different person or property was injured, harmed, or otherwise affected.

Filed in The District Court

of Travis Co40ty, Texas

MAY 10201~

At ;:t·.oo~ .....

Amalia Rodriguez-Me;;{)za, Clerk

171

APPENDIX 2

DC BK14139 PG347

v.

Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a

reasonable doubt, that the defendant, HOWARD THOMAS DOUGLAS as alleged in the

indictment, pursuant to one scheme or continuing course of conduct which began on or about

the 20th day of December , 2007 , and continuing to on or about the 16th day of December,

2009,in Travis County, Texas, said defendant did then and there with intent to defraud or

harm the TEXAS MUTUAL INSURANCE COMPANY, by deception create or confirm by

words or conduct a false impression of fact , to wit: the said Howard Thomas Douglas caused

to be submitted to the TEXAS MUTUAL INSURANCE COMPANY a form HCF A (Health

Care Financing Administration) 1500 seeking payment for services rendered , said services

were as follows: 16 units billed under CPT (current procedural terminology) code 97750,

when in fact, 16 units of service were not rendered in accordance with the Texas Department

of Insurance Division of Workers Compensation Medical Fee Guidelines not believing it to

be true, that was likely to affect the judgment of the said Texas Mutual Insurance Company in

the transaction, which deception caused the Texas Mutual Insurance Company to sign or

execute documents affecting its property, service or pecuniary interest, where the value of the

property, service or pecuniary interest was more than $20,000 but less than $100,000 and said

payments are of the tenor following:

172

DC BK14139 PG348

Name Date of Service Ammmrnt Amount

or BCFA Date Charged Paid

VESS,CHUCK .3/20/2008 $612.00 $533.76

GILLINGHAM, MARK 5/26/2009 $612.00 $337.84

ESPARZA, JAVIER 3/13/2008 $612.00 $580.16

BlANTON, MARCUS 5/20/2008 $612.00 $592.32

BOOTH, CHAD L 2/8/2009 $612.00 $612.00

ETIINGER, BRAD 2/26/2008

- $612.00 $533.76

THOMAS, FRANIUE L 1/15/2009 $612.00 $612.00

-- .

BOLES, BARBARA 4128/2009 $612.00 $61,2.00

MORENO, ALBERT 5/8/2008 $612.00 $592.32

-

HARRISON, EUNICE 2/23/2009 $612.00 $612.00

WWERY, BilLY L. 1/22/2009 $612.00 $612.00

RODRIQUEZ, GUADAlUPE 4/22/2008 $612.00 $592.32

SHEEHAN, MICHAEL .5/1/2008 $612.00 $533.76

HEARD, LEE A. 4/9/2009 $612.00 $296.24

BITNER, JESSE 3/20/2008 $612.00 $592.32

LIEBEL, lAURIE 1/21/2009 $612.00 $612.00

POZOS, NICOLAS

-- 5/12/2008 $612.00 $592.32

PARKER, CHARLOTTE 6/10/2008 $612.00 $592.32

FIERRO, MACLOVIO V. 5/8/2008 $612.00 $592.32

GREASON, RICHARD 4/10/2008 $612.00 $612.00

--

DAVIS, PATRICK M. 2/26/2008 $612.00 $533.76

DOCKRAY, JERRY 3/9/2009 $612.00 $612.00

-·-

MCGAHEY, TERI 4/22!2008 $612.00 $592.32

TALLEY, JUSTIN 4/14/2008 $612.00 $592.32

SHORT, WENDELL R. 4/22/2008 $612.00 $222.12

SHORT, WENDELL R. 4/22!2008 $612.00. $370.36

....-----·-·

CHARLES, TONY 5/26/2009 $612.00 $612.00

17.3

DC BK14139 PG349

THOMPSON, WILLIAM 5/12/2008 $612.00 $592.32

MERCER, JACKIE 4/14/2008 $612.00 $592.32

CAMACHO, JULIE 2/2/2009 $612.00 $612.00

WIL'lON, JAMES 3/3/2008 $612.00 $533.76

WHITE, LISA A. 5/20/2008 $612.00 $592.32

--

HEUAM, ROBERT L. 5!4!2009 $612.00 $490.44

ARMSTRONG, SHANA M. 2/26/2008 $612.00 $533.76

CLAYTON, FRANKLIN D. 2/12/2009 $612.00 $612.00

PAWLOWSKI, PIOTR 6/5/2008 $612.00 $592.32

GALLAMORE, CARNIE M 3/24/2008 $612.00 $533.76

GALLAMORE, CARNIE M 3/24/2008 $612.00 $533.76

MEDLEY, GARY 4/3/2008 $612.00 $592.32

--·

TIIOMAS, SHERMAN 5/13/2008 $612.00 $612.00

GROUNDS, GEORGE G 5/8/2008 $612.00 $592.32

--=-:-:-----·----·-

CALDWELL, JOHN 4/22/2008 $612.00 $592.32

r-·

MORQUECHO, CARMEN 5/8/2008 $612.00 $592.32

GOFF, TRICIA 5/20/2008 $612.00 $592.32

VASQUEZ, PEDRO 4/18/2009 $612.00 $612.00

·-

MILLER, MARVIN 5/8/2008 $612.00 $592.32

GONZALEZ, ROBERTO 4/14/2008 $612.00 $592.32

JOHNSON, CHARLES G. 6/17/2009 $612.00 $612.00

INFANTE, JULIAN 6/5/2008 $612.00 $592.32

FLORES, JANIE

- 3/25/2009 $612.00 $612.00

FARR,KEVIN 10/21/2008 $612.00 $592.32

WATSON, CHET 5/8/2008 $612.00 $592.32

·----

FALCON, SHANNA 4/14/2009 $612.00 $612.00

-

RAY, JAY 5/28/2008 $612.00 $.592.32

KINNAIRD, JANICE 2/23/2009 $612.00 $612.00

174

DC BK14139 PG350

NARANJO, FRED 2!11/2009 $612.00 $612.00

BLACKSHIRE, RONALD 4/1.5/2009 $612.00 $612.00

STORME, RAYMOND 3/17/2009 $612.00 $612.00-

-ARREDONDO, RAMIRO D. 3/31/2009 $612.00 $612.00

--

MORA, ANTONIO 4/16/2009 $612.00 $612.00

·--·-

WILKERSON, TOMMY R. 4/15/2009 $612.00 $612.00

GUZMAN, ELIGIO 2/23/2009 $612.00 $519.60

-

COOK, FRANCES 3/26/2009 $612.00 $326.96

__.

,

--

RODRIGUES, RUDOLPH 6/15/2009 $612.00 $612.00

WASHBURN, TRACY W. 2/5/2009 $612.00 $612.00

HOLLAND, WILLIAM E 4/28/2009 $612.00 $612.00

BEAN, ROBERT N. 3/13/2009 $612.00 $326.96

--

...

1naoo9

~--

HUNNICUTI, CYNTHIA D. $612.00 $612.00

FYVIE, GARY M. 2/2/2009 $612.00 $612.00

MOTTA BERRIOS, CARLOS 5/12/2009 $612.00 $521.40

WEFFLER, RODNEY R. $612.00

- $612.00

2/23/2009

MUNGUIA, BARBARA L 51712009 $612.00 $612.00

ALTON, JAMES 5/14/2009 $612.00 $612.00

PARR, JOSEPH G 5/21/2009 $612.00 $612.00--

SIMPSON, MONTE L 2/26/2009 $612.00 $612.00

SMITH, KEITH W. 2/16/2009 $612.00 $612.00

KALA, PABLO JR 2/11/2009 $612.00 $612.00

THOMPSON, TIMMY R. 1/8/2009 $612.00 $612.00

JARAMILLO, EFRAIN 5/1/2009 $612.00 $612.00

-

ROSE, DELLRON K. 3/26/2009 $612.00 $612.00

OVALLE, CAMELIA R. 1/30/2009 $612.00 $612.00

COLBERT, MICHAEL 517/2009 $612.00 $612.00

--

DOMANSKI, CHRIS 5/28/2009 $612.00 $612.00

175

DC BK14139 PG351

-

GOMEZ, JIMMY C. 2!23/2009 $612 ..00 $612.00

TIIURMOND, MICHAEL 5/21/2009 $612.00 $326.96

CRIPE, TERRY W. 4/15/2009 $612.00 $612.00

BEAVERS, DONALD K. 2/23/2009 $612.00 $612.00

THOMPSON, DAVID L 7/9/2009 $612.00 $612.00

HOKE, AARON 3/6/2009 $612.00 $612.00

YOUNG, DARRELL

-

6115/2009 $612.00 $612.00

'woODARD, EVAN

- 1n12o09 $612.00 $612.00

WALKER, JAMES 3/25/2009 $612.00 $519.60

WALKER, JAMES 6/30/2009 $612.00 $612.00

ZURITA, LOUISETTE 4n!2009

--·- $612.00 $612.00

GARZA, CUAUHTEMOC 4/9/2009 $612.00 $612.00

GUZMAN, LUIS G. 2/18/2009 $612.00 $612.00

GARCIA, PEDRO 4/28/2009 $612.00 $612.00

.. ·-

MAGNER, MARTIN -- 3/13/2009 $612.00 $612.00

LEAL, RENE M. 5/26/2009 $612.00 . $346.40 ·---

TUNNElL, JESSE 3/25/2009 $612.00 $612.00

VASQUEZ, ROGELIO T. 3/30/2009 $612.00 $612.00

GO 3/27/2009 $612.00 $612.00

GILLESPIE, MARTIN 4/28/2009

-1-:----------

$612.00 $612.00

-

CHICO, REBEKAH 1/29/2009 $612.00 $612.00

DELEON, TOMAS 7n!2009 $612.00 $612.00

-

REYNA, JESSE 4/14/2009 $612.00 $612.00

CARILLO, RODRIGO 5/4/2009 $612.00 $612.00

TURNER, JAY 4/14/2009 $612.00 $612.00

1-·

NEVILLES, GARY II 6/2/2009 $612.00 $612.00

PERKINS, ROBERT J. 3/10/2009 $612.00 $612.00

HERNANDEZ, JOSSIAS M 5!21/2009 $612.00 $612.00

176

DC BK14139 PG352

TORRES, MARGARITO 4/9/2009 $612.00

---

$612.00

MCKINNEY, LEVI 4/14/2009 $612.00 $612.00

ROSAS, DANNY 6/4/2009 $612.00 $612.00

JOHNSON, TIMOTHY 5127/2009 $612.00 $612.00

WISE, JAMES A 6/18/2009 $612.00 $612.00

---

MASCORRO, ROBERT E. 6/1/2009 $612.00 $612.00

REID, BONITA 6/3/2009 $612.00 $612.00

TORRES, JUAN M. 6/18/2009

--·

$612.00 $612.00

---

JACKSON, JOANN 4/23/2009 $612.00 $612.00

ESTRADA, JUAN 4/22/2009 $612.00 $612.00

MERAZ, JESUS 6/18/2009 $612.00

-· $612.00

TROUT, SANDRA K. 5/26/2009 $612.00 $612~oo-

WEESE, NANCY K. 5/5/2009 $612.00 $612.00

WHITFIELD, NORMA J. 7/2/2009 $612.00 $612.00

--

TURNER, JOHN R. 9/22!2009 $612.00 $520.20

FISHER, DEREK 10/22/2009 $612.00 $347.68

DE GRACIA, PAUL 9/16/2009 $612.00 $612.00

FRANCO, MIGUEL 11/20/2009 $612.00 $612.00

WHITLEY, KATHLEEN 12!212009 $612.00

--

$612.00

DAVIDSMEYER, ROBERT L 10/13/2009 $612.00 $6.12

DAVIDSMEYER, ROBERT L. 10/13/2009 $612.00 $605.88

BOATRIGHT, DANNY 11n12oo9

-- $612.00 $612.00

BAKER, LORIN 10/22/2009 $612.00 $347.68

HILL, FRANK 9/16/2009 $612.00 $612.00

RICCI, CORINNE

-·------··-· 10/13/2009 $612.00 $612.00

GUTIERREZ, ADAN 10/9/2009 $612.00 $612.00

·--

STOUT, TIMOTHY E. SR 11/19/2009 $612.00 $520.20

---··

CAGE, VERNON 12/16/2009 $612.00 $520.20

177

DC BK14139 PG353

VANOS, BRANDON 10!27/2009 $612.00

GARCIA-BURCIAGA, 9/15/2009 $612.00

ALFONS

Against the peace and dignity of the State.

lffVM)~~~

Foreperson of the Grand Jury

178

DC BK14139 PG354

you will find the defendant, HOWARD THOMAS DOUGLAS, guilty ofthe offense of

Securing Execution of a Document by Deception and so say by your verdict, but ifyou do not

so believe, or if you have a reasonable doubt thereof, you will acquit the defendant and say by

your verdict "Not Guilty."

VI.

You are further charged as a part of the law in this case that the state is not required to

prove the exact date alleged in the indictment but may prove the offense, if any, to have

been committed at any time prior to the presentment of the indictment so long as said

offense, if any, occurred within seven years of the date of the Presentment of the

indictment ; you are further instructed that the day the indictment was presented and the

day ofthe offense, if any, occurred, shall not be computed within the seven year limitation

period.

VII.

A conviction cannot be had upon the testimony of an accomplice unless the jury first

believe that the accomplice's evidence is true and that it shows the defendant is guilty of the

offense charged against him, and even then you cannot convict unless the accomplice's

testimony is corroborated by other evidence tending to connect the defendant with the offense

charged, and the corroboration is not sufficient if it merely shows the commission of the

offense, but it must tend to connect the defendant with its commission.

You are further instructed that the testimony of one accomplice witness is not sufficient

corroboration of the other's testimony.

You are further instructed that mere presence of the accused in the company of an

accomplice witness shortly before or after the time of the offense, if any, is not, in itself,

sufficient corroboration of the accomplice witness' testimony.

You are charged that Tamara Wells and Lena Shockley were accomplices if any offense

was committed, and you are instructed that you cannot find the defendant guilty upon the

testimony of Tamara Wells and Lena Shockley unless you first believe that the testimony of

the said Tamara Wells and Lena Shockley is true and that it shows the defendant is guilty as

charged in the indictment; and even then you cannot convict the defendant, Howard Thomas

Douglas , unless you further believe that there is other evidence in this case, outside the

evidence of said Tamara Wells and Lena Shockley , tending to connect the defendant with the

commission of the offense charged in the indictment and then from all the evidence you must

believe beyond a reasonable doubt that the defendant is guilty.

VIII.

In all criminal cases, the burden of proof is on the State. All persons are presumed innocent and

no person may be convicted unless each element of the offense is proved beyond a reasonable

doubt. The fact that the defendant has been arrested, confined, or indicted for, or otherwise

charged with an offense gives rise to no inference of guilt at his trial. The law does not require

the defendant to prove his innocence or produce any evidence at all. The presumption of

innocence alone is sufficient to acquit the defendant unless the jurors are satisfied beyond a

179

DC BK14139 PG355

reasonable doubt of the defendant's guilt after a careful and impartial consideration of all the

evidence in the case.

The prosecution has the burden of proving the defendant guilty and it must do so by

proving each and every element of the offense charged beyond a reasonable doubt and if it fails

to do so, you must acquit the defendant. It is not required that the prosecution prove guilt

beyond all possible doubt; it is required that the prosecutor's proof excludes all "reasonable

doubt" concerning the defendant's guilt.

In the event you have a reasonable doubt as to the defendant's guilt after considering all

the evidence before you, and these instructions, you will acquit the defendant and say by your

verdict "Not Guilty."

In a criminal case the law permits a defendant to testify in his own behalf but he is not

compelled to do so, and the same law provides that the fact that a defendant does not testify

shall not be considered as a circumstance against him. You will, therefore, not consider the fact

that the defendant did not testify as a circumstance against him; and you will not in your

retirement to consider your verdict allude to, comment on, or in any manner refer to the fact that

the defendant has not testified.

You are further instructed as a part of the law in this case that the indictment against the

defendant is not evidence in the case, and that the true and sole use of the indictment is to

charge the offense, and to inform the defendant of the offense alleged against him. The reading

of the indictment to the jury in the statement of the case of the state against the defendant

cannot be considered as a fact or circumstance against the defendant in your deliberations.

In deliberating on the cause you are not to refer to or discuss any matter or issue not in

evidence before you; and in determining the guilt or innocence of the defendant, you shall not

180

DC BK14139 PG356

discuss or consider the punishment, if any, which may be assessed against the defendant in the

event he is found guilty beyond a reasonable doubt.

You are charged that it is only from the witness stand that the jury is permitted to receive

evidence regarding the case, or any witness therein, and no juror is permitted to communicate

to any other juror anything he may have heard regarding the case or any witness therein, from

any source other than the witness stand.

You are instructed that your verdict must be unanimous and it must reflect the individual

verdict of each individual juror, and not a mere acquiescence in the conclusion of the other

JUrors.

You are the exclusive judges of the facts proved, of the credibility of the witnesses and of

the weight to be given to the testimony, but you are bound to receive the law from the Court,

which is herein given you, and be governed thereby. A juror may believe any, all, none or part of

any evidence given by any witness.

You are instructed that upon your request to the bailiff you shall be furnished any exhibits

admitted as evidence in the case.

After the reading of this charge, you shall not be permitted to separate from each other

nor shall you talk to anyone not of your jury. After argument of counsel, you will retire and

select one of your members as your foreperson. It is his or her duty to preside at your

de1iberations and to vote with you in arriving at a unanimous verdict. After you have arrived at

your verdict, you may use the forms attached hereto by having your foreperson sign his or her

181

DC BK14139 PG357

Dl DC 12 900059

THE STATE OF TEXAS )( IN THE 331 st DISTRICT

vs. )( COURT OF

HOWARD THOMAS DOUGLAS )( TRAVIS COUNTY, TEXAS

VERDICT OF THE JURY

We, the jury, find the defendant, HOWARD THOMAS DOUGLAS, guilty of the

offense of Securing Execution of a Document by Deception as alleged in the indictment.

Printed name

182

DC BK14139 PG358

DlDC 12 900059

THE STATE OF TEXAS )( IN THE 33lst DISTRICT

vs. )( COURT OF

HOWARD THOMAS DOUGLAS )( TRAVIS COUNTY, TEXAS

VERDICT OF THE JURY

We, the jury, find the defendant, HOWARD THOMAS DOUGLAS, not guilty.

-----

FOREPERSON OF THE JURY

Printed name

18.3

St<mdards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 1 of 38

Home> Publications> Criminal Justice Section Archive

Criminal Justice Section Standards

Standards on Prosecutorial Investigations (Talbie of

Contents)

P rosecutoria!Investigations is the subject of a new set of ABA

Criminal Justice Standards approved by the ABA House of

Delegates in February 2008. To go directly to individual "black

letter" standards, click on the applicable link in the Table of

Contents, below. Commentary to these Standards is currently

being developed and once it is approved by the Standards

Committee will accompany these "black letter" Standards in a

published volume.

TAIBLE OF CONTENTS

PREAMIBLE

PART 1: GENERAl STANDARDS

STANDARD 1.1 The Function of These Standards

STANDARD 1.2 General Principles

STANDARD 1.3 Working With Police and Other Law Enforcement

Agents

STANDARD 1.4 Victims, Potential Witnesses, and Targets During

the Investigative Process

STANDARD 1.5 Contacts with the Public During the Investigative

Process

PART 2: Standards for Specific Investigative Functions of

the Prosecutor

STANDARD 2.1 The Decision to Initiate or to Continue an

Investigation

STANDARD 2.2 Selecting Investigative Techniques

STANDARD 2.3 Use of Undercover Law Enforcement Agents and

Undercover Operations

STANDARD 2.4 Use of Confidential Informants

APPENDIX 3

htt :1/www.americanbar.org/publications/criminal justice section archive/crimiust stand... 5/19/2014

Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 2 of 38

STANDARD 2.5 Cooperation Agreements and Cooperating

Individuals and Organizational Witnesses

STANDARD 2.6 The Decision to Arrest During a Continuing Criminal

Investigation

STANDARD 2. 7 Use of Subpoenas

STANDARD 2.8 Search Warrants

STANDARD 2.9 Use of the Investigative Powers of the Grand Jury

STANDARD 2.10 Technologically-Assisted Physical Surveillance

STANDARD 2.11 Consensual Interception, Transmission and

Recording of Communications

STANDARD 2.12 Non-Consensual Electronic Surveillance

STANDARD 2.13 Conducting Parallel Civil and Criminal

Investigations

STANDARD 2.14 Terminating the Investigation, Retention of

Evidence and Post- Investigation Analysis

STANDARD 2.15 Guidance and Training for Line Prosecutors

STANDARD 2.16 Special Prosecutors, Independent Counsel and

Special Prosecution Units

STANDARD 2.17 Use of Information, Money, or Resources Provided

by Non- Governmental Sources

STANDARD 2.18 Use of Sensitive, Classified or Other Information

Implicating Investigative Privileges

PART 3: PROSECUTOR'S ROlE IN RESOlVING

INVESTIGATION PROBlEMS

STANDARD 3.1 Prosecutor's Role in Addressing Suspected Law

Enforcement Misconduct

STANDARD 3.2 Prosecutor's Role in Addressing Suspected Judicial

Misconduct

STANDARD 3.3 Prosecutor's Role in Addressing Suspected

Misconduct by Defense Counsel

STANDARD 3.4 Prosecutor's Role in Addressing Suspected

Misconduct by Witnesses, Informants or Jurors

STANDARD 3.5 Illegally Obtained Evidence

STANDARD 3.6Responding to Political Pressure and Consideration

of the Impact of Criminal Investigations on the Political Process

STANDARD 3. 7 Review and Oversight of Criminal Investigations by

Government Agencies and Officials

Starndards om Prosecutoriai Irnvestigatiorns (Text)

ABA Standards for Criminal Justice: Prosecutorial

Investigations

Approved February 2008

http://ww\v.americanbar.or_g/publications/criminal justice section archive/crimiust stand... 5119/2014

Standards on Prosecutoriallnvestigations (Table of Contents) I Criminal Justice Section Page 3 of 38

Preamble

A prosecutor's investigative role, responsibilities and potential

liability are different from the prosecutor's role and responsibilities

as a courtroom advocate. These Standards are intended as a guide

to conduct for a prosecutor actively engaged in a criminal

investigation or performing a legally mandated investigative

responsibility, e.g., serving as legal advisor to an investigative

grand jury or as an applicant for a warrant to intercept

communications. These Standards are intended to supplement the

Prosecution Function Standards, not to supplant them. These

Standards may not be applicable to a prosecutor serving in a minor

supporting role to an investigation undertaken and directed by law

enforcement agents.

PART 1:

GENERAl STANDARDS

STANDARD 1.1 THE FUNCTION OF THESE STANDARDS

(a) These Standards address the investigative stage of the

criminal justice process. They address the charge or post-charge

stages of the criminal justice process only when those stages

overlap with the investigative stage.

(b) Standards are not intended to serve as the basis for the

imposition of professional discipline, nor to create substantive or

procedural rights for accused or convicted persons. These

Standards do not modify a prosecutor's ethical obligations under

applicable rule of professional conduct. These Standards are not

intended to create a standard of care for civil liability, nor to serve

as a predicate for a motion to suppress evidence or dismiss a

charge.

(c) The use of the term "prosecutor" in these Standards

applies to any prosecutor or other attorney, regardless of agency

or title, who serves as an attorney in a governmental criminal

investigation.

STANDARD 1.2 GENERAl PRINCIPlES

(a) An individual prosecutor is not an independent agent but is

a member of an independent institution the primary duty of which

is to seek justice.

(b) The prosecutor's client is the public, not particular

government agencies or victims.

ht1n://www.americanbar.onz/Dublications/criminal iustice section archive/crimiust stand... .5/19/2014

Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 4 of 38

(c) The purposes of a criminal investigation are to:

(i) develop sufficient factual information to enable the

prosecutor to make a fair and objective determination of whether

and what charges should be brought and to guard against

prosecution of the innocent, and

(ii) develop legally admissible evidence sufficient to obtain

and sustain a conviction of those who are guilty and warrant

prosecution.

(d) The prosecutor should:

(i) ensure that criminal investigations are not based upon

premature beliefs or conclusions as to guilt or innocence but are

guided by the facts;

(ii) ensure that criminal investigations are not based upon

partisan or other improper political or personal considerations and

do not invidiously discriminate against, nor wrongly favor, persons

on the basis of race, ethnicity, religion, gender, sexual orientation,

political beliefs, age, or social or economic status;

(iii) consider whether an investigation would be in the public

interest and what the potential impacts of a criminal investigation

might be on subjects, targets and witnesses; and

(iv) seek in most circumstances to maintain the secrecy and

confidentiality of criminal investigations.

(e) Generally, the prosecutor engaged in an investigation

should not be the sole decision-maker regarding the decision to

prosecute matters arising out of that investigation.

(f) The prosecutor should be aware of and comply with the

ethical rules and other legal standards applicable to the

prosecutor's conduct during an investigation.

(g) The prosecutor should cooperate with other governmental

authorities regarding matters that are of legitimate concern to such

authorities when doing so is permitted by law and would not

compromise an investigation or other criminal justice goals.

(h) The prosecutor's office should provide organizational

structure to guide its members' investigative work.

STANDARD 1.3 WORKING WITH POliCE AND OTHER lAW

ENFORCEMENT AGENTS

(a) The prosecutor should respect the investigative role of

police and other law enforcement agents by:

(i) working cooperatively with them to develop investigative

policies; and

httD://vv\V\v.americanbar.org/]Jublications/criminal justice section archive/crimiust stand... 5/19/2014

Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 5 of 38

(ii) providing independent legal advice regarding their

investigative decisions.

(b) The prosecutor should take steps to promote compliance by

law enforcement agents with relevant legal rules.

(c) The prosecutor should be aware of the experience, skills

and professional abilities of police and other law enforcement

agents assigned to an investigation.

(d) The prosecutor's office should assist in providing training to

police and other law enforcement agents concerning potential legal

issues and best practices in criminal investigations.

(e) Before and throughout the course of complex or non-routine

investigations, the prosecutor should work with the police and

other participating agencies and experts to develop an

investigative plan that analyzes:

(i) the investigative predicate or information concerning the

matter that is then known;

(ii) the goals of the investigation;

(iii) the potential investigative techniques and the advantages

of each, singularly and in combination, in producing relevant

information and admissible evidence; and

(iv) the legal issues likely to arise during the investigation.

(f) The prosecutor should promote timely communications with

police and other law enforcement agents about material

developments in the investigation.

(g) The prosecutor should not seek to circumvent ethical rules

by instructing or recommending that others use means that the

prosecutor is ethically prohibited from using. The prosecutor may

provide legal advice to law enforcement agents regarding the use

of investigative techniques that law enforcement agents are

authorized to use.

STANIDAIRD 1.4 VICTIMS, POTENTIAl WITNESSES, AND

TARGETS IDUIRING THE INVESTIGATIVE PROCESS

(a) Throughout the course of the investigation as new

information emerges, the prosecutor should reevaluate:

(i) judgments or beliefs as to the culpability or status of

persons or entities identified as "witnesses," "victims," "subjects"

and "targets," and recognize that the status of such persons or

entities may change; and

(ii) the veracity of witnesses and confidential informants and

assess the accuracy and completeness of the information that each

provides.

(b) Upon request and if known, the prosecutor should inform a

person or the person's counsel, whether the person is considered

hHn"i/w'"'w.americanbar.orQ/nublications/criminal justice section archive/crimjust_stand... 5119/2014

Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 6 of 38

to be a target, subject, witness or victim, including whether their

status has changed, unless doing so would compromise a

continuing investigation.

(c) The prosecutor should know the law of the jurisdiction

regarding the rights of victims and witnesses and should respect

those rights.

(d) Absent a law or court order to the contrary, the prosecutor

should not imply or state that it is unlawful for potential witnesses

to disclose information related to or discovered during an

investigation. The prosecutor may ask potential witnesses not to

disclose information, and in doing so, the prosecutor may explain

to them the adverse consequences that might result from

disclosure (such as compromising the investigation or endangering

others). The prosecutor also may alert an individual who has

entered into a cooperation agreement that certain disclosures

might result in violation of the agreement.

(e) The prosecutor should not imply the existence of legal

authority to interview an individual or compel the attendance of a

witness if the prosecutor does not have such authority.

(f) The prosecutor should comply with applicable rules and case

law that may restrict communications with persons represented by

counsel.

(g) The prosecutor should not take into consideration any of

the following factors in making a determination of whether an

organization has been cooperative in the context of a government

investigation unless the specified conduct of the organization would

constitute a violation of law or court order:

(i) that the organization has provided, or agreed to provide

counsel to, or advanced, reimbursed or indemnified the legal fees

and expenses of, an employee;

(ii) that the organization entered into or continues to operate

under a joint defense or information sharing and common interest

agreement with regard to the investigation;

(iii) that the organization shared its records or other historical

information relating to the matter under investigation with an

employee; or

(iv) that the organization did not sanction or discharge an

employee who invoked his or her Fifth Amendment privilege

against self-incrimination in response to government questioning of

the employee.

(h) The prosecutor should not interfere with, threaten, or seek

to punish persons or entities seeking counsel in connection with an

investigation, nor should the prosecutor interfere with, threaten or

seek to punish those who provide such counsel unless by doing so

such conduct would constitute a violation of law or court order. A

good faith basis for raising a conflict of interest, or for investigating

hiin'//w,;o,rw.americanbar.on:dnublications/criminal iustice section archive/crimiust stand."' 5/19/2014

Standards on Prosecuiorial Investigations (Table of Contents) I Criminal Justice Section Page 7 of 38

possible criminal conduct by the defense attorney, is not

"interference" within the meaning of this Standard.

STANDARD 1.5 CONTACTS WITH THE PUBliC DURING THE

INVESTIGATIVE PROCESS

(a) The prosecutor should neither confirm nor deny the

existence of an investigation, or reveal the status of the

investigation, nor release information concerning the investigation,

with the following exceptions:

(i) releasing information reasonably necessary to obtain public

assistance in solving a crime, apprehending a suspect, or calming

public fears;

(ii) responding to a widely disseminated public call for an

investigation by stating that the prosecutor will investigate, or

decline to investigate the matter;

(iii) responding to a law enforcement or regulatory matter of

significant public safety concern, by stating that the prosecutor will

begin an investigation or begin a special initiative to address the

issue, or by releasing information reasonably necessary to protect

public safety, subject to restrictions in the law of the jurisdiction;

(iv) announcing future investigative plans in order to deter

criminal activity;

(v) stating in an already publicized matter and where justice

so requires, that the prosecutor will not initiate, will not continue,

or has concluded an investigation of a person, entity, or matter

and, if applicable, has informed the subject or potential subject of

the decision not to file charges;

(vi) responding to widely disseminated false statements that

the prosecutor is, or is not, investigating a person, entity, or

matter;

(vii) stating whether and when, if court rules so permit, an

event open to the public is scheduled to occur;

(viii) offering limited comment when public attention is

generated by an event in the investigation (e.g., arrests, the

execution of search warrants, the filing of charges, or convictions),

subject to governing legal standards and court rules; and

(ix) making reasonable and fair responses to comments of

defense counsel or others.

(b) Except as a proper part of a court proceeding and in

accordance with applicable rules, the prosecutor should not publicly

make the following types of statements or publicly disclose the

following information about an investigation:

(i) statements of belief about the guilt or innocence, character

or reputation of subjects or targets of the investigation;

httn://wvvw.americanbar.onz/nublications/criminal iustice section archive/crimiust stand... 5/19/2014

Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 8 of 38

(ii) statements that have a substantial likelihood of materially

prejudicing a jury or jury panel;

(iii) information about the character or reputation of a person

or entity under investigation, a prospective witness, or victim;

(iv) admissions, confessions, or the contents of a statement or

alibi attributable to a person or entity under investigation;

(v) the performance or results of tests or the refusal or

agreement of a suspect to take a test;

(vi) statements concerning the credibility or anticipated

testimony of prospective witnesses; and

(vii) the possibility or likelihood of a plea of guilty or other

disposition.

(c) The prosecutor should endeavor to dissuade police and

other law enforcement agents and law enforcement personnel from

making public information that the prosecutor would be prohibited

from making public, or that may have an adverse impact on the

investigation or any potential prosecution.

PAIRT 2:

STANDARDS FOR SPECIFIC INVESTIGATIVE FUNCTIONS

OF n11E PROSECUTOR

STANDARD 2.1 THE DECISION TO INITIATE OIR TO

CONTINUE AN INVESTIGATION

(a) The prosecutor should have wide discretion to select

matters for investigation. Thus, unless required by statute or

policy:

(i) the prosecutor should have no absolute duty to investigate

any particular matter; and

(ii) a particularized suspicion or predicate is not required prior

to initiating a criminal investigation.

(b) In deciding whether an investigation would be in the public

interest, the prosecutor should consider, but not necessarily be

dissuaded by, the following:

(i) a lack of police interest;

(ii) a lack of public or political support;

(iii) a lack of identifiable victims;

(iv) fear or reluctance by potential or actual witnesses; or

(v) unusually complex factual or legal issues.

(c) When deciding whether to initiate or continue an

investigation, the prosecutor should consider:

httD://v.r\V\v.americanbar.org/miblications/criminal justice section archive/crimjust stand... 5/19/2014

Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 9 of 38

(i) whether there is evidence of the existence of criminal

conduct;

(ii) the nature and seriousness of the problem or alleged

offense, including the risk or degree of harm from ongoing criminal

conduct;

(iii) a history of prior violations of the same or similar laws

and whether those violations have previously been addressed

through law enforcement or other means;

(iv) the motive, interest, bias or other improper factors that

may influence those seeking to initiate or cause the initiation of a

criminal investigation;

(v) the need for, and expected impact of, criminal

enforcement to:

(A) punish blameworthy behavior;

(B) provide specific andor general deterrence;

(C) provide protection to the community;

(D) reinforce norms embodied in the criminal law;

(E) prevent unauthorized private action to enforce the law;

(F) preserve the credibility of the criminal justice system;

and

(G) other legitimate public interests.

(vi) whether the costs and benefits of the investigation and of

particular investigative tools and techniques are justified in

consideration of, among other things, the nature of the criminal

activity as well as the impact of conducting the investigation on

other enforcement priorities and resources

(vii) the collateral effects of the investigation on witnesses,

subjects, targets and non-culpable third parties, including financial

damage and harm to reputation

(viii) the probability of obtaining sufficient evidence for a

successful prosecution of the matter in question, including, if there

is a trial, the probability of obtaining a conviction and having the

conviction upheld upon appellate review; and

(ix) whether society's interest in the matter might be better or

equally vindicated by available civil, regulatory, administrative, or

private remedies.

(d) When deciding whether to initiate or continue an

investigation, the prosecutor should not be influenced by:

(i) partisan or other improper political or personal

considerations, or by the race, ethnicity, religion, gender, sexual

orientation, political beliefs or affiliations, age, or social or

economic status of the potential subject or victim, unless they are

elements of the crime or are relevant to the motive of the

perpetrator; or

httD://wi\TIV.americanbar.org/publications/criminal iustice section archive/crimiust stand... .5/19/2014

Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 10 of38

(ii) hostility or personal animus towards a potential subject, or

any other improper motive of the prosecutor.

(e) The prosecutor's office should have an internal procedure to

document the reason(s) for declining to pursue prosecution

following a criminal investigation.

STANDARD 2.2 SELECTING INVESTIGATIVE TECHNIQUES

(a) The prosecutor should be familiar with routine investigative

techniques and the best practices to be employed in using them.

(b) The prosecutor should consider the use of costlier, riskier,

or more intrusive means of investigation only if routine

investigative techniques would be inappropriate, ineffective, or

dangerous, or if their use would impair the ability to take other

desirable investigative steps. If non-routine techniques are used,

the prosecutor should regularly reevaluate the need for them and

whether the use of routine investigative techniques will suffice.

(c) The prosecutor should consider, in consultation with police

and other law enforcement agents involved in the investigation,

the following factors:

(i) the likely effectiveness of a particular technique;

(ii) whether the investigative means and resources to be

utilized are appropriate to the seriousness of the offense;

(iii) the risk of physical danger to law enforcement officers

and others;

(iv) the costs involved with various investigative techniques

and the impact such costs may have on other efforts within the

prosecutor's office;

(v) the possibility of lost opportunity if an investigative

technique is detected and reveals the investigation;

(vi) means of avoiding unnecessary intrusions or invasions

into personal privacy;

(vii) the potential entrapment of otherwise innocent persons;

(viii) the risk of property damage, financial loss to persons or

businesses, damage to reputation or other harm to persons;

(ix) interference with privileged or confidential

communication;

(x) interference with or intrusion upon constitutionally

protected rights; and

(xi) the risk of civil liability or other loss to the government.

(d) The prosecutor should consider the views of experienced

police and other law enforcement agents about safety and

technical and strategic considerations in the use of investigative

techniques.

httJJ://v.rww.americanbar.org/publications/criminal justice section archive/crimjust stand... 5/19/2014

Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 1 1 of 38

(e) The prosecutor may consider that the use of certain

investigative techniques could cause the subject of the

investigation to retain legal counsel and thereby limit the use of

some otherwise permissible investigative techniques.

(f) The prosecutor should avoid being the sole interviewer of a

witness, being alone with a witness, or otherwise becoming an

essential witness to any aspect of the investigation.

(g) While the prosecutor may, and sometimes should, seek

changes in law and policy, the prosecutor should abide by existing

legal restraints, even if the prosecutor believes that they

unjustifiably inhibit the effective investigation of criminal conduct.

STANDARD 2.3 USE Of UNDERCOVER LAW ENFORCEMENT

AGENTS AND UNDERCOVER OPERATIONS

(a) For the purpose of these Standards, an "undercover law

enforcement agent" is an employee of a government agency

working under the direction and control of a government agency in

a criminal investigation, whose true identity as a law enforcement

agent involved in the investigation is concealed from third parties.

(b) For the purpose of these Standards, an "undercover

operation" means an investigation in which undercover law

enforcement agents or other persons working with law

enforcement conceal their purpose of detecting crime or obtaining

evidence to prosecute those engaged in illegal activities.

(c) In deciding whether to use or to advise the use of

undercover law enforcement agents or undercover operations, the

prosecutor should consider potential benefits, including:

(i) the character and quality of evidence likely to be obtained;

and

(ii) the ability to prevent or solve crimes where obtaining

reliable and admissible evidence to do so would otherwise be

difficult or impossible to obtain.

(d) In deciding whether to use or to advise the use of

undercover law enforcement agents or undercover operations, the

prosecutor should consider potential risks, including:

(i) physical injury to law enforcement agents and others;

(ii) lost opportunity if the operation is revealed;

(iii) unnecessary intrusions or invasions into personal privacy;

(iv) entrapment of otherwise innocent persons;

(v) property damage, financial loss to persons or businesses,

damage to reputation or other harm to persons;

(vi) interference with privileged or confidential

communications;

(vii) interference with or intrusion upon constitutionally

protected rights;

http://v,rvvw.americanbar.org/publications/criminal justice section archive/crimjust stand... 5/1 9/2014

Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 12 of 38

(viii) civil liability or other adverse impact on the government;

(ix) personal liability of the law enforcement agents;

(x) involvement in illegal conduct by undercover law

enforcement agents or government participation in activity that

would be considered unsuitable and highly offensive to public

values and that may adversely impact a jury's view of a case; and

(xi) the possibility that the undercover operation will

unintentionally cause an increase in criminal activity.

(e) The prosecutor advising an undercover investigation should:

(i) consult with appropriate police or law enforcement agents

on a regular basis about the continued propriety of the operation

and the legal sufficiency and quality of the evidence that is being

produced by the operation;

(ii) seek periodic internal review of the investigation to

determine whether the operation's benefits continue to outweigh

its risks and costs, including the extent to which:

(A) the goals of the investigation have been accomplished;

(B) there is potential for the acquisition of additional useful

and non- duplicative information;

(iii) the investigation can continue without exposing the

undercover operation; and

(iv) continuation of the investigation may cause financial or

other injury to innocent parties.

(f) The prosecutor should seek to avoid or minimize the risks

involved in the active participation of undercover police or law

enforcement agents in illegal activity, and provide such agents

guidance about authorized participation in otherwise criminal

conduct.

(g) Records of funds expended and generated by undercover

activity should be retained and accounted for in a manner that

facilitates a comprehensive and accurate audit.

STANDARD 2.4 USE OF CONFIDENTIAL INFORMANTS

(a) As used in these Standards, a "confidential informant" is a

person who supplies information to police or law enforcement

agents pursuant to an agreement that the police or investigative

agency will seek not to disclose the person's identity. The identity

of a confidential informant may also be unknown to the prosecutor.

A confidential informant may in some instances become a

cooperator, and in such circumstances reference should be made

to Standard 2.5.

(b) The prosecutor should consider possible benefits from the

use of a confidential informant, including whether the confidential

informant might enable the government to obtain:

httn://ww\:v.americanbar.org/])ublications/criminal justice section archive/crimjuststand... 5/19/2014

Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 13 of 38

(i) first-hand, eyewitness accounts of criminal activity;

(ii) critical background information about the criminal activity

or criminal organization under investigation;

(iii) information necessary to provide a basis for additional

investigative techniques or court-ordered means of investigation

such as a search warrant; and

(iv) identification of witnesses or leads to witnesses who can

provide direction to further the investigation or valuable testimony

to a grand jury or at trial.

(c) The prosecutor should consider possible risks from the use

of a confidential informant. These include risks that the confidential

informant will:

(i) be untruthful, or provide misleading or incomplete

information;

(ii) compromise the criminal investigation by revealing

information to others, including the subjects or targets of the

investigation;

(iii) engage in behavior constituting entrapment;

(iv) commit or continue to commit crimes;

(v) be subject, or subject others, to serious risk of physical

harm as a result of cooperating with law enforcement; and

(vi) interfere with privileged or confidential relationships or

communications or violate the rights of the investigation's subject.

(d) The prosecutor should avoid being alone with a confidential

informant, even for a brief period of time.

(e) Before deciding to rely upon the information provided by a

confidential informant for significant investigative steps, the

prosecutor should review the following with the police or law

enforcement agents:

(i) the ability of the confidential informant to provide or obtain

information relevant to the criminal investigation;

(ii) means of corroborating information received from the

confidential informant;

(iii) the possible motives or biases of the confidential

informant, including the motive to gain a competitive advantage

over others in either criminal or legitimate enterprises;

(iv) the nature of any and all promises made to the

prospective confidential informant by other prosecutors, police or

law enforcement agents, including promises related to the

treatment of associates or relatives of the confidential informant;

(v) the prior history of the confidential informant , including

prior criminal activity and other information, including the

informant's true identity if necessary for the prosecutor's review;

http://\\iVvw.americanbar.org/publications/criminal justice section archive/crimjust stand... 5/19/2014

Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 14 of 38

(vi) whether the prospective confidential informant is

represented by an attorney or is party to a joint defense

agreement with other targets of the investigation and, if so, how

best to address potential legal or ethical issues related to the

representation or agreement;

(vii) if reasonably available, the experience other prosecutors

and law enforcement agents have had with the confidential

informant;

(viii) whether the proposed compensation or benefits to be

received by the confidential informant are reasonable under the

circumstances;

(ix) the risk that the prospective confidential informant may

be an agent of the subjects of the investigation or of other criminal

groups and individuals, or may reveal investigative information to

them; and

(x) the risk that the prospective confidential informant will

engage in criminal activity not authorized by the prosecutor, and

the seriousness of that unauthorized criminal activity.

(f) The prosecutor's office should work with police and law

enforcement agents to develop best practices and policies for the

use of confidential informants that include:

(i) a rule that investigative information obtained from other

sources should not be provided to the confidential informant unless

doing so would materially advance the investigation;

(ii) prohibitions on making promises of compensation or other

benefits that would shock the conscience of a moral society or

would risk compromising the credibility of the informant in any

proceeding in which the informant's testimony may be important;

(iii) prohibitions on making promises that the police or law

enforcement agents are unlikely to be able to keep;

(iv) routine instructions to confidential informants to refrain

from criminal conduct other than as directed by law enforcement;

and

(v) the routine use of standard form agreements when such

agreements are entered into by law enforcement officers without

the involvement of the prosecutor.

STANDARD 2.5 COOIPIERATION AGRIEIEMIENTS AND

COOIPIERATING INDIVIDUALS AND ORGANIZATIONAL

WITNIESSIES

(a) As used in these Standards, "cooperation agreements" are

agreements between the prosecutor and otherwise culpable

individuals or entities ("cooperators") who provide the government

with assistance useful to an investigation in exchange for benefits.

http://wvv-w.americanbar.org/publications/criminal justice section archive/crimjust stand." 5/19/2014

Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 15 of 38

A cooperator may have been a confidential informant earlier in the

investigation.

(b) The prosecutor should ordinarily seek to have the

cooperator plead guilty to an appropriate criminal charge rather

than provide the cooperator immunity for culpable conduct.

(c) In deciding whether to offer a cooperator significant

benefits, including a limit on criminal liability, immunity, or a

recommendation for reduction of sentence, the prosecutor should

consider whether:

(i) the cooperator is able and willing to provide valuable

assistance to the investigation;

(ii) the cooperator will maintain the confidentiality or secrecy

of the investigation;

(iii) the cooperator has biases or personal motives that might

result in false, incomplete, or misleading information;

(iv) leniency or immunity for the criminal activity of the

cooperator is warranted by the goals of the investigation and the

public interest, including appropriate consideration for victim(s)

interests;

(v) providing leniency, immunity or other benefits would be

seen as offensive by the public or cause a reasonable juror to

doubt the veracity of the cooperator's testimony;

(vi) information that has been provided (such as through an

attorney proffer or by a debriefing of the cooperator) has been

corroborated or can otherwise shown to be accurate;

(vii) the culpability of other participants in the criminal activity

relative to the cooperator's culpability has been determined as

accurately as possible;

(viii) there is a likelihood that the cooperator will provide

useful information only if given leniency or immunity;

(ix) the case could be successfully prosecuted without the

cooperator's assistance; and

(x) the cooperator could be successfully prosecuted without

the admissions of the cooperator made pursuant to the agreement.

(d) The cooperation agreement should not:

(i) promise to forego prosecution for future criminal activity,

except where such activity is necessary as part of an officially

supervised investigative and enforcement program; or

(ii) adversely affect third parties' legal rights.

(e) The prosecutor should:

(i) be aware that anything said to the cooperator might be

repeated to the cooperator's criminal associates or in open court;

and

http://w\t..i\V.americanbar.org/publications/criminal justice section archive/crimjust stand... 5/19/2014

Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 16 of 3 8

(ii) be aware of the disclosure requirements under relevant

law if a cooperator ultimately testifies at trial, including disclosure

of any and all agreements and promises made to the cooperator

and evidence which could impact the cooperator's credibility,

including the complete criminal history of the cooperator. The

prosecutor should take steps to assure the preservation of such

evidence.

(f) The prosecutor should recognize and respect the role of the

cooperator's attorney in the decision to cooperate and in the

disposition of significant legal rights.

(g) Ordinarily, a prosecutor who offers leniency in exchange for

cooperation should not withdraw or threaten to withdraw the offer

because of the potential cooperator's request to consult with

counsel prior to deciding whether to accept it. However, if the time

required for the potential cooperator to consult with counsel would

render the agreement ineffective, the prosecutor may withdraw or

threaten to withdraw the offer before there is opportunity for such

consultation. In that event, the prosecutor may condition

cooperation on an immediate and uncounseled decision to proceed.

(h) The prosecutor should reduce a cooperation agreement to

writing as soon as practicable. An agreement should only cover

those crimes known to the government at the time it is made, and

should specify:

(i) the specific details of all benefits and obligations agreed

upon;

(ii) the specific activities to be performed by the cooperator;

(iii) the requirement that the cooperator be truthful in dealing

with the government and in all legal proceedings;

(iv) the prohibition against the cooperator's engaging in any

criminal conduct other than as directed by law enforcement;

(v) the extent of the disposition of the potential criminal and

civil claims against the cooperator;

(vi) a complete list of any other promises, financial benefits or

understandings;

(vii) the limitations of the agreement with respect to the

terms it contains and to the identified jurisdiction or jurisdictions;

and

(viii) the remedy in the event the cooperator breaches the

agreement.

(i) The prosecutor should avoid being alone with a cooperator

even for a brief period of time.

(j) The prosecutor should guard against the cooperator

obtaining information from others that invades the attorney-client

or work product privileges or violates the Sixth Amendment right

to counsel.

hiirl"i/www ::~mPrir.::~nh::~ron:r/nnhlicn1ions/criminal iustice section archive/crimiust stand... 5/19/2014

Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 17 of 38

(k) Prior to relying on the cooperator's information in

undertaking an investigative step that could cause adverse

consequences to the investigation or to a third party, the

prosecutor should be satisfied as to the truthfulness of the

cooperator.

(I) If an investigative step involves an application to a court or

other official body, the prosecutor should make appropriate and

required disclosures about the cooperator to the court or other

body.

(m) If the prosecutor suspects that the cooperator is not being

truthful, the prosecutor should take reasonable steps to address

such concerns and seek further corroboration of the cooperator's

information.

(n) If the prosecutor determines that a cooperator has

knowingly provided false information or otherwise breached the

cooperation agreement, the prosecutor should:

(i) seek guidance from a supervisor;

(ii) undertake or request the initiation of an investigation into

the circumstances;

(iii) consider the possible prosecution of the cooperator, and;

(iv) carefully reevaluate the investigation.

STANDARD 2..6 TIHE DECISION TO ARREST Dll...llRING A

CONTINII.JliNG CRIMINAl INVESTIGATION

(a) In making a tactical decision whether, when or where to

arrest a subject during a continuing investigation, the prosecutor

should consider the potential benefits of the arrest, including:

(i) protecting the public from a person known to present an

imminent danger;

(ii) reducing the likelihood of flight;

(iii) preventing the destruction of evidence and providing an

opportunity to obtain evidence of a crime pursuant to a search

incident to arrest;

(iv) stopping or deterring the harassment or coercion of

witnesses or other acts of obstruction of justice;

(v) creating an opportunity to ask questions about an

unrelated crime;

(vi) encouraging other culpable individuals or witnesses to

surrender to law enforcement and to cooperate with the

investigation;

(vii) inducing relevant conversation or other communication

likely to be intercepted by law enforcement; and

hHn-1/vvvvw 8meric::~nhar.orrr/nublications/criminal iustice section archive/crimiust stand... 5/19/2014

Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 18 of 38

(viii) protecting the existence of an undercover agent or

confidential informant, a cooperator or an undercover operation.

(b) In deciding whether, when or where to arrest a subject

during a continuing investigation, the prosecutor should consider

the potential risks of the arrest, including:

(i) limiting the continued conduct of a criminal investigation

by alerting others involved in continuing criminal activity;

(ii) restricting the use of some investigative techniques;

(iii) triggering speedy charge and speedy trial rules;

(iv) triggering disclosure obligations that have been subject to

delayed notice;

(v) appearing to be illegitimate or pre-textual and thus

adversely affecting community support for police and prosecution

efforts; and

(vi) causing significant shame, embarrassment or prejudice to

the arrestee or innocent third parties and unintended and unfair

financial impacts.

(c) The prosecutor should be aware that Sixth Amendment

right to counsel issues raised by the filing of criminal charges may

limit the availability of some investigative options, including:

(i) use of the grand jury as an investigative technique;

(ii) soliciting incriminating information from a charged

individual; and

(iii) contacts with the individuals or entities who have been

charged.

STANIDAIRD 2..7 USE OF SUBPOENAS

(a) As used in these Standards, a "subpoena," however named

or designated, is a written command for a person or entity to

provide physical evidence, testimony or documents. A su

This text is long and has been trimmed here. Open the source document for the complete record.