Avery v. State
| Decision Date | 24 August 2011 |
| Docket Number | No. 13–10–00339–CR.,13–10–00339–CR. |
| Citation | 341 S.W.3d 490 |
| Parties | Billie Jean AVERY, Appellant,v.The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
Ricardo Pumarejo Jr., Kittleman, Thomas & Gonzales, McAllen, for Appellant.Martha W. Warner, Dist. Atty., Beeville, Edward F. Shaughnessy III, San Antonio, for State.Before Chief Justice VALDEZ and Justices RODRIGUEZ and PERKES.
Appellant, Billie Jean Avery, was charged by indictment with obtaining an increased quantity of a Schedule II controlled substance through the use of a fraudulent prescription form, a second-degree felony.1 See TEX. HEALTH & SAFETY CODE ANN. § 481.129(a)(5)(B), (d)(1) (Vernon 2010). After a jury trial, Avery was convicted of the underlying offense and was sentenced to twenty-five years' confinement in the Institutional Division of the Texas Department of Criminal Justice with a $1,500 fine.2 On appeal, Avery argues that the trial court erred in denying her motion for a directed verdict because the State failed to present sufficient evidence proving the manner and means of the offense stated in the indictment. Specifically, Avery contends that there is no evidence that she used a “fraudulent prescription form” to obtain an increased dosage of a controlled substance, as alleged in the indictment. We reverse and vacate the judgment, and remand for entry of a judgment of acquittal.
On January 15, 2010, Donald Breech, M.D. treated Avery for pain associated with her knee.3 Dr. Breech prescribed forty 2.5–milligram tablets of Lortab, a controlled substance containing hydrocodone, for Avery. Dr. Breech used his own prescription form when filling out the prescription, and at trial, he noted that he prescribed Avery the lowest dose of Lortab that is manufactured because he believed that Avery was possibly abusing the drug in some manner. Dr. Breech further opined that he did not give Avery permission to alter the prescription and that when it was later presented at Wal–Mart, the prescription form constituted a “fraudulent prescription form.”
Later that day, Avery, her common-law husband, Robin Bright, and Bright's mother went to a Wal–Mart in Beeville, Texas, to fill the prescription. Adela Munoz, a certified pharmacy technician working for Wal–Mart, testified that Avery presented the prescription form to her. Munoz described the incident as follows:
What I did do, ma'am, is—everything now is computerized, so we have to actually scan our prescriptions into the system to have a visual for our records. The prescription, itself, when I scanned it in came out—this area right here came out shaded black. So right above it, I put “seven-point-five.” And then the pharmacist did receive the prescription on her screen, our visual. And she asked me, you know, “What is this above here?” And I told her I did that. Because through the system, all you could see was just a black spot where it had been changed.[ 4]
Munoz admitted to writing the “seven-point-five” notation of the prescription form, presumably at the direction of Avery; however, Munoz denied making any “cross-out marks” or shading on the form.5
Once Avery left, Munoz became suspicious about the form and the “cross-out marks,” so she informed Stephani Trbula, M.D., the staff pharmacist on duty that day. Dr. Trbula testified that she did a “four-point” inspection of the prescription form, which included four different things:
the name of the patient, the name of the drug, the directions[,] and the doctor. And during my four-point evaluation, I also verify that it is a legitimate prescription. And if there are any alterations, I check to see, you know, if my technician made the alteration or if it was the doctor that made the alteration and we make phone calls at that time if there's anything that I need to clarify before I send [the prescription] on [to be filled].
Dr. Trbula noted that the prescription form was 6
Nevertheless, when conducting her inspection, Dr. Trbula was troubled by what appeared to be alterations to the form. She first spoke to Munoz, who admitted to writing the “ ‘seven-point-five’ in parentheses” on the form. However, Dr. Trbula was troubled by the “cross-outs” on the form, so she called Dr. Breech's office. Dr. Trbula spoke to “Karen,” who purportedly is a nurse in Dr. Breech's office. Karen informed Dr. Trbula that no one in Dr. Breech's office made the “cross-outs” on the prescription form and that the form was supposed to prescribe “two-point-five milligrams” of Lortab for Avery. Dr. Breech confirmed these facts in his testimony. Karen concluded that the form had been altered after Avery left Dr. Breech's office; thus, Dr. Trbula was instructed to not dispense the medication and to call law enforcement.
Shortly thereafter, Bright returned to the Wal–Mart, and when he acknowledged that he was there to pick up the prescription, police handcuffed him and escorted him out to the Wal–Mart parking lot. Bright told police that Avery was waiting in the car for him, and he directed police to the car. Upon questioning by police, Avery admitted to altering the prescription form. Bright was subsequently released from police custody, and Avery was arrested.
In the indictment, the State alleged that on or about January 15, 2009, Avery “through use of a fraudulent prescription form ... knowingly attempt[ed] to obtain a controlled substance, namely, Lortab, by increasing the dosage.” See id. § 481.129(a)(5)(B). The language of the indictment clearly indicates that the State charged Avery with violating section 481.129(a)(5)(B) of the health and safety code, rather than section 481.129(a)(5)(A), which states that a defendant commits an offense by knowingly obtaining or attempting to obtain an increased quantity of a controlled substance “by misrepresentation, fraud, forgery, deception, or subterfuge.” See id. § 481.129(a)(5)(A)-(B).
The case was tried to a jury on May 17–18, 2010. At the close of the State's case-in-chief, Avery moved for a directed verdict, asserting that there was no evidence that she attempted to obtain an increased quantity of a controlled substance “through use of a fraudulent prescription form,” as alleged in the indictment and the jury charge. Specifically, counsel for Avery argued that: The State countered that “the form is not limited to what has been pre-printed on the document”; thus, the alteration of the prescription form resulted in a “fraudulent prescription form.”
In analyzing section 481.129(a)(5)(A) and (B), the trial court noted that:
[T]he problem is the State has used a fraudulent prescription form. Plain meaning of that term would be somebody wrote “Dr. A.B.C.” on there instead of “Dr. Breech.” Dr. Breech has testified that's his form. Yesterday the pharmacist [Dr. Trbula] testified that's a good form; there's nothing wrong with that prescription form. The indictment says “fraudulent prescription form.” Okay. So I think the legislators in their intent to note that was a separate thing—there's [sic] people out there, like, making checks. That's in my mind, “B” is like you're over there chucking the change and making your own checks. You're making your checks. Our legislators, that's why they have “A” up there. I mean, I think the evidence substantiates “A,” but you didn't indict her on that.
....
There is no definition of the word “form.” Okay. There is the definition of “prescription” provided but not for the word “form.” So when you don't have a legal definition, you go back to the common-law meaning of the definition of “form” which is a preprinted—preprinted, without looking at Webster's, would be a preprinted ... piece of document or paper that you fill in blanks, and that's what we have in this case.
Despite its apparent agreement with Avery's argument in her motion for directed verdict, the trial court denied the motion without explanation. The jury subsequently convicted Avery of the charged offense, and the trial court sentenced her to twenty-five years' confinement with a $1,500 fine. This appeal followed.
We treat a challenge to the denial of a motion for directed verdict as a challenge to the legal sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App.1996); see also Trevino v. State, Nos. 13–09–00511–CR & 13–09–00512–CR, 2010 WL 3279492, at *1, 2010 Tex.App. LEXIS 6751, at *3 (Tex.App.-Corpus Christi Aug. 19, 2010, no pet.) (mem. op., not designated for publication). To assess whether the evidence supporting the verdict is sufficient, we consider all the evidence in the record in the light most favorable to the jury's verdict and determine whether a rational jury could have found the defendant guilty of all the elements of the crime beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 898–99 (Tex.Crim.App.2010) (plurality opinion) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); see Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007).
We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Grotti v. State, 273 S.W.3d 273, 280–81 (Tex.Crim.App.2008). The hypothetically correct jury charge in this case would have required the jury to find that: (1) on or about January 15, 2009; (2) Avery knowingly; (3) possessed, obtained, or attempted to possess or obtain; (4) an increased quantity of a controlled substance; and (5) through use of a fraudulent prescription form. See TEX. HEALTH & SAFETY CODE ANN. § 481.129(a)(5)(B).
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Avery v. State
...We affirm the Court of Appeals's judgment of acquittal. 1. See Tex. Health & Safety Code § 481.129(a)(5)(B). 2. Avery v. State, 341 S.W.3d 490 (Tex.App.-Corpus Christi 2011). 3. Health & Safety Code § 481.129 reads, in pertinent parts: (a) A person commits an offense if the person knowingly......