Avery v. State
2011 Tex. App. LEXIS 2347
| Tex. App. | 2011Background
- Avery was charged by indictment with obtaining an increased quantity of a Schedule II controlled substance (Lortab) through use of a fraudulent prescription form, a second-degree felony.
- Dr. Breech prescribed forty 2.5-mg Lortab tablets for Avery using his own prescription form, but he later testified alterations were made after he wrote the prescription.
- Wal-Mart pharmacist technician Munoz admitted adding a seven-point-five notation above the altered strength; she did not admit making cross-out marks.
- Pharmacist Dr. Trbula performed a four-point inspection, found alterations, spoke with Breech’s office, and learned the prescription was considered altered; she refused to dispense.
- Avery admitted to altering the form after questioning by police; police detained her accomplice Bright at Wal-Mart; Avery was arrested and indicted; she was convicted at trial and sentenced to 25 years in prison with a $1,500 fine.
- On appeal, Avery challenged the sufficiency of the evidence to prove the manner and means—whether she procured Lortab through use of a fraudulent prescription form; the trial court denied her directed-verdict motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence proves procurement via fraudulent prescription form | Avery argues the form was valid and not fraudulent; alteration by others did not establish fraud. | State argues alterations created a fraudulent form used to obtain more of the drug. | Insufficient; conviction reversed and acquittal entered |
Key Cases Cited
- Beaty v. State, 156 S.W.3d 905 (Tex.App.-Beaumont 2005) (conviction upheld for use of fraudulent prescription form when prescription was not Dr. Chary’s)
- Kirby v. State, 2009 WL 1493006 (Tex.App.-Dallas 2009) (authorized conclusion that fraud via prescription form can support conviction under a single stated method)
- Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App.2001) (indictment must allege single method; only the alleged method is proven)
- Curry v. State, 30 S.W.3d 394 (Tex.Crim.App.2000) (multiple methods; hypothetically correct jury charge reflects single method alleged)
- Jacobs v. State, 230 S.W.3d 225 (Tex.App.-Houston [14th Dist.] 2006) (when indictment charges one method, state must prove that method)
- Whitfield v. State, 784 S.W.2d 484 (Tex.App.-Texarkana 1990) (former statute merging methods; relevance to fraudulent prescription form)