Avery v. State

341 S.W.3d 490, 2011 Tex. App. LEXIS 2347, 2011 WL 1195998
CourtCourt of Appeals of Texas
DecidedMarch 31, 2011
Docket13-10-00339-CR
StatusPublished
Cited by2 cases

This text of 341 S.W.3d 490 (Avery v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Avery v. State, 341 S.W.3d 490, 2011 Tex. App. LEXIS 2347, 2011 WL 1195998 (Tex. Ct. App. 2011).

Opinions

OPINION

Opinion by

Chief Justice VALDEZ.

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.

I. BACKGROUND

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 hydroco-done, for Avery. Dr. Breech used his own prescription form when filling out the prescription, and at trial, he noted that he [492]*492prescribed Avery the lowest dose of Lor-tab 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 “a typical — just a plain prescription pad. This was — I believe — yeah, it does have a security guard on the back.”6 [493]*493Nevertheless, 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 attempted] 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 casein-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 testimony is that the prescription form is not fraudulent. It is the prescription form of the doctor. What the testimony has been is that the prescription itself, that the doctor wrote on his form was altered.” 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 [494]*494the change and making your own checks. You’re making your checks. Our legislators, that’s why they have “A” up there.

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Related

Avery, Billie Jean
359 S.W.3d 230 (Court of Criminal Appeals of Texas, 2012)
Avery v. State
341 S.W.3d 490 (Court of Appeals of Texas, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
341 S.W.3d 490, 2011 Tex. App. LEXIS 2347, 2011 WL 1195998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avery-v-state-texapp-2011.