Vincent Chukuemeka Agu v. State

Affirmed and Memorandum Opinion filed March 11, 2008

Affirmed and Memorandum Opinion filed March 11, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-06-00816-CR

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VINCENT CHUKUEMEKA AGU, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

 Harris County, Texas

Trial Court Cause No. 1080588

M E M O R A N D U M  O P I N I O N

Appellant, Vincent Chukuemeka Agu, was charged and convicted under the theft provisions of the Penal Code. In two issues, appellant contends (1) the State improperly prosecuted him under the general theft provisions of the Penal Code, and (2) he received ineffective assistance of counsel.  All dispositive issues are settled in law.  Accordingly, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I. Background

Appellant owned and operated a Medicaid case-management business. Appellant purported to assist children entitled to Medicaid gain access to medically necessary services.  Auditors referred appellant to the Attorney General=s Medicaid Fraud Control Unit after a quality assurance check revealed appellant=s billing was suspiciously high. Appellant was indicted for acts alleged to have occurred  between April 1, 2002 and August 22, 2003.

Investigators identified at least seventeen mothers or guardians whose children  allegedly were provided with services for which appellant over-billed.  The investigators determined that appellant billed for visits that did not occur.  Apparently, in conducting his case management services, appellant frequently asked adult guardians to sign multiple undated forms.  Appellant would subsequently make unsupportable entries on the billing forms and submit them for reimbursement. For example, in one case that involved a child entitled to Medicaid services, appellant presented records purportedly bearing the signature of the child=s grandmother.  However, the grandmother had suffered a stroke before the date indicated on the form and could no longer speak or write. The child=s guardian testified that appellant had not conducted any of the five previously billed visits. 

Additionally, Michelle Long, a licensed social worker and former case manager, noted consistent patterns in appellant=s billing practices indicating fraud.  For instance, appellant generally billed for every child living in the homes he visited.  However, Long testified that it would be unusual for all the children in a home to have required appellant=s services.  Further, appellant frequently closed his case files after billing clients for six visitsCan initial assessment and five follow-up visits.  Long testified that under the Human Resources Code, Medicaid case managers may bill for an initial assessment and five follow-up visits without obtaining prior approval.  Long noted that it was the usual practice of Medicaid case managers to visit some clients fewer than six times, some clients exactly six times, and other clients more than six times.  Long suspects fraud when a case manager bills most of his clients for exactly six visits. 

A jury found appellant guilty of theft of over one thousand five hundred dollars and less than twenty thousand dollars.  The verdict also included findings that appellant was in a contractual relationship with the government at the time of the offense, and the appropriated property came into his custody, possession, or control by virtue of the contractual relationship.  The trial court assessed a sentence of four years= confinement.

II. Analysis

In two issues, appellant argues (1) the State violated the in pari materia doctrine and he was denied due process because he was prosecuted under the general theft provisions of the Penal Code rather than the Medicaid fraud provisions of the Human Resources Code, and (2) he received ineffective assistance of counsel.

A.        In Pari Materia Doctrine

In his first issue, appellant contends he was improperly charged and tried under the theft provisions of the Penal Code.  Additionally, he contends that he was denied due process of law because the State failed to charge him under the Human Resources Code.

Under the in pari materia doctrine of statutory construction, where a general statute and a specific statute both proscribe a defendant=s conduct, the defendant must be charged under the more specific statute.  See Davis v. State, 968 S.W.2d 368, 372 (Tex. Crim. App. 1998).  Statutes in pari materia are to be taken, read, and construed together; if possible, an effort should be made to harmonize the provisions, so they can stand together and have concurrent effect.  Brown v. State, 716 S.W.2d 939, 949 (Tex. Crim. App. 1986). 

Appellant argues his conviction should be reversed and the indictment dismissed because he should have been charged under the Human Resources Code, which more specifically described his conduct.^[1]

However, to preserve a complaint for our review, a party must present a timely request, objection, or motion stating the specific grounds for the desired ruling if such grounds are not apparent from the context of the request, objection, or motion.  See Tex. R. App. P. 33.1(a)(1).  In particular, to challenge the substance of an indictment under the in pari materia doctrine, a defendant must object before trial to preserve the complaint on appeal.  See Tex. Code Crim. Proc. Ann. Art 1.14(b) (Vernon 2005); see also Berrett v. State, 152 S.W.3d 600, 605 n.2 (Tex. App.CHouston [1st Dist.] 2004, pet. ref=d) (finding in pari materia claim waived due to failure to file motion to quash);  Short v. State, 995 S.W.2d 948, 953 (Tex. App.CFort Worth 1999, pet. ref=d) (holding failure to raise in pari materia claim before trial waives the complaint for appellate review).

Prior to trial, appellant did not file a motion to quash the indictment or otherwise object to the substance of the indictment.  Appellant=s failure to timely object to the substance of the indictment under the in pari materia doctrine waived his complaint on appeal. 

Furthermore, even if appellant did not waive his in pari materia complaint, we conclude the State properly charged appellant.  The former version of the Human Resources Code, applicable to this case, provided, Aif conduct constituting an offense under this section also constitutes an offense under another provision of law, including a provision in the Penal Code, the actor may be prosecuted under either this section or the other provision.@  Act of June 20, 1997, 75th Leg. R.S., ch. 1153, ' 4.09, 1997 Tex. Gen. Laws 4324, 4349, repealed by Act of June 15, 2005, 79th Leg., R.S. ch. 806, ' 19, 2005 Tex. Gen. Laws 2778, 2787. Consequently, the State had the option of charging appellant under the provisions of the Penal Code or the Human Resources Code.  Accordingly, appellant=s first issue is overruled.

B.        Ineffective Assistance of Counsel

In his second issue, appellant contends his counsel was ineffective in six instances during trial: (1) lack of knowledge and understanding of applicable law; (2) failure to  timely invoke Athe rule@; (3) failure to object to admission of certain evidence; (4) deficient cross-examination of witnesses; (5) failure to adequately investigate; and (6) failure to call meaningful defense witnesses.

To prevail on an ineffective-assistance claim, an appellant must prove by a preponderance of the evidence that: (1) counsel=s performance was so deficient as to fall below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel=s unprofessional errors, the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).  The record must contain evidence showing the reasons for counsel=s decisions or actions.  Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  When the record is silent regarding trial counsel=s strategy, we will not find the performance was deficient unless the challenged conduct was Aso outrageous that no competent attorney would have engaged in it.@  Goodspeed v. State, 180 S.W.3d 793, 797 (Tex. Crim. App. 2005).

1.         Lack Of Knowledge of Applicable Law

Appellant first argues that his counsel=s failure to offer an alternative jury charge under the Medicaid fraud provisions of the Human Resources Code constituted ineffective assistance.  However, we presume that counsel is better positioned than an appellate court to determine trial strategy and that counsel Amade all significant decisions in the exercise of reasonable professional judgment.@  See Delrio v. State, 840 S.W.2d 443, 446 (Tex. Crim. App. 1992) (citing Strickland, 446 U.S. at 690).  When there is a possibility that an attorney=s decision was based on objectively reasonable trial strategy and the reasons for his acts or omissions are not in the record, we must defer to the attorney=s judgment.  See Goodspeed, 180 S.W.3d at 797.

In this case, the reasons for counsel=s actions do not appear in the record.  However, counsel could have had a legitimate strategic purpose for not requesting an alternative  jury charge.  To convict appellant under the theft statutes, the State was required to prove that appellant unlawfully appropriated property with intent to deprive the owner of the property.  See Tex. Pen. Code Ann. ' 31.03(a).  The applicable version of the Human Resources Code proscribed knowingly or intentionally making or causing to be made a false statement or misrepresentation of a material fact on an application for a contract, benefit, or payment under the Medicaid program.  See Act of June 17, 2005, 79th Leg., R.S. ch. 806 ' 3, 2005 Tex. Gen. Laws 2779B80 (amended 2007).  Appellant=s counsel could have believed the State=s evidence failed to satisfy applicable provisions of the Penal Code but did satisfy the applicable provisions of the Human Resources Code.  Consequently, appellant has not overcome the presumption that counsel=s representation was adequate.  See Goodspeed, 180 S.W.3d at 797.

2.         Failure to Invoke the Rule

Appellant further argues he received ineffective assistance because his counsel failed to timely invoke the rule.  See Tex. R. Evid. 613.  The State=s first witness was Carol Benchouia, a business analyst employed by Texas Medicaid and Health Care Partnership. Before counsel invoked the rule, Benchouia testified regarding her job description, the basic billing process for Medicaid claims, the process for review of claims, and the content of a claim form.

Even if appellant=s counsel was deficient, we cannot conclude appellant was prejudiced to such a degree that he was denied a fair trial.  The rule is designed to prevent a witness from changing her testimony based on hearing the testimony of other witnesses at trial.  See Webb v. State, 776 S.W.2d 236, 239 (Tex. Crim. App. 1989).  Where witnesses= testimony does not coincide, a defendant suffers no harm from his counsel=s failure to invoke the rule.  See Hernandez v. State, 791 S.W.2d 301, 306 (Tex. App.CCorpus Christi 1990, pet. ref=d).  Appellant has failed to demonstrate that Benchouia=s testimony coincided with the testimony of any later witnesses, or that appellant was otherwise  prejudiced by counsel=s failure to invoke the rule prior to Benchouia=s testimony.  Therefore, counsel=s failure to timely invoke the rule did not render his assistance ineffective.

3.         Failure to Object To Admission of Evidence

Appellant next argues that his counsel was ineffective by failing to object to the following allegedly inadmissible evidence: (1) Sharon Thompson=s testimony regarding an electronic fund transfer authorization form, a quality assurance review, and the purpose of the Medicaid system; and (2) photographs depicting appellant=s house and dwellings of Medicaid recipients. 

However, an attorney=s decision whether to object is inherently tactical.  See Taylor v. State, 947 S.W.2d 698, 704 (Tex. App.CFort Worth 1997, pet. ref=d).  Moreover, where the record is silent regarding the reasons for counsel=s decisions, an appellant cannot overcome the presumption that his attorney rendered adequate assistance.  See Bone, 77 S.W.3d at 833.  Here, the reasons for counsel=s decisions are not demonstrated in the record.  Consequently, appellant has failed to overcome the presumption that his attorney=s assistance was reasonable.

4.         Counsel=s Cross-Examination

Appellant further contends his trial counsel=s allocation of time in cross-examining witnesses rendered his representation ineffective because he focused on the Awrong legal issues.@  However, proper trial strategy includes cross-examination with an intent to discredit witnesses by pointing out inconsistencies.  See Josey v. State, 97 S.W.3d 687, 696 (Tex. App.CTexarkana 2003, no pet.).  Appellant=s trial counsel cross-examined the State=s witnesses by addressing inconsistencies in their testimony and attempting to raise doubt regarding the accuracy of their recollection.  Moreover, the record is silent regarding the reasons appellant=s counsel spent extra time cross-examining witnesses about the specific amount of time appellant spent with each child. Further, the premise that other counsel would have tried the case differently does not demonstrate ineffective representation.  See Ingham v. State, 679 S.W.2d 502, 509 (Tex. Crim. App. 1984).  Accordingly, we cannot conclude that appellant has overcome the presumption of adequate assistance.

5.         Counsel=s Investigation of Facts

Appellant further contends his trial counsel failed to adequately investigate the facts of his case.  Appellant notes his trial counsel was unaware of a diary kept by Veronica Rivers, in which she recorded the dates appellant visited her children, and his counsel failed to investigate and develop mitigating evidence.  

A criminal defense lawyer has a duty to make an independent investigation of the facts of a case, which includes seeking out and interviewing potential witnesses.  Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).  A breach of the duty to investigate may result in a finding of ineffective assistance where the result is that any viable defense available to the accused is not advanced.  Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App. 1982).  However, the record before us is silent regarding any investigation counsel made into the facts of this case.  Consequently, appellant has failed to overcome the presumption of reasonable assistance.  See Goodspeed, 180 S.W.3d at 797.

6.         Defense Witnesses

Finally, appellant contends his trial counsel failed to call any meaningful defense witnesses.  However, appellant=s counsel called six witnesses, in addition to appellant, to testify in his defense.  Moreover, counsel=s failure to call witnesses at the guilt/innocence stage of trial is irrelevant absent a showing that such witnesses were available and appellant would have benefitted from their testimony.  See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983).  Appellant argues his counsel should have called witnesses who were satisfied with his services, but he does not identify whether any such witnesses were available, or whether appellant would have benefitted from their testimony.  Consequently, appellant has not demonstrated that his counsel=s failure to call additional defense witnesses constituted ineffective assistance.

7.         Conclusion

We conclude appellant failed to demonstrate his counsel=s performance was deficient or that any arguably deficient performance prejudiced the defense to such a degree that appellant was deprived of a fair trial.  Appellant=s second issue is overruled. 

Accordingly, the judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed March 11, 2008

Panel consists of Justices Fowler, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]   Compare Act of June 17, 2005, 79th Leg., R.S. ch. 806 ' 3, 2005 Tex. Gen. Laws 2778, 2779B80 (amended 2007) (current version at Tex. Hum. Res. Code Ann. ' 36.002 (Vernon Supp. 2007)) (AA person commits an unlawful act if the person: (1) knowingly makes or causes to be made a false statement or misrepresentation of a material fact . . . on an application for a contract, benefit, or payment under the Medicaid program . . .@); with Tex. Pen. Code Ann. ' 31.03 (a) (Vernon 2003 & Supp. 2007) (AA person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.@).