Turner v. State , 1982 Tex. Crim. App. LEXIS 996 ( 1982 )

OPINION

ODOM, Judge.

This is an appeal from a conviction for theft of $10,000 or over. Punishment was assessed by the jury at confinement for 15 years and 1 day and a $10,000 fine.

In her first ground of error appellant challenges the sufficiency of the evidence. The indictment alleges that appellant did:

“knowingly and intentionally exercise control over property, other than real property, to-wit: current money of the United States of America of the value of at least $10,000.00 without the effective consent of James P. Forrest, the owner thereof, and with intent to deprive James P. Forrest of said property.... ”

Specifically, appellant argues that the evidence is insufficient to show that James P. Forrest was the owner of the money.

Appellant owned and operated the Dallas Weight Control Clinic, with which Dr. Robert Craig was associated. She used Dr. Craig’s Medicaid number and signature stamp to submit false claims for medical services never rendered. The claims and payment checks were processed through Blue Cross-Blue Shield, which was underwriting the Medicaid program in Texas at that time. The funds appellant was prosecuted for having stolen were Blue Cross-Blue Shield Medicaid funds.

V.T.C.A., Penal Code Sec. 1.07(a)(24) and (28) provide:

“ ‘Owner’ means a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.

“ ‘Possession’ means actual care, custody, control, or management.”

Forrest was the alleged owner of the money, and it was incumbent upon the State to prove his ownership in order to sustain its burden of proof. Blue Cross-Blue Shield, not Forrest, was title owner. The “greater right to possession” concept of ownership only applies in cases where both the accused and the complaining witness each have some possessory interest in the property. McGee v. State, (Tex.Cr.App.) 572 S.W.2d 723, 725. The issue in this case therefore turns on whether the evidence shows that Forrest had possession of the money, i.e., whether he had “actual care, custody, control, or management.”

Forrest gave the following testimony describing his job and responsibilities:

“Q. Mr. Forrest, how are you employed, sir?

“A. I’m employed by Blue Cross-Blue Shield of Texas.

“Q. And in what capacity, sir?

“A. I am program integrity specialist.

“Q. Would you briefly explain to the Jury what the primary function of your job is, sir?

“A. My responsibilities deal with fraud and abuse.

“Internally I am responsible to see that our systems do not allow fraudulent claims to be paid. If they are detected before payment or something suspicious is detected before payment then it’s brought to me for quick investigation and determination as to whether we should pay it or not.

“If fraud is detected after payment then it’s my responsibility to see that it is investigated and followed through to a final conclusion.

“Q. Mr. Forrest, if you were made aware of a fraudulent claim prior to this — do you have the authority, sir, to order that payment not be made?

“A. Yes, sir, I do.

“Q. Okay, and then if the assistant— let me ask you this.

“Are you responsible for coordinating systems to prevent fraud abuse?

“A. Yes, sir, I am.

“Q. If your system failed and money is fraudulently obtained, that is obtained upon claims that should not be paid because services were not rendered as indicated on the forms, would that be without your consent, sir?

“A. Yes, sir, it would.

“Q. Okay. Now, Mr. Forrest, how long have you been employed by Blue Cross-Blue Shield?

“A. 11 and a half years.

“Q. Okay, now how long have you been in the Position that you’re in as far as guardian of the funds, so to speak, for the Medicare-Medicaid Program?

“A. Six or seven years.”

It is clear that Forrest’s responsibilities are to coordinate the prevention of fraud abuse. Although he testified that any fraudulent payments would be without his consent, the issues of consent and ownership are not the same. It is also true that Forrest testified he had authority to order that payment not be made if he were made aware of a fraudulent claim prior to payment. There obviously was no such exercise of authority in this case, as appellant was prosecuted for claims that were paid. Further, the authority to prevent payment of fraudulent claims is like the authority of the security guard in McGee v. State, supra, to stop shoplifters. There was no evidence that Forrest had a general power of care, control, custody or management over disbursement of the stolen funds; the last question in the excerpt above accurately describes his position as “guardian” of the funds. The exercise of true care, control, custody and management of the funds appears later in his testimony, where Forrest described how funds are actually paid:

“Q. Okay, sir, and would you explain to the Jury who that Medicaid claim form comes in to the system of Blue Cross-Blue Shield and how it is reviewed and paid or not paid?

“A. The claim forms are preprinted when we mail them out to the doctors showing their name and their provider number or doctor number.

“They are returned to us. They come to our mail room and are date stamped into our control unit where they’re assigned an individual identification number and then forwarded to our claims examiners who review them for completeness.

“Then they go to our keypunch section and it enters the data from the claim forms into our computer system.

“The actual documents then go back into our file and the computer processes the data and issues the check.”

This description shows that the actual care, custody, control and management of monies used for Medicaid payments is in the hands of the claims examiners, not Forrest, the program integrity specialist. The facts in McGee v. State, supra, are clearly analogous.

The defendant in McGee was charged with theft of property, belonging to Delene Dosher. The evidence showed that Dosher was a security guard in the store where the theft was committed and that her duties were “to watch out for and apprehend shoplifters, to take care of injured people, to file complaints if a shoplifter is caught, and to recover merchandise that is shoplifted.” She did not have “care, custody, control or management” of the merchandise in the store. Likewise in this case, Forrest was “guardian” of the funds, with responsibilities, like those of a security guard, to protect against theft of the property of his employer. The “care, custody, control and management” of that property, on the other hand, was the responsibility of the claims examiners.

In its reply to this issue, the State asserts that the record shows Blue Cross-Blue Shield was the program underwriter, that Forrest was responsible for coordination of the systems to prevent fraud abuse, and that if money was fraudulently obtained it would be without Forrest’s consent. The record does show these facts, yet, as shown above, none of these speak to the issue of whether Forrest had care, custody, control or management of the funds. The evidence simply does not show that Forrest was the owner, as alleged.

Because the evidence is insufficient, the conviction is set aside and the judgment is reformed to show an acquittal. Burks v. U.S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1; Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15.

Before the court en banc.