Edwards v. State

487 S.W.3d 330, 2016 Tex. App. LEXIS 2803, 2016 WL 1072636
CourtCourt of Appeals of Texas
DecidedMarch 17, 2016
DocketNo. 11-13-00364-CR
StatusPublished
Cited by2 cases

This text of 487 S.W.3d 330 (Edwards 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
Edwards v. State, 487 S.W.3d 330, 2016 Tex. App. LEXIS 2803, 2016 WL 1072636 (Tex. Ct. App. 2016).

Opinion

OPINION

JOHN M. BAILEY, JUSTICE

Kelly Diane Edwards was indicted for the offense of intentionally and knowingly attempting to possess a controlled substance by “misrepresentation, fraud, forgery, deception and subterfuge.” See Tex. Health & Safety Code Ann. § 481.129(a)(5)(A) (West Supp.2015). The jury convicted Appellant of the offense. The trial court assessed a fíne of $500 and sentenced her to confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of seven years, but the trial court probated the confinement portion of the sentence and placed Appellant on community supervision for seven years. In three issues on appeal, she asserts that (1) the evidence was insufficient to support her conviction, (2) the trial court erred by failing to include the essential elements of the attempted offense in the jury charge, and (3) her trial counsel rendered ineffective assistance of counsel. We affirm.

Background Facts

At 4:20 p.m. on January 20, 2012, Paul Dwight Davenport, a pharmacist at the H.E.B. grocery store in Abilene, received a message on the pharmacy’s prescription phone-in system. The call purported to be from someone named “Lisa” at Dr. Brad Kendrick’s office. The caller requested a prescription of thirty tablets of “Norco 10” for Appellant. Davenport testified that Norco 10 is a combination of hydrocodone and acetaminophen and that it is a Schedule III controlled substance.

Davenport suspected that the prescription was fraudulent because relevant information required to fill the prescription was missing and it was unusual .for a prescription to be called in so late on a Friday because most doctor’s offices in Abilene are closed on Friday afternoons. Lastly, Davenport noticed that the call did not come from a doctor’s office based on the caller ID information. He cross-checked the phone number on the ealler ID with the pharmacy computer system and found that the phone number belonged to Appellant, confirming his suspicion that the prescription was fraudulent.

Davenport contacted Agent David Gray with the Abilene Police Department. Agent Gray came to the pharmacy the following Monday and made a recording of the message left by Appellant. He then spoke with Lisa Villarreal in Dr. Kendrick’s office. She confirmed that Appellant was Dr. Kendrick’s patient. Villarreal later listened to a recording of the message left at the pharmacy. She identified Appellant as the caller.

Agent Gray subsequently called Appellant several times attempting to arrange for her to come to the Law Enforcement Center to talk about the matter. He reached her at the same phone number from which the call to the pharmacy had [333]*333come. However, a meeting with Appellant never occurred.

Villarreal testified that she is a medical assistant for Dr. Kendrick, a surgeon. She is the person in his office that usually calls in prescriptions for his patients to pharmacies. Villarreal testified that Appellant was a patient of Dr. Kendrick and that Appellant had surgery on December 29, 2011. Villarreal stated' that Dr. Kendrick prescribed pain medication for Appellant after the surgery and that she had multiple phone conversations with Appellant about pain medication between the date' of the surgery and January 20, 2012. Most of these phone conversations' involved Appellant requesting more1 pain medication. Villarreal testified that Appellant called her three times on January 20, 2012, requesting more pain medication. Villarreal told Appellant that Dr. Kendrick would not be giving her any more medication until January 23, 2012, when Appellant had an appointment to see him. Villarreal also testified that she was familiar ■with Appellant’s voice and that she identified the caller as Appellant on the recording that Agent Gray played for her.

Analysis

In her first issue, Appellant challenges the sufficiency of the evidence supporting her conviction. -Appellant bases her evidentiary contention on the Texas Penal Code’s “Criminal Attempt” statute. Tex. Penal Code Ann. § 15.01 (West 2011). Section 15.01(a) provides that “[a] person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.” Id. § 15.01(a). Appellant bases all three of her issues on Section 15.01(a). She alleges in her first issue that the sufficiency of the evidence should be assessed under the standard set out in Section 15.01(a). In her second issue, she contends that the trial court should have included the elements of Section 15.01(a) in the court’s charge. Appellant alleges in her third issue that her trial counsel was ineffective for failing to request the trial. court to include the elements of Section 15.01(a) in the court’s charge.

We-review a sufficiency of the evidence issue under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. .2781, 61 L.Ed.2d 560 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex.App.-East-land 2010, pet. ref d). Under the Jackson standard, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable-doubt. Jackson, 443 U.S. at 319, 99 S.Ct. 2781; Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim. App.20.10). When conducting a sufficiency review, we consider all the evidence admitted at trial, including pieces of evidence that may have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim.App.2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007). We defer to the factfinder’s role as the sole judge of the witnesses’ credibility and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder’s duty to resolve conflicts in- the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. 2781; Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict and defer to that determination. Jackson, 443 U.S. [334]*334at 326, 99 S.Ct. 2781; Clayton, 236 S.W.3d at 778.

The indictment charged Appellant in the following mariner:

' KELLY DIANE EDWARDS did then and there intentionally and' knowingly attempt to possess a controlled substance, to-wit: Hydroeod'one listed iri Schedule III by the misrepresentation, fraud, forgery, deception and subterfuge; in that' the said KELLY DIANE EDWARDS did then and there call in a prescription by telephone to Paul Dav- ■ enport knowing the prescription was not valid. ■

The indictment tracked Section 481.129(a)(5), which provides that “[a] person commits an offense if the persori knowingly ...

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Cite This Page — Counsel Stack

Bluebook (online)
487 S.W.3d 330, 2016 Tex. App. LEXIS 2803, 2016 WL 1072636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edwards-v-state-texapp-2016.