Black v. State

J.B. BLACK, Appellant v. THE STATE OF TEXAS, Appellee

NO. 01-20-00178-CR

Court of Appeals For The First District of Texas

July 13, 2021

On Appeal from the 174th District Court Harris County, Texas

Trial Court Case No. 1629964

MEMORANDUM OPINION

A grand jury indicted J.B. Black for insurance fraud of $30,000 or more but less than $150,000. See TEX. PENAL CODE § 35.02(a), (c)(5). Following his not guilty plea, the case was tried to a jury, which found Black guilty. The trial court sentenced Black to 10 years' confinement. On appeal, Black claims the trial court erred by (1) denying his motion to set aside the indictment for failing to name an individual complainant and subjecting him to double jeopardy, (2) admitting evidence in violation of his Sixth Amendment right to confront his accuser, and (3) improperly defining "insurer" in the jury charge.

We affirm.

Background

Black bought a 2015 Cadillac Escalade for $98,860.24. He insured it with USAA and filed a claim after reporting his vehicle stolen. Later, the indictment charged Black with insurance fraud:

The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, J.B. Black, hereafter styled the Defendant, heretofore on or about April 4, 2016, did then and there unlawfully, with intent to defraud and deceive an insurer, and in support of a claim of payment of the value of thirty thousand dollars or more, but less than one hundred fifty thousand dollars, under an insurance policy, present and cause to be presented a statement that the Defendant knew to contain false and misleading material information, namely, that the Defendant's Cadillac Escalade was stolen on March 23, 2016, and said statement was presented to an insurer, namely, USAA.

Black moved to set aside the indictment. He argued that the indictment's listing of "USAA" did not sufficiently identify the complainant. He specifically argued that the indictment was "defective" because it "failed to allege with any specificity to whom the statement was presented and which USAA company they worked for."Black renewed these arguments during the pretrial hearing. The State responded that the indictment complied with Section 35.02 of the Penal Code because it identified USAA as the insurer. Black replied that, although the Section 35.02 references the Insurance Code, the Legislature repealed that particular section of the Insurance Code and never recodified it to update the reference. The trial court denied Black's motion to set aside the indictment. Black pleaded not guilty to the charged offense.

At trial, Houston Police Department Deputy D. Horace testified that Black called her at 3:52 p.m. on March 18, 2016. He reported that his Cadillac Escalade had been stolen a day earlier. He told Deputy Horace that he knew the exact location of his vehicle and requested an officer to retrieve it. Deputy Horace gathered more information and turned it over to the auto theft division to investigate.

Next, Harris County Sheriff's Office Deputy R. Parker testified that he responded to a call for vehicle recovery the same day. He arrived at the address that Black had provided to Deputy Horace. Black told Deputy Parker that he had tracked his vehicle to this location. Black used a key fob he had in his hand to either activate the horn or start the engine. Deputy Parker testified that he could not see the vehicle in the garage, but he "heard something." Deputy Parker went to the front door of the home and knocked on the door, but no one answered. He asked Black to return to the home later. Deputy Parker intended to meet the homeowner and furtherinvestigate the theft. Deputy Parker and another deputy returned to the home later on, but Black did not.

The State called K. Barbier, an investigator for USAA Insurance. Barbier was responsible for "investigating suspicious claims". He testified that USAA is a licensed insurer in the State of Texas.

USAA assigned Barbier as the lead investigator in Black's case. Barbier testified that Black called USAA and added the Cadillac Escalade to his auto insurance policy at 5:41 p.m. the day he reported it stolen to the Sheriff's Office. The policy became effective the next day.

Several weeks later, Black filed an online claim with USAA and reported that his Cadillac Escalade had been stolen on March 23, 2016. USAA assigned the case to a claims adjuster who later spoke with Black about the claim on a recorded call. The claims adjuster requested a police report and noticed a major discrepancy about the date: Black reported to police that his vehicle was stolen on March 17, but he told USAA that the theft had occurred on March 23.

Barbier testified that he suspected that Black had made a false statement to USAA because Black reported his car stolen one day before he insured it and that the date of the theft is a material factor in determining coverage for an insurance claim. He also testified that USAA did not pay his insurance claim after his investigation because Black's vehicle was uninsured at the time of the reported theft.

At the charge conference, neither Black nor the State objected to the jury charge. After closing arguments, the trial court read the charge to the jury. The jury found Black guilty of insurance fraud as alleged in the indictment. After Black pleaded true to the first enhancement paragraph, the trial court assessed punishment at 10 years' confinement in the Texas Department of Criminal Justice.

Motion to Set Aside Indictment

In his first issue, Black contends that the trial court erred by denying his motion to set aside the indictment because the indictment was vague. He specifically contends that the indictment did not adequately notify him of the complainant's identity and he therefore could not "prevent additional prosecutions of the same fraudulent statement should the State accuse" him of "making that same statement to other, unnamed individuals at USAA." Black also contends that he could not prepare a defense without notice of the "specific individual" at USAA to whom the representations were made.

In response, the State asserts that indictment was sufficient because it tracked the Penal Code language. See TEX. PENAL CODE § 35.02. The State further asserts that an indictment need not identify a natural person in an insurance fraud case because the insurance company is the complainant. The State also asserts that Black's claim that he could not prepare a defense lacked merit because the State provided Black with his recorded statements to USAA before trial.

A. Standard of review

We review a trial court's denial of a motion to set aside an indictment de novo. State v. Ross, 573 S.W.3d 817, 820 (Tex. Crim. App. 2019).

B. Applicable law

A person accused of a crime is constitutionally entitled to notice of the charges against him as a matter of due process. See Smith v. State, 297 S.W.3d 260, 267 (Tex. Crim. App. 2009); U.S. CONST. AMEND. VI; TEX. CONST. art. I, § 10. An indictment must comply with the guidelines provided in the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. arts. 21.03, 21.04, 21.11. Thus, an indictment must be "specific enough to inform the accused of the accusation against him so that he may prepare a defense." State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). An indictment that tracks the statutory language is "ordinarily sufficient." Beck v. State, 682 S.W.2d 550, 554 (Tex. Crim. App. 1985) (en banc); see TEX. CODE CRIM. PROC. art. 21.11.

The accused may move to set aside a vague or indefinite indictment. See Mungin v. State, 192 S.W.3d 793, 795 (Tex. App.—Houston [1st Dist.] 2006, no pet.). The trial court may grant the motion to set aside an indictment "where the language concerning the defendant's conduct is so vague or indefinite as to deny the defendant effective notice of the acts he allegedly committed." Thomas v. State, 621 S.W.2d 158, 163 (Tex. Crim. App. 1980) (op. on reh'g). The trial court may,however, deny a motion to set aside an indictment if the accused received "notice of the State's theory against which he would have to defend." Smith, 297 S.W.3d at 267. "[T]o prove reversible error, an appellant must show that the omission of the requested information had a deleterious impact on his ability to prepare a defense." Chambers v. State, 866 S.W.2d 9, 17 (Tex. Crim. App. 1993) (en banc).

C. Analysis

Section 35.02(a) of the Penal Code provides that a person commits insurance fraud if, with intent to defraud or deceive an insurer, the person, in support of a claim for payment under an insurance policy

(1) prepares or causes to be prepared a statement that:

(A) the person knows contains false or misleading material information; and

(B) is presented to an insurer; or

(2) presents or causes to be presented to an insurer a statement that the person knows contains false or misleading material information.

TEX. PENAL CODE § 35.02(a).

The indictment alleged that Black committed insurance fraud against the complainant, "an insurer, namely, USAA" and tracked the statutory language in Section 35.02. Black cites no legal authority that prohibits the naming of an insurer as the complainant in an indictment for insurance fraud, and we find none. While it is true that an insurer must act through individuals, an indictment for insurance fraudneed not identify any particular agent or representative of the insurer. See TEX. PENAL CODE § 35.02. Rather, Section 35.02 merely requires the indictment to identify "an insurer," which it does.

Black contends that the term "insurer" in the indictment is vague because the legislature repealed the statute defining "insurer." Section 35.01(2) provides that "'insurer' has the meaning assigned by Article 1.02, Insurance Code." TEX. PENAL CODE § 35.01(2). The legislature repealed Article 1.02, and it was no longer in effect after March 31, 2009. The repealed version of Article 1.02(a) of the Insurance Code defined "insurer" as an "insurance company . . ....