Oler v. State

998 S.W.2d 363, 1999 WL 566893

• Court: Court of Appeals of Texas
• Decided: October 13, 1999
• Docket: 05-97-01229-CR
• Status: Published

Opinions

OPINION

Opinion By

Justice LAGARDE.

Appellant Wendell Hollis Oler appeals his conviction, after a trial before the court, of knowingly and intentionally possessing and attempting to possess a controlled substance, to-wit: DILAUDID, the generic name being HYDROMOR-PHONE, by misrepresentation, fraud, forgery, deception, or subterfuge. See Tex. Health & Safety Code Ann. § 481.129(a)(4)(A) (Vernon Supp.1999). The court assessed punishment, enhanced by one prior conviction, at fifteen years’ confinement. Appellant raises two issues: (1) Was the evidence sufficient to sustain his conviction? and (2) Was the indictment fundamentally defective for failure to plead an offense? For reasons that follow, we affirm the trial court’s judgment.

Factual & Procedural Background

Following the trial court’s denial of appellant’s motion to quash the indictment on the grounds that it failed to allege an offense, this case was tried before the court on stipulated facts.

In relevant part, the indictment charged appellant with:

unlawfully, knowingly and intentionally possess[ing] and attempting] to possess a controlled substance, namely: DILAUDID the Generic name being HYDROMORPHONE by misrepresentation, fraud, forgery, deception and subterfuge, in that said defendant did then and there present the same medical problem, to wit: “TRIGEMINAL NEURALGIA”, and medical records to four (4) doctors within the time period beginning on April 19, 1998 and ending September 20, 1993 without informing each doctor of current and past treatment by the other doctors and did obtain ■ multiple prescriptions for DILAU-DID in sequences as follows which are outside the scope of accepted medical practice and treatment:

Date Doctor Dilaudid Received

4-19-93 Elliott 100 tablets

4-23-93 Anthony 100 tablets

5-3-93 McPhaul 180 tablets

5-7-93 Elliott 100 tablets

6-1-93 McPhaul 180 tablets

6-2-93 Anthony 200 tablets

6-17-93 Elliott 100 tablets

6-23-93 Anthony 200 tablets

7-13-93 Anthony 200 tablets

7-15-93 Elliott 100 tablets

8-2-93 McPhaul 180 tablets

8-4-93 Elliott 150 tablets

8-16-93 Merkin 100 tablets

8-19-93 Anthony 200 tablets

9-17-93 Merkin 100 tablets

9-20-93 Elliott 180 tablets

To summarize, the indictment alleges that appellant received and processed sixteen prescriptions during a five-month period, from four different doctors, without disclosing material information and thereby fraudulently and deceptively gained possession of 2,370 tablets of Dilaudid, a controlled substance. See Health & Safety Code ANN. § 481.102(3)(A) (Vernon Supp. 1999).

During trial, the State introduced a written stipulation, signed by appellant personally, his defense counsel, and the State. It stipulated that each of the four doctors named in the indictment would testify concerning the dates and the amounts of Dilaudid each had prescribed for appellant on each date. Each of the doctors would also testify that at no time did appellant inform him that appellant was being treated by other doctors and that appellant was obtaining multiple prescriptions for Dilau-did. The State and appellant also agreed that the stipulated testimony was true and correct and that each of the above activities described occurred in Dallas County, Texas. The court found appellant guilty as charged and pronounced sentence.

Appeal

On appeal, appellant raises two issues, which he later characterizes as “points of error,” in his brief. The issues are closely related and can be resolved together. Appellant asserts that he was charged with conduct by omission — failing to inform the doctors he consulted that he was receiving a controlled substance, Dilaudid, from other sources. He argues there is no statutory duty placed upon a patient to disclose to his doctor that he is receiving medical treatment or a controlled substance from another source. Because the State did not prove the existence of a statutory duty to disclose such information, according to appellant, the evidence was not sufficient to convict him. In the absence of a statutory duty to act, appellant argues that he could not be convicted of the charged omission. For the same reasons, appellant continues, the indictment failed to allege a statutory duty to act; therefore, the indictment was fundamentally defective for failing to allege an offense. Relying on an outdated version of section 6.01(c) of the penal code and the case of Billingslea v. State, 780 S.W.2d 271, 273-74 (Tex.Crim.App.1989), appellant argues that because the conduct with which he is charged is conduct by omission, the State was required to prove a corresponding statutory duty to act. See Tex. Pen.Code Ann. § 6.01 (Vernon 1994).¹ Appellant argues that because the State did not allege a statutory duty, the indictment is fundamentally defective. Appellant also argues that because the State did not prove a statutory duty, the evidence is legally insufficient to support his conviction.

We disagree. Appellant is mistaken that he is charged with a crime committed by omission or a failure to act, and is further mistaken that Billingslea applies to the facts of this case. Appellant is charged with a crime of commission, not omission. Billingslea is inapplicable because its holding that a statutory duty is required has been overruled by the amendment to section 6.01 and it is factually distinguishable. Because appellant was charged with an offense of commission, i.e., the act of possessing or attempting to possess a controlled substance by presenting the same medical problem and medical records to multiple doctors and receiving multiple prescriptions, without disclosing to each doctor the material information that he was receiving treatment and prescriptions from other doctors at the same time, the State was not obligated to either plead or prove a duty to act.

The dissent asserts that the prescriptions by which appellant obtained Dilaudid were “valid prescriptions.” Even if that were true, which we do not conclude, it is irrelevant and has no bearing on the offense for which appellant was charged and convicted. The gravamen of the offense with which appellant was charged is possessing and attempting to possess a controlled substance. See Bush v. State, 628 S.W.2d 270, 273 (Tex.App.-Amarillo 1982, pet. ref'd). If one obtains possession of a controlled substance by a forged prescription, once the State alleges an attempt was made to obtain possession by misrepresentation or otherwise, an offense is charged and neither the purport nor tenor of the forged prescription used is necessary to allege the offense. Id. The Texas Court of Criminal Appeals has held that an indictment for this offense need not set out the elements of passing a forged writing. Harrell v. State, 643 S.W.2d 686, 689 (Tex.Crim.App. [Panel Op.] 1982). The tenor of the prescription is of no consequence in alleging the offense of obtaining a controlled substance through fraud. Robinson v. State, 686 S.W.2d 323, 325 (Tex.App.-Houston [14 th Dist.] 1985, pet. ref'd). Attempting to possess or possessing a controlled substance is the offense, and making the attempt or the possession is an act of commission, not omission.

Forging a prescription may in itself be an offense, but, as the cases cited above indicate, a prescription need not be forged to commit the offense of attempting to obtain possession of a controlled substance by fraud or deception. Hence, the State need not prove that a prescription was forged to obtain the conviction of a defendant of the offense of attempting to obtain possession.

Appellant was charged with a criminal offense defined by a law not found in the penal code, but, rather, a law found in the Texas Health and Safety Code. Specifically, appellant was charged under that section of the health and safety code that provides: “[A] person commits an offense if the person knowingly possesses or attempts to possess a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.” Tex. Health & Safety Code Ann. § 481.129(a)(4)(A) (Vernon Supp.1999).

A person commits a criminal offense only if he voluntarily engages in conduct, including an act, an omission, or possession. Tex. Pen.Code Ann. § 6.01(a) (Vernon 1994). “Conduct” means an act or omission and its accompanying mental state. Tex. Pen.Code Ann. § 1.07(10) (Vernon 1994). Conduct constitutes an offense if it is defined as an offense by statute. Tex. Pen.Code Ann. § 1.03(a) (Vernon 1994). Section 1.03(a) applies to offenses defined by other laws, unless the statute defining the offense provides otherwise. Tex. Pen.Code Ann. § 1.03(b) (Vernon 1994). Section 481.129(a)(4)(A) does not provide otherwise. Consequently, the conduct of possessing or attempting to possess a controlled substance by fraud or deception constitutes an offense because it is defined as an offense by statute. Tex. (a)(4)(A) (Vernon Supp.1999).

A person commits an offense if the person knowingly possesses or attempts to possess a controlled substance “by misrepresentation, fraud, forgery, deception, or subterfuge.” Tex. Health & Safety Code ANN. § 481.129(a)(4)(A) (Vernon Supp. 1999). Appellant correctly observes that the Texas Health and Safety Code does not define either “fraud” or “deception.” As a result, he contends that the statute under which he was indicted did not impose upon him an affirmative duty to disclose to his treating physicians the fact that he was obtaining Dilaudid from multiple sources.

Appellant’s analysis fails because his underlying premise — that he was charged with conduct by omission-is flawed. Appellant was charged with conduct by commission, not omission. He was charged with the act of possessing or attempting to possess a controlled substance by fraudulent means, to-wit, by presenting an incomplete medical history and incomplete records to each doctor. He was not charged with conduct by a failure to act, or by omission; consequently, section 6.01(c) does not apply and the State was not required to either plead or prove a corresponding duty to act.

Unlike the indictment in Billingslea, the indictment under which appellant was charged did contain an allegation that a punishable “act” occurred. Cf. Billingslea, 780 S.W.2d at 271 n. 2 (the indictment did not contain an allegation that a punishable “act” occurred). Billingslea was charged with “failing to obtain medical care.” Billingslea, 780 S.W.2d at 275. Billingslea was charged with a crime of neglect committed by omission; thus, the State was required to plead and prove a duty to act. Because appellant was indicted and convicted of conduct by commission, to-wit, by the act of possessing and attempting to possess a controlled substance by a fraudulent or deceptive means, the State had no obligation to plead or prove a duty to act. See Billingslea, 780 S.W.2d at 275 (criminal responsibility for acts does not require an underlying duty of any kind). Billing-slea is, therefore, factually distinguishable and does not apply to the facts in this case.

The statute under which appellant was charged does not specially define the terms “fraud” and “deception.” When words are not specially defined by the Legislature, they are to be understood as ordinary usage allows, and a fact finder may thus freely read statutory language to have any meaning which is acceptable in common parlance. See Vernon v. State, 841 S.W.2d 407, 409 (Tex.Crim.App.1992) (applying principle to jurors). It is our duty when interpreting a statute to give the ordinary and plain meaning to the language of the Legislature. State v. Mancuso, 919 S.W.2d 86, 87 (Tex.Crim.App.1996). Thus, when we determine the sufficiency of the evidence to support a jury verdict, we must not employ definitions of relevant statutory words which are different or more restrictive than the jurors themselves were legally entitled to use. Vernon, 841 S.W.2d at 409. We conclude the same is true when the trial judge is the trier of fact, as here. We now look to how the words “fraud” and “deceit” are understood in ordinary usage.

Webster’s Dictionary defines “fraud” in its primary definition of the word as, among other things, “an intentional misrepresentation, concealment, or nondisclosure for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right.” Webster’s Third New International DiCtionary 904 (1981) (emphasis added). Still within the primary definition, Webster’s defines “fraud” as “a false representation of a matter of fact by words or conduct, by false or misleading allegations, or by the concealment of what should have been disclosed that deceives or is intended to deceive another so he shall act upon it to his legal injury.” Id. (emphasis added). Webster’s defines “deceit,” as part of the primary definition, as “the act or practice of deceiving (as by falsification, concealment, or cheating).” Id. at 584 (emphasis added). The Oxford English Dictionary defines “deceit,” as its primary definition, as “[t]he action or practice of deceiving; concealment of the truth in order to mislead; deception, fraud, cheating, false dealing.” 4 OxfoRD English Dictionary 324 (2d ed.1989) (emphasis added).

Thus, nondisclosure of a material fact, in order to obtain what one would otherwise not be able to obtain, can constitute fraud. Appellant argues that the “gravamen” of his conduct was that “he went to several doctors, obtained several prescriptions for a controlled substance, but did not inform each doctor he was getting the drug from another doctor. In essence, the evidence showed an omission to disclose.” Appellant is wrong. As we stated earlier, the gravamen of the offense is the attempting to possess or possessing a controlled substance. Bush, 628 S.W.2d at 273. The failure to disclose a material fact with the intent to deceive is the heart of the fraud and deception elements of the offense for which appellant was indicted and convicted.

Appellant suggests that he simply failed to disclose his medical history and current treatment to each of the four doctors he visited, and he contends that his failure to do so is not a criminal offense. We disagree. Appellant was charged with, and convicted of, the punishable act of possessing or attempting to possess a controlled substance by “misrepresentation, fraud, forgery, deception, and subterfuge.” If the nondisclosed information were immaterial then perhaps it would be insufficient to constitute the “fraud” or “deception” element. If, for example, appellant failed to disclose that he had taken some aspirin two months before, a trier of fact might reasonably conclude that such fact was immaterial; thus, there was no fraud or deception and no offense was committed. However, each doctor individually prescribed Dilaudid in amounts averaging only three tablets a day, but never more than six tablets a day. Because of the multiple prescriptions, however, appellant obtained an average of sixteen tablets a day over a five-month period, with more frequent prescriptions toward the end of that period. The trier of fact could rationally have concluded that appellant’s own conduct shows the materiality of the non-disclosed fact of the multiple prescriptions, as well as his intent to deceive. Appellant’s failure to disclose to each of the physicians that he was obtaining Dilaudid from other sources permitted a rational trier of fact to reasonably conclude that the nondisclosure was material because it was intended to induce the physicians into prescribing medication that they would not have otherwise prescribed.

Appellant’s charged conduct is the punishable act of possessing or attempting to possess a controlled substance by fraud and deceit. Appellant’s conduct in possessing the controlled substance involves a punishable “act,” not a simple omission. Criminal responsibility for acts does not require an underlying duty of any kind. Billingslea, 780 S.W.2d at 275. The method or means by which appellant obtained the controlled substance was by the reporting of incomplete medical history and records to a physician, while concealing the truth about certain material information, with the intent to deceive or mislead the physician into prescribing a controlled substance. The possessing or attempting to possess a controlled substance by the concealment of material information, in an effort to deceive or defraud the physicians, is the offense proscribed by section 481.129(a)(4)(A).

Moreover, in the alternative, even if the State were required to prove that appellant had a duty to disclose material information, we conclude that section 481.129(a)(4)(A) of the Texas Health and Safety Code imposes an affirmative legal duty on one obtaining a controlled substance from a physician to do so without engaging in “misrepresentation, fraud, forgery, deception, or subterfuge.” Tex. Health & Safety Code Ann. § 481.129(a)(4)(A) (Vernon Supp.1999). Thus, appellant had a legal duty to inform the physician of material facts. If we substitute their definitions for the terms “fraud” and “deception,” the statute means that a person commits an offense if he knowingly possesses or attempts to possess a controlled substance: (1) by an intentional concealment or nondisclosure of a material fact for the purpose of inducing the controlled substance provider to part with the controlled substance; or (2) by concealing a material fact in order to mislead a physician into giving a prescription that the physician would not have given had the information been disclosed.

The dissent argues that “the law is clear that it is the physician’s duty to obtain a patient history in order to adequately diagnose and treat a patient.” The authorities the dissent cites, however, are all medical malpractice cases. We do not dispute that a plaintiff in a medical malpractice case must prove that a physician has a duty to act according to a certain standard of care. See Bradford v. Alexander, 886 S.W.2d 394, 396 (TexApp.-Houston [1 st Dist.] 1994, no writ). Nor do we dispute that, as part of that duty, a physician may have the obligation to inquire into a patient’s medical history.

This case, however, does not involve medical malpractice; it involves the commission of a criminal offense. The duty of a physician to maintain a certain standard of care and the duty of a person to abstain from criminal conduct are separate and distinct duties. Intent may be proved by circumstantial evidence, such as the quantity of drugs possessed. Gabriel v. State, 842 S.W.2d 328, 331 (Tex.App.-Dallas 1992), aff'd, 900 S.W.2d 721 (Tex.Crim.App.1995). In the same way, appellant’s intent to obtain a controlled substance may be proved by circumstantial evidence. Appellant went to four separate doctors to obtain Dilaudid. It would have been more convenient and less time-consuming to go only to one doctor, had appellant believed that one doctor would have prescribed him the amount of Dilaudid that he wanted. That appellant concealed from each doctor the fact that he was obtaining Dilaudid from three other doctors is a fact material to his commission of a criminal offense.

Appellant relies on an outdated version of section 6.01(c) and Billingslea for the proposition that an omission is not an offense unless a defendant has a statutory duty to act. See Tex. Pen.Code Ann. § 6.01(c) (Vernon 1994); Billingslea, 780 S.W.2d at 276. We note, however, that, at the time the Texas Court of Criminal Appeals issued its opinion in Billingslea^ section 6.01(c) of the Texas Penal Code read that “a person who omits to perfoirm an act does not commit an offense unless a statute provides that the omission is an offense or otherwise provides that he has a duty to perform an act.” Billingslea, 780 S.W.2d at 274. In 1993, the Legislature amended section 6.01(c) by deleting the word “statute” and inserting in its place the phrase “law as defined by section 1.07 of this code,” as section 6.01(c) now reads. Act of Feb. 18, 1993, 73d Leg., R.S., ch. 3, § 1, 1993 Tex. Gen. Laws 10, 10. Section 1.07, in turn, gives a very broad definition of law:

the constitution or a statute of this state or of the United States, a written opinion of a court of record, a municipal ordinance, an order of a county commissioners court, or a rule authorized by and lawfully adopted under a statute.

Tex. Pen.Code Ann. § 1.07(a)(30) (Vernon 1994). By this amendment, that portion of Billingslea’s holding that requires a statutory duty has been overruled.

Appellant’s first point of error asserts that the evidence was insufficient to sustain appellant’s conviction because the State proved no statutory duty to act that would criminalize appellant’s conduct. Appellant’s second point of error asserts that appellant’s indictment was fundamentally defective because it failed to allege a statutory duty to act, and hence it failed to allege an offense.

For all the reasons set out above, we hold that section 481.129(a)(4)(A) of the Texas Health and Safety Code proscribes conduct by commission, not omission. Because the stipulated evidence proved punishable acts committed by appellant, we conclude the evidence was sufficient to sustain his conviction. We further hold that the indictment under which appellant was charged alleged a punishable act; thus, its failure to allege a legal duty to act does not render it fundamentally defective for failure to state an offense. Because appellant was charged with committing a punishable act, section 6.01(c) does not operate to impose on the State an obligation to either plead or prove a duty to act.

We overrule both points of error and affirm the trial court’s judgment.

1 . Appellant incorrectly states that section 6.01(c) provides that conduct by omission is not an offense unless the defendant had a statutory duty to act. The current version of section 6.01(c) provides that one who fails to act does not commit an offense unless a law as defined by section 1.07 provides that the omission is an offense or otherwise provides that he has a duty to perform the act. TEX. PEN. CODE § 6.01(c)(Vernon 1994). "Law” as currently defined in section 1.07 is not limited to a statute.