Summary
noting that attempt to possess controlled substance by fraudulent means is not conduct that fails to effect commission of offense
Summary of this case from Fountain v. StateOpinion
No. 11-14-00354-CR
12-30-2016
APOLLO VELAZQUEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 39th District Court Haskell County, Texas
Trial Court Cause No. 6743
MEMORANDUM OPINION
The jury convicted Apollo Velazquez of the felony offense of prescription fraud. See TEX. HEALTH & SAFETY CODE ANN. § 481.129(a)(5)(A) (West Supp. 2016). After finding the two enhancement paragraphs to be true, the jury assessed Appellant's punishment at confinement for life. We affirm the conviction, but because we hold that the evidence is insufficient to support a finding of true as to the first enhancement paragraph, we reverse in part and remand this cause to the trial court so that it may hold a new punishment hearing.
Appellant presents four issues on appeal. In his first issue, Appellant challenges the sufficiency of the evidence to support his conviction. Specifically, he contends that the State failed to prove that he acted with the specific intent to obtain an increased quantity of a controlled substance by fraud.
We review the sufficiency of the evidence under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (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.—Eastland 2010, pet. ref'd). Under the Jackson standard, we examine all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and any reasonable inferences from it, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007), art. 38.04 (West 1979). As such, the jury is entitled to accept or reject any or all of the testimony of any witness. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). In addition, the jury is entitled to draw reasonable inferences from the evidence. Jackson, 443 U.S. at 319.
The evidence presented in Appellant's trial shows that Dr. Mark Mankins was treating Jennifer Kimbro, Appellant's girlfriend, for pelvic pain and that Dr. Mankins prescribed Kimbro thirty tablets of methadone. Appellant presented the prescription for the methadone to one of the pharmacy staff members at The Drug Store in Haskell. Keith Everett, one of the pharmacists at The Drug Store, testified that, when he received the prescription, he believed that the quantity had been changed from "30" to "80"; it appeared that the "3" had been made into an "8." Everett told Appellant that it looked like the prescription had been changed and that he could not fill the prescription as written. He further told Appellant that he would need to call the doctor to verify the quantity before he could fill it. Appellant "became a little upset." Everett returned the prescription form to Appellant, and Appellant then left the store.
Appellant returned to the store and again gave the prescription form to Everett, and Everett again told Appellant that he would have to call the doctor to verify the quantity. Everett called Dr. Mankins, faxed the prescription form to Dr. Mankins to review, and was told that the prescription form had been altered.
Dr. Mankins testified that he did not write "80" on the prescription form, nor did he draw a line through the word "thirty." He did not know who altered the number from "30" to "80," but the change was not made with his consent. Dr. Mankins explained that methadone was a pain medication and that people sometimes abused it or even sold it on the streets.
The record also shows that Kimbro called the pharmacy later that same day to see if her prescription was ready. Everett informed her that there was not a prescription ready for her and that she would no longer be allowed to have prescriptions filled at that pharmacy because her prescription for methadone had been altered.
Geraldo "Jerry" Martinez, a private investigator for the defense, testified that, when he spoke with Everett, Everett did not recall that Appellant had a negative response to Everett telling Appellant that Everett would have to call the doctor to verify the prescription. Everett also told Martinez that, when Appellant came back to the pharmacy the second time, Appellant specifically asked Everett if Everett could fill the prescription at a quantity of thirty. Everett further told Martinez that Appellant never asked for the prescription to be filled at a quantity of eighty and that Appellant never mentioned the word eighty. On cross-examination, the State pointed out that Everett's statement to law enforcement was made four days after the incident and that Everett's statement to Martinez was made six months after the incident. Martinez agreed that Everett would probably have a better memory of the incident four days after it occurred.
Section 481.129(a)(5) provides, in relevant part, that "[a] person commits an offense if the person knowingly . . . possesses, obtains, or attempts to possess or obtain a controlled substance or an increased quantity of a controlled substance . . . by misrepresentation, fraud, forgery, deception, or subterfuge." HEALTH & SAFETY § 481.129(a)(5)(A). The State specifically alleged that Appellant intentionally or knowingly attempted to possess or obtain an increased quantity of methadone by presenting a prescription that had been altered.
Appellant argues that, while there was an obvious alteration on the prescription form, there was not any evidence that he knew that it was altered. Appellant contends that he never asked for an increased amount of methadone, nor did he contest the prescription being verified by the prescribing doctor. Appellant also argues that Everett's testimony was unreliable and, thus, that the jury should have disregarded it. Appellant further argues that he could not have picked up the prescription because Kimbro had not told the pharmacy that he had permission to pick up the methadone. He asserts, therefore, that there was no evidence that he had the specific intent to obtain or possess the increased quantity of pills.
Section 481.129(a)(5) does not require Appellant to have acted intentionally even though the State charged Appellant with acting intentionally or knowingly. The statute provides that a person commits an offense if he knowingly attempts to possess or obtain a controlled substance. HEALTH & SAFETY § 481.129(a)(5)(A). Both intent and knowledge may be inferred from the accused's acts, words, and conduct. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (citing Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999)).
The record shows that, Appellant knew at least by the second time that he tried to fill the prescription, that the prescription was altered. Even though defense counsel established during Everett's cross-examination that Appellant never tried to convince Everett to give him eighty pills, there was no dispute at trial that the prescription form said "80" instead of the prescribed "30." Everett testified that he did not remember Appellant requesting the prescription to be filled at thirty pills, but Martinez testified that Everett told him that Appellant did specifically ask Everett to fill the prescription at only thirty pills. It was within the jury's province to resolve any inconsistencies or conflicts between the witnesses' testimony. Jackson, 443 U.S. at 319. In addition, the jury was the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. CRIM. PROC. art. 36.13, art. 38.04. Therefore, the jury was free to believe Everett's testimony and free to disbelieve Martinez's testimony regarding whether Appellant specifically requested thirty pills as originally written on the prescription form.
The jury was also entitled to resolve any inconsistencies between the witnesses' testimony regarding whether Appellant objected to Everett verifying the prescription with the prescribing doctor. The jury was also free to believe that Appellant did become upset and leave when Everett told him that he could not fill the prescription and that Everett would need to call the doctor to verify the quantity before he could fill it. Thus, the jury could have also inferred that Appellant knew that the prescription was altered the first time that he tried to fill the prescription based upon his reaction at the pharmacy when he was told that the prescription could not be filled and based upon his subsequent departure from the pharmacy without leaving the written prescription for verification. Furthermore, the jury could have inferred that Appellant knew it was altered because of how obvious the alteration looked to everyone that viewed the prescription form.
The jury could have also found that Appellant was attempting to obtain the excess methadone even though Kimbro had not expressly given Appellant permission to pick up the prescription at the time that Appellant attempted to drop off the prescription. Kimbro had told the pharmacy in the past that Appellant had permission to pick up some of her prescriptions, and after Appellant attempted to have the prescription filled, Kimbro could have called and requested that Appellant be allowed to pick up the prescription on this occasion. Therefore, based on the evidence presented, it was not a foregone conclusion that Appellant could not pick up the prescription once it was filled. The evidence showed that Appellant attempted to have the prescription filled and that he had picked up Kimbro's prescriptions in the past. The statute does not require the State to prove who will ultimately use the controlled substance.
The State did not charge Appellant with actually possessing or obtaining the controlled substance; the State charged Appellant with attempting to possess or obtain the controlled substance. We have reviewed the evidence in the light most favorable to the verdict, and we hold that a rational trier of fact could have found beyond a reasonable doubt that Appellant knowingly attempted to possess or obtain an increased quantity of methadone by presenting a prescription that had been altered. Appellant's first issue is overruled.
In his second issue, Appellant asserts that the trial court erred when it failed to include the definition of "attempt" in the jury charge and when it reduced the mental state required for a conviction from "intentionally" to "knowingly." Defense counsel objected to the trial court's charge and specifically requested the trial court to add the following language to the charge: "A person commits an offense if, with the 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." See TEX. PENAL CODE ANN. § 15.01(a) (West 2011). He also requested that the trial court remove the definition for "knowingly" and instead include the definition for "intentionally." The trial court overruled Appellant's objections to the charge.
The jury charge provided that "a person commits the offense of Fraud if he intentionally or knowingly attempts to possess or obtain a controlled substance or an increased quantity of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge." The trial court provided the definition of both "intentionally" and "knowingly," but did not provide the definition of "attempt." The application paragraph also contained the phrase "intentionally or knowingly" even though the statute itself requires only that the offense be committed "knowingly." See HEALTH & SAFETY § 481.129(a)(5) (providing that a person commits an offense if the person knowingly possesses, obtains, or attempts to possess or obtain a controlled substance or an increased quantity of a controlled substance).
In March of this year, we were faced with the issue of whether the provisions of Section 15.01(a) of the Texas Penal Code, regarding criminal attempt, were essential elements of the charged offense of prescription fraud and whether the trial court erred when it failed to instruct the jury on the elements of criminal attempt or provide the definition of "attempt." Edwards v. State, 487 S.W.3d 330, 336 (Tex. App.—Eastland 2016, no pet.). We note that Appellant did not have the benefit of the Edwards opinion when he filed his brief. In Edwards, we held that the provisions of Section 15.01(a) were not essential elements of an offense under Section 481.129(a)(5) and that, therefore, the trial court was not required to instruct the jury on criminal attempt. Id. We explained that it is not necessary to invoke the criminal attempt statutory language to charge or convict a person under Section 481.129(a)(5) because Section 481.129(a)(5) specifically provides that a person commits an offense if the person attempts to possess a controlled substance by fraudulent means. Id. at 334-37. Therefore, as in Edwards, the trial court here was not required to include in the jury charge the definition of "attempt," as used in Section 15.01(a), because Appellant's conduct was not conduct that "fail[ed] to effect the commission of the offense"; Appellant's conduct did effect the commission of the offense. See PENAL § 15.01(a) ("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."); Edwards, 487 S.W.3d at 337. We overrule Appellant's second issue.
Appellant's third and fourth issues concern the admissibility of criminal history reports and the sufficiency of the evidence in the punishment phase of Appellant's trial. In his third issue, Appellant argues that the trial court erred when it admitted evidence of his criminal history through reports from the National Crime Information Center (NCIC) and the Texas Crime Information Center (TCIC). Specifically, Appellant contends that the State did not lay the proper predicate for admission and that the evidence was hearsay.
In his fourth issue, Appellant contends that the evidence was insufficient to support the jury's finding of true as to his alleged prior conviction in New York. Appellant also asserts that the State did not show that the New York conviction was final for enhancement purposes. Appellant argues that the conviction was not final because he was given a probated sentence and that the State failed to prove that New York law, unlike Texas law, considered probated sentences to be final for enhancement purposes. See Ex parte White, 211 S.W.3d 316, 319 (Tex. Crim. App. 2007) ("As we have long held, '[i]t is well-settled that a probated sentence is not a final conviction for enhancement purposes unless it is revoked.'" (quoting Ex parte Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992))). Appellant argues in the alternative that, even if the State showed that the New York conviction was a final conviction, the State failed to prove the existence of the prior conviction and failed to sufficiently link Appellant to the conviction.
We will first address Appellant's fourth issue. To establish that a defendant has been convicted of a prior offense, the State must prove beyond a reasonable doubt that a prior conviction exists and that the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). There is no specific manner in which the State must prove these two elements. Id. The totality of the circumstances determines whether the State met its burden of proof. Id. at 923. Some of the ways by which a defendant may be linked to a prior conviction is through the testimony of a fingerprint expert, through the testimony of a witness who personally knows that the defendant was previously convicted and can identify the defendant, by the defendant's stipulation or judicial admission, or by a photograph that is contained in the prior judgment or pen packet. See, e.g., Beck v. State, 719 S.W.2d 205, 209 (Tex. Crim. App. 1986); Littles v. State, 726 S.W.2d 26, 31-32 (Tex. Crim. App. 1984).
Here, Luke Griffin, the investigator for the district attorney's office, testified that, during his investigation into Appellant's criminal history, he acquired a certificate of disposition of an indictment for a conviction out of New York. Griffin explained that the courts in New York issue certificates of disposition instead of judgments. The certificate of disposition provided that a "Velazquez, Apollo" was convicted of "attempted criminal sale of a controlled substance 3rd degree" on "09/02/1999" in the Supreme Court of the State of New York. The certificate further provided that "the defendant" was sentenced on "10/21/1999" to probation for a term of five years. On "11/28/2005," he was resentenced to imprisonment for a term of one year.
The State presented the trial court with a New York county court case from 1977 that held that a sentence of probation "shall be deemed to be a final judgment of conviction." See People v. Leight, 393 N.Y.S.2d 880, 880 (Dutchess Co. Ct. 1977). Neither party presented any other evidence of whether New York law treated probated sentences as final convictions for enhancement purposes. The opinion was not submitted as evidence before the jury, nor did the State ask the trial court to take judicial notice of the opinion; however, a copy of the opinion was admitted as an exhibit during the hearing outside the presence of the jury and was made part of the appellate record. Once the State makes a prima facie showing that the prior conviction became final before the commission of the primary offense, the burden shifts to the defendant to prove otherwise. Jones v. State, 711 S.W.2d 634, 636 (Tex. Crim. App. 1986).
Even if we were to hold that the trial court did not err in concluding that a probated sentence out of New York was a final conviction for enhancement purposes in Texas, our review of the evidence does not show that the State met its burden to prove beyond a reasonable doubt that the alleged prior New York conviction existed. When the prosecutor offered the certificate of disposition as an exhibit in the punishment phase, he represented to the trial court that the certificate of disposition was "a certified copy of an official document from the state of New York" and that it bore a "seal."
As the Court of Criminal Appeals explained in Flowers, "Rule 902 of the Texas Rules of Evidence explicitly allows for the self-authentication of certified copies of public records, 'including data compilations in any form certified as correct' by their custodian." Flowers, 220 S.W.3d at 922 (quoting former TEX. R. EVID. 902(4). The court further explained that "[a] computer-generated compilation of information setting out the specifics of a criminal conviction that is certified as correct by the county or district clerk of the court in which the conviction was obtained is admissible under Rule 902." Id. at 922-23.
First, we note, that Rule 902(4) no longer contains the language quoted by the Court of Criminal Appeals regarding data compilations. However, the amended rule did not become effective until April 2, 2015—after Appellant's punishment hearing; thus, the language cited by the Flowers court is applicable to Appellant's case. Therefore, the certificate of disposition used by the State to show that Appellant had a prior conviction in New York would be included in the Rule's allowance of "data compilations in any form." But the prosecutor was incorrect in his representation that the certificate of disposition was a certified copy of an official document and that it bore an official seal. The certificate of disposition that was admitted during the punishment phase is not certified by the custodian or any other person authorized to make such certification. The certificate does contain language that provides, "I hereby certify that it appears from an examination of the records on file in this office that . . . ," but there is no signature or even a name to which the statement can be attributed; nor does the certification attest that the particular document itself is correct. In addition, the certificate does not contain an official seal or other official mark besides a file-stamped mark that has no identifying information except for the date of February 24, 2014. Griffin did not testify that he had personal knowledge of the actual conviction in 1999; he simply testified that he acquired the certificate of disposition when he investigated Appellant's prior criminal history.
The State also presented evidence of the New York conviction through the NCIC report. When we conduct a sufficiency review, we review all of the evidence, even evidence that was improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Sheriff Winston Stephens testified that the TCIC and NCIC reports were not always accurate. He did not have personal knowledge of any of the offenses and convictions that were listed in the reports, and he was not the custodian of record for the documents. However, the NCIC report did provide some evidence of the prior conviction, as it listed the 1999 conviction for criminal sale of a controlled substance. When Kimbro was asked whether she knew about Appellant's criminal history contained in the TCIC and NCIC reports, she answered in the affirmative. She did not testify as to any specific information regarding the New York conviction, nor was she able to testify to whether it was a final conviction for enhancement purposes. Kimbro did not know Appellant when he lived in New York.
We have reviewed the evidence, and we cannot say that a rational juror could have found beyond a reasonable doubt that Appellant was previously convicted of a felony in New York. While the State did present evidence regarding the New York conviction, none of the evidence was provided by a person with personal knowledge of the New York conviction. Each person that testified to the conviction did so based on information they had received from a secondhand source, and the information from the secondhand source was not certified. See Flowers, 225 S.W.3d at 923-24 (distinguishing the evidence offered in Gentile v. State, 848 S.W.2d 359 (Tex. App.—Austin 1993, no pet.), from the evidence offered in Flowers and stating that the Austin Court correctly held that the evidence was insufficient where "all of the information concerning the prior conviction was from a second-hand source, not the horse's mouth"). Therefore, we hold that the evidence was insufficient to support a finding of true as to the alleged 1999 New York conviction. We sustain Appellant's fourth issue.
Based on the disposition of Appellant's fourth issue, it is not necessary for us to determine whether the trial court abused its discretion when it admitted the NCIC and TCIC reports. Therefore, we do not reach Appellant's third issue. See TEX. R. APP. P. 47.1.
We affirm the judgment of the trial court as to Appellant's conviction, but because we have found insufficient evidence to support the jury's finding of true as to the first enhancement paragraph that concerned the New York conviction, we reverse the judgment insofar as it relates to the assessment of punishment. We remand this cause to the trial court for a new punishment hearing pursuant to TEX. CODE CRIM. PROC. art. 44.29(b).
JIM R. WRIGHT
CHIEF JUSTICE December 30, 2016 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.