*1 363 pay filing if does not fees within she of this order.” days date appellate has fil-
Appellant paid not or the motion fees of
ing fee $1251 $10
each for the three motions she filed on 1, 11, 2,
April July On June 1999. 1999, 2,
July filed an affidavit of An in this affidavit of
indigence Court. pay appeal be
inability to costs on must in the trial or before the
filed court with Tex.R.App. appeal. P.
notice of 20.1(c)(1). appeal on
Appellant filed her notice of 10, The clerk’s
February 1999. record show, does not
assert, that she filed affidavit of indi-
gence the trial court on or before Feb- 10,1999. Therefore,
ruary appeal paying appellate
entitled to without Tex.R.App. 20.1(a).
costs. See P. appeal we
Accordingly, dismiss the be pay filing
cause has failed to specified
fees within time our order Tex.R.App. 24, 5, 1999. P. June Enters.,
42.3(c); Holt v. F.F. 1998, (Tex.App. pet. de — Amarillo nied). OLER, Appellant,
Wendell Hollis Texas, Appellee.
The STATE of
No. 05-97-01229-CR. Texas, Appeals
Court
Dallas.
Aug. 1999.
Discretionary Review Refused
Oct. 1999. filing $125 letter Feb- that the fee was due. advised dated Court, 10, 1999, ruary Clerk of from the this *2 OVARD, LAGARDE,
Before Justices and WRIGHT.
OPINION *3 Opinion By Justice LAGARDE. appeals Hollis Oler Appellant Wendell conviction, after a trial before pos- court, intentionally knowingly and con- possess a and sessing DILAUDID, substance, to-wit: trolled HYDROMOR- being name generic fraud, PHONE, for- by misrepresentation, subterfuge. deception, gery, Supp.1999). punishment, enhanced court assessed conviction, prior years’ at fifteen by one two issues: raises confinement. (1) evidence sufficient to sustain Was the (2) the indictment his conviction? Was plead fundamentally defective for failure follow, we For reasons that an offense? court’s judgment. affirm the trial Background & Procedural Factual ap- the trial denial Following court’s quash motion to the indictment pellant’s allege it failed to grounds offense, this case was tried before stipulated court on facts. part,
In relevant the indictment with: intentionally unlawfully, knowingly and pos- attempting] possess[ing] substance, namely: sess being name DILAUDID Generic by misrepresen- HYDROMORPHONE fraud, tation, deception and forgery, did subterfuge, that said defendant present medi- then and there the same to wit: “TRIGEMINAL problem, cal NEURALGIA”, records and medical (4) period time doctors within the four ending April beginning on Law, Nation, D. Dal- Attorney John informing September 1993 without las, Appellant. for treat- past of current and each doctor did ob- Smith, Dis- the other doctors and Braxton ment Lisa L. Assistant n DILAU- Dallas, multiple prescriptions for Attorney, tain trict State. sequences DID in appellant guilty as follows which are Texas. The court found scope accepted outside the pronounced as sentence. practice and treatment:
Date Doctor Dilaudid Received Appeal 4-19-93 Elliott 100tablets 100tablets appeal, appellant On two raises is Anthony 4-23-93 sues, which he later characterizes 5-3-93 McPhaul 5-7-93 180tablets error,” “points of in his brief. The issues Elliott 100tablets closely are can related and be resolved 6-1-93 McPhaul 180tablets Anthony together. Appellant 6-2-93 6-17-93 200tablets asserts that he was Elliott 100tablets failing with conduct omission— Anthony 6-23-93 200 tablets *4 to inform the doctors he that consulted Anthony 7-13-93 200 tablets substance, receiving was a controlled Di 7-15-93 8-2-93 McPhaul Elliott 100tablets laudid, argues from other sources. He 180tablets 8-4-93 Elliott 150tablets 100tablets statutory duty placed upon there is no a 8-16-93 Merkin 8-19-93 patient to disclose to his doctor that he is Anthony 200 tablets receiving medical treatment or a controlled 9-17-93 Merkin 100tablets from another substance source. Because 9-20-93 Elliott 180tablets prove State did not the existence of a summarize, To alleges the indictment that statutory duty to disclose such informa appellant processed received and sixteen tion, according appellant, to the evidence prescriptions during period, a five-month not was sufficient to convict him. doctors, from four different without dis- act, a statutory duty appel absence of closing material information and thereby lant argues he could not be convicted fraudulently deceptively pos- and gained charged of the omission. For the same 2,370 Dilaudid, session tablets of a con- reasons, continues, appellant the indict trolled substance. See allege statutory duty ment failed to 481.102(3)(A)(Vernon Supp. Code ANN. act; therefore, the indictment funda was 1999). mentally failing allege defective for an trial, During introduced a writ- Relying State offense. outdated version of stipulation, signed by appellant person- penal ten section code and the counsel, State, ally, It Billingslea his defense and the State. case of stipulated (Tex.Crim.App.1989), appellant that each of the four doctors 273-74 testify argues named the indictment would con- that because the conduct with cerning by the dates and the amounts of Di- which he is conduct charged is omis sion, prescribed appellant prove laudid each had for required State was on each corresponding statutory duty date. Each of the doctors would to act. See (Vernon 1994).1 testify appellant also at no time did 6.01 Tex. Pen.Code Ann. him being Appellant argues inform was treat- that because the State allege statutory duty, ed and that did not the indict doctors obtaining multiple prescriptions fundamentally Appel Dilau- ment is defective. agreed argues did. The State and also lant also that because the State did prove stipulated testimony statutory duty, that the was true and not the evidence is support correct legally and that each of the above activi- insufficient to his convic County, ties occurred in Dallas tion. described Appellant incorrectly provides as defined section 1.07 that the states that section 6.01(c) provides that conduct omission is omission is an offense or otherwise not an offense unless the defendant had a that he has a the act. TEX. 6.01(c)(Vernon statutory duty "Law” to act. The current version of PEN. CODE 6.01(c) provides currently 1.07 is not that one who fails to as defined section act unless a law limited to a statute. commit offense (Tex.App.-Houston [14 th Appellant is mistaken disagree.
We
'd).
pos
pet.
Attempting to
ref
charged
Dist.]
with crime committed
he is
controlled substance
a failure to
is
sess or
and
omission
offense,
attempt
Billingslea
making the
applies
is the
further mistaken
commission,
Appellant
possession
case.
is
an act of
the facts of this
is
commission, not
with a crime of
omission.
Billingslea
inapplicable
be-
omission.
inmay
itself be
Forging
prescription
holding
statutory duty
that a
cause its
offense, but,
the cases cited above
required
by the
has been overruled
indicate,
forged
need not be
prescription
factu-
to section 6.01
it is
amendment
attempting
to commit the offense
ally distinguishable.
Because
substance
possession of a controlled
obtain
with an offense
commis-
Hence, the
deception.
fraud or
sion, i.e.,
attempt-
the act of
prescription
need not
ing
of a
forged to obtain the conviction
defen-
problem
the same medical
presenting
dant of the
to obtain
multiple
medical records
possession.
multiple prescriptions,
receiving
without
a criminal
in-
disclosing to each doctor
material
*5
in
a law not found
by
offense defined
receiving
that he
formation
was
treatment
code, but, rather,
in
a law found
penal
and
from other
prescriptions
Safety
Specifical-
Texas Health and
Code.
time,
was
obligated
same
the State
not
charged under
sec-
ly,
was
plead
or
act.
either
safety
tion of the
and
code that
health
pre
The dissent asserts that the
an
provides:
person commits
offense
“[A]
scriptions
Di
by which
obtained
or
person knowingly possesses
if the
at-
if
prescriptions.”
laudid were “valid
Even
tempts
possess
a controlled substance
true,
conclude,
which
do
were
we
not
fraud,
misrepresentation,
forgery,
by
de-
it is irrelevant and has no
on the
bearing
ception,
subterfuge.”
or
Tex. Health
&
charged
for which
offense
(Ver-
481.129(a)(4)(A)
Safety
§
Code Ann.
gravamen
convicted. The
of the of
Supp.1999).
non
charged
fense with which
is
criminal
attempting to
A
commits a
of
possess
State,
only
voluntarily engages
if
in
controlled substance. See Bush v.
fense
270,
conduct,
omission,
628
an
or
(Tex.App.-Amarillo
including
273
S.W.2d
6.01(a)
1982,
'd).
§
possession.
If
obtains
pet.
possession
ref
one
Ann.
Tex. Pen.Code
(Vernon 1994).
means an
by
of a
“Conduct”
act
forged pre
controlled substance
scription,
accompanying
at
or omission
mental
alleges
once the State
and its
1.07(10)
§
tempt
possession by
made to obtain
state.
Tex.
Ann.
Pen.Code
(Vernon 1994).
otherwise,
constitutes an of
misrepresentation or
an offense
Conduct
by
is
if it
as an offense
charged
purport
and neither
nor
fense
is defined
1.03(a)
§
forged prescription
tenor
statute.
of
used
Ann.
Tex. Pen.Code
1.03(a)
1994).
applies to
necessary
allege
Id. The
Section
offense.
laws, unless
Appeals
by
offenses
Texas
of Criminal
has held
defined
Court
defining
for this
need
statute
the offense
other
an indictment
1.03(b) (Ver
a wise. Tex.
passing
out the elements
set
1994).
State,
v.
non
forged writing. Harrell
643
Section
Consequently,
provide
(Tex.Crim.App.
689
otherwise.
[Panel
S.W.2d
attempting
Op.]
of the
conduct
prescription
The tenor
possess a
substance
fraud or
alleging
in
controlled
consequence
no
the offense
deception
an offense because
controlled substance
constitutes
obtaining
State,
is defined
an offense
statute.
Robinson v.
686
through fraud.
368
Safety
(crimi-
Billingslea,
ANN.
Supp.
“deception.”
the terms “fraud” and
When
1999). Appellant correctly observes that words
not specially
are
defined
the Texas Health and
Code does Legislature, they are to be understood as
“deception.”
not define either “fraud” or
allows,
ordinary usage
and a fact finder
result,
As a
he contends that the statute may
freely
statutory
thus
read
language
under which he was indicted did not im-
any meaning
acceptable
have
which is
pose
him
upon
an affirmative
to dis-
State,
parlance.
common
See Vernon v.
treating physicians
close to his
the fact
(Tex.
Crim.App.1992)
that he was obtaining Dilaudid from multi-
(applying principle
jurors).
It is our
ple sources.
interpreting
give
when
a statute to
ordinary
plain meaning
to the
Appellant’s analysis fails because his un-
language
Legislature.
derlying premise
he was
—that
(Tex.Crim.
Mancuso,
Ap-
with conduct
flawed.
omission-is
Thus,
App.1996).
we
when
determine
pellant
conduct
com-
sufficiency
support
the evidence to
mission, not
omission. He was
verdict,
jury
employ
we must not
defini
with the act of possessing
statutory
tions of relevant
words which are
possess a
controlled substance
fraudu-
ju
different or
*6
means, to-wit,
more restrictive than the
by
lent
presenting
incom-
plete
legally
rors themselves were
entitled to
history
incomplete
and
rec-
Vernon,
to
use.
Unlike the indictment
the
its
definition of the word
indictment
appellant
among
things,
under which
“an intentional mis-
was
concealment,
allegation
representation,
did contain an
that a
or nondisclo-
punishable “act” occurred.
Billingslea,
purpose
inducing
sure for the
of
another
Cf.
(the
780
at 271 n. 2
did
it
some valuable
upon
indictment
reliance
with
punishable
not contain an
him or to
allegation
thing belonging to
surrender
occurred).
“act”
Billingslea
legal right.”
Third New Inter-
Webster’s
DiCtionary
(1981)
“failing
(emphasis
with
to obtain medical care.” Bil
national
added).
definition,
lingslea,
Billingslea
primary
tion” element. prove required if the were failed that he had taken some even to disclose before, duty to disclose mate a fact had a aspirin two months trier of information, conclude section conclude fact rial we might reasonably that such 481.129(a)(4)(A) immaterial; thus, the Texas Health and there fraud was no Safety imposes an affirmative deception or and no offense was commit Code However, a controlled sub individually duty obtaining doctor on one ted. each to do so without physician in amounts stance from a prescribed averaging Dilaudid fraud, for- engaging “misrepresentation, in only day, but never more three tablets gery, deception, doctor, subterfuge.” suming go only appel- to one had Tex. lant believed that one doctor would have Supp.1999). prescribed him the amount of Dilaudid Thus, appellant legal duty had a to inform wanted. That he concealed physician If material facts. we sub- from each doctor the fact that he was stitute their definitions for the terms obtaining Dilaudid from three other doc- “deception,” “fraud” and the statute means tors is a fact material to his commission of that a commits an if a criminal offense. knowingly possesses attempts pos- Appellant relies on an outdated version (1) sess controlled substance: an in- 6.01(c) Billingslea for the tentional concealment or nondisclosure of a proposition that an omission is not an of- material purpose fact for the of inducing fense unless a a statutory defendant has provider part the controlled substance duty to act. (2) substance; with the controlled 6.01(c) (Vernon 1994); Billingslea, 780 concealing a material fact in order to mis- note, however, that, at 276. S.W.2d We at physician giving prescription lead a into Ap- the time the Texas Court of Criminal the physician given would not have peals in opinion Billingslea^ issued its sec- had the information been disclosed. 6.01(c) tion of the Texas Penal Code read argues The dissent that “the law perfoirm that “a who omits to an act physician’s is clear that it duty is the does not commit an offense unless a stat- a patient history obtain in order to ade provides ute the omission is an of- quately diagnose patient.” and treat fense or otherwise that he has a cites, however, The authorities the dissent Billingslea, an act.” malpractice are all medical cases. We do 1993, Legislature 274. dispute in plaintiff a medical 6.01(c) by deleting amended section malpractice case must that a physi inserting place word “statute” and its cian has a to act according to phrase “law as defined section 1.07 certain standard of care. See Bradford code,” of this as section now reads.
Alexander, 394, (TexApp.- 3, 18, 1993, R.S., Leg., Act of Feb. ch. 73d writ). Houston st no Nor [1 Dist.] 1993 Tex. Gen. Laws Section that, dispute duty, do we of that 1.07, turn, gives a very broad definition physician may have to in obligation of law: quire patient’s history. into a or a constitution statute this state case, however, This in does not States, opin- or of the a written United malpractice; volve medical it involves the record, municipal ion of a court of commission of a criminal offense. The ordinance, county an order of a commis- physician to maintain a certain court, sioners or a rule authorized *8 duty standard of care and the of a lawfully adopted under a statute. sepa to abstain from criminal conduct are 1.07(a)(30) (Vernon § Tex. Pen.Code Ann. may rate and distinct duties. Intent be 1994). amendment, By portion this that of evidence, proved by circumstantial such as that a statu- Billingslea’s holding requires quantity drugs possessed. Gabriel tory has been overruled. State, (Tex.App. 842 S.W.2d (Tex. 1992), aff'd, Appellant’s of error point -Dallas first asserts Crim.App.1995). appel In the same that the evidence was insufficient to sus- way, appellant’s lant’s intent to obtain a controlled sub tain conviction because the may proved by proved statutory duty stance circumstantial act that be State no to Ap- separate appellant’s evidence. went to four would criminalize conduct. pellant’s point doctors to obtain Dilaudid. It would have second of error asserts appellant’s fundamentally been more convenient and less time-con- indictment was 1994). 1.07(a)(10) (Vernon § statu- allege it defective because failed to Ann. Code movement, act, to whether it failed tory duty bodily to hence “Act” means and includes allege voluntary involuntary, an offense. 1.07(a)(1) § speech. Tex. Ann. Pen.Code above, reasons we For all the set out 1994). (Vernon An is the failure omission 481.129(a)(4)(A) hold that section 1.07(a)(34) to act. Tex Pen.Code Ann. proscribes and Safety Texas Health Code 1994). (Vernon commission, Be- not omission. conduct stipulated proved pun- cause the evidence ap- charged case The indictment this we by appellant, acts committed ishable sub- pellant with to conclude the evidence was sufficient deception. fraud or stance Tex hold conviction. further sustain his We appellant that the indictment under which (Vernon Supp.1999). act; charged alleged punishable offense, al- theory of the The State’s act thus, allege failure to its indictment, appellant in the leged it fundamentally defective does not render prescrip- fraudulently multiple obtained an Because for failure to state offense. “pres- tions for controlled substance committing appellant with problem, same wit: ent[ing] the medical act, op- punishable and medical rec- ‘Trigeminal Neuralgia,’ impose obligation on the erate to State informing to four doctors ... without ords act. plead either past of current and treatment each doctor points overrule both of error We multi- doctors and did obtain by the other affirm the trial court’s judgment. ... ple prescriptions for DILAUDID accepted scope outside which are Opinion Dissenting By Justice practice and treatment.” WRIGHT. evidence, stip- through the presented State disagree majority Because I with facts, four went to ulated a crime doctors, multiple pre- obtained different commission, I committed and because Dilaudid, for and at no time scriptions cannot conclude there an affirmative being he was informed the doctors that legal duty patient of a had also treated doctors who independently determine what information Thus, the State prescribed Dilaudid.1 is material and then disclose it to his doc- appellant’s predicated guilt on failure asked, being tor without I dissent. inform the other doctors of his current In other past treatment. analysis begin my
I
with a determination
State,
words,
appellant’s
according
whether
Dilaudid,
which
possession of
with a crime
omission or a crime
only illegal
prescriptions,2 was
had valid
penal
commission. The
code
by failing
obtained
because
only
commits an
if he
pos-
conduct,
appellant’s
an act.
Because
voluntarily engages
including
prescribed Dilaudid was
omission,
session of the
possession.
Tex.
illegal
support
itself
in and of
sufficient
6.01
possession
Dilau-
and his
possession,
means an
omission and
“Conduct”
act or
only
illegal
be characterized as
accompanying mental
did can
its
state.
Pen.
*9
stipulated
any evi-
& Safety Code
1. The
facts do not contain
er. See
Tex.
Ann.
Here,
(Vernon
multiple prescriptions
the
were
Supp.1999).'
§
dence that
the
481.062
scope
accepted
prac-
outside the
admittedly
the Dilaudid
prescribed
doctors
tice or treatment.
trigeminal neural-
because of his
for
evidence,
indictment,
gia.
the
the
Neither
.
2.
the health and
Under section 481.062 of
suggests
the State must
nor this dissent
code,
safety
lawfully possess
may
forged.
prescription
prove that the
was
practition-
substance
controlled
order of
act, I
perform
legal duty
because he failed to
an
to act. Nor did the amendment
disagree
majority’s
portion
with the
conclusion
Billingslea analyz-
overrule the
alleged by
the conduct
the State to be
ing whether the statute contained both the
criminal was “the act of
or at-
duty
the
within
to act and
omission
its
possess
tempting to
a controlled sub-
Thus,
parameters.
majority
because the
stance.” I would
the
conclude that
necessary legal duty
concludes that the
offense
alleged by the State was the offense of
this
it-
case
created
section 481.129
a con-
self,
law, I
by any
and not
other statute or
deception.
trolled
fraud or
agree
majority
appel-
cannot
with the
offense,
alleged,
The
as
had
be commit-
Billingslea misplaced.
lant’s reliance on
engaging
ted
certain conduct. Ac-
Billingslea,
year
In
the defendant’s 94
State,
cording
illegal
to the
conduct
old bedridden mother lived with him. She
appellant’s
the other
failure
inform
hospitalized
from
for and later died
his
past
current and
The defendant was
neglect.
Again,
treatment.
an omission is the fail-
injury
elderly person.
to an
See
Tex.
Pen.
ure
act.
Tex.
Ann.
Pen.Code
(Vernon
Supp.
§
22.04
1994 &
Code Ann.
1.07(a)(34) (Vernon 1994). Thus,
§
I can-
1999).
alleged that
The indictment
agree
majority’s
with the
conclusion
bodily
his mother serious
defendant caused
with a
crime
injury
for
by failing to obtain medical care
commission rather than a crime of omis-
physically
his mother when
unable
she was
sion.
Bil
to secure medical care for herself.
Because the State indicted
for
At the
lingslea, 780
274.
time
act,
omission,
failing to
a crime of
offense,
provided
of the
section 22.04
prove
must
a corresponding
if he inten
committed
the act.
Tex. Pen.
tionally, knowingly,
recklessly
or with
(Vernon 1994).
§
6.01
Prior to
omission,
negligence, by
criminal
act or
1993, in order to criminalize a failure to
in conduct that caused serious
engaged
necessary
for the State to
bodily injury
years
to an individual 65
statutory duty
to act existed. See
age or older. See id. at 273. The court of
State,
271,
Billingslea v.
273-
appeals
although
criminal
held that
(Tex.Crim.App.1989).
provided
22.04
that the omission was an
6.01(c).
Legislature amended section
See offense,
statutory
provide
it did not
for a
18, 1993,
R.S.,
Leg.,
Act of Feb.
73d
ch. 3
elderly person.
for an
Nor
to care
1993 Tex. Gen. Laws
statu
was the defendant under
changed
amendment
the law to allow com-
Thus,
mother.
tory duty
care
mon law duties to form the basis of crimi-
appeals
court of criminal
concluded
nal sanctions from the former law requir-
fundamentally
that the indictment was
de
ing
explicit statutory duty to act. See
statutory
failing to include a
fective for
6.01©
omission. Id.
duty imposing
punishable
1994).3 Thus,
ex-
1993 amendment
at 274.
panded the sources in which to find the
may provide
A statute
for both
necessary legal duty, encompassing com-
parame-
to act and the omission within the
statutory
mon law duties as well as
duties.
not, however,
specific penal provision.
JdLFor
necessity
ters
abrogate
It did
example,
penal
code
prove,
section 25.05 of
for the State to
as
essential
offense,
commits an of-
corresponding
that an individual
element
record, municipal
Legislature
of a court of
ordi-
3. The
amended section 6.01© to
ion
nance,
county commissioners
replace
"law de-
an order of a
the word “statute” with
as
court,
lawfully
authorized
fined
Section 1.07.” Section 1.07 defines
rule
adopted
"law”
"the
or a statute of this
under
statute.”
constitution
Tex. Pen.Code Ann
States,
1.07(a)(30) (Vernon
opin-
United
a written
state or of the
*10
however,
That,
inquiry
the
intentionally
fails
end
knowingly
if
or
fense
duty
the
provide
younger
child
section
allows
support
because
statutes,
is
age,
only
than
of
or for his child who
but also
years
derived not
from
be
the
subject
requiring
the
of a court order
common
from the
law. See
Tex. Pen.Code
support
6.01(c) (Vernon 1994).
individual to
the child. See
Neither the
§
(Vernon 1994);
25.05
cites,
my
the
re
majority
nor
Another
Billingslea,
tion to his treating I agree majority with the 481.129(a)(4)(A)proscribes appellant’s con- QUANTUM CHEMICAL However, CORPORATION, duct. because I would conclude Appellee. charged appellant the State with a omission, crime of rather than a crime of No. 01-98-00269-CV. commission, and the State failed to statutory either a or a common law Texas, Appeals Court of to “[inform] each doctor of current and (1st Dist.). Houston past doctors,” treatment I would Aug. 1999. legally conclude that the evidence is insuf- support appellant’s ficient conviction Rehearing Sept. Overruled under this indictment. The record does support and it goes unchallenged .ap-
pellant problem from a suffers trigeminal
known as neuralgia for which prescribed
four different doctors the same However, empha-
medication. I wish
size that the record does not contain evi- any
dence that of the doctors asked for appellant’s
information about prior and
current medical If stipula- treatment. so,
tion they indicated that had done I undoubtedly
would come to a different
conclusion. inquires Once doctor about patient’s patient history, obligation fully
under an disclose the requested by
information the doctor. situation, the determination about
what information is material remains with My disagreement doctor. with the opinion
majority judicially is that cre- patient
ates a new in the law what
determine information is material physician.
and then to disclose it to a I opinion
am of the that this is best left to Legislature. Because there is no evi- appel-
dence that asked
lant which then for information failed disclose, I would conclude that necessary duty
State failed to show the I to act. would re- judgment
verse the trial court’s and ren- judgment acquittal.
der