Opinion
No. 13-05-00314-CR
Memorandum Opinion Delivered and Filed August 28, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 105th District Court of Nueces County, Texas.
Before Justices HINOJOSA, RODRIGUEZ, and GARZA.
MEMORANDUM OPINION
A jury found appellant, Leonard Crenshaw, guilty of the offense of securing the execution of a document by deception (count 1); the offense of theft (count 2); and the offense of medicaid fraud (count 3). The trial court assessed appellant's punishment at fifteen years' imprisonment for count 1, fifteen years' imprisonment for count 2, and ten years' imprisonment for count 3. The court ordered all sentences to run concurrently. In two issues appellant contends the trial court erred in (1) denying his motion to dismiss count 1 on limitations grounds, and (2) denying his motion that the State elect between counts 2 and 3. We affirm counts 1 and 2, and vacate and render count 3. See TEX. R. APP. P. 43.1(b).
See TEX. PEN. CODE ANN. § 32.46 (Vernon Supp. 2006).
See TEX. PEN. CODE ANN. § 31.03 (Vernon Supp. 2006).
See TEX. HUM. RES. CODE ANN. § 36.002(1)(A) (Vernon Supp. 2006). Certain amendments to section 36.002 became effective after the date of this offense. However, the provisions under which the State charged appellant remained unchanged. Accordingly, we cite to the current version of the statute.
A. LIMITATIONS
In his first issue, appellant contends the trial court erred in denying his motion to quash count 1 of the indictment because it was barred by limitations. The sufficiency of an indictment is a question of law. State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App. 2004). When the resolution of a question of law does not turn on the evaluation of the credibility and demeanor of a witness, the trial court is not in a better position to make the determination and the appellate court should conduct a de novo review of the issue. Id.; see Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Because the trial court's decision in this case was based on appellant's motion to quash, the State's response, and the argument of counsel, we conduct a de novo review of the trial court's ruling. See Moff, 154 S.W.3d at 601; see also State v. Rosenblum, 910 S.W.2d 934, 948 (Tex.Crim.App. 1994) (dissenting op. adopted on reh'g) (sufficiency of indictment at pretrial motion to quash cannot be supported or defeated by evidence). The limitation period for the offense of securing the execution of a document by deception is seven years from the date of the commission of the offense. TEX. PEN. CODE ANN. § 12.01(3)(B) (Vernon Supp. 2006). A person commits the offense of securing the execution of a document by deception "if, with intent to defraud or harm any person, he, by deception . . . causes another to sign or execute any document affecting property or service or the pecuniary interest of any person." TEX. PEN. CODE ANN. § 32.46(a) (Vernon Supp. 2006). A crime is complete for purposes of limitations only when all elements have been completed. Barnes v. State, 824 S.W.2d 560, 562 (Tex.Crim.App. 1991), overruled on other grounds by Proctor v. State, 967 S.W.2d 840 (Tex.Crim.App. 1998); see Ex parte Tamez, 4 S.W.3d 854 (Tex.App.-Houston [1st Dist.] 1999), aff'd Ex parte Tamez, 38 S.W.3d 159 (Tex.Crim.App. 2001). Before the offense of securing the execution of a document by deception can be committed and complete, a document must be signed or executed which would affect property or services or the pecuniary interest of any person. Mills v. State, 722 S.W.2d 411, 416 (Tex.Crim.App. 1986). Appellant argues that the offense of securing the execution of a document by deception was complete on August 9, 1996, when he signed his application with the Texas Board of Examiners of Professional Counselors. However, all the elements of the offense were not complete until July 6, 1998, when the State of Texas issued and signed appellant's license to practice as a professional counselor. Appellant was indicted on January 27, 2005, for securing the execution of a document by deception. Because January 27, 2005, is within the seven-year limitations period, we conclude the trial court did not err in denying appellant's motion to quash count 1 of the indictment. Appellant's first issue is overruled.B. DENIAL OF MOTION TO ORDER STATE TO ELECT BETWEEN COUNTS
In his second issue, appellant contends the trial court erred in submitting both counts 2 and 3 to the jury. Specifically, appellant asserts that section 36.131(c) of the human resources code provides for the prosecution of either count 2 or count 3, but not both. See TEX. HUM. RES. CODE ANN. § 36.131(c), repealed by Act of May 23, 2005, 79th Leg., R.S., ch. 807, § 19, Tex. Gen. Laws 2789. We agree. Section 36.131(c) of the Texas Human Resources Code provides:If 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.TEX. HUM. RES. CODE ANN. § 36.131(c). We look to the literal text of the statute for its meaning, and we ordinarily give effect to that plain meaning, unless application of the statute's plain language would lead to absurd consequences that the legislature could not possibly have intended, or if the plain language is ambiguous. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991); Bunton v. State, 136 S.W.3d 355, 363 (Tex.App.-Austin 2004, pet. ref'd); see State v. Webb, 12 S.W.3d 808, 811 (Tex.Crim.App. 2000). The conduct that is the subject of counts 2 and 3 is as follows. Appellant ran a business called Behavioral Concepts. Appellant's business was an after-school program, which provided at-risk children tutoring and homework help. Although appellant never provided any individual counseling for mental disease or deficiency, he billed the Medicaid program for such services, and was paid in excess of $100,000. Such conduct constitutes an offense under both the human resources code and the penal code. See TEX. HUM. RES. CODE ANN. § 36.002(1)(A) (Vernon Supp. 2006); TEX. PEN. CODE ANN. § 31.03 (Vernon Supp. 2006). A literal reading of section 36.131(c) is that appellant may be prosecuted under either section 36.002 of the human resources code or section 31.03 of the penal code, but not both. If the legislature intended the possibility of prosecution under both provisions, it could have easily provided language allowing for prosecution under both as it has in other statutes. See, e.g., Tex. Pen. Code Ann. § 38.04(d) (Vernon 2003) (providing that "[a] person who is subject to prosecution under both this section and another law may be prosecuted under either or both this section and the other"). Thus, the State was not authorized to seek convictions for both offenses. The proper remedy is to reform the judgment by vacating the lesser conviction and sentence. See Ochoa v. State, 982 S.W.2d 904, 908 (Tex.Crim.App. 1998). Appellant's second issue is sustained.