Gary Clifford Abbott v. The State of Texas--Appeal from County Court at Law No 2 of Smith County

NO. 12-04-00085-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

GARY CLIFFORD ABBOTT, APPEAL FROM THE

APPELLANT

V. COUNTY COURT AT LAW NO. 2 OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

 

MEMORANDUM OPINION ON REHEARING

We grant Appellant s motion for rehearing, withdraw our opinion and judgment issued June 30, 2006, and substitute the following in its place.

Appellant Gary Clifford Abbott appeals his conviction for insurance fraud. In four issues, Appellant asserts that the evidence is not legally or factually sufficient to support his conviction and that the trial court imposed unreasonable conditions of community supervision. We reform the judgment to delete restitution as a condition of community supervision and affirm the conviction and sentence.

Background

Appellant was charged by indictment with insurance fraud.1 The indictment alleged that, on or about December 30, 2001, in Smith County, Texas, Appellant,

 

with intent to defraud or deceive an insurer, namely Encompass, present[ed] to said insurer in support of a claim for payment under a property and casualty insurance policy, the value of said claim being $1,500 or more but less than $20,000, a statement that the defendant knew contained false or misleading information concerning a matter affecting the right of the defendant to a payment, and the matter was material to the claim in that it concerned whether property was damaged or lost in the manner and under the circumstances described in a statement related to a claim for insurance payment.2

Appellant pleaded not guilty.

At his trial, a jury found Appellant guilty of the charge as alleged in the indictment. After ordering a presentence investigation report, the trial court assessed punishment at two years of confinement in a state jail facility, probated for five years with one hundred days as shock probation. The court also ordered Appellant to pay a fine and restitution. Additionally, the court ordered weekly reports from Appellant concerning matters of his business, buying and selling automobile parts. An appeal followed, and we affirmed Appellant s conviction and the order of restitution. Abbott v. State, No. 12-04-00085-CR, 2005 Tex. App. LEXIS 10702 (Tex. App. Tyler Dec. 30, 2005) (mem. op., not designated for publication). Subsequently, pursuant to Texas Rule of Appellate Procedure 50, we withdrew our prior opinion and remanded the matter to the trial court for a determination of the just amount of restitution, if any. Abbott v. State, No. 12-04-00085, 2006 Tex. App. LEXIS 2649 (Tex. App. Tyler March 31, 2006, pet. ref d) (mem. op., not designated for publication). A hearing was held on restitution and a reporter s record of that hearing was transmitted to this court. After consideration, we issued another opinion affirming the trial court. Abbott v. State, No. 12-04-00085, 2006 Tex. App. LEXIS 5905 (Tex. App. Tyler June 30, 2006) (mem. op., not designated for publication). Appellant filed a motion for rehearing asserting that he was not afforded an opportunity to submit further briefing on the issue of restitution because the clerk of the trial court never submitted a supplemental record as required by our March 31 order. We then set a briefing deadline for Appellant s amended brief and the State s response. Appellant filed an amended brief, but the State did not file a response.

Evidentiary Sufficiency

In his first and second issues on appeal, Appellant argues that the evidence is legally and factually insufficient to support his conviction. More specifically, Appellant contends there is no evidence that he caused to be prepared or presented to the insurer a statement he knew contained false or misleading information.

Standard of Review

Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App. San Antonio 1999, pet. ref d) (citing Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-88, 61 L. Ed. 2d 560 (1979)). The standard of review is 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, 99 S. Ct. at 2789; LaCour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000). The evidence is viewed in the light most favorable to the verdict. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; LaCour, 8 S.W.3d at 671. The conviction will be sustained unless it is found to be irrational or unsupported by more than a mere modicum of the evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). The jury is the sole judge of the credibility of witnesses and of the weight to be given their testimony. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). Any reconciliation of conflicts and contradictions in the evidence is entirely within the jury s domain. Id. The jury is entitled to draw reasonable inferences from the evidence. Benavides v. State, 763 S.W.2d 587, 588-89 (Tex. App. Corpus Christi 1988, pet. ref d). If a reviewing court finds the evidence legally insufficient to support a conviction, the result is an acquittal. Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982).

In reviewing factual sufficiency, we consider all the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Although we are authorized to disagree with the jury s determination, even if probative evidence exists that supports the verdict, our evaluation should not substantially intrude upon the jury s role as the sole judge of the weight and credibility of witness testimony. Id.; see Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). Where there is conflicting evidence, the jury s verdict on such matters is generally regarded as conclusive. Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App. El Paso 1996, pet. ref d). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). A verdict will be set aside only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust. Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002); see also Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006); Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003).

Legal Sufficiency

A person commits the offense of insurance fraud if, with intent to defraud or deceive an insurer, he causes to be prepared or presents to an insurer in support of a claim for payment under a health or property and casualty policy a statement that he knows contains false or misleading information concerning a matter that is material to the claim, and the matter affects his right to a payment or the amount of payment to which he is entitled. Tex. Pen. Code Ann. 35.02(a).

Joe Byron Roach, a senior investigator for Appellant s insurance company, has eighteen years of experience in law enforcement and fourteen years as an insurance investigator. He investigates unusual claims. At trial, Roach testified that Appellant filed a theft claim for over $16,000 and that he denied Appellant s claim. The court admitted into evidence copies of the initial claim documents Appellant submitted to the insurance company. The paperwork included a sworn Affidavit of Vehicle Theft that Appellant completed and submitted along with his claim. Additionally, the State produced a copy of an internal estimate of the damages to Appellant s vehicle that was prepared by the insurance company as a direct result of Appellant s filing his insurance claim.

Chad Kersey, an officer with the Tyler Police Department, testified that he responded to a call on December 30, 2001 when Appellant reported his white GMC truck had been stolen. Kersey noted in his report that he found no broken glass after examining the area of the parking lot of the Wingate Inn where Appellant said he had left the truck overnight. Jamie Blankenship, a patrol deputy at the Rusk County Sheriff s office, testified that on December 30 at 8:30 in the morning, he found a stripped white GMC pickup truck on County Road 186. Blankenship said that the truck had been stripped clean, explaining that this was unusual. Blankenship testified that most stripped vehicles have wires ripped and hoses cut. On this truck, the wires had been unplugged and he noticed no physical damage to the vehicle other than the parts having been removed. Blankenship further explained that, in his experience, most stripped vehicles have wires ripped out because the people committing the crime are in a hurry.

Jerry Wallace, owner of a wrecker service, testified that he retrieved the truck from the county road where Blankenship found it and took it to his place of business. Wallace said that within a few hours, Appellant picked up his truck, loading it onto a trailer. Wallace noted that this was unusual for a person who had his vehicle stolen. During his seventeen years in the business, it had been Wallace s experience that owners of stolen vehicles typically allowed the insurance company to handle the details, including paying his fees for towing the vehicle. Wallace said that although the truck was parked outside, he would have moved it to the covered garage upon request.

Gary King, detective with the East Texas Auto Theft Task Force and the Tyler Police Department, was assigned to the case on January 17, 2002. King said that Appellant never called him to check on the status of the investigation. At King s request, Jeffrey Maeker, a sergeant with the Department of Public Safety Motor Vehicle Theft Service in Tyler, seized the truck from Appellant s property on August 14, 2002 on a warrant. Maeker testified that after he seized the truck, he identified several parts original to the truck that had previously been stripped, but were back on the truck. Specifically, Maeker matched the numbers on a door and air bag with the vehicle identification number of the truck. Maeker said that owners are typically upset when their vehicles are sequestered. However, Maeker testified that Appellant did not complain or attempt to prove to him that he had paid for the parts put back on the truck.

From this testimony, including all reasonable inferences, a rational trier of fact could have found that Appellant, with intent to defraud an insurer, prepared a claim for payment that he knew contained false or misleading information (that his truck had been stolen and damaged). See Tex. Pen. Code Ann. 35.02(a). Therefore, viewing the evidence in the light most favorable to the jury s verdict, we conclude that a rational trier of fact could have found the elements of insurance fraud beyond a reasonable doubt.

Factual Sufficiency

In addition to the evidence discussed above, Appellant and his wife related their version of the events relating to the insurance claim. Appellant s wife, Terry Abbott, testified that she had driven her Corvette to Tyler on December 29 to do some after Christmas shopping. She received a phone call from Appellant telling her that he was driving from their home and business in Eustace to Tyler to buy some parts from the Harley dealership. She met him at the dealership where they discovered that the store was closed for inventory. They left the truck there and drove the Corvette around Tyler looking at classic cars. Later, they decided to spend the night in a Tyler hotel. They picked up Appellant s truck and drove both vehicles to the hotel. After checking into the hotel, the couple drove the Corvette to dinner. They then decided to drive back home, get some clothes, and check on their pets.

On the drive home, they hit a bag of leaves. Upon arriving at their home, Appellant put the Corvette up on a lift to check for damage. Terry gathered their clothing and watched television. Once Appellant finished working on the Corvette, the couple drove back to Tyler, arriving at the hotel between 1:00 and 2:00 in the morning. Around 10:00 the next morning, Appellant walked out to the hotel parking lot. He saw that his truck was missing, and he called the police to report that his vehicle had been stolen. After giving their report to an officer, the couple started home. On the way to Eustace, the police department called, saying they had found Appellant s truck.

Appellant s wife testified that after they recovered the stripped vehicle, she eventually ran an ad in the newspaper. The ad ran from June 26 to July 7, 2002 and read, REWARD: $4,000, no questions asked for parts taken from 2001 GMC pickup on Dec. 30 in Tyler, TX. . . . She explained that since they owned an auto repair shop, they were in a good position to repair the truck themselves. Further, obtaining the original parts would be more cost efficient than buying replacement parts.

Appellant testified on his own behalf. He said that buying vehicles both to collect and trade is his hobby. Of the ten to twenty vehicles that they owned at the time of this incident, the GMC truck was the only vehicle that was not paid in full. The truck was fully insured while the paid vehicles were not.

Appellant testified about his extensive background in automotive repair, totaling over thirty years of experience. Prior to starting his own business, he last worked for a body shop owned by an insurance company. Appellant stated that he was familiar with how insurance claims are paid, having worked with the insurance aspect of the auto repair business for approximately ten years.

Appellant explained that after hitting the bag of leaves on the way to his house, he lost track of time as he was repairing the damage to the Corvette s spoiler. Once he stopped working, he asked his wife if she still wanted to return to the hotel in Tyler. She stated that she did, and Appellant estimated that they got back to the hotel around 2:30 in the morning. They parked the vehicle they were driving on the other side of the hotel. Upon awaking that morning, they used the swimming pool and hot tub before packing to leave.

Before the vehicle was stripped, Appellant last saw it when he parked it in the hotel parking lot upon checking into the hotel. It was not until 10:00 the next morning as they were about to check out that Appellant noticed his truck was missing. After speaking to the police officer and checking out of the hotel, Appellant received a phone call on his cell phone as they were driving back to Eustace. The sheriff s department called to say that his vehicle had been found, but it was stripped. Appellant then called the wrecker service where his truck had been towed and made arrangements to pick it up later that day. Appellant was anxious to get it to his garage where, unlike at the wrecker yard, it would be covered and protected from the weather. He testified that upon recovering the truck from the wrecker yard, a number of parts were missing, including the front and rear bumpers, grill, fenders, hood, core support, fan shroud, air conditioning control, radiator, left front door, rear doors, tailgate, bed liner, trailer hitch, tires, and wheels. The wires to the air conditioning control and the left front door had been cut. All other wires had been unhooked.

Appellant claimed to have called Detective King several times to check on the progress of the investigation. Appellant denied paying someone to steal and strip his truck or doing it himself. He said he learned that the hotel did not have security cameras only after this incident. Appellant stated that he and his wife decided to run the ad for the stolen parts after the insurance company denied his claim. He testified that after they placed the ad, they received a phone call from a woman claiming to know the location of the parts. Appellant arranged a meeting and met two women in Walton, Texas. The women had some of the stolen parts including the hood, which he knew to be from his truck because of a flaw in the paint job. He gave them $4,000 in cash for the parts although they did not have all of the missing parts. Appellant spent an additional $2,500 to replace the other missing parts. He said he did not report the women because he was interested only in getting the parts back. He explained that no cash withdrawal showed on his bank account for these transactions because he kept at least that much cash on hand for his business dealings.

Appellant continued to make payments on the truck even after the police impounded his vehicle. Appellant testified that he thought the truck had been stolen because Chevrolet General Motor trucks are stolen so often, and there s so many theft rings.

The jury may choose to believe some testimony and disbelieve other testimony. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Here, the jury determined the credibility of the witnesses and resolved the evidentiary inconsistencies in the State s favor, which was its prerogative as fact finder. Losada, 721 S.W.2d at 309. In performing its function, the jury chose not to accept the version of the facts presented by Appellant and his wife. Consequently, viewing the evidence in a neutral light, we cannot say that the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Nor can we conclude that the contrary evidence is so strong that the beyond a reasonable doubt burden of proof could not have been met. Therefore, we conclude that the evidence was factually sufficient for the jury to find Appellant guilty of insurance fraud as charged in the indictment. Accordingly, Appellant s first and second issues are overruled.

Court s Imposition of Community Supervision Requirements

In his third and fourth issues, Appellant asserts that the trial court imposed unreasonable conditions of community supervision when it ordered him to pay $10,985.00 in restitution and to submit an inventory of his automobile business to the East Texas Auto Task Force every fifteen days.

Factual Basis for Restitution

In his third issue, Appellant contends that there is no factual basis in the record to justify the trial court s order of restitution. A trial court has broad discretion in imposing conditions of community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12 11(a) (Vernon Supp. 2006). However, where the defendant is ordered to pay restitution as part of his community supervision, the restitution amount must have a factual basis in the record. See Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980).3 There are several limits to the trial court s discretion in ordering restitution. See Campbell v. State, 5 S.W.3d 693, 696-97 (Tex. Crim. App. 1999). The amount must be just, and it must have a factual basis within the loss of the victim. Id. at 696. The restitution ordered must also be for the offense for which the convicted person is criminally responsible. Id. at 697. Finally, restitution is proper only for the victim or victims of the offense for which the offender is charged. Id.

On remand, a hearing was held on the issue of restitution. Lorie Grisham, a probation officer with Smith County Community Service Department, testified that Encompass Insurance was the named victim in the case against Appellant. Grisham said that she spoke with Carol Tatman, an adjuster at Encompass, who provided the figures used to reach the restitution amount of $10,985.92. Further, Grisham testified that Encompass sent records to the clerk of the trial court that were included in the PSI report in support of the restitution amount. Those records, along with an affidavit, are included in the PSI report.

The State does not assert that Encompass paid the false claim, and Encompass s investigator testified that the claim was denied. If Encompass had paid the claim, it would have been entitled to restitution for that amount. See Jimenez v. State, 67 S.W.3d 493, 506 (Tex. App. Corpus Christi 2002, pet. ref d). Grisham testified that she had no personal knowledge of any restitution owing to the insurance company. In relevant part the affidavit included in the PSI report reads: My name is Carol Tatman, and on the 20th day of November, 2003, I suffered losses as a result of this offense. The losses I incurred amounted to: Total $10,985.92. Accompanying the affidavit are seven pages of what appears to be a computer generated report of a payment history. No one from the insurance company testified, and the attached payment history is not self-explanatory. The payees are Accent Reporting for court reporting services and various investigators and attorneys. Within the seven pages is a three page bill from a law firm in Dallas. The bulk of the work itemized in the attorney s bill appears to be for civil litigation expenses related to this matter.

 

At the original sentencing hearing, the assistant district attorney said that Encompass had to pay investigators to investigate the claim and that they were entitled to those expenses as well as their civil expenses. By civil expenses, we conclude he was referring to the expenses Encompass incurred defending a civil lawsuit brought by Appellant after his insurance claim was denied. Indeed, Appellant testified that he had sued the insurance company to recover on his insurance policy, and he states in his brief that the expenses relate to the defense of the civil lawsuit, although his citation to the record is to statements made by his own trial counsel making the same assertion.

The State bears the burden of proof on the issue of restitution. See Tex. Code Crim. Proc. Ann. art. 42.037(k) (Vernon Supp. 2006). Restitution is appropriate for losses sustained by the victim as a result of the offense. See Tex. Code Crim. Proc. Ann. art. 42.037(c); see also Campbell, 5 S.W.3d at 696 97. There is no direct evidence as to whether the expenses claimed by Encompass relate specifically to the offense as charged. Beyond the conclusory affidavit and the statements of counsel, the State did not demonstrate the basis for these expenses. Even if we accept Appellant s statement that these fees were expended by Encompass to defend the civil lawsuit, we cannot conclude that the fees were losses sustained as a result of the charged offense.

The charged offense was insurance fraud accomplished by submitting a false claim. It was the claim, not the subsequent lawsuit, that was alleged in the indictment, introduced into evidence, and proven to be false. Encompass may have suffered financial injury from that offense, but no injury is shown by the record. The costs they incurred to defend a separate, though related, civil action are not injuries caused by Appellant s commission of the charged offense. As subsequently amended, the insurance fraud statute allows for recovery by an insurance company of legal fees. See Tex. Pen. Code Ann. 35.02(e) (Added by Acts 2003, 78th Leg., ch. 605, 1, eff. Sept. 1, 2003).4 But even if that statute covered the expenses in this case, that section does not apply because this offense was committed before the new section became law. Appellant s bringing a lawsuit was simply not the offense charged in the indictment, and the expenses relating to the lawsuit are not losses incurred as a result of the offense. Cf. Bailey v. State, 171 S.W.3d 639, 642 (Tex. App. Houston [14th Dist.] 2005, no pet.) (Error for trial court to award restitution for offense of failure to stop and render assistance where evidence showed that injuries were sustained as result of related accident, and not caused by or increased by the charged offense.).

If we do not accept Appellant s characterization of the billing, the record simply contains the State s unsupported characterization of the loss, the bare affidavit stating the loss, and the billing records. This is insufficient to demonstrate a compensable loss caused by the submission of a false claim. Reimbursement for costs to investigate a false insurance claim might be appropriate as restitution, but we cannot conclude that this billing represents those costs. It is clear from the record that substantial investigation was undertaken by law enforcement authorities in this matter. Given that the State bears the burden of proof and did not show what the expenses were for, the only relevant suggestion as to whether the expenses were incurred as a result of either the lawsuit or the charged offense is Appellant s statement that the expenses related to the lawsuit.

As the Texas Court of Criminal Appeals has noted, restitution in criminal cases is intended to compensate a victim, but in the context of redressing wrongs to society as a whole. Cabla v. State, 6 S.W.3d 543, 545-546 (Tex. Crim. App. 1999). Restitution in a criminal case is not designed to resolve all disputes the victim and the convicted person might have. Restitution serves to benefit society, and society is benefitted by restitution that is directly related to the offenses for which a defendant has been charged and convicted. Id. The expenses incurred by Encompass in this case were not directly related to the offense for which Appellant has been convicted. Accordingly, we hold that the trial court erred when it ordered Appellant to pay the expenses incurred by the insurance company to defend against the lawsuit brought by Appellant.5 Appellant s third issue is sustained.

Submission of Inventory Report

The State asserts that Appellant waived his fourth issue complaining of the court s order that he submit an inventory to the East Texas Auto Task Force every fifteen days detailing every part or complete automobile owned by Appellant. We agree. To preserve error for appellate review, a party must make a timely, specific objection and obtain a ruling. Tex. R. App. P. 33.1(a); Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002). A defendant must complain at trial to the [community supervision] conditions he finds objectionable. Rickels v. State, 108 S.W.3d 900, 902 (Tex. Crim. App. 2003). Failure to complain at trial constitutes a waiver of any complaints a defendant may have had on appeal. Id. In this case, Appellant failed to object; accordingly, any complaint is waived. We overrule Appellant s fourth issue.

Disposition

We reform the trial court s judgment to delete the award of restitution to Encompass Insurance, and, as reformed, we affirm the judgment of the trial court.

JAMES T. WORTHEN

Chief Justice

Opinion delivered January 24, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

 

1 See Tex. Pen. Code Ann. 35.02(a) (Vernon Supp. 2006).

2 An offense under section 35.02(a) is a state jail felony if the value of the claim is $1,500 or more but less than $20,000. Tex. Pen. Code Ann. 35.02(c)(4) (Vernon Supp. 2006).

3 Based on Brewer v. State, No. 1270-03, 2004 WL 3093224, at *3 (Tex. Crim. App. May 19, 2004) (mem. op., not designated for publication), the State argues that Appellant did not object to the PSI report and so the judicially noticed facts contained within the document may not be disputed. But, when asked whether he challenged the PSI report, Appellant s counsel unequivocally stated that he challenged the restitution claim. Therefore, we

Footnote continued.

conclude that the amount of restitution was not an unobjected to fact. See id.

4 It is not clear that attorney s fees for ancillary lawsuits would be covered even under the new statute. The statutory provision is broad, allowing the award of court costs and attorney s fees to an affected insurer, but a legislative analysis of the bill suggests that the bill was passed to remedy a perceived problem of insurers not being awarded restitution for money or property that they had provided in response to a false claim. House Comm. on Insurance, Bill Analysis, Tex. H.B. 1838, 78th Leg., R.S. (2003). The present case is slightly different as the insurance company did not pay any money or provide any property as a result of the false claim.

5 Because we have held that the evidence did not support the award of restitution, we do not reach Appellant s arguments that the evidence submitted was hearsay and violated his right to confront witnesses.