Knight, Laura ( 2015 )

2ft(£ RECEIVED-IN
NO. PD 0319-15
COURT OF CRIMINAL APPEALS
SEP 012015
IN THE
COURT OF CRIMINAL APPEALS AbeiAcosta,CferJ<
FOR THE
STATE OF TEXAS
Petition for Review of the
Eighth Court of Appeals
Judgment in No. 08-12-00355-CR
Affirming conviction in Cause No. 20090D92461
From the 346th Judicial District Court
El Paso County, Texas
LAURA KNIGHT FILED IH
COURT OF CRIMINAL APPEALS
Appellant
SEP 16 z:o
v.
THE STATE OF TEXAS
Abel Acosta, Clerk
Appellee
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
LAURA KNIGHT
ProSe
219DOLANST.
EL PASO, TEXAS 79905
Telephone Number (915) 471-7498
E-Mail Address:
Salomelknight3 714@,att.net
TABLE OF CONTENTS
TABLE OF CONTENTS i
INDEX OF AUTHORITIES ii
STATEMENT REGARDING ORAL ARGUMENT 1.
STATEMENT OF THE CASE 2.
STATEMENT OF PROCEDURAL HISTORY 3.
GROUNDS FOR REVIEW 4.
ARGUMENT 5.-11.
PRAYER FOR RELIEF 12.
CERTIFICATE OF SERVICE 13.
APPENDIX 14.
LIST OF AUTHORITIES
I. FEDERAL CASES
Page
Jackson v.Virginia, 443 U.S. 307, 61 L. Ed. 2d 560 (1979) 6.
TEXAS CASES
Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008) 10.
Nobles v. State, 843 S.W.2d 503 (Tex. Crim. App. 1992) 9.
Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991) 7.
Rodriguez v. State, 819 S.W.2d 871 (Tex. Crim. App. 1991) 8.
Ford v. State, 845 S.W.2d (Civ. App. - Houston [1st Dist.] 1992 6.
II. CONSTITUTION
Page
Federal
5th & 14th Amendment U.S. Constitution 10.
State
Art. 1, §13 & §19 Texas Constitution 10.
III. STATUTES
Texas Code of Criminal Procedure 1.04 10.
Texas Penal Code §6.01 8.
IV. RULES
Texas Rules of Evidence 404 8., 9.
STATEMENT REGARDING ORAL AGRUMENT
Appellant waives the right to oral argument.
STATEMENT OF THE CASE
Appellant was convicted of unlawful possession of a controlled substance
before the trial court, i.e. possession of hydrocodone. She appealed her conviction
before the 8th Court of Appeals and the trial court's judgment was upheld by the
appellate court on January 28, 2015.
Appellant contends the evidence is legally insufficient to support her
conviction because the State failed to prove (i) that she knowing or intentionally
possessed the hydrocodone, (ii) that the pills she received from the pharmacy were
hydrocodone, or (iii) that the hydrocodone she received weighed between 28 and
200 grams as charged. Appellant also argues that the trial court erroneously admitted
extraneous-offense evidence during the guilt-innocence phase of her trial.
Appellant contends that the trial court did not enforce its pre-trial discovery
order as to disclosure of the state's witnesses and such refusal to enforce its pre-trial
order not only violated Texas law as to discovery, it was contrary to Rule 404, Tex.R.
of Evid., and thereby denied appellant a fair trial.
2.
STATEMENT OF PROCEDURAL HISTORY
On May 21, 2009 Appellant, LAURA KNIGHT, was indicted for unlawful
possession of a controlled substance in penalty group three, to wit: hydrocodone,
having an aggregate weight, including adulterants and dilutants, of28 grams or more
but less than 200 grams, alleged to have occurred on or about July 19, 2008.
Appellant elected a trial by jury and on October 31,2009 she was found guilty
as charged. In accordance with the jury's verdict and recommendation as to
punishment the trial court sentence Appellant to two (2) years in prison.
Appellant appealed her conviction to the 8th Court of Appeals and on January
28, 2015 the appellate court upheld the conviction. From this conviction Appellant
now files her Petition for Discretionary Review before the Texas Court of Criminal
Appeals.
GROUNDS FOR REVIEW
The Court of Appeals has disregarded a material question of law necessary to the
court's decision; and, alternatively, the Court of Appeals has so far departed from
the accepted and usual course of judicial proceedings, or so far sanctioned such a
departure by a lower court as to call for an exercise ofthe Court ofCriminal Appeals'
power of supervision.
1. The Court of Appeals incorrectly upheld the judgment ofthe trial court in that
the evidence introduced at trial was insufficient as a matter of law or fact to sustain
the jury's verdict.
2. The Court of Appeals incorrectly upheld the trial court's refusal to enforce its
Pre-Trial and Discovery Order by permitting the State to call rebuttal witnesses
during the innocent-guilt phase of the trial in violation of Rule 404, Tex.R.Evid.
4.
ARGUMENT IN SUPPORT OF GROUNDS FOR REVIEW
The Court of Appeals has disregarded a material question of law
necessary to the court's decision; and, alternatively, the Court of Appeals has
so far departed from the accepted and usual course ofjudicial proceedings, or
so far sanctioned such a departure by a lower court as to call for an exercise
or the Court of Criminal Appeals' power of supervision.
1. The Court of Appeals incorrectly upheld the judgment of the trial
court in that the evidence introduced at trial was insufficient as a matter
of law or fact to sustain the jury's verdict.
Appellant was charged by indictment with unlawful possession of a
controlled substance, i.e. hydrocodone weighing between 28 and 200 grams.
A third degree felony. However, a review of the trial transcript shows that at
trial:
1. No hydrocodone was introduced as evidence; (RR. Vol 2 of 5, Page
11 at lines 20-22).
2. No criminal laboratory reports were introduced to establish that the
drugs, the subject of the States' prosecution, were in fact
hydrocodone; (RR Vol. 2-5, Page 8, line 11-19 & Page 11, line 20-
22).
3. No chain of custody exists as to the drugs attempted to be returned
by Appellant and the drugs testified to by the state's witnesses: Ms.
Sheryl Maxsom, Mr. John Williamson and Mr. Rick Fernandez;
and,
4. No one was introduced or qualified as an expert witness by the State.
Appellant recognizes that Texas law holds that at trial the presumption
of innocence is in favor ofthe defendant; but on appeal the presumption
is that a conviction was regular and with be upheld unless a review of
the trial record shows sufficient evidence to the contrary. Ford v.
State, 845 S.W.2d (Civ. App. - Houston [1st Dist] 1992.
It is important to note that Appellant never stipulated to the
State's assertion that the drugs, the subject of this possession trial, was
hydrocodone. Appellant never testified at any time during trial nor
entered any plea of guilt. Appellant in researching her case discovered
that although the Court ofCriminal Appeals does not conduct a de novo
factual sufficiency review, it can determine whether the Court of
Appeals applied the correct standard. Jackson v. Virginia, 443 U.S.
307, 61 L. Ed. 2d 560 (1979). Further, the standard for review is the
same for both direct and circumstantial evidence cases. Geesa v. State,
820 S.W.2d 154 (Tex. Crim. App. 1991).
Appellant asserts, with no disrespect intended, that Justice
Steven L. Hughes of the 8th Court of Appeals, was wrong in his
statements written as part ofthe Court of Appeals opinion at page 6., to
the effect that: " The Walgreens' clerk whoprovided the hydrocodone
to Appellant recalled that Appellant askedfor the prescription "by
name." The Walgreen's security system video recording of the
transaction shows Appellant holding and looking at the prescription
bottle." The Walgreens' El Paso District Pharmacy Supervisor
testified that the label on the prescription vial showed that the
hydrocodone wasfor Judy Cox. " (RR - Vol 3-5, P 113-127).
A review of the video which is States' Exhibit 5, shows two undeniable
facts:
1. There was no audio thus what transpired between the Appellant and the
Walgreen's clerk is unknown to the viewer; and,
2. The video shows that the clerk handed to Appellant a bag, presumably,
a Walgreen's bag which does not show that Appellant saw a
prescription label nor a bottle containing 240 hydrocodone pills.
7.
The above point is critical because this is the evidence the State is
relying on to establish that Appellant intentionally and knowingly exercised
the voluntary act of possession or control of the prohibited substance for a
sufficient time to permit her to terminate her control. Yet, how do you read a
prescription label through a paper bag? This evidence does not comply with
the requirements of Texas Penal Code §6.01 as to the requirement of a
voluntary act or omission. Appellant asserts that there does not exist legal nor
factual sufficiency to uphold her conviction. See Rodriguez v. State, 819
S.W.2d 871 (Tex. Cr. App. 1991).
2. The Court of Appeals incorrectly upheld the trial court's refusal to
enforce its Pre-Trial Order by permitting the State to call rebuttal
witnesses during the innocent-guilt phase of the trial in violation of Rule
404, Tex.R.Evid.
Appellant would show this Court that on January 21,2010 the trial court
entered its Pre-Trial and Discovery Order. The order states in relevant part:
STATE WITNESSES ... (the State was required to identify) "the names and
addresses of all witnesses the State will call in its case-in-chief at the guilt
stage of trial, in the punishment stage of the trial, and that the State can
reasonably anticipate calling in the rebuttal stage oftrial shall be given to the
defense prior to trial."
EXPERT WITNESS AND REPORTS ... "The State shall designate
expert witnesses to be called at trial byFriday, 2 weeks prior to trial.''''
At trial the State called Ms. Carol Wright and Appellant's sister, Ms.
Rosario Ortega, to testify at the innocence-guilt phase of appellant's trial
regardless of the terms of Tex.R.Evid. 404 and/or the trial court's Pre-Trial
and Discovery Order. Appellant asserts that the appellate court erred in
upholding the trial court's decision permitting Ms. Carol Wright and
Appellant's sister, Ms. Rosario Ortega, to testify. (RR - Vol. 2 of 5, Page 7,
line 1-25, Page 8, 1-25). Texas Rule of Evidence 404 embodies the
"established principle that a defendant is not to be tried for collateral crimes
or for generally being a criminal." Nobles v. State, 843 S.W.2d 503 (Tex.
Crim. App. 1992).
Justice Steven L. Hughes writing for the appellate court asserts that
although Appellant challenged the trial court's ruling permitting the State to
offer extraneous-offense evidence in its case-in-chief, the defense opening
statement "opened the door" to theadmission of extraneous-offenses evidence
in the State's case-in-chief to rebut the defensive theories presented in the
9.
openingstatement. See 8th CourtofAppeals opinion at page 12. The appellate
court cited this Court's opinion in Bass v. State, 270 S.W.3d 557, 563 n.7
(Tex. Crim. App. 2008) in support of its decision that Appellant's counsel's
opening statement "opened-the-door" for the State to offer its rebuttal
witnesses. Yet the jury was instructed at the start of trial that "the argument
ofthe State and defense counsel is not evidence." The trial court admonished
the jury as to what is evidence.
Appellant asserts that she never testified about her "character" nor
called any witness to do so. Granted, Rule 404 requires the defendant to
request in advance of trial reasonable notice that the State intents on
introducing in its case-in-chief evidence of other crimes, wrongs or acts. See
Tex.R.Evid. 404. Nonetheless, Appellant asserts that it is a violation of the
"Due Process" clause under the 5th and 14th Amendment of the United
States Constitution and "Due Process of Law" clause under Art. 1, §13
and §19 of the Texas Constitution and Code of Criminal Procedure 1.04
to refuse to follow, or ignore the law as to how a fair trial will be conducted.
The appellate courtwrites at page 12, of its opinion that... "A defense
opening statement "can open the door" in the admission of extraneous-
offense evidence to the State's case-in-chief to rebut the defensive theories
presented in the opening statement. Id. At 563. " However, such an argument
10.
is a justification pretext that is tantamount to cancelling or neutralizing the
purpose and legal effect of Texas Rule of Evidence 404 and why even issue a
Pre-Trial and Discovery Order if the same is going to be ignored at trial. The
jury is probably capable of following the presentation of the evidence and
figuring out whether the defendant's counsel or the defendant ever complied
with its representations made at the opening statements of the trial.
For the foregoing reasons Appellant asserts that one, there is
insufficient evidence to sustain her conviction and two, the conduct ofher trial
was not fair in that the violations ofthe above rules of evidence and procedure
probably caused the rendition of an improper judgment.
11.
PRAYER FOR RELIEF
Appellant respectfully pray that this Honorable Court grant her Petition for
Discretionary Review and reverse the decision of the 8th Court of Appeals.
Appellant further moves that this Court grant a new trial or reverse and acquit
Appellant or enter such orders as it deems will do justice herein.
Respectfully submitted
LAURA KNIGHT °
Appellant and Pro Se
219DolanSt.
El Paso, Texas 79905
Telephone Number: (915)471 -7498
Fax Number: (915) 262-0307
E-Mail: Salomeknight3714@att.net
12.
CERTIFICATE OF SERVICE
The undersigned affirms that a true and accurate copy of the foregoing
instrument filed on behalf of the Petition for Discretionary Review of LAURA
KNIGHT, appellant, has been submitted to the El Paso District's Office, the
appellee, by submission of a copy to the following attorney of record:
JAIME ESPARZA
District Attorney
34th Judicial District
El Paso District Attorney's Office
500 E. San Antonio Ave., Room 201
El Paso, Texas 79901
Tel. (915)546-2059
(915)533-5520
ATTORNEY FOR THE STATE
Certified Mail Return Receipt Requested.
V^ Fax telephone transmission prior to 5:00 p.m.
Personal Delivery to a party.
1st Class U.S. Mail.
E-Mail
Done this <^% day ofAugust 2015
LAURA KNIGHT
13.
APPENDIX
January 28, 2015 Judgment and Opinion of the 8th Court of Civil Appeals,
LAURA KNIGHT v. THE STATE OF TEXAS, No. 08-12-00355-CR.
B. Pre-Trial and Discovery Order, 346th Judicial District Court, THE STATE OF
TEXAS v. LAURA KNIGHT, No. 20090D02461.
C. DVD diskette, States Exhibit #5, 346th Judicial District Court, THE STATE
OF TEXAS v. LAURA KNIGHT, No. 20090D02461.
14.
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
LAURA KNIGHT,
No. 08-12-00355-CR
Appellant,
Appeal from the
v.
346th District Court
THE STATE OF TEXAS,
of El Paso County, Texas
Appellee.
(TC#20090D02461)
OPINION
Appellant Laura Knight was recorded on video at a pharmacy picking up a hydrocodone
prescription for a woman who had died five days earlier. Appellant was found guilty of
possession of a controlled substance, and sentenced to two years' confinement. Appellant raises
two issues on appeal. Appellant contends the evidence is legally insufficient to support her
conviction because the State failed to prove (i) that she knowing or intentionally possessed the
hydrocodone, (ii) that the pills she received from the pharmacy were actually hydrocodone, or (iii)
that the hydrocodone she received weighed between 28 and 200 grams as charged. Appellant also
arguesthe trial court erroneously admittedextraneous-offense evidence during the guilt-innocence
phase of her trial. We hold the evidence was sufficient to support Appellant's conviction for
unlawful possession of hydrocodone, and that the trial court did not err in admitting the evidence
of Appellant's extraneous offenses. Accordingly, we affirm Appellant's conviction.
BACKGROUND
Appellant's mother, Josephina De La Rosa, was a resident at a foster care home. Each
resident's medication at the home was stored in an unlocked kitchen cabinet in a box labeled with
the patient's name. Although medication was typically administered by the foster home
caregivers, Appellant had access to the kitchen cabinet where the medicines were kept and could
administer the medications prescribed for her mother.
Another resident of the foster care home, Judy Cox, suffered from a painful degenerative
spinal disease for which she was prescribed hydrocodone in a quantity of 240 pills with additional
refills permitted. Carol Wright, the operator of the foster care home, would request Judy's
hydrocodone refills by phone, pick up the prescription at the pharmacy, and store the hydrocodone
prescription in the kitchen cabinet. Judy's sister, Sheryl Maxsom, had arranged for an express
pay service at Walgreens under which the co-pay cost of the refills for Judy's hydrocodone
prescription would be charged automatically to Sheryl's checking account when Carol Wright
picked up the hydrocodone for Judy. The co-pay cost for each of Judy's hydrocodone refills was
$17.07.
Judy Cox died on July 14, 2008, and her memorial service was held on July 18, 2008. On
July 19, 2008, Sheryl received an email alert on her phone indicating that Walgreens had charged
$17.07 to her bank account. Sheryl had not picked up a prescription on July 19, 2008, and Carol
Wright informed her that she had not phoned in a refill for Judy's hydrocodone.
On August 1, 2008, Sheryl and the Walgreens' store manager, John Williamson, reviewed
a Walgreens' security video recording corresponding with the date and time Judy's prescription
was picked up. From the video recording, Sheryl recognized Appellant standing at the pharmacy
counter. Sheryl notified the police that she had identified the person who had picked up the
prescription. She also discussed the matter with Carol Wright. Several days later, Appellant left
a voice message on Sheryl's phone identifying herself and explaining she had gone to Walgreens
to pick up her son's medication, and Walgreens had accidentally given her Judy's hydrocodone
prescription instead. At a subsequent party attended by Appellant, Carol Wright, and others,
Carol Wright mentioned that someone had obtained Judy's medication after her death. Later,
Appellant telephoned Carol Wright and also informed her that she had discovered that the
pharmacy had erroneously given her Judy's medication when she went to pick up her son's
medication.
At Appellant's request, Carol Wright accompanied Appellant to return the pills to
Walgreens. Carol, who is familiar with hydrocodone, noted there were 24 pills in "a good sized
bottle" whose label contained Judy's name and indicated the bottle had contained 240
hydrocodone tablets. Carol described Appellant as agitated and extremely adamant that
Walgreens issue a letter stating that it was at fault for giving her the medication. Walgreens' El
Paso DistrictPharmacySupervisor, Rick Fernandez, issuedthe requestedletter to Appellantwhich
stated:
Laura Knight returned #24 tablets of Hydrocodone/APAP [(]10mg/325mg) from a
prescription vial labeled [xxxxxxx]-06435 for Judy Cox. Ms. Knight received the
vial in error. Furthermore, Carol Wright did not order this medication for Ms.
Judy Cox. I apologized to Ms. Knight for the inconvenience for this matter.
DISCUSSION
Sufficiency ofthe Evidence
3
In Issue One, Appellant contends the evidence is legally insufficient to sustain her
conviction for intentionally and knowingly possessing hydrocodone having an aggregate weight of
28 to 200 grams. In particular, Appellant argues the evidence was insufficient to prove: (1) that
she acted intentionally or knowingly, because the Walgreens pharmacy letter indicated she had
received the hydrocodone "in error"; (2) that she actually possessed hydrocodone, since the pills
she received were never tested in a laboratory; and (3) that the hydrocodone was of the requisite
weight, since the pills she received were never weighed.
Standard ofReview
In a legal sufficiency review, we consider all the evidence in the light most favorable to the
verdict, and the reasonable inferences that flow from it, to determine whether any rational jury
could have found the essential elements of the offense beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323
S.W.3d 893, 895 (Tex.Crim.App. 2010). "If, given all of the evidence, a rational jury would
necessarily entertain a reasonable doubt as to the defendant's guilt, the due process guarantee
requires that we reverse and order a judgment of acquittal." Guevara v. State, 152 S.W.3d 45, 49
(Tex.Crim.App. 2004).
In performing our sufficiency review, we do not re-evaluate the weight and credibility of
the evidence or substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d
735, 740 (Tex.Crim.App. 1999), cert, denied, 529 U.S. 1131 (2000). We presume the fact finder
resolved any conflicting inferences in favor of the verdict and defer to that resolution. Jackson,
443 U.S. at 326; Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007). We determine
only whether the necessary inferences are reasonable based upon the combined and cumulative
force of all the evidence when viewed in the light most favorable to the verdict. Hooper v. State,
214 S.W.3d 9, 16-17 (Tex.Crim.App. 2007). Each fact is not required to point directly and
independently to the guilt of the appellant, as long as the cumulative force of all the incriminating
circumstances is sufficient to support the conviction. Id. at 13 (citing Johnson v. State, 871
S.W.2d 183, 186 (Tex.Crim.App. 1993)). Circumstantial evidence is as probative as direct
evidence, and circumstantial evidence alone can be sufficient to establish guilt. Guevara, 152
S.W.3dat49.
Analysis
We measure the sufficiency of the evidence by the elements of the offense as defined by
the "hypothetically correct jury charge" for the case. Miles v. State, 357 S.W.3d 629, 631
(Tex.Crim.App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997)). A
hypothetically correct jury charge "accurately sets out the law, is authorized by the indictment,
does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's
theories of liability, and adequately describes the particular offense for which the defendant was
tried." Id.
Hydrocodone is classified as a controlled substance in Penalty Group 3. Tex. Health &
Safety Code Ann. § 481.104(a)(4)(West Supp. 2014). It is a third-degree felony to knowingly
or intentionally possess hydrocodone having an aggregate weight of 28 grams or more but less
than 200 grams (including adulterants or dilutants), unless, among other things, the person
obtained it under a valid prescription.1 Id. at § 481.117(a), (c)(West 2010). The indictment
' The State was not required to negate the exceptions provided under section 481.117(a). TEX. HEALTH & SAFETY
CODE Ann. § 481.184(a)(West 2010). Rather, the person claiming the benefit of an exception has the burden of
going forwardwith the evidencewith respect to the exception. Id.
charged that on or about July 19, 2008, Appellant knowingly or intentionally possessed a
controlled substance, hydrocodone, having an aggregate weight, including adulterants and
dilutants, of 28 grams or more but less than 200 grams. Thus, under a hypothetically correct jury
charge, the State was required to prove that Appellant knowingly or intentionally possessed
hydrocodone weighing more than 28 grams but less than 200 grams, including adulterants and
dilutants.
Appellant first contends the evidence is insufficient to show she acted intentionally or
knowingly because the Walgreens pharmacy letter indicated that she had received the
hydrocodone "in error."2 While the letter constitutes some evidence that Appellant may have
lacked the necessary intent or knowledge, it was not the only evidence of mens rea before the jury.
Evidence at trial indicated Appellant had access to Judy Cox's prescription vial, which contained
the information necessary to order a refill of the hydrocodone prescription by telephone. The
Walgreens' clerk who provided the hydrocodone to Appellant recalled that Appellant asked for the
prescription "by name." The Walgreens' security system video recording of the transaction
shows Appellant holding and looking at the prescription bottle. The Walgreens' El Paso District
Pharmacy Supervisor testified that the label on the prescription vial showed that the hydrocodone
was for Judy Cox. Judy's prescription was on an express pay account at Walgreens, but
Appellanthad no such account, and yet Appellant paid nothing for the prescription she obtained at
Walgreens. Appellant's claim that she was given Judy's prescription by mistake instead of her
son's prescription was negated by evidence that no prescription for Appellant's son was available
2 Aperson acts intentionally, orwith intent, with respect tothe nature ofhis conduct ortoa result of his conduct, when
it is his conscious objective or desire to engage in the conduct or cause the result. TEX. PENAL CODE ANN. §
6.03(a)(West 2011). A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to
circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist.
TEX. PENAL CODE Ann. § 6.03(b)(West 2011).
6
for pickup on July 19, 2008, and that his prescription was not presented to the pharmacy until a
later date. Likewise, Appellant's claim that she received only 24 pills was negated by Walgreens'
records indicating that 240 pills were dispensed for Judy Cox's prescription but, as noted in
Walgreens' letter, Appellant returned only 24 tablets to Walgreens pharmacy.
Proof of a culpable mental state generally relies upon circumstantial evidence. Dillon v.
State, 514 S.W.2d 92, 94 (Tex.Crim.App. 1978); Agripino v. State, 217 S.W.3d 707, 715
(Tex.App. - El Paso 2007, no pet.). Ordinarily, proof of a culpable mental state must be inferred
from the acts, words, and conduct of the accused and the surrounding circumstances. Ledesma v.
State, 611 S.W.2d 529, 531 (Tex.Crim.App. 1984); Agripino, 217 S.W.3d at 715. The evidence
here was legally sufficient to negate Appellant's defensive theory of mistake and to show that
Appellant both knowingly and intentionally possessed the hydrocodone.
Appellant also asserts the evidence was legally insufficient to establish the pills she
possessed were actually hydrocodone, because the pills were never tested by a laboratory.
Without citation to authority, Appellant asserts that a controlled substance is required to be tested
by a certified lab analyst or chemist. The 24 pills that Appellant returned to Walgreens were not
confiscated by law enforcement officers but were apparently processed by Walgreens for
destruction by a third-party. Therefore, the pills could not be tested. Instead, the State presented
testimonial evidence that the controlled substance Appellant possessed was hydrocodone.
This evidence included the testimony of Walgreens' District Supervisor Fernandez, who
had been a licensed pharmacist since 1994. Fernandez examined the large prescription vial that
Appellant presented to him when she returned the pills; he counted 24 pills as its contents,
observedthe label showingthe medication had been prescribed for Judy Cox, identifiedthe pills as
7
hydrocodone with acetaminophen, and informed Appellant that she needed to return the pills
directly to the pharmacy for destruction. He testified that pharmacists do not perform scientific
tests on drugs and stated that he did not perform any scientific analysis on the pills. However,
Fernandez explained that hydrocodone combined with acetaminophen is listed as a "schedule 3"
medication and that no schedule 2 hydrocodone "by itself is kept in the pharmacy. Fernandez
stated that he has dispensed hydrocodone "thousands of times," and testified, without objection,
that the markings on the pills Appellant had presented to him "matched" the markings for
hydrocodone, and that he was sure the pills were hydrocodone and could not be anything else.3
Walgreens' store manager John Williamson testified that his physical inventory of all
hydrocodone pills in the pharmacy established there was no surplus of hydrocodone pills.
Instead, the correct number of hydrocodone pills on hand was consistent with the dispensing of
240 hydrocodone tablets in a large bottle like the one Appellant returned.
In addition to this testimony, Carol Wright described the pills as "roundish, yellowish" and
testified that the bottle containing the tablets was labeled with Cox's name and listed hydrocodone
as its contents. Further, there was evidence that Appellant left a voice message on Sheryl
Maxsom's phone in which Appellant said Walgreens had accidentally given her Judy's
hydrocodone prescription. Without objection, Appellant's sister Rosario also testified that
Appellant was present when Carol Wright learned about a problem with Judy Cox's prescription,
and Appellant later told Rosario that Walgreens had mistakenly given her Judy's hydrocodone.
Walgreens' store manager John Williamson testified that the electronic journal, or register
3 The Court of Criminal Appeals has recognized that an experienced law enforcement officer may be qualified to
testify that a green leafy plant substance is marijuana because it has distinctive characteristics different from other
green leafy plant substances, but cannot testify that a white or brown powder substance with no unique identifying
features is heroin. See Curtis v. State, 548 S.W.2d 57, 59 (Tex.Crim.App. 1977).
8
recording, indicated Judy Cox's hydrocodone was picked up on July 19, 2008 at 4:34 p.m. and that
the transaction had been verified by observing the security camera's video recording, which
showed Appellant involved in the transaction at 4:34 p.m. He also testified that 24 pills would be
dispensed in a small vial, unlike the large 30-gram vial that Appellant returned, which would be
used to dispense 240 pills. Appellant did not object when the State offered into evidence
Williamson's photograph of 240 hydrocodone tablets from the same manufacturer and having the
same strength as those prescribed and identified in Judy Cox's patient profile. The evidence here
was legally sufficient to show that the pills possessed by Appellant were in fact hydrocodone.
Appellant also contends the evidence is insufficient to establish the amount of
hydrocodone she allegedly possessed because the actual tablets she possessed were not weighed.
The State was required to prove that Appellant possessed 28 grams or more but less than 200
grams of hydrocodone, including adulterants and dilutants. See Tex. Health & Safety Code
Ann. §§ 481.104(a)(4)(West Supp. 2014), 481.117(a)(c)(West 2010). Detective Deanda testified
she was not able to obtain the pills Appellant possessed for the purpose of weighing and testing
because Appellant had returned the pills to Walgreens. Walgreens' store manager John
Williamson testified that the large 30-gram vial that Appellant returned would be used to dispense
240 pills. Williamson testified that his physical inventory of all hydrocodone pills in the
pharmacy established there was no surplus of hydrocodone pills. Instead, the correct number of
hydrocodone pills on hand was consistent with the dispensing of 240 hydrocodone tablets in a
large bottle like the one Appellant returned. At the State's request, Fernandez weighed a quantity
of 240 hydrocodone pills from the same manufacturer and type as those dispensed to Appellant on
July 19, 2008, under Judy Cox's prescription, and which Appellant had returned to the pharmacy.
Without objection, Fernandez testified that 240 pills, without the vial, weighed over 100 grams
with adulterants and dilutants. This evidence was legally sufficient to show that the amount of
hydrocodone possessed by Appellant had an aggregate weight of 28 to 200 grams.
Based upon the combined and cumulative force of all the evidence viewed in the light most
favorable to the verdict, we conclude a rational fact finder could have reasonably inferred that
Appellant did not receive the hydrocodone in error but was aware that the hydrocodone
prescription was for Judy Cox, and that Appellant intentionally and knowingly possessed
hydrocodone having an aggregate weight of more than 28 grams but less than 200 grams,
including adulterants and dilutants. Hooper, 214 S.W.3d at 16-17. Because the evidence is
legally sufficient to support Appellant's conviction, Issue One is overruled.
Evidentiary Rulings
In Issue Two, Appellant complains the trial court abused its discretion during the
guilt-innocence phase of trial when it allowed the State to present testimonial evidence of
Appellant's extraneous offenses. Appellant argues that the testimony constituted character
conformity evidence and was unduly prejudicial, and contends the State was required but failed to
provide notice of its intent to use that evidence.
The testimony at issue was presented by two witnesses, Carol Wright and Appellant's
sister, Rosario Ortega. Carol Wright testified that after another patient at her foster care home had
died, Appellant had asked Carol if she would sell her the deceased patient's hydrocodone.
Appellant's sister, Rosario, testified that Appellant had been prescribed hydrocodone after injuring
her back twelve to fifteen years earlier and had been prescribed hydrocodone again in 2007
following surgery.
10
Standard ofReview
We review the admission of extraneous-offense evidence for an abuse of discretion. De
La Paz v. State, 279 S.W.3d 336, 343 (Tex.Crim.App. 2009); Prible v. State, 175 S.W.3d 724, 731
(Tex.Crim.App. 2005). A trial court does not abuse its discretion if the decision to admit or
exclude the evidence is within the "zone of reasonable disagreement." Montgomery v. State, 810
S.W.2d 372, 391 (Tex.Crim.App. 1991) (opin. on reh'g). A trial court's determination on the
admissibility of extraneous-offense evidence typically falls within the zone of reasonable
disagreement if the evidence shows: (1) that an extraneous transaction is relevant to a material,
non-propensity issue, and (2) the probative value of that evidence is not substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading of the jury. De La Paz,
279 S.W.3d at 344. Ifthe trial court's evidentiary ruling is correct on any theory of law applicable
to that ruling, we will not disturb it even if the trial court gave the wrong reason for the correct
ruling. Id.
Analysis
Evidence of extraneous offenses or prior wrongful acts is generally not admissible during
the guilt-innocence phase as evidence that a defendant acted in conformity with his character by
committing the charged offense. Tex. R. Evid. 404(b); Johnston v. State, 145 S.W.3d 215, 219
(Tex.Crim.App. 2004); Montgomery, 810 S.W.2d at 386. Texas Rule of Evidence 404(b)
embodies the "established principle that a defendant is not to be tried for collateral crimes or for
generally being a criminal." Nobles v. State, 843 S.W.2d 503, 514 (Tex.Crim.App. 1992).
However, evidence of extraneous misconduct or other crimes may be admissible "for other
purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
11
absence of mistake or accident[.]" Tex. R. Evid. 404(b); Moses v. State, 105 S.W.3d 622, 626
(Tex.Crim.App. 2003); Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001). By raising a
defensive theory, the defendant "opens the door" for the State to offer rebuttal testimony regarding
an extraneous offense if the extraneous offense has characteristics common with the offense for
which the defendant was on trial. See Richardson v. State, 328 S.W.3d 61,71 (Tex.App. - Fort
Worth 2010, pet. refd) (citing Bell v. State, 620 S.W.2d 116, 126 (Tex.Crim.App. 1980)).
Appellant challenges the trial court's ruling permitting the State to offer the
extraneous-offense evidence in its case-in-chief, arguing that at that point in the trial, there was no
defensive theory to rebut. However, Appellant chose to follow the State's opening statement with
her own. The Texas Court of Criminal Appeals has recognized that, while not evidence, a
defensive opening statement informs the jury of the nature of the defenses on which defendant will
rely and the facts the defendant expects to prove in support of such defenses. See Bass v. State,
270 S.W.3d 557, 563 n.7 (Tex.Crim.App. 2008). When a defensive opening statement follows
the State's opening, "the State may reasonably rely on this defensive opening statement as to what
evidence the defense intends to present and rebut this anticipated defensive evidence during its
case-in-chief as opposed to waiting until rebuttal." Id. A defense opening statement can "open
the door" to the admission of extraneous-offense evidence in the State's case-in-chief to rebut the
defensive theories presented in the opening statement. Id. at 563.
During her opening statement, Appellant observed that the State had promised to prove she
intended to possess the hydrocodone and had knowledge that she possessed hydrocodone.
Appellant argued that the State could not prove intent or knowledge because it was not true,
declaring "that's what we are going to present to you during this trial," and asserted she would
12
show with competent evidence that the State could not prove that she knew she was getting another
person's prescription. Thus, in her opening statement Appellant both identified defenses to the
State's assertions that she intentionally and knowingly possessed hydrocodone and raised mistake
as a defense to her receipt of the hydrocodone. Because Appellant's opening statement "opened
the door" to evidence of Appellant's intent, Carol and Rosario's testimony was admissible to rebut
Appellant's defensive theories. Tex. R. Evid. 404(b); Bass, 270 S.W.3d at 563; Powell, 63
S.W.3d at 439^40. The State was therefore allowed to rebut this anticipated defensive evidence
during its case-in-chief as opposed to waiting until rebuttal.
Further, the testimony of Carol and Rosario had relevance apart from any tendency to
prove character conformity because that testimony logically made the elemental facts of intent and
knowledge more probable and Appellant's defense of mistake less probable. See Montgomery,
810 S.W.2d at 387-88. The complained-of extraneous evidence was thus admissible under Rule
404(b) to prove intent, knowledge, and absence of mistake. Tex. R. Evid. 404(b); see Moses, 105
S.W.3d at 626 (rebuttal of a defensive theory of mistake or accident is a permissible purpose to
admit extraneous-offense evidence under Rule 404(b)). The trial court's decision to admit the
extraneous-offense evidence falls within the zone of reasonable disagreement. The trial court
therefore did not abuse its discretion in admitting the evidence.
Appellant also argues that the trial court abused its discretion when it admitted the
extraneous-offense evidence in the absence of notice from the State of its intent to utilize this
evidence. By a written Pre-Trial and Discovery Order, the trial court directed the State to give
written notice to Appellant seven days prior to trial regarding any extraneous offenses that it
intended "to use in its case-in-chief other than that arising out of the transaction on trial." The
13
State contends Appellant failed to preserve any error regarding lack of notice because she did not
seek a continuance when the State notified her that it intended to use the complained-of testimony.4
We agree.
The purpose of requiring notice of the State's intent to use extraneous-offense evidence "is
to adequately make known to the defendant the extraneous [acts] the State intends to introduce at
trial and to prevent surprise to the defendant." Martin v. State, 176 S.W.3d 887, 900 (Tex.App. -
Fort Worth 2005, no pet.). To preserve error regarding the State's failure to provide reasonable
notice of its intent to use extraneous-offense evidence, a defendant must request a continuance to
mitigate the effects of surprise. Martines v. State, 371 S.W.3d 232, 249 (Tex.App. - Houston [1st
Dist.] 2011, no pet.); Martin, 176 S.W.3d at 900; see also Oprean v. State, 201 S.W.3d 724, 730
n.10 (Tex.Crim.App. 2006) (Cochran, J. concurring) (any error in causing "surprise" to the
defense is forfeited on appeal unless the defendant has also requested a postponement or recess).
Because Appellant did not seek a continuance, her complaint concerning lack of notice is not
preserved for our consideration.
Appellant also made a Rule 403 objection to admission of this evidence. Evidence which
is admissible may be excluded if the danger of unfair prejudice substantially outweighs its
probative value. Tex. R. Evid. 403; Montgomery, 810 S.W.2d at 389. Without providing any
Rule 403 balancing-test analysis, Appellant merely asserts the admission of the evidence was
4 The State also argues that Appellant waived errorby failing to timely request notice of any extraneous offenses as
required by Rule 404(b). See TEX. R. EVID. 404(b)(providing that "upon timely request by the accused in a criminal
case," the State shall give reasonable notice in advance of trial or its intent to introduce in its case-in-chief evidence of
other crimes or wrongs); see also Webb v. State, 995 S.W.2d 295, 298 (Tex.App.- Houston [14th Dist.] 1999, no pet.)
(the failure to request notice of extraneous offenses precludes an accused from complaining about the sufficiency of
the notice he received). The trial court's Pre-Trial and DiscoveryOrder, however, directed the State to give written
notice to Appellant without predicating the State's obligation on the Rule 404(b) requirement that Appellant first
timely request notice. Underthe pre-trial order, the State's obligation to provide notice was absolute,and Appellant
was not required to timely request notice in order to complain about the lack of notice on appeal.
14
"highly prejudicial." Where a proper Rule 403 objection is made, the trial court must conduct a
balancing test. Rojas v. State, 986 S.W.2d 241, 250 (Tex.Crim.App. 1998); Williams v. State, 958
S.W.2d 186, 195 (Tex.Crim.App. 1997) (holding trial court has no discretion whether to conduct
balancing test under Rule 403). In conducting a Rule 403 balancing test, the trial court must
balance (1) the inherent probative value of the evidence and (2) the State's need for that evidence
against (3) any tendency of the evidence to suggest a decision on an improper basis, (4) any
tendency to confuse or distract the jury from the main issues, (5) any tendency to be given undue
weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6)
the likelihood that presentation of the evidence will consume an inordinate amount of time or be
needlessly cumulative. See Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex.Crim.App.
2006). In practice, these factors may well blend together. Id.
Under Rule 403, it is presumed that the probative value of relevant evidence exceeds any
danger of unfair prejudice. Hammer v. State, 296 S.W.3d 555, 568 (Tex.Crim.App. 2009).
Based on this presumption, our review of the record, and the relevant Rule 403 criteria, we
conclude the probative value of the extraneous-offense evidence was not substantially outweighed
by any prejudicial impact. The testimony concerning Appellant's prior use of hydrocodone
coupled with her prior request that Carol Wright sell her the hydrocodone of a deceased patient
was probative and necessary for the State to rebut Appellant's contention that she had been
provided Judy's hydrocodone prescription in error, as stated in the pharmacy's letter. This
evidence was not cumulative of other evidence, and its presentation was concise. We conclude
this evidence had little, if any, tendency to mislead or confuse the jury, and that any such tendency
was substantially outweighed by its probative value to rebut Appellant's contention that she had
15
received the hydrocodone "in error."
Finding no abuse of discretion, we overrule Issue Two.
CONCLUSION
We conclude that the evidence is legally sufficient to support Appellant's conviction and
that the trial court did not abuse its discretion in admitting the extraneous-offense evidence. We
therefore affirm the trial court's judgment. The trial court certified Appellant's right to appeal in
this case, but the certification does not bear Appellant's signature indicating that she was informed
of her rights to appeal and to file a pro se petition for discretionary review with the Texas Court of
Criminal Appeals. See Tex. R. App. P. 25.2(d). The certification is defective, and has not been
corrected by either Appellant's attorney or the trial court. To remedy this defect, this Court orders
Appellant's attorney, pursuant to Tex. R. App.P. 48.4, to send Appellant a copy ofthis opinion and
this Court's judgment, to notify Appellant of her right to file a pro se petition for discretionary
review, and to inform Appellant of the applicable deadlines. See Tex. R. App. P. 48.4, 68.
Appellant's attorney is further ordered to comply with all of the requirements of Tex. R. App. P.
48.4.
STEVEN L. HUGHES, Justice
January 28, 2015
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Publish)
16
IN THE DISTRICT COURT OF EL PASO COUNTY, TEXAS
346TH JUDICIAL DISTRICT
THE STATE OF TEXAS '.-:.-.;•;;: '.'; . •' 7. o'j
VS. /Vv CAUSE NO. 20090D02461
LAURA KNIGHT
PRE-TRIAL and DISCOVERY ORDER
The Court hereby enters the following orders relating to Pre-trial schedules and Discovery.
STATE'S WITNESSES
The names and addresses of all witnesses the State will call in its case-in-chief at the guilt stage of
trial, in the punishment stage ofthe trial, and that the State can reasonably anticipate calling in the rebuttal
stage oftrial shall be given to the defense prior to trial. This may be done by either filing the subpoena list
or prospective witness list with the District Clerk or by directly delivering such information to the defense,
ora combination ofboth. However, the State isnot required todisclose the address ofthe alleged victim in
thiscaseunless expressly ordered to do so bythe Court.
EXPERT WITNESSES AND REPORTS
The State shall designate expert witnesses to be called at trial byFriday, 2weeks prior to trial. The
Defendant shall designate expert witnesses to be called at trial by Friday, 1 week prior to trial. The
expert's written reports shall be made available for inspection after said designation. Results of any
physical or mental examinations, scientific tests, experiments or comparisons and autopsies shall be made
available for inspection upon request made bythe Defense atamutually agreed time.
MOTIONS TO SUPPRESS
Motions to Suppress shall be filed fourteen (14) days prior to the 28.01 Motions Conference.
All Motions to Suppress must be heard before the final Pre-Trial. Failure to file Motions to Suppress or
request hearings according to this order will result in wavier ofsuch Motions to Suppress.
DAUBERT MOTIONS
Defendant's Daubert Motions shall be filed fourteen (14) days prior to the 28.01 Motions
Conference. Ahearing on said Motions must be requested at the 28.01 Motions Conference and shall be
heard at the time set by the Court for all other 28.01 Motions. The State's Daubert Motions shall be
filed at any time after Defendant's designation ofexperts, but must be scheduled for hearing no later than
three (3) days prior to trial. Failure to file Daubert Motions or request hearings according to this court
order will result in waiver of such Daubert challenges at trial.
PHYSICAL EVTOENCE
At a mutually agreed time the State shall allow the Defense to inspect all physical evidence, to
include all books, papers documents, photographs, videotapes, clothing, tangible objects, contraband or
substances which the State intends to use in the trial ofthis cause, which were obtained from or belong to
the accused, or which are exculpatory as that term is understood in Brady v. Maryland.
At amutually agreed time the State shall allow the Defense to inspect all weapons alleged by the
State to have been used by the defendant, his co-defendant(s) and/or co-conspirators in the commission of
the indicted offense.
At amutually agreed time the State shall allow the Defense to inspect all fingerprints, palm prints,
footprints and reports ofthe same that are: (1) obtained at the scene ofthe alleged crime; and (2) alleged to
have been made by the Defendant in the commission ofthe indicted offense.
CONFESSIONS AND ORAL STATEMENTS
Acopy of any written statement purportedly made by the Defendant (or oral statement recorded in
accordance with V.A.C.C.P. Art. 38.22) is to be given to the Defense within areasonable time.
GRAND JURY TESTIMONY
If the Grand Jury testimony was reported, a transcript of such Grand Jury testimony shall be
prepared and given to the Defense after the witness has testified at trial.
PRIOR CRIMINAL RECORDS
Prior to trial the State shall inform the Defense ofall prior felony convictions and misdemeanor
convictions involving moral turpitude which the State intends to use for impeachment of the Defendant at
trial. This will be deemed complied with ifthe State allows the Defense to see the States file and said
information is contained on a rap sheetin the State's file.
Prior to trial, the State shall inform the Defense of the prior criminal record of all State's witnesses
which shall include all prior felony convictions, misdemeanor convictions ofmoral turpitude, all arrests and
charging instruments which were in existence or occurred at or after the time of the alleged offense or any
other part ofthe criminal record ofthe witness which may show bias ofthe witness or motive as to why the
witness would testify inthe manner testified toattrial.
EXCULPATORY/MITIGATING; EVIDENCE
The State shall inform the Defense ofall exculpatory or mitigating evidence which the State or its
agents have in their possession and known to the State or law enforcement personnel. (To be understood m
conformity withBradv v. Maryland).
EXTRANEOUS OFFENSES
The State shall give written notice to the Defense seven (7) days before trial of any extraneous
offenses which the State intends to use in its case-in-chief other than that arising out of the transaction on
trial. Such notice shall reasonably inform the Defense ofthe nature of the extraneous offense(s).
If the parties are unable to agree to a mutually convenient time for purposes of carrying out this
order, upon motion filed, the Court will enter orders directing the parties to meet at a specific place and
time.
SIGNED and ENTERED this 21st day ofJanuary, 2010.
/ / ... i ,'• ""\
JUDGE ANGIE JUAREZ BARILL
346TH JUDICIAL DISTRICT COURT
PLACE STICKER AT TOP OF ENVELOPE TO T
OF THE RETURN ADDRESS, FOLD AT DOTTED LINE
ERTIFIED MAIL
l11"!!i'![i<|'S!Hhih'!l!!h1iii
Ms. Laura Knight
219 Dolan St. 7013 5SSD D0D-1 ISSfl A5b4
El Paso, TX: 79905
u.s. postage
elX,tx
79910,,
1000
78701
$8.99
R2304H108289-20
f
Clerk of the Court
to
The Texas Court of Criminal
Appeals
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Austin, TX 78701