Christopher Greer v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-087-CR
CHRISTOPHER GREER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
Appellant Christopher Greer appeals his conviction for felony possession of
a controlled substance by fraud. 2 He contends in four issues that the trial court erred
by admitting evidence of an extraneous offense for purposes of identity, that the trial
1
 See Tex. R. App. P. 47.4.
2
 See Tex. Health & Safety Code Ann. § 481.129(a)(5), (d) (Vernon 2010).
court erred by admitting testimony concerning his character, and that the evidence
is legally and factually insufficient to support his conviction. W e affirm.
II. Factual and Procedural Background
On October 27, 2007, Appellant presented a prescription for 120 pills of
Lortab, a brand name for hydrocodone or dihydrocodeinone, at a Denton County
W algreen’s. Josh Taylor, the pharmacist on duty, saw Appellant present the
prescription and noticed a tattoo behind his right ear. Taylor identified Appellant as
the person who presented the prescription both in a photo line-up and at trial.
Suspicious of the prescription because he knew that the named doctor had been the
victim of false prescriptions and because he knew that the zip code was incorrect,
Taylor informed Appellant that the prescription would have to be verified. Appellant
said that he would return later for the filled prescription, but he did not do so. Taylor
contacted the police after confirming that the prescription was fraudulent.
Appellant was indicted in March 2008 for knowingly possessing or attempting
to possess or obtain a controlled substance through the use of a fraudulent
prescription, and Appellant pleaded not guilty. A jury found Appellant guilty and
assessed punishment at ten years’ confinement, and the trial court sentenced him
accordingly.
III. Legal Sufficiency of the Evidence
In his third issue, Appellant contends that the evidence is legally insufficient
to support his conviction because “there is a lack of guilty knowledge or intent.”
2
Appellant does not challenge the legal sufficiency of any other element of the
charged offense.
A. Standard of Review
In reviewing the legal sufficiency of the evidence to support a conviction, we
view all of the evidence in the light most favorable to the prosecution in order to
determine whether any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99
S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W .3d 772, 778 (Tex. Crim. App.
2007).
B. Applicable Law
Section 481.129 of the health and safety code provides in pertinent part, “(a)
A person commits an offense if the person knowingly: . . . (5) possesses, obtains,
or attempts to possess or obtain a controlled substance or an increased quantity of
a controlled substance: (A) by misrepresentation, fraud, forgery, deception, or
subterfuge; [or] (B) through use of a fraudulent prescription form.” Tex. Health &
Safety Code Ann. § 481.129(a)(5)(A), (B). Section 6.03(b) of the penal code states,
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. A
person acts knowingly, or with knowledge, with respect to a result of his
conduct when he is aware that his conduct is reasonably certain to
cause the result.
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Tex. Penal Code Ann. § 6.03(b) (Vernon 2003). Knowledge may be inferred from
a person’s acts, words, and conduct. Hart v. State, 89 S.W .3d 61, 64 (Tex. Crim.
App. 2002); Martinez v. State, 833 S.W .2d 188, 196 (Tex. App.—Dallas 1992, pet.
ref’d).
C. The Evidence is Legally Sufficient
Here, the State presented evidence that Appellant presented a fraudulent
prescription for 120 pills of Lortab at a W algreen’s in Denton County on October 27,
2007. The pharmacist was suspicious of the prescription and told Appellant that the
prescription would have to be verified, and Appellant left the pharmacy after saying
that he would return later to pick up the filled prescription. But Appellant never
returned to pick up the prescription. Moreover, the jury also heard evidence that the
fraudulent prescription was for a person named Jason Martin, that it was for six times
a normal prescription amount, and that it was created to look like a prescription form
from the doctor who purportedly wrote it. The jury could infer from Appellant’s failure
to return to pick up the filled prescription and the efforts taken to create the
fraudulent prescription that Appellant had knowingly presented a fraudulent
prescription. See Hart, 89 S.W .3d at 64; Martinez, 833 S.W .2d at 196. Thus, we
hold that the evidence is legally sufficient to prove that Appellant acted knowingly.
See Tex. Health & Safety Code Ann. § 481.129(a)(5); see also Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Clayton, 235 S.W .3d at 778. W e overrule Appellant’s third
issue.
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IV. Factual Sufficiency of the Evidence
In his fourth issue, Appellant argues that the evidence is factually insufficient
to support his conviction because there was “a question about whether [he] was
involved or that he was correctly identified.” Appellant does not challenge the factual
sufficiency of any other element of the charged offense.
A. Standard of Review
W hen reviewing the factual sufficiency of the evidence to support a conviction,
we view all the evidence in a neutral light, favoring neither party. Steadman v. State,
280 S.W .3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W .3d 404, 414
(Tex. Crim. App. 2006). W e then ask whether the evidence supporting the
conviction, although legally sufficient, is nevertheless so weak that the factfinder’s
determination is clearly wrong and manifestly unjust or whether conflicting evidence
so greatly outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. Steadman, 280 S.W .3d at 246; Watson, 204
S.W .3d at 414–15, 417. Unless we conclude that it is necessary to correct manifest
injustice, we must give due deference to the factfinder’s determinations, “particularly
those determinations concerning the weight and credibility of the evidence.”
Johnson v. State, 23 S.W .3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280
S.W .3d at 246. Evidence is always factually sufficient when it preponderates in favor
of the conviction. Steadman, 280 S.W .3d at 247; see Watson, 204 S.W .3d at 417.
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B. The Evidence is Factually Sufficient
Reviewing all the evidence in a neutral light, we recall that the W algreen’s
pharmacy technician, Paul Kim, could not identify Appellant and that there is no
videotape evidence placing Appellant at the W algreen’s. However, the jury also
heard testimony that the pharmacist saw Appellant inside the W algreen’s from a
distance of approximately eight feet, identified Appellant by the tattoo behind his
right ear, identified Appellant in a photo line-up, and identified Appellant at trial. Also
relevant to Appellant’s identity, the jury heard evidence that Appellant committed a
very similar act just six weeks earlier on September 12, 2007.
Viewing the evidence in a neutral light, we conclude that a rational trier of fact
could have found beyond a reasonable doubt that Appellant presented the
fraudulent prescription to W algreen’s. W e cannot say that the evidence is so weak
that the jury’s determination is clearly wrong or manifestly unjust or that the
conflicting evidence so greatly outweighs the evidence supporting the convictions
that the jury’s determination is manifestly unjust. See Lancon v. State, 253 S.W .3d
699, 704 (Tex. Crim. App. 2008); Watson, 204 S.W .3d at 414–15, 417. We
therefore hold that the evidence is factually sufficient to support the jury’s verdict,
and we overrule Appellant’s fourth issue.
V. Evidence of Extraneous Offense
Appellant argues in his first issue that the trial court erred by admitting
evidence of an extraneous offense in the guilt-innocence phase for purposes of
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identity because the State did not show that identity was at issue in the case, the
State did not timely disclose its intent to introduce evidence of the extraneous
offense, and the extraneous offense was not sufficiently similar to the instant
offense.
A. Identity at Issue
Appellant first argues that the evidence of the extraneous offense should not
have been admitted because “the State failed to show why identity was an issue.”
Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. Tex. R. Evid. 404(b);
Montgomery v. State, 810 S.W .2d 372, 387 (Tex. Crim. App. 1990) (op. on reh’g).
This rule reflects the well-established principle that a defendant should not be tried
for some collateral crime or for being a criminal generally. Soffar v. State, 742
S.W .2d 371, 377 (Tex. Crim. App. 1987). Evidence of prior criminal conduct may,
however, be admissible if it is logically relevant to prove some other fact, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. Tex. R. Evid. 404(b); Johnston v. State, 145
S.W .3d 215, 219 (Tex. Crim. App. 2004). An extraneous offense may be admissible
to prove identity only if the identity of the perpetrator is at issue in the case. Page
v. State, 213 S.W .3d 332, 336 (Tex. Crim. App. 2006). Identity can be raised by
cross-examination, such as when the identifying witness is impeached on a material
detail of the identification. Page v. State, 137 S.W .3d 75, 78 (Tex. Crim. App. 2004).
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Here, when objecting to the admission of the extraneous offense evidence,
Appellant’s counsel argued to the trial court that the offenses were not sufficiently
similar and stated, “I think it’s pretty clear that—that, yes, identity is going to be an
issue here because I think the evidence in this case is going to show you got a guy
who spent more time with [Appellant] than Dr. Taylor did who is going to say [he]
couldn’t pick [Appellant] out of a photo line-up.” Further, Appellant cross-examined
the pharmacist by confirming that there was no video surveillance of Appellant’s
attempt to fill the fraudulent prescription and that the pharmacy technician, Mr. Kim,
actually had more “face time” with Appellant during the transaction than the
pharmacist. Thus, identity was an issue at Appellant’s trial, and the trial court did not
abuse its discretion by admitting the extraneous offense evidence on this basis. See
Karnes v. State, 127 S.W .3d 184, 189–90 (Tex. App.—Fort W orth 2003, pet. ref’d)
(“Cross-examination of the State’s identifying witnesses can raise the issue of
identity when the witness is impeached about . . . the conditions surrounding the
offense charged and the witness’s identification of the defendant in that situation.”).
W e overrule this portion of Appellant’s first issue.
B. Timeliness of Notice
Appellant next argues that the State did not give timely notice of its intent to
introduce evidence of extraneous offense. Article 38.37 of the code of criminal
procedure provides that a defendant who timely requests notice of the State’s intent
to introduce extraneous offenses during the State’s case-in-chief is entitled to notice
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“in the same manner as the state is required to give notice under Rule 404(b).” Tex.
Code Crim. Proc. Ann. art. 38.37, § 3 (Vernon Supp. 2009). Rule 404(b) requires
that the notice of the State’s intent be “reasonable notice . . . in advance of trial.”
Tex. R. Evid. 404(b). “The purpose behind the notice provision is to adequately
make known to the defendant the extraneous offenses 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.); see Self v. State, 860 S.W .2d 261, 264
(Tex. App.—Fort W orth 1993, pet. ref’d).
The record reflects that Appellant objected to the reasonableness of the
State’s notice of extraneous offenses during trial, but he did not request that the trial
court grant him a continuance. Having failed to request a continuance, Appellant
has not preserved his complaint concerning the timeliness of the State’s notice. See
Martin, 176 S.W .2d 900; Koffel v. State, 710 S.W .2d 796, 802 (Tex. App.—Fort
W orth 1986, pet. ref’d) (citing Lindley v. State, 635 S.W .2d 541, 544 (Tex. Crim.
App. 1982)). Even if Appellant had preserved his complaint, we note that Appellant’s
case had not been set for trial prior to a March 12, 2009 plea hearing, that Appellant
decided not to plead guilty the morning of the plea hearing, that the State faxed the
404(b) notice to Appellant’s counsel the evening of March 13, 2009, that Appellant’s
counsel acknowledged receiving the State’s notice on March 14, 2009, and that
Appellant’s trial began on March 23, 2009. See Martin, 176 S.W .3d at 900
(“Generally, what constitutes reasonable notice under Rule 404(b) depends on the
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facts and circumstances of the case.”). W e cannot say that the trial court abused
its discretion when it overruled Appellant’s objection to the reasonableness of the
State’s notice because the trial court could have determined that the State’s notice
was adequate and reasonable under the circumstances of this case. See id. W e
overrule this portion of Appellant’s first issue.
C. Sufficient Similarity between Extraneous Offense and Instant Offense
Appellant next argues that the instant offense and the extraneous offense are
not sufficiently similar to make the extraneous offense admissible to prove identity.
W hen the State uses an extraneous offense to prove identity by comparing common
characteristics of the crime, the extraneous offense must be so similar to the
charged offense that it illustrates the defendant’s “distinctive and idiosyncratic
manner of committing criminal acts.” Page, 213 S.W .3d at 336; Lane v. State, 933
S.W .2d 504, 519 (Tex. Crim. App. 1996); see Segundo v. State, 270 S.W .3d 79,
88–90 (Tex. Crim. App. 2008). The evidence must demonstrate a much higher
degree of similarity to the charged offense than extraneous acts offered for other
purposes, such as intent. Bishop v. State, 869 S.W .2d 342, 346 (Tex. Crim. App.
1993).
In reviewing the decision to admit extraneous offense information, appellate
courts should take into account the specific characteristics of the offenses and the
time interval between them. Thomas v. State, 126 S.W .3d 138, 144 (Tex.
App.—Houston [1st Dist.] 2003, pet. ref’d). Sufficient similarity may be shown by
proximity in time and place or by a common mode of committing the offense. Id.;
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see also Lane, 933 S.W .2d at 519. The extraneous offense and the charged offense
can be different types of offenses so long as the similarities between the two
offenses are such that the evidence is relevant. Thomas, 126 S.W .3d at 144. W e
will not disturb a trial court’s evidentiary ruling absent an abuse of discretion.
Winegarner v. State, 235 S.W .3d 787, 790 (Tex. Crim. App. 2007). As long as the
trial court’s ruling is within the zone of reasonable disagreement and is correct under
any theory of law, it must be upheld. Id.
Here, the State introduced evidence that Appellant had presented a fraudulent
prescription to the Big State Drug Store on September 12, 2007, about six weeks
before the instant offense. The September 12, 2007 prescription was for 120 pills
of Lorcet, a brand name for dihydrocodeinone. The pharmacy technician asked
Appellant for his driver’s license, and Appellant told her that he did not have it with
him but said his wife had her driver’s license. Appellant left the pharmacy and
returned with a woman the technician believed to be Appellant’s wife, and Appellant
paid for the prescription and left the pharmacy. In the instant offense, Appellant
presented a prescription for 120 pills of Lortab, a brand name for dihydrocodeinone.
After the pharmacist informed Appellant that the prescription would have to be
verified before it could be filled, Appellant stated that he would return to pick up the
filled prescription but never did.
Appellant argues that the extraneous offense is not sufficiently similar to the
instant offense because Appellant involved another person in the extraneous offense
but acted alone in the instant offense. W e disagree. The two offenses were
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committed within six weeks, and in each instance, Appellant presented a fraudulent
prescription for 120 pills of dihydrocodeinone (an amount far in excess of normal
prescription amounts), the prescription slip had been created using an incorrect
typeface and physician signature (as opposed to theft of an actual physician’s
prescription pad), neither named physician had a patient by the name of the person
listed on the prescription to receive the dihydrocodeinone, and an employee from
each pharmacy noticed Appellant’s distinctive tattoo and identified him from a photo
line-up. To the extent that there are differences between the two offenses, the
offenses are sufficiently similar to be admissible under rule 404(b) for purposes of
proving Appellant’s identity. See Burton v. State, 230 S.W .3d 846, 850–51 (Tex.
App.—Houston [14th Dist.] 2007, no pet.) (holding that the differences between the
various offenses did “not necessarily outweigh the similarities and thus destroy the
probative value of the extraneous offenses in proving identity”). W e therefore
overrule the remainder of Appellant’s first issue.
VI. Evidence of Appellant’s Character
Appellant contends in his second issue that the trial court erred by permitting
Officer Corr to testify about his character and the quantity and potential value of the
controlled substance during the punishment phase of his trial. The State responds
that evidence of character is admissible under article 37.07, section 3(a)(1) of the
code of criminal procedure and that Appellant did not object to Officer Corr’s
testimony about the potential value of the controlled substance. W e agree with the
State.
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Section 3(a)(1) of the code of criminal procedure provides in part that, after a
finding of guilty, “evidence may be offered by the state and the defendant as to any
matter the court deems relevant to sentencing, including but not limited to . . . an
opinion regarding his character.” Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1)
(Vernon Supp. 2009). Here, Officer Corr was asked whether she was familiar with
Appellant from her work with the Diversion Unit of the Narcotics Section of the Dallas
Police Department and whether she had formed an opinion as to Appellant’s
character for being peaceful and law-abiding. The trial court overruled Appellant’s
objection to impermissible character evidence, and Officer Corr testified that her
opinion was that Appellant’s character as peaceful and law-abiding was “very bad.”
An opinion concerning Appellant’s character was, under the express language of
article 37.07, section 3(a)(1), admissible during the punishment phase of his trial,
and Appellant does not argue that Officer Corr’s testimony was not admissible under
article 37.07. See id. 3 W e hold that the trial court did not abuse its discretion by
permitting Officer Corr to testify concerning her opinion of Appellant’s character
during the punishment phase of Appellant’s trial. W e overrule this portion of
Appellant’s second issue.
3
 Appellant does cite Malgar v. State, 236 S.W .3d 302, 306–07 (Tex.
App.—Houston [1st Dist.] 2007, pet ref’d) to support his argument that the character
opinion testimony was inadmissible. However, the complaint there related to
character witnesses Malgar called to testify during the guilt-innocence phase of his
trial and has no application to Appellant’s case. Id.
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Appellant also argues that Officer Corr should not have been permitted to
testify over his speculation objection about the potential street value of the controlled
substance because there “was no foundation to show that Officer Corr was testifying
as an expert witness” and there “was no evidence to show her qualification[s], the
de[g]ree of her conclusiveness[,] and how it was relevant to the punishment phase.”
However, Appellant’s complaint on appeal does not comport with the objection he
made at trial. Therefore, Appellant did not preserve this complaint for appellate
review. See Goodson v. State, 840 S.W .2d 469, 473 (Tex. App.—Tyler 1991, pet.
ref’d) (holding speculation objection at trial did not preserve appellate complaint
concerning improper admission of expert testimony); see also Taylor v. State, 106
S.W .3d 827, 832 (Tex. App.—Dallas 2003, no pet.) (holding the appellant failed to
preserve argument concerning admission of police officer’s testimony as expert
because he did not object to the testimony at trial). W e overrule the remainder of
Appellant’s second issue.
VII. Conclusion
Having overruled each of Appellant’s four issues, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and W ALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 15, 2010
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