Opinion
NO. 14-16-00955-CR
03-20-2018
CHIMAROKE JOSEPH ECHENWUNE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court Harris County, Texas
Trial Court Cause No. 1451271
MEMORANDUM OPINION
In this appeal from a conviction for engaging in organized criminal activity, we consider whether the evidence is legally sufficient to support the conviction, and whether the trial court abused its discretion by admitting several exhibits over a hearsay objection. For the reasons explained below, we conclude that the evidence is sufficient, and that the trial court did not reversibly err by admitting the challenged exhibits. We therefore affirm the trial court's judgment.
BACKGROUND
Appellant was indicted after an investigation showed that he had defrauded the governmental agencies that administer Medicare and Medicaid. The evidence established that appellant and his wife operated a small ambulance company named Diamex. Appellant submitted multiple claims to Medicare and Medicaid, representing that Diamex had transported patients to hospitals, which are covered by those programs, even though the patients had actually been transported to other facilities like adult day cares, which are not covered by those programs. Occasionally, Diamex transported multiple patients from group homes in the same ambulance, but appellant inflated the number of his claims by representing that Diamex had transported these patients individually and at different times.
Appellant submitted more than $3.5 million in claims to Medicare, from which Diamex received nearly $1.2 million in payments. Appellant also submitted more than $1.5 million in claims to Medicaid, from which Diamex received just over $140,000 in payments. All of these payments were determined to be illegitimate.
SUFFICIENCY OF THE EVIDENCE
To obtain a conviction for engaging in organized criminal activity, the State was required to prove that appellant committed or conspired to commit a predicate offense (in this case theft) with the intent to establish, maintain, or participate in a combination. See Tex. Penal Code § 71.02(a)(1). Appellant argues that the evidence is insufficient to prove two distinct elements of this offense. The first challenged element exists under the predicate offense, and the second challenged element is the combination. We examine these elements in turn.
Theft. To establish a theft, the State was required to prove that appellant unlawfully appropriated property with the intent to deprive the "owner" of property. See Tex. Penal Code § 31.03. The word "owner" is defined as a "person" who has to title to or possession of the property. Id. § 1.07(a)(35). The word "person" means "an individual, corporation, or association." Id. § 1.07(a)(38). And the word "association" includes a "governmental subdivision or agency." Id. § 1.07(a)(6).
The indictment alleged that appellant unlawfully appropriated property from two governmental agencies, namely, "Health and Human Services, aka Medicare, and the Texas Health and Human Services Commission, aka the Texas Medicaid Program." The jury charge tracked this language as well.
Appellant concedes that Health and Human Services (or more precisely, the U.S. Department of Health and Human Services) and the Texas Health and Human Services Commission are governmental agencies, which therefore makes them "owners" within the broad meaning of the Penal Code. However, appellant asserts that Medicare and Medicaid, which were named in apposition to the governmental agencies, are actually governmental programs, which do not qualify under the umbrella definition of "owner." Appellant then argues, without citation to authority, that the State could not identify the complainants as being both governmental agencies and governmental programs. Continuing with that premise, appellant argues that there is no evidence with which the jury could convict him, based on the mention of the governmental programs.
Appellant's premise is incorrect. When an injured party is known by more than one name, the State may identify either name in the indictment. See Tex. Code Crim. Proc. art. 21.07. And when evidence is produced at trial that the injured party is known by the name alleged in the indictment, then the issue is raised and is properly left for the jury to determine. See Blankenship v. State, 785 S.W.2d 158, 160 (Tex. Crim. App. 1990).
Here, the State elicited testimony that the U.S. Department of Health and Human Services is commonly known by the Medicare program that it oversees. The State elicited similar testimony regarding the Texas Health and Human Services Commission and its relationship to the Medicaid program. Based on this testimony, and on other testimony showing that appellant received illegitimate payments from Medicare and Medicaid, a rational jury could have found beyond a reasonable doubt that appellant unlawfully appropriated property from an "owner."
Combination. To prove that appellant was a member of a combination, the State had to show that he collaborated with others in "carrying on criminal activities." See Tex. Penal Code § 71.01(a). The phrase "carrying on criminal activities" requires proof of an agreement to commit more than just a single crime. See Nguyen v. State, 1 S.W.3d 694, 697 (Tex. Crim. App. 1999).
The indictment alleged that appellant and his combination committed "the offense of Aggregate Theft." Appellant contends that aggregate theft is just a single crime, and thus, there is legally insufficient evidence to show that he collaborated with others in carrying on criminal activities.
Viewed in the light most favorable to the verdict, the evidence showed that appellant completed his aggregate theft through a continuing course of conduct, rather than just a single criminal transaction. Over a span of many months, and with the assistance of several codefendants, appellant submitted multiple claims to Medicare and Medicaid, and those claims were later determined to be illegitimate. Because each illegitimate claim constituted an individual theft (a separate crime), we conclude that there is legally sufficient evidence from which the jury could find that appellant collaborated with others in carrying on criminal activities. See Nwosoucha v. State, 325 S.W.3d 816, 833-41 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd) (holding that the evidence was sufficient to support a finding of a combination where the defendant signed multiple certificates of medical necessity for the purchase of motorized wheelchairs in an ongoing scheme to defraud Medicare and Medicaid).
HEARSAY EVIDENCE
The State offered its first exhibit, a CD containing Medicare records, through a government contractor who was hired to identify Medicare fraud. Appellant objected to the exhibit, arguing that "it's double hearsay, maybe triple hearsay," because the sponsoring witness indicated that the records were transferred between several databases and programs before finally being reduced to the CD. The trial court overruled appellant's objection, and now appellant complains about the admission of the CD, as well as several other exhibits that were excerpted or obtained from the CD. Appellant also contends that the admission of this evidence was harmful because, without it, the State would not have been able to prove the amount of money that appellant unlawfully appropriated from Medicare.
The State responds that any error in the admission of hearsay evidence was harmless because other evidence establishing the amount of appellant's unlawful appropriation was admitted elsewhere without objection. We agree with the State that any error in the admission of the challenged evidence was harmless.
To preserve error in admitting evidence, a party must make a proper objection and get a ruling on that objection. See Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). In addition, a party must object each time the inadmissible evidence is offered or obtain a running objection. Id. An error in the admission of evidence is cured where the same evidence comes in elsewhere without objection. Id.
Here, after the challenged evidence was admitted through the sponsoring witness, a second witness who was also a fraud investigator testified about the contents of the CD. This other witness testified about the amount of money that appellant unlawfully appropriated from Medicare. Because this witness testimony was admitted without objection, we conclude that any error in the admission of hearsay evidence was harmless.
CONCLUSION
The trial court's judgment is affirmed.
/s/ Tracy Christopher
Justice Panel consists of Justices Christopher, Donovan, and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).