Avery, Billie Jean
2012 Tex. Crim. App. LEXIS 360
| Tex. Crim. App. | 2012Background
- Avery was convicted of attempting to obtain a Schedule II/III controlled substance by use of a fraudulent prescription form after she allegedly altered a doctor's prescription.
- The prescription was for forty 2.5 mg Lortab pills; Avery scribbled the 2.5 to look like 7.5, triggering pharmacist suspicion and police involvement.
- At trial Avery moved for acquittal, arguing the State failed to prove use of a fraudulent prescription form as charged in the indictment.
- The Thirteenth Court of Appeals acquitted, concluding there was no evidence that a fraudulent prescription form was used.
- The State sought discretionary review to determine the meaning of fraudulent prescription form and whether the record supported conviction
- The Texas Supreme Court ultimately affirmed acquittal but disagreed with the appellate reasoning, finding the State failed to prove the charged offense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of fraudulent prescription form | Avery: form itself must be fraudulent; alteration of written information does not satisfy (B). | State: altering a legitimate form can create a fraudulent form under (B) by its use. | Overlaps exist; however, proof must match the charged manner and means; conviction not supported here. |
| Sufficiency of evidence for 'use of a fraudulent prescription form' | Avery argues there is no evidence of using a fraudulent form as charged. | State argues the form was fraudulently used when handwritten information was altered. | Evidence did not establish the charged offense; acquittal affirmed. |
| Applicability of Section 481.075 and 'official prescription form' to the case | Section 481.075 applies to official forms for Schedule II and defines form, not necessarily Schedule III. | State used 481.075 to interpret form elements; forms versus prescriptions are distinct. | Section 481.075 is limited utility here; not dispositive for the Schedule III case. |
| Interplay of overlapping subsections 481.129(a)(5)(A) and (B) | The two subsections are separate offenses; can't convict under (B) when acts resemble (A). | Overlap allows charging discretion and does not require exclusive interpretation. | Statutory overlap exists; but the State must prove the charged manner and means beyond a reasonable doubt. |
Key Cases Cited
- Jackson v. Virginia, 443 S.W.3d 307 (U.S. 1979) (sufficiency review standard for evidence)
- Cada v. State, 334 S.W.3d 766 (Tex. Cr. App. 2011) (overlapping statutes and sufficiency of evidence guidance)
- Geick v. State, 349 S.W.3d 542 (Tex. Cr. App. 2011) (overlap of statutory provisions and sufficiency framework)
- Lopez v. State, 253 S.W.3d 680 (Tex. Cr. App. 2008) (statutory interpretation in sufficiency review)
- Avery v. State, 341 S.W.3d 490 (Tex. App.-Corpus Christi 2011) (prior appellate decision on fraudulent prescription form issues)