Summary
In Kirby, the defendant was charged with “intentionally and knowingly obtain[ing] or attempt[ing] to obtain a controlled substance... by fraud through use of a fraudulent prescription form.” 2009 WL 1493006, at *1, 2009 Tex.App. LEXIS 3990, at *2.
Summary of this case from Avery v. State No. 05-08-00217-CR
Opinion Filed May 29, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the County Criminal Court Dallas County, Texas, Trial Court Cause No. MA07-04013-A.
Before Justices MORRIS, RICHTER, and LANG-MIERS. Opinion By Justice LANG-MIERS.
ELIZABETH LANG-MIERS, Justice.
A jury convicted Bobby Ray Kirby, Jr. of obtaining a controlled substance by fraud. The trial court assessed punishment at ninety days' confinement in the county jail, probated for twelve months, and a $500 fine. In a single issue, appellant contends the evidence is factually insufficient to support his conviction. We affirm.
Applicable Law
In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.), cert. denied, 128 S.Ct. 282 (2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). The State was required to prove beyond a reasonable doubt that appellant intentionally and knowingly obtained or attempted to obtain a controlled substance, i.e., a mixture and preparation containing not more than 200 milligrams of codeine and salts of codeine per 100 milliliters or per 100 grams, by fraud through the use of a fraudulent prescription form. See Tex. Health Safety Code Ann. § 481.129(a)(5) (Vernon 2003). Evidence Presented
Christopher Cardenas, a pharmacy technician, testified that on April 5, 2006, appellant came into the pharmacy where he worked and handed Martha Imade, another pharmacy technician, a prescription for eight ounces of Promethazine with codeine and twenty Veetid antibiotic tablets. Imade, who no longer works for the pharmacy, showed the prescription to Cardenas and to the pharmacist, Jorge Gregorisch. The prescription purported to be issued from Dr. Ronnie D. Shade to appellant, and was signed "Ronnie D. Shade, M.D." Gregorisch instructed Cardenas to tell appellant that it would take thirty minutes to fill the prescription. When appellant left the store, Gregorisch called Shade's office to verify the prescription. Gregorisch made a photocopy of the prescription, then told Cardenas to obtain appellant's identification. Cardenas testified that they were suspicious of the prescription because the medicine was no longer prescribed by physicians. When appellant returned to the pharmacy, Cardenas asked for his identification. Appellant left the store and returned a short time later with a driver's license. Cardenas testified that the name on the license matched the name of the patient on the prescription, and that the picture on the license matched the person who was standing in front of him. Cardenas showed the license to Gregorisch, copied all of the information from the license onto the back of the prescription photocopy, then gave the license back to appellant. Cardenas told appellant that he could not fill the prescription. Several days later, a police officer showed Cardenas a photographic lineup. Cardenas identified a photograph of appellant as the individual who gave them the prescription. Jorge Gregorisch, the pharmacist, testified that he was immediately suspicious when the technicians showed him the prescription because: (1) it had a different background and color than most other prescriptions, and looked like a photocopy; (2) the antibiotic Veetid had not been manufactured under that name for six years because the company had gone out of business; (3) he had received valid prescriptions from Shade, but those "scripts" were on white paper with a different font size and style; and (4) a fraudulent prescription had been presented to him about ten days earlier that was on the same paper and was represented to be from the same doctor. He did not fill that prescription because he believed it was a forgery. Gregorisch testified he asked Cardenas to tell the customer it would take thirty minutes to fill the prescription. After the customer left, Gregorisch called Shade's office and was told Shade would not be in until the next day. Gregorisch photocopied the prescription. When the customer returned, Cardenas asked for his driver's license. The customer went out to his vehicle and returned with the license. Gregorisch testified that the person waiting for the prescription to be filled was the same person pictured on the license. When the customer was told the prescription would not be filled, he asked for the prescription back, stating that he was going to take it to another pharmacy. The next day, Gregorisch contacted Shade's office, then the police. Gregorisch testified that eight ounces of Promethazine with codeine is equivalent to 240 milligrams. Karen Hill is Shade's office manager. Hill testified that she has worked in Shade's office for eight years and is familiar with his handwriting and signature. The pharmacy faxed her a copy of a prescription for verification. Hill testified that the prescription did not bear Shade's signature, and Shade told her he did not sign it. According to Hill, Shade neither writes out his first name nor writes "M.D." at the end of his name. Additionally, Shade had stopped using that particular prescription form two years earlier. Hill testified that appellant is not and has never been one of Shade's patients, she did not know him, and Shade never wrote a prescription for him. Detective Julie Cassidy testified she received a call from Gregorisch, who said he had been presented with a fraudulent prescription. Cassidy obtained appellant's name and driver's license information from Gregorisch. She contacted Shade's office and obtained a "Physician Statement" verifying that Shade did not write the prescription and that appellant was not Shade's patient. Cassidy created a photographic lineup that included appellant's picture and showed it to the two pharmacy technicians, Cardenas and Imade. They both identified appellant's photograph as the man who presented the prescription to them. Cassidy testified Veetid is a brand name for penicillin, a "dangerous" drug, and Promethazine with codeine is a "controlled substance." Both dangerous drugs and controlled substances require a prescription. Cassidy further testified that it is common for individuals to try to obtain Promethazine with codeine by fraud. Danny Davison, appellant's cousin and adopted brother, testified that there are at least four male family members who look like appellant, and that sometimes people mistake one for the other. Except for appellant, all of these family members have been incarcerated at least once. Some of them have addiction issues. Davison testified that they all see each other on weekends and at family gatherings, and they all have access to each others' personal belongings. According to Davison, on one occasion he knew that someone took his "identification" because he was arrested for traffic offenses that he did not commit. Davison admitted that when he was underage, he "borrowed" one of his relatives' "identification" so that he could buy cigarettes and alcohol. Davison testified he did not take appellant's "identification" and try to fill a prescription that did not belong to him. Appellant testified he did not recall where he was on April 5, 2006, but he knew "with certainty" he was not trying to fill a prescription. Appellant testified that he is a naturalist and vegetarian, does not take medicine, has no addiction issues, has not been to a doctor in years, and has never been to the pharmacy. Appellant testified that he found out about the charges against him when he was arrested on July 31, 2006. He had been closing on a house and realized his "identification" was not in his wallet. He went to the motor vehicles department to obtain a copy of his "identification," but was detained and then arrested. Appellant testified that several of his family members look like him, and Davison has been mistaken for appellant in the past and "vice versa." All of the family members who look like appellant have been to the penitentiary, but they were not incarcerated on April 5, 2006. All family members had access to appellant's wallet at family gatherings and on weekends, and maybe one of them tried to fill the prescription. Appellant testified that he did not know Dr. Shade. Appellant further testified that he was the 2006 Teacher of the Year at Thomas Edison Middle School, a published author of the Christian book Alone on Shadow Mountain, and a reverend in charge of the youth group at Mount Gillead Baptist Church. Discussion
Appellant contends that the evidence is factually insufficient because he did not present the prescription to Cardenas, and that either a family member or other unnamed person may have presented the fraudulent prescription to be filled by the pharmacy. The State responds that the evidence is factually sufficient to support appellant's conviction for obtaining a controlled substance by fraud. There was conflicting evidence presented to the jury. While appellant denied presenting the prescription and testified that perhaps a family member presented it to the pharmacy, Cardenas positively identified appellant as the man who presented the prescription and driver's license. Gregorisch also testified that the customer who presented the prescription and driver's license was the same person whose picture was on the driver's license. It was the jury's function to resolve the conflicts in the evidence, and the jury was free to accept or reject any or all of the evidence presented by either side. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). Viewed under the proper standard, we conclude the evidence is factually sufficient to support the jury's finding that appellant obtained or attempted to obtain a controlled substance by fraud. See Roberts, 220 S.W.3d at 524. We resolve appellant's sole issue against him. We affirm the trial court's judgment.