No. 10-04-00179-CR
Opinion delivered and filed June 22, 2005. DO NOT PUBLISH.
Appeal from the 177th District Court, Harris County, Texas, Trial Court No. 985,746. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
BILL VANCE, Justice.
Dranetta Williams was found guilty by a jury of theft of over $200,000. TEX. PEN. CODE ANN. § 31.03 (Vernon Supp. 2004-05), § 31.09 (Vernon 2003). The jury assessed punishment of imprisonment for sixty-three years and two months. Williams argues on appeal that the trial court erroneously admitted hearsay evidence. We will overrule her issue and affirm the judgment.
BACKGROUND
DH Christian Case Management (DH) was a group registered to receive payment for counseling services from Medicaid. Williams's husband, Henry, made the initial application to obtain a Medicaid provider number for DH, and he was listed as the administrator for that health care provider. Henry was a Harris County Sheriff's deputy; Williams had previously worked for Wilmar Health Care Systems as a clerk and had done billing for Wilmar. Williams and Henry filed a certificate with the Harris County Clerk claiming that they would be doing business as DH and that they were both owners of the business. DH had registered to bill Medicaid electronically and to receive payments electronically to a Harris County Federal Credit Union account. Both Henry and Williams were signors on that account. DH billed approximately $800,000 to Medicaid over a period from April 2002 to April 2003. An advisor for the Texas Health and Human Services Commission testified that $632,424.12 was identified as overpayment to DH. DH would sometimes claim that professional counselors working for them had billed more than twenty-four hours in a day, sometimes up to forty-four hours per day. DH used four licensed professional counselors. One counselor was paid less than $2,500 for the work she did through DH. DH billed Medicaid more than $200,000 for that counselor's services. Another counselor was paid $330 for her work, but DH billed Medicaid more than $124,000 under the counselor's provider number. Each of the counselors testified that he or she did not counsel all of the clients that DH claimed he or she had counseled. Williams argues that the trial court erroneously admitted hearsay evidence that prejudiced the jurors' decision-making process. She contends that records were admitted into evidence under the exception to the hearsay rule for records of regular conducted activity, and complains that those records where not accompanied by an affidavit as required by Rule of Evidence 902. TEX. R. EVID. 803(6), 902(10). However, Williams's brief does not provide record citations to the specific evidence forming the basis of her appeal, nor does it explain how her issue has been preserved for review or why no preservation is required. See Walder v. State, 85 S.W.3d 824, 827 (Tex.App.-Waco 2002, order). The defendant must show she preserved error by showing she made a complaint to the trial court by a timely request, objection, or motion. TEX. R. APP. P. 33.1. The grounds for ruling sought from the trial court must be stated with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. Id. We find only two exhibits complained of by Williams that were admitted over an objection on the basis of a missing affidavit. State's Exhibit 137 contains documents from Washington Mutual Bank concerning Williams's mortgage. State's Exhibit 121 contains a credit application for Williams's Lexus. We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). We will not reverse such a ruling so long as it falls within the "zone of reasonable disagreement." Id. at 102. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d). Exhibit 121 was accompanied by an affidavit by the custodian of records at Talisman Motor Company stating that the records were kept in the usual course of business and were made at or near the time of the recorded events. At trial, Williams acknowledged that she received notice from the State that the business records had been filed. However, she objected that there was no file stamp with the clerk's office, acknowledging the filing of the documents at least fourteen days prior to the day upon which the trial commenced. See TEX. R. EVID. 902(10). The trial court heard testimony from the court clerk regarding how the documents were file-marked. The State's notice of filing states that the business record and affidavit were filed with the clerk's office on April 30, 2004. The jury trial commenced on May 27, 2004. We find no error by the trial court in admitting Exhibit 121 over Williams's no-affidavit objection. Exhibit 137 is a lengthy mortgage record. The exhibit was admitted over Williams's no-affidavit hearsay objection. Williams and her husband purchased a 4,000 square foot home in a gated community for $445,000. Williams argues that the mortgage record was used to show that she was one of the purchasers of the Williams's home and thus received the benefits of the fraud. Assuming without deciding that the mortgage records showing Williams as a borrower and purchaser were inadmissible hearsay, Williams fails to demonstrate that the alleged error affected her substantial rights. Rule 44.2(b) of the Texas Rules of Appellate Procedure provides that any non-constitutional "error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." TEX. R. APP. P. 44.2(b). A substantial right is affected when an error had a substantial or injurious effect on the jury verdict. Morales v. State, 32 S.W.3d 866, 867 (Tex.Crim.App. 2000). We consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the error and how it might be considered in connection with other evidence in the case, the jury instruction given by the trial judge, the State's theory and any defensive theories, closing arguments, and voir dire if material to appellant's claim. Id. The State presented other evidence, besides her signatures on the mortgage application, that Williams enjoyed the benefits of the fraud. Both Williams and her husband were signors on an account with Harris County Federal Credit Union (HDFCU), which DH registered to receive payments from Medicaid. Williams and her husband made cash withdrawals from the HCFCU account in the amount of $185,483.87. Checks from that account totaling $27,633.28 were made payable to Williams. Williams and her husband spent money from that account on several automobiles as well as jewelry and home furnishings. Williams's name was listed on the purchase documentation for vehicles and furniture. Considering all of the evidence that Williams enjoyed the benefits of the fraud, we do not believe that the evidence that Williams's name was on the mortgage for the home had a substantial effect on the verdict. Williams also complains that a State's witness — a fraud examiner for the Harris County District Attorney's Office — testified that the application for the mortgage misrepresented information concerning DH's financial stability. The mortgage application represented that DH was incorporated in March of 2000, but a certificate of incorporation from the State of Texas showed the date of incorporation to be March of 2002. The application contained bank statements from Bank of America reflecting DH's account activity. However, the fraud examiner testified that DH did not have an account with Bank of America and that it was his opinion that the bank statement was for an account owned by Daybreak Home Health Nursing Services that had been altered and placed in the mortgage file. The representations in the mortgage application were not offered to prove the truth of the matters asserted in those documents. Rather, they were offered as evidence of what Williams and her husband represented to the bank on their mortgage application. An extra-judicial writing offered for the purpose of showing what was said rather than for the truth of the matters asserted is not hearsay. Crane v. State, 786 S.W.2d 338, 352 (Tex.Crim.App. 1990). Thus at least some of the mortgage records, including the records about which Williams complains, were not hearsay and were not inadmissible on that ground. CONCLUSION
We overrule Williams's issue and affirm the judgment.