*1 based, fact part, on the place cious within ten officer arrived arresting arrival at accused’s
minutes of the
home). totality of circumstances dem- The arresting officer had
onstrate cause, suspi- was in a appellant
probable ne- exigent circumstances place,
cious action. officer’s immediate
cessitated the Therefore, Banda, S.W.3d at 912.
See justified arrest was
appellant’s warrantless 14.03(a)(1).
under article Tex.Code 14.03(a)(1); Banda, Ann. art.
CRim. Proc.
Because justified, were trial
warrantless arrest appellant’s in denying
court not err did Banda, 317 suppress.2
motion to appellant’s overrule
S.W.3d at 913. We appeal.
sole issue on affirmed. judgment court’s trial AVERY, Appellant,
Billie Jean Texas, Appellee. STATE
No. 13-10-00339-CR. Texas,
Court of Christi-Edinburg.
Corpus 31, 2011.
March
Discretionary Review Granted
Aug. 2011. argument only public appellant's We less arrest intoxication. 2. need not consider potentially subject that he was to warrant- *2 Jr., Kittleman, $1,500 Pumarejo Ricardo Thom- nal Justice with a fine.2 On appeal, Gonzales, McAllen, for Appellant. Avery as & argues that the trial court erred in denying her motion for a directed verdict Warner, Atty., Beeville, Martha W. Dist. present because State failed to suffi- III, Antonio, F. San Shaughnessy Edward cient proving the manner and for State. means of the offense stated in the indict- Before Chief Justice VALDEZ and Specifically, Avery ment. contends that Justices RODRIGUEZ and PERKES. there is no evidence that she used a form” to obtain an substance, dosage increased
OPINION of a controlled alleged in the indictment. We reverse Opinion Chief Justice VALDEZ. and vacate the judgment, and remand for Appellant, Avery, Billie Jean was entry judgment acquittal. of a obtaining indictment with quantity increased of a Schedule II con- I. BACKGROUND trolled substance the use of a 15, 2010, Breech, form, January On Donald a second-de- gree felony.1 Avery pain M.D. treated for HEALTH associated & her 481.129(a)(5)(B), with knee.3 Dr. Breech prescribed § SAFETY CODE ANN. (Vernon (d)(1) 2010). forty trial, 2.5-milligram Lortab, a jury After tablets of controlled Avery underlying containing hydroco- convicted of the of- substance done, and was for twenty-five Avery. fense sentenced Dr. Breech used his own years’ confinement in the Institutional Di- filling when out the pre- trial, of the scription, vision Texas Department Crimi- and at he noted that he (last Avery allegedly www.drugs.com/lortab.html 1.In this tried to obtain visited Feb. quantity 2011) an increased of Lortab. Lortab is (describing Lortab as a combination hydrocodone, the trade name for a controlled acetaminophen hydrocodone). which is listed Schedule II substance health code. See TEX. HEALTH & 2. The indictment two contained enhancement (Vernon SAFETY CODE ANN. 481.032 paragraphs alleging Avery’sprior felony con- State, 2010); see also Smith v. No. 2-07-125- forgery burglary victions for of a habi- *1-2, CR, 2008 WL Tex. tation, ultimately both of which the trial court App. (Tex.App.-Fort LEXIS at **4-5 determined were "true.” Because she had 26, 2008, ref’d) (mem. pet. op., June Worth been twice convicted felonies and the of- designated publication) (noting third-degree felony, fense in this was a hydrocodone hydro- contains Lortab and that Avery subject punishment range II); Beaty codone is listed in Schedule v. first-degree associated with felonies—confine- n. 2 (Tex.App.- ninety-nine years ment for five to or life. See (stating pet.) no Beaumont Lortab 12.32(a) (Vernon TEX. PENAL CODE ANN. is a Schedule II controlled substance because Supp.2010) (outlining punishment range hydrocodone); it contains Tilson No. felonies); first-degree see also id. 05-96-00292-CR, 1998 WL 12.42(b) (Vernon (“[I]f Supp.2010) it Tex.App. *2 (Tex.App.- second-degree felony shown on the trial of (mem. Aug. pet.) op., Dallas no that the defendant been once before has con- (same); designated publication) United felony, victed of a conviction he shall on Justice, Dep’t Drug States Enforcement punished felony.’’). first-degree afor Admin., Drugs Hy- Concern: Chemicals of drocodone, http://www.de available at adiver- 3. Dr. Breech testified had reoccur- sion.usdoj.gov/drugs_concern/hydroco- (last ring pain done/hydrocodone.htm in her knee and her ankle that had visited Feb. 2011); Lortab, Drugs.com, previously required surgery. http:// available spot where it had just Lor- a black the lowest dose of prescribed changed.[4] been he be- manufactured because tab that is *3 abusing the possibly was lieved that writing to the “seven- Munoz admitted further in manner. Dr. Breech drug some prescription of notation the point-five” give Avery permis- form, he did opined that direction of presumably the however, and that Avery; making to the Munoz sion alter denied Wal-Mart, shading or on the any “cross-out marks” presented it later when was form.5 a “fraud- form constituted the form.”
ulent left, suspi- Munoz became Once form and the “cross-out cious about the Avery, common-law day, Later that her marks,” Trbula, Stephani so informed she husband, moth- Bright, Bright’s Robin M.D., duty pharmacist the on that staff Beeville, Texas, er went to a Wal-Mart testified she did a day. Dr. Trbula that Munoz, the Adela prescription. to fill “four-point” inspection the working pharmacy technician certified form, things: which included four different Wal-Mart, presented that Avery testified patient, name name of the the the Munoz de- prescription form her. the directions[,] drug, and the doctor. the as follows: scribed the incident evaluation, four-point I during my And do, ma’am, everything pre- verify legitimate What I did also that it is is— altera- scription. any so have to actu- if there are computerized, now is we And tions, see, know, sys- you my I if into the check to ally prescriptions scan our if technician made alteration or it visual tem have a for our records. itself, was the that made the alteration doctor prescription, when I scanned we at that time if phone and make calls right it in came out—this area here clarify I anything there’s need to right came out black. So above shaded I on prescription] [to before send [the it, put “seven-point-five.” I And then filled]. prescrip- pharmacist did receive the screen, tion on our And she her visual. Dr. Trbula noted know, me, you asked “What is this above typical just plain “a a— pad. yeah, here?” I told her I that. Be- was—I it And did This believe— guard the back.”6 system, you security cause all could does on M.D., Trbula, you 4.Stephani phar- computer, into Wal-Mart she scanned it our duty, macist on was shown the couldn't read it. Because of erasure marks, Avery presented pharmacy you strength couldn’t see the on our department digital at the Beeville Wal-Mart de- So she written it in screen. had scribed it follows: parentheses let me know that that’s what any it did said but that she not make original prescription Where writ- any darkening on cross-out marks ten, marks there was cross-out [sic] image. the actual strength then the actual had been written couple times so it was over darker "seven-point-five” 5. The notation refers to the throughout And then the cross-out mark. dosage prescribed strength Lortab. that, parentheses were above there said "seven-point-five.” And had been al- so it cross-examination, 6. On Dr. Trbula stated tered I wasn’t who made and so sure people that if manufactured their own strength alterations or what true was. scription then them for forms and that: She further noted fulfillment, the forms would be "fraudulent "seven-point- had wrote [Munoz] [sic] acknowledged original She parentheses five” forms.” above strength form in this case Dr. of the medication because when Nevertheless, her which conducting inspec- when states that defendant commits an tion, was troubled what Trbula knowingly offense obtaining attempt- appeared the form. to be alterations to ing to obtain quantity an increased of a Munoz, spoke She first who admitted to “by misrepresenta- controlled substance “ writing ‘seven-point-five’ parenthe- tion, fraud, forgery, deception, or subter- However, Dr. ses” on the form. Trbula 481.129(a)(5)(A)-(B). fuge.” See id. by the on was troubled “cross-outs” jury May case was tried to a 17- on form, so she called Dr. Breech’s office. 18, 2010. At the close of the State’s case- *4 “Karen,” Dr. Trbula to spoke purport- who in-chief, Avery moved for a ver- directed edly is a in Dr. nurse Breech’s office. dict, asserting that there nowas evidence Karen informed Dr. no one in Trbula that that she attempted obtain an increased Dr. Breech’s office made the “cross-outs” quantity controlled substance on the form that the form prescription and “through use prescription fraudulent prescribe “two-point-five was supposed form,” in alleged the indictment and the milligrams” Avery. of Lortab jury charge. Specifically, counsel confirmed Breech these his facts testi- Avery argued testimony that: “The is that mony. Karen form concluded that the had prescription the form is not fraudulent. It Avery been altered after left Dr. Breech’s the prescription is form of the doctor. office; thus, Dr. Trbula instructed was testimony the What has been is that the dispense to call the medication and law itself, prescription that the doctor wrote on enforcement. his form was altered.” The State coun- thereafter, Shortly Bright returned to tered that “the form is not limited to what Wal-Mart, the and acknowledged when he document”; has been on pre-printed pick up he was there to thus, alteration of the tion, police handcuffed him and escorted in a resulted “fraudulent him out parking Wal-Mart lot. form.” Bright police Avery waiting told 481.129(a)(5)(A) In analyzing section him, police the car for and he directed (B), the trial court noted that: Upon by police, to the car. questioning Avery altering admitted to problem is the has [T]he State used a Bright form. was subsequently released fraudulent form. Plain police custody, from Avery arrest- meaning of that term be some- would ed. body wrote “Dr. A.B.C.” on there in- stead of “Dr. Breech.” Dr. Breech has indictment, alleged the State Yesterday testified that’s his form. on January or about pharmacist testified that’s a [Dr. Trbula] “through use of a fraudulent form; good nothing wrong there’s knowingly form ... attempted] to obtain form. substance, Lortab, The indictment namely, by controlled says form.” increasing dosage.” Okay. legislators So I in their think language of the separate clearly intent to note that was a indictment indicates that State there, violating thing people [sic] out —there’s like, mind, making my health and checks. That’s code, 481.129(a)(5)(A), you’re chucking rather than section “B” is like over there form, itself, merely Breech's form she testified that contained Instead,
not a alteration. form. unauthorized (Tex.Crim.App.2010) (plurality own 898-99 making your change Virginia, making opinion) (citing checks. Jackson your checks. You’re 2781, 61 L.Ed.2d they 99 S.Ct. why that’s have U.S. legislators, Our (1979)); mean, Hooper v. the evi- 560 I I think up “A” there. 9, 13 “A,” (Tex.Crim.App.2007). you but didn’t dence substantiates her that. indict on sufficiency We measure elements the offense as of the word There is no definition hypothetically jury correct defined Okay. “form.” There the definition charge. Grotti v. provided but not “prescription” (Tex.Crim.App.2008). hypo 280-81 you “form.” So when don’t word thetically jury in this case charge correct definition, the com- you go back to legal find required would have that: meaning of the definition of mon-law (2) 15, 2009; January on or about preprinted preprint- “form” which is *5 — (3) obtained, possessed, Avery knowingly; Webster’s, ed, looking would without obtain; attempted possess an or to or ... preprinted piece of document be quantity increased of a controlled sub blanks, fill paper you in and or stance; (5) through of a fraudulent and have in case. that’s what we this prescription form. See TEX. HEALTH & with apparent agreement Despite its ANN. SAFETY CODE in her motion for direct- Avery’s argument person knowingly, A acts or with verdict, court the mo- ed the trial denied respect with to the of knowledge, nature jury subse- explanation. tion without his conduct or circumstances sur- Avery of the quently convicted conduct when he is aware rounding his offense, and the trial court sentenced her of his or that nature conduct twenty-five years’ confinement exist. A person circumstances acts $1,500 appeal fine. followed. This knowledge, with re- knowingly, or result of conduct when spect his OF II. STANDARD REVIEW he is that his conduct is reason- aware challenge to treat a the denial We ably certain to cause the result. challenge verdict motion for directed 6.03(b) TEX. ANN. PENAL CODE legal sufficiency of the evidence. to the (Vernon 2003). may be Knowledge in State, 479, 937 482 See Williams v. S.W.2d words, acts, person’s ferred from a and Trevino see also v. (Tex.Crim.App.1996); State, 61, conduct. Hart v. 89 S.W.3d 64 State, & 13-09- Nos. 13-09-00511-CR State, Martinez v. (Tex.Crim.App.2002); 00512-CR, 3279492, at 2010 WL 2010 188, 196 1992, (Tex.App.-Dallas 833 S.W.2d 6751, (Tex.App.- *3 TexApp. 'd). ref pet. pet.) no Corpus Aug. Christi addition, (mem. “when the statute op., designated publication). of manner supporting the evidence defines alternative methods To assess whether sufficient, committing we all means of element the verdict consider is only alleges in indictment one of those meth light the record most ods, hypothet purposes and deter- ‘the law5for of the jury’s favorable to the verdict ically charge, single rational could correct method mine whether a guilty alleged all the ele- the indictment.” Gollihar v. found the defendant State, beyond (Tex.Crim.App. 255 ments of crime a reasonable 2001) State, State, Curry v. 30 S.W.3d (citing v. 323 S.W.3d doubt. Brooks v. (Tex.Crim.App.2000)); see Jacobs scribed in section of the State, (Tex.App. code, 230 S.W.3d safety health and and how it applies. (“Be pet.) Dist.] Houston no [14th parties dispute See id. The do not alleges only cause the indictment one of the section 481.129 health and by deception appel those methods—theft explicitly code does define “fraudulent — only lant could be convicted if he commit Thus, form.” we must resort method.”). Thus, the ted theft proper other resources to determine the prove required State was definition procured attempted to Lortab procure form.” “through use of a fraudulent statutes, interpreting When we seek to rely form” on the and cannot alternative effectuate the intent purpose methods of manner means described legislators who enacted them. See Cama 481.129(a)(5)(A). State, (Tex. cho v. 765 S.W.2d HEALTH & SAFETY CODE If Crim.App.1989). the statute is clear 481.129(a)(5)(A). unambiguous, the plain meaning of the III. ANALYSIS applied. words should Hines v. issue, (Tex.Crim.App.2002); In her sole contends (Tex. the trial in denying Boykin court erred her motion for directed because the State verdict Crim.App.1991); see TEX. HEALTH & *6 prov- failed to present (Vernon sufficient evidence SAFETY CODE ANN. 1.002 ing the of manner and means the offense 2010) (noting that chapter gov 311 of the charged in Specifically, the indictment. applies ernment code to the construction of Avery argues that the evidence does provision safety each of the health and procured attempt- demonstrate that she code); TEX. GOV’T CODE ANN. of a procure ed to Lortab use (Vernon 2005) (“Words 311.011(a)-(b) fraudulent form. She further phrases shall be in context and read argues pre- alteration the form according gram to the of construed rules pharmacy department sented to the usage,” mar and common unless the words Beeville did in a Wal-Mart not “result acquired particular have a technical was fraudulent.” which meaning, in case the words shall be Avery’s altering The State asserts accordingly). application construed If an did, fact, prescription form “create plain language of the would lead to an thus, form”; the Legislature absurd result could not Avery’s evidence is sufficient to sustain intended, we may look to extra-textu conviction under section interpreta al factors arrive at a sensible the health code.7 See Hines, tion statute. of the S.W.3d 447; Boykin, at 785-86. S.W.2d Applicable A. Law However, keep we must mind “[i]t illogical presume that the Leg would be analysis
Our sufficiency statute part islature intended a to be evidence supporting conviction hinges upon superfluous” Legislature and “the must be proper definition of form,” expressed, term “fraudulent de- to mean what it has understood analysis, ity support position appeal. 7. At the our outset of we note its on any the State has not cited to relevant author- (C) quantity of controlled sub- to add or it is for courts numerical- Boykin, prescribed, stance shown ... a statute.” subtract from ly by the number written followed 785-86. word; as a has also appeals The court of criminal (D) intended use of the con- that: stated diagnosis substance or the trolled “Every presumed a statute is word of prescribed it is and the which for a and a purpose, to have used been of the sub- instructions statutory construction cardinal rule of stance; sentence, clause, requires that each (E) name, ad- practitioner’s be effect if given word phrase[,] and dress, num- department registration rule is not This reasonably possible.... ber, Drug Federal Enforce- and the Legislature altered the fact number; ment Administration particular word or has not defined of such a phrase, and the absence (F) name, address, and date of definition[,] the words of the enactment whom age person birth or given ordinary their usually will be is controlled substance meaning.” scribed; and (Tex. Morter v. 551 S.W.2d (G) issued if the is Crim.App.1977) (quoting Eddins-Walcher at a later under Sec- filled date Calvert, 156 Tex. Butane Co. v. 481.074(d-l), the earliest date (1957)); Campos v. pharmacy may on fill the which (Tex.Crim.App.1981) prescription; in a criminal (holding that when words provided by the dis- information defined, the words statute are not em including pensing pharmacist, plain meaning). are their ployed given filled; date the *7 B. Discussion (3) signatures prescribing the appeal, argues practitioner dispensing On the State that section and the 481.075(e) pharmacist. health and code of the determining con- guides proper us in 481.075(e) appli- to be Id. We find section form.” TEX. “prescription tents drug cable because the involved this HEALTH & SAFETY CODE ANN. II con- matter —Lortab—is Schedule 481.075(e) 2010). (Vernon § Section id. trolled substance.8 See 481.075(e) act of the controlled substances form copy A provides, part, in relevant that: was part made a Each form used to official into evidence indictment and entered II controlled sub- prescribe a Schedule as State’s 1. The form exhibit contain: stance must (1) included, among things: other Dr. (1)information provided by pre- address, name, phone Breech’s office num- including: scribing practitioner, (2) ber, Avery’s and name signature; and (A) the date (3) date; Drug Federal birth Enforce- written; number; (4) ment the date Administration (B) Breech; (5) signed by pre- controlled substance scribed; prescribed dosage strength of Lor- 8. 1. note supra See
tab; security by “misrepresentation, fraud, measures —numerous stances for- imprints of the word “VOID”—meant to deception, or gery, subterfuge” prevent reproductions of the from “through use of [a] fraudulent prescription being presented form”; fulfill- however, when the en- Legislature Essentially, ment. 481.129(a), form contains the acted section it separated the 481.075(e) requirements listed in section manner and into means two subsections— and, thus, constitutes “official fraud, involving “misrepresentation, one Now, tion form.” See we must deter- (section forgery, deception, or subterfuge” by mine the changes whether made 481.129(a)(5)(A)) and a provision second forgery, misrepresentation, constituted involving only the use of “fraudulent deception, fraud under section (section scription form[s]” 481.129(a)(5)(A), Avery argues, as or 481.129(a)(5)(B)). 1979, See Acts 66th whether form constituted R.S., 90, 6, Leg., 2, § May ch. eff. form” as a re- (former TEX.REV.CIV. STAT. art. 4476- alterations, Avery’s argued sult of by 15, 4.09(a)(3) 1989)); § (repealed see also the State. TEX. & HEALTH SAFE- TEX. HEALTH & SAFETY ANN. CODE 481.129(a)(5)(A)-(B). § TY ANN. CODE 481.129(a)(5)(A)-(B). § In repealing for- 4.09(a) 4476-15, mer article section determining
In whether actions replacing it the provisions 481.129(a)(5)(A) section fall within section 481.129(a), Legislature clearly 481.129(a)(5)(B), intended prior we first examine provision for each 481.129(a) separate constitute a version of section arti- —former offense, rather two 4.09(a). id.; than sides of the same 4476-15, cle 1979, R.S., coin. See Leg., Acts 66th ch. 1979, 90, R.S., 6,§ 66th ch. Leg., Acts 2, (former § May (former eff. eff. May TEX.REV.CIV. 4.09(a)(3) 4476-15, REV.CIV. art. STAT. 4476-15, 4.09(a)(3)), STAT. art. repealed (repealed 1989)); see also TEX. HEALTH by R.S., Act of June Leg., 71st & SAFETY 13(1), CODE 678, § ch. 1989 Tex. Gen. Laws 481.129(a)(5)(A)-(B). Therefore, because Whitfield Legislature separated the manner and 486 (Tex.App.-Texarkana pet.). no 4476-15, means of section enactment comparing former article sec- 4.09(a) 481.129(a), 481.129(a), not persuaded we are with section we ob- argument Avery’s changing State’s significant change serve a made *8 valid Legislature. prescription Under form created a former article 4476- 4.09(a), section Legislature prescription bundled form.” To so 481.129(a)(5)(A) together involving manners and means hold would render section procurement attempted superfluous, procurement contrary or which would be to an quantity of Legislature’s increased controlled sub- intent.9 TEX. 481.129(a)(5)(A) superflu- 9. Section HEALTH SAFETY would & CODE ANN. 481.002(41) agreed argument (defining §§ ous if we with the "prescription" State's a as prescriptions require present- pharmacist because practitioner all "an order a to a and, ment particular of a order for a or controlled substance for a according reasoning, any patient,” identifying to the State’s at- which includes several alter, 481.075, change, information), tempts pieces to or re-create a (Vernon 2010). 481.129(a)(5)(A)-(B) scription form would make the form a “fraud- We do form,” rendering ulent the acts not believe such a reflects construction 481.129(a)(5)(A) Legislature, especially criminalized section the intent con- 4476-15, meaningless sidering included in article or the "fraudulent former 4.09 previously grouped form” all offense. of the manner and other misrepresenting....”). On the ANN. HEALTH & SAFETY CODE 481.129(a)(5)(A)-(B); hand, as Boykin, “misrepresentation” is defined § see misleading we false (stating making are act of or at 785-86 “[t]he something so not render interpret statutes as to about ... with to assertion BLACK’S LAW DIC- superfluous). intent deceive.” provisions 1091; see Merriam Web- TIONARY at predecessor review of the Based on our (defin- Collegiate Dictionary at 744 ster’s 481.129(a) governing to section statute as “a false ing “misrepresentation” giving law, Legislature case we believe ... an representation misleading or ap- intended for section unfair_”). Fur- intent to deceive or be where, example, instances ply those ther, “forgery” common definition of has created his own an individual fraudulently making act of a false “[t]he form, out the entire filled real altering one to be used document form, it pharmacy to a genuine....” as if BLACK’S LAW DIC- essentially act would fulfillment—an 722; TIONARY at see MERRIAM WEB- form invalid at all render DICTIONARY at STER’S COLLEGIATE periods. See TEX. relevant time as “forgery” “the crime (defining HEALTH & SAFETY CODE falsely fraudulently altering making Section document”). And, finally, is de- “deceit” 481.129(a)(5)(A) to in- appears apply intentionally giving a “[t]he fined as act of stances, in this where an such as impression.” LAW DIC- false BLACK’S to an oth- individual makes modification 465; TIONARY at see MERRIAM WEB- Though erwise form. valid at STER’S COLLEGIATE DICTIONARY “fraud,” “misrepresentation,” the terms as “a false (defining giving “deceive” “forgery,” “deception” are not defined impression”). change Avery made on code, we in the health and believe most resembles actions this coincide “forgery.” See TEX. HEALTH & SAFE- 481.129(a)(5)(A). more with section See id. 481.129(a)(5)(A); TY CODE ANN. 481.129(a)(5)(A). AT also BLACK’S LAW DICTIONARY earlier, if not clearly As noted terms are 722; MERRIAM WEBSTER’S COLLE- code, apply we are to defined in GIATE DICTIONARY 457. plain meaning and common of the words so was that testimony adduced trial interpretation as not lead to long does form was valid when that the Legislature an absurd result could Avery left Dr. Breech’s office and Hines, 75 not have intended. See changes attempt made an Boykin, 785-86. pass off the altered document as the act knowing is defined mis- “[F]raud” “[a] purpose acquiring Dr. Breech representation of the truth or concealment *9 dosage increased of Lortab. See of material fact induce another act 722; at BLACK’S LAW DICTIONARY or to his her detriment.” BLACK’S LAW (9th 2009); WEBSTER’S COL- see MERRIAM DICTIONARY 731 ed. see Based LEGIATE at 457. DICTIONARY MERRIAM WEBSTER’S COLLEGIATE (10th 1996) (defin- actions, the State on her should DICTIONARY 464 ed. deceiving act with section ing charged Avery violating as “an or “fraud” 481.129(a) sepa- separate together means are and distinct. section unique rated the acts into divisions each
499
481.129(a)(5)(A).
481.129(a)(5)(A)
See TEX. HEALTH & tion
section
481.129(a)(5)(A). 481.129(a)(5)(B).
SAFETY CODE ANN.
Beaty,
See
156 S.W.3d at
However,
so.
906;
it chose not do
Whitfield,
486;
784
at
see also
Travis,
3141045,
*1,
2008 WL
at
2008 Tex.
Moreover, the
not cite any
State does
5947,
App.
*1.
LEXIS
at
law to support
case
its contention that the
form
at
issue
this case
cases,
Of the
only
above-mentioned
two
to a
amounted
“fraudulent
involved instances in which the defendants
review,
only
form.” Based on our
we have
charged
solely
were
under
section
a handful
involving
pur-
found
of cases
Greer,
See
2010 WL
form,”
ported
and 2813404,
*1-3,
at
TexApp.
2010
LEXIS
appears to support
each
this Court’s inter-
5632,
**1-7;
1493006,
at
2009
Kirby,
WL
481.129(a)(5)(A)
pretation
*1-4,
3990,
at
2009 TexApp. LEXIS
at
(B).
State,
905,
Beaty
v.
such,
**2-9. As
cases
these
warrant addi-
2005,
(Tex.App.-Beaumont
pet.);
906-07
no
Moreover,
tional discussion.
the fact pat-
State,
484,
v.
784 S.W.2d
485-87
Whitfield
in Beaty
terns
cases are also
Whitfield
1990,
(Tex.App.-Texarkana
pet.);
no
instructive in our
analysis
issue.
State,
2-09-087-CR,
also Greer
No.
2813404,
*1-3,
WL
Tex.App.
at
1. The
Greer
5632,
(Tex.App.-Fort
LEXIS
at **1-7
ref'd) (mem.
15, 2010,
July
pet.
op.,
Worth
Greer,
charged
defendant was
designated
publication);
Kirby v.
“knowingly possessing
or attempting
05-08-00217-CR,
No.
2009 WL
possess
or obtain a controlled substance
1493006,
*1-4,
at
Tex.App.
LEXIS
through the use of a fraudulent prescrip-
3990,
at **2-9 (Tex.App.-Dallas May
*1,
tion.” 2010 WL
at
2010 Tex.
(not
pet.)
publica-
no
designated
App. LEXIS
*2. In affirming
at
tion);
Travis v.
Nos. 11-07-00204-
conviction, the
defendant’s
Fort Worth
CR, 11-07-00205-CR, 11-07-00206-CR,
Court
noted
the evidence
*3-5,
Tex.App.
2008 WL
at
showed
defendant
(Tex.App.-East
LEXIS
at **10-13
pills
for 120
Lor-
refd) (mem.
Aug.
pet.
op.,
land
County Walgreen’s.
tab at a Denton
Id.
designated
publication).
In most of the
*2,
at
LEXIS 5632 at
TexApp.
*4.
cases,
defendant was
The Court noted that the
forging, misrepresenting
both
en
fraudulent because it
for an unknown
fraud,
gaging
see TEX. HEALTH &
Martin”;
for six
“Jason
“it was
times the
481.129(a)(5)(A),
SAFETY CODE ANN.
amount”;
normal
and “it was
(2) utilizing
a “fraudulent
created to look
like
to obtain an
form”
increased amount of a
purportedly
from
doctor who
wrote it.”
controlled
substance.
*2,
LEXIS
TexApp.
Id.
5632 at *4.
481.129(a)(5)(B);
Beaty, 156 S.W.3d at
Essentially, the
concluded that the
Court
486;
Whitfield,
see also
prescription form was fraudulent because
Travis,
*1,
WL
2008 Tex.
defendant
a prescrip-
had re-created
at *1. Unlike the in
App.
to look like another written
Beaty, Whitfield,
stant
the State in
licensed doctor.
2010 Tex.
See id.
and Travis did not
itself to one
constrain
*10
App. LEXIS 5632 at *4.
committing
manner
means of
the
charged offense,
In the
which allowed for the con
instant
did not re-
to be
prescription
change
victions
sustained under either sec-
create
form
the
it was not
the doctor’s hand-
to refer to a because
the prescription
name on
instead, she made a
it did not contain the doctor’s
person;
writing and
fictitious
*2,
LEX-
strength
TexApp.
of a valid
Id. at
dosage
signature.
to the
change
by
that was created
form
She further testified that
prescription
IS 3990 at *5.
The
in this
demon-
particu-
record
stopped using
Breech.
the
the
doctor had
changed
the
tendered;
that had
strates
form
prescription
lar
that was
strength,
prescription
would
dosage
never been one of
that the defendant had
all aspects
of
given
been filled
have
that the doctor
patients;
and
doctor’s
valid.
were
prescription
form
prescription
written a
had never
Id.
defendant.
Kirby case
2. The
cen-
Kirby’s appellate argument
Though
Kirby,
In
the defendant
was factual-
tered on whether
ob-
“intentionally
knowingly
and
ly
that he was the
sufficient to establish
attempting]
obtain a con-
tain[ing] or
purported
presented
who
individual
fraud
use
through
...
trolled substance
phar-
to the
prescription form”
“fraudulent
form.” 2009
prescription
of a fraudulent
macy,
con-
Appeals
the Dallas Court of
*1,
TexApp.
LEXIS
at
WL
supporting
the evidence
cluded
*2.
facts revealed that
at
The
obtaining or at-
defendant’s conviction for
pharmacy
techni-
defendant
substance
tempting to obtain
controlled
“eight
form
prescription
cian with a
pre-
a fraudulent
fraud
and
ounces
Promethazine
codeine
*3^4,
scription
Id. at
form
sufficient.
twenty
antibiotic tablets.” Id. The
Veetid
**8-9. Im-
TexApp.
3990 at
suspicious
pharmacy technician was
plicit
ruling is that a form becomes
in this
on-duty pharma-
and
it to the
showed
form” when an
was also
on-duty pharmacist
cist. The
individual re-creates an entire
(1) the
suspicious
because:
newly-creat-
attempts
form and
use the
background
“had a
and col-
different
ed
form to
obtain controlled
prescriptions, and
or than most other
is so
substance. This
because
State
(2)
photocopy”;
like a
“the antibiot-
looked
Kirby
only charged
with a
ic
had
been manufactured un-
Veetid
481.129(a)(5)(B) offense;
convict-
years
for six
because the
der
name
ed;
the Dallas
af-
Court
(3)
business”;
had
company
gone out
it could
reversed the
firmed when
pre-
received
pharmacist
had
valid
Kirby en-
by concluding
conviction
scriptions
prescribing
from the
doctor “but
gaged
pre-
activities
the fraudulent
‘scripts’
paper
those
were on white
with a
481.129(a)(5)(A).
in section
scribed
style”;
font
“a
different
size
&
TEX. HEALTH SAFETY CODE
had been
present-
481.129(a)(5)(A).
days
him
ten
earlier
ed to
about
case, Avery merely changed
one
this
represented
on the same
and was
paper
term
of an otherwise valid
*2,
Id.
be from
same doctor.”
trial that he
form. Dr. Breech testified at
TexApp. LEXIS 3990
**3-4.
prescribed
Avery,
albeit
Lortab
fill
pharmacist
did not
dosage possible, whereas
doctor
lowest
contacted the
doctor’s office
prescribing
never
defendant
*2,
Kirby had
treated the
Id.
manager about the form.
Kirby,
nor
for him.
**4-5.
written
TexApp.
LEXIS 3990 at
scribing
manager
TexApp.
office
doctor’s
told
WL
addition,
both Dr.
at *5. In
that the form was fraudulent LEXIS
pharmacist
*11
appeal,
Breech and Dr. Trbula testified that the
On
argued
the defendant
that
the evidence was
ordinary
was an
insufficient
establish
prescrip
form tendered
she
that
prescription
that
“knew
valid,
form
though
form
was
it
tion
and
con
used to obtain the controlled substance
a
in
change
dosage strength.
tained
forged.”
was
Id. at 906.
In concluding
signed by
form
prescription
was
that
evidence
supporting
defen-
Breech
necessary
Dr.
and contained the
sufficient,
was
dant’s conviction
the Beau-
481.075(e).
information outlined in section
mont Court of
jury
held that the
TEX. HEALTH & SAFETY CODE
See
reasonably
could
infer that the defendant
481.075(e).
hardly say
One can
“presented the ‘Laura
prescription
Green’
the prescription
that
form tendered
to the Wal-Mart
pharmacy
full
Avery
clearly
resembles the
fraudulent
knowledge that
the prescription was not
prescription
Kirby.
form issue in
See
Chary.”
act of Dr.
Id. at 910.
n 1-2,
Kirby, 2009 WL
case,
Unlike the instant
in Bea
TexApp.
at **3-4.
ty inferred that the
stole pre
defendant
a
scription pad from Dr. Chary’s office and
Beaty
3. The
then filled out
prescription
similar
in
The defendant
Beaty
was
medications that were received about a
separate
under two
for having
indictments
earlier,
week
using
while
the alias “Laura
substances,
obtained controlled
Lortab and
fact,
Green.” See id.
907. In
the Beaty
Xanex,
forgery,
under
out
defendant filled
prescription
entire
481.129(a)(5)(A)
(B) of
health
and
and
form that
presented
at the Wal-Mart
safety code.
2813404, *2, LEXIS Tex.App. 2010 at 1493006, er, de- *1-2, the manner and means *4; at combined 2009 WL Kirby, at n *3-4. 481.129(a) and 3990, in sections scribed current LEXIS at Tex.App. 2009
481.129(b).
clear
the
It
is not
whether
case
The Whitfield
4.
were
prescription forms used Whitfield
time
cre-
or invalid at the
of their
valid
deci-
Appeals’
Court of
The Texarkana
ation;
convicted
thus he could
been
important
in that
it
sion Whitfield
or
either
forging
for
a con-
obtaining
a conviction
involves
form.
using
a fraudulent
under
by forgery
trolled substance
to
481.129 of
statute
section
predecessor
Summary
5.
health
code—former article
Greer,
4.09(a)(3)
Beaty, and
4476-15,
Kirby,
A review of the
Texas
section
reveals that for an individ
at 486.
cases
Revised Civil Statutes. 784 S.W.2d
Whitfield
4476-15,
a fraudulent
using
section ual to be convicted
article
Under
former
4.09(a)(3),
any
procure
form to
an increased
person
unlawful for
it was
substance, the in
“acquire,
quantity
ob-
of a controlled
intentionally
or
knowingly
to
very
in acts
tain,
acquire
pos-
engage
obtain
dividual must
different
attempt
or
to
or
i.e., re-creating
by mis-
from the
in this
controlled substance
acts
session of a
case—
fraud,
Beaty,
forgery, deception, prescription forms.
representation,
906-07;
486;
784
at
Whitfield,
of fraudulent
at
S.W.2d
subterfuge,
Greer, 2010 WL
at
or fraudulent oral or
see also
prescription form
*4; Kirby,
at
prescription.”
Tex.App.
2010
telephonically communicated
at, *1-2,
R.S.,
Tex.App.
Legislature’s intent and these factors in-
IV. CONCLUSION
(1)
obtained;
clude
the object sought to be
(2) the circumstances of the statute’s en-
Having concluded that
the evidence is
(3)
actment;
(4)
legislative
history;
support Avery’s
not sufficient to
conviction
common law
statutory
or former
provi-
481.129(a)(5)(B) offense,
for a section
we
sions, including
on
laws
the same or simi-
basis,
the case on
vacate
reverse
that
(5)
subjects;
lar
the consequences
aof
conviction,
judgment
trial court’s
of
particular
construction.
TEX. GOV’T
the case
remand
to the trial court for the
311.023(l)-(5),
§§
CODE ANN.
312.008
entry
judgment
acquittal.
of
of
(West 2005). When the same or a similar
Brooks,
(citing
Contrary majority’s to the premise, Dissenting Opinion by Justice PERKES. Legislature when the prede- recodified the “forgery” cessor statute of to list and “use Dissenting Opinion by Justice PERKES. a fraudulent form” in separate majority’s opinion premised The on a clauses, the revision intended mistaken notion that the 1989 recodifica- be substantive. The revision was made tion of eontrolled-substances fraud pursuant Texas Government Code sec- was a change statute substantive 323.007, requires which the Texas premise, majority law. On inter- Legislative complete, Council make a prets meaning of “fraudulent non-substantive recodification of Texas so narrowly tion form” it would be statutes. See GOV’T CODE ANN. virtually impossible to the statute violate Accordingly, 323.007. at the of beginning of a fraudulent prescription form. the session law in which Health and majority effectively the Legis- defeats created, Safety Legislature Code was intent to prohibit pro- lature’s fraudulent did changes stated not affect the curement using controlled substances 18,1989, Act May substance of the law. form. For these Preamble, R.S., Leg., 71st 1989 Tex. Gen. reasons, I respectfully dissent. Laws 2230. The session law contains statute, interpreting When a reviewing repeal statute predecessor and an act, court considers the entire its nature enactment of the recodified statute as part object, consequence and the Safety the Health Compare Code. Id., follow from Boy would each construction. ch. Tex. Gen. Laws (Tex. statute) kin v. (repealing prior reject A Crim.App.1991). any (recodifying court must 1989 Tex. Gen. at 2942 Laws use of a fraudulent 481.129 of the provision as section fraud Therefore, Code). appellant altered form. when Safety Health and form, it fraudu- became wrote, in of Criminal Court require lent. The statute does Holbrook, aim the parte Ex to meet its burden prove State to more every proscribe posses- fraud statute is *14 This is consistent proof. interpretation au- unless sion of a controlled substance Safety with Health and Code Sub- by the Texas Controlled thorized which, by majority, quoted 481.075 as (Tex. 541, 544-45 stances Act. 609 S.W.2d for a an “official form” defines (en banc) (discussing Crim.App.1980) II substance to include schedule controlled statute, TEX.REY.CIV. predecessor information such potentially “handwritten” 4.09(a)(3) 4476-15, § art. STAT. ANN. date, type quan- patient’s birth (West 1979)). by effectively majority, substance, tity and the of the controlled only a holding proof of counterfeit prescriber’s signature. prove used to can be (G)(3) (West 2003); 481.075(e)(1)(C),(F), § Legisla- defeats the offense in this State, 156 Beaty v. case authori- majority’s ture’s intent. 2005, no (TexApp.-Beaumont & 910 holding. ty support does not its Under (affirming attempting pet.) conviction an majority’s interpretation, offense by use of a obtain controlled substance form” for “use of a fraudulent form when defen- fraudulent overlap with an offense for mis- can never on a purported prescription dant wrote fraud, representation, forgery, deception, For prescription pad). from a stolen sheet HEALTH & subterfuge. reasons, judgment the trial court’s these 481.129, ANN. SAFETY CODE should be affirmed. (B) (West 2003). (a)(5)(A), the ma- Under by jority’s interpretation, to violate the act form, one try
would have to to obtain controlled using only counterfeit
substance a blank form, overlap so as not PARTNERSHIP, Du LIMITED DUGAS is clear- forgery approach clause. This Trust, gas 1998 William Irrevocable addition, ly not intent of law. Trust, Dugas Bruce James Grandchild interpretation is in- majority’s narrow Hurley Stephen Turner and Calister with the misdemeanor statute consistent Jr., Turner, Dugas Co-Trustees of parallels which face the statute on its Trust William 1998 Irrevocable f/b/o by altering offense proscribing issue Dugas, Appellants, Bruce by an of- prescription, written followed attempting dangerous fense to obtain Laura drug telephone a fraudulent call. Com- Donna Neal Goode DUGAS and Dugas, Appellees. Nicole HEALTH SAFETY CODE pare TEX. & 2003) (West 483.045 No. 02-09-00463-CV. 481.129(a)(5)(A)-(C). Texas, Court of It admitted to undisputed appellant Fort Worth. police that she altered 31, 2011. March appeal, the State on argued form. As May Rehearing Overruled 2011. required prove appel- State was attempted lant obtained or knowingly
possess or obtain controlled substance