IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0864-11

BILLIE JEAN AVERY, Appellant

v.

THE STATE OF TEXAS

ON DISCRETIONARY REVIEW

FROM THE THIRTEENTH COURT OF APPEALS

BEE COUNTY

Womack, J., delivered the opinion of the unanimous Court.

The appellant was convicted of attempting to obtain a controlled substance “through use

of a fraudulent prescription form.” The Thirteenth Court of Appeals acquitted the appellant 1

because it found no evidence that she used a fraudulent prescription form. We shall affirm the 2

See TEX. HEALTH & SAFETY CODE § 481.129(a)(5)(B).

1

Avery v. State, 341 S.W.3d 490 (Tex. App.–Corpus Christi 2011).

2
Avery - 2

Court of Appeals’s judgment, though we disagree with some of the Court’s reasoning and

interpretation of the record.

I. Trial

The evidence showed that on January 15, 2009, the appellant complained to her doctor of

knee and back pain and received from him a prescription for forty 2.5 milligram Lortab pills.

Before she dropped off the prescription at the pharmacy, the appellant attempted to scribble out

the “2.5” and make it look like “7.5.” The on-duty pharmacist became suspicious and called the

office of the appellant’s doctor, where a nurse said that the prescription should have been for 2.5

milligram pills. The pharmacist then called store security, who contacted police.

After the State rested, the appellant moved for a directed verdict of acquittal. She argued

that, while there was evidence that she committed forgery, which might allow a conviction under

Healthy & Safety Code Section 481.129(a)(5)(A), there was no evidence that she used a

fraudulent prescription form as alleged in the indictment, which used the statutory manner and

means listed in Section 481.129(a)(5)(B):

3

The testimony is that the prescription form is not fraudulent. It is the prescription

form of the doctor. What the testimony has been is that the prescription, itself, that

the doctor wrote on his form was altered. ... There’s no evidence that [the

appellant] committed this fraud by using a fraudulent prescription form ....

The State responded that by altering an otherwise legitimate prescription, the appellant

Health & Safety Code § 481.129 reads, in pertinent parts:

3

(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; or

(C) through use of a fraudulent oral or telephonically communicated prescription ....
Avery - 3

had created a fraudulent prescription form. The trial court denied the appellant’s motion. The jury

found the appellant guilty and assessed her punishment of 25 years’ confinement and a $1,500

fine.

II. Direct Appeal

Before the Thirteenth Court of Appeals, the appellant argued that a “prescription form”

consisted of “only two elements: (1) the actual paper a practitioner uses to record a prescription;

and (2) that paper’s preprinted markings. In order for a prescription form to be fraudulent, one of

those elements must be directly affected by a fraudulent act.” Because her fraudulent act affected

only the prescription information handwritten by the doctor, the prescription form itself was not

fraudulent, and she was entitled to an acquittal.

The State countered by arguing that under Health & Safety Code Section 481.075 – which

outlines the “Official Prescription Program” that prescribers must follow in order to prescribe

Schedule II controlled substances – the elements of an “official prescription form” include the 4

controlled substance prescribed as well as the quantity of that controlled substance. Because the 5

prescriber’s written words were part of the “official prescription form,” according to the State,

when the appellant altered those written words she turned the entire document into a “fraudulent

prescription form.”

The Court of Appeals’s majority accepted neither party’s argument in full. It agreed with

the State that the prescription form was “essentially” an “official prescription form.” Instead of 6

See TEX. HEALTH & SAFETY CODE § 481.075.

4

Id., at (e)(1).

5

Avery, 341 S.W.3d, at 497.

6
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addressing whether the appellant’s actions fit the definition of using a “fraudulent prescription

form,” however, the Court of Appeals saw its job as determining whether the appellant’s actions

were “more” like the “misrepresentation, fraud, forgery, deception, or subterfuge” barred in

Section 481.129(a)(5)(A), or like the “use of a fraudulent prescription form,” barred in

Section 481.129(a)(5)(B). Because it determined that subsections (A) and (B) were mutually 7

exclusive – i.e., an action might fall under (A) or it might fall under (B), but it could not fall

under both – and because it determined that the appellant’s actions more closely resembled

“forgery” than “use of a fraudulent prescription form,” the Court of Appeals vacated the trial

court’s judgment and entered a verdict of acquittal.

III. Factual Matters

We granted the State’s petition for discretionary review to determine whether the Court of

Appeals correctly interpreted the phrase “fraudulent prescription form.” Before we can address

that matter, however, we need to address several factual matters in the Court of Appeals’s

opinion.

A. Lortab

The first sentence of the Court of Appeals’s opinion was:

Appellant, Billie Jean Avery, was charged by indictment with obtaining an

increased quantity of a Schedule II controlled substance through the use of a

fraudulent prescription form, a second-degree felony.

8

We do not so read the record. The indictment alleged that the appellant attempted to use a

fraudulent prescription form “to obtain a controlled substance, namely, Lortab ...” without

Id., at 498.

7

Id., at 491.

8
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specifying which Schedule Lortab is on. The Court of Appeals cited to two cases stating that

hydrocodone, one of the ingredients in Lortab, is a Schedule II controlled substance. It also cited 9

to a website that described Lortab as a combination of hydrocodone and acetaminophen.10

A different page on that same website, however, states that certain mixtures that include

hydrocodone are Schedule III controlled substances. The Schedules published by the 11

Commissioner of Public Health confirm that hydrocodone is a Schedule II controlled substance,

but certain mixtures that include hydrocodone are Schedule III controlled substances.12

Although the record contains no information regarding the specific hydrocodone mixture

contained in the Lortab pills the appellant sought, it does contain the pharmacist’s testimony that

Lortab was a Schedule III controlled substance. There was no contradictory testimony or

arguments by the parties that she was mistaken.

We think that the record must be read to say that the prescription was for a Schedule III

controlled substance.

B. “Official Prescription Form”

That reading of the record means that the Court of Appeals was incorrect to have looked

to Health & Safety Code Section 481.075 as a source for determining the composite parts of a

Id., at 491 n.1 (citing Smith v. State, No. 2-07-125-CR, 2008 WL 2553451, at *1-2, 2008 Tex.App.

9

LEXIS 4779, at **4-5 (Tex. App.–Fort Worth June 26, 2008, pet. ref’d) (mem op., not designated for publication),

and Beaty v. State, 156 S.W.3d 905, 906 n.2 (Tex. App.–Beaumont 2005, no pet.)).

Id. (citing Lortab, http://www.drugs.com/lortab).

10

Hydrocodone Bitartrate Monograph, http://www.drugs.com/monograph/hydrocodone-bitartrate.html (last

11

visited February 27, 2012).

Drugs and Medical Devices: Controlled Substances Scheduling Page,

12

http://www.dshs.state.tx.us/dmd/control_subst_sched.shtm (last visited February 27, 2012); see also, TEX. HEALTH &

SAFETY CODE § 481.032 (authorizing Commissioner of Public Health to publish and update controlled substance

Schedules).
Avery - 6

“prescription form.” By its terms, Section 481.075 describes “official prescription forms,” 13

which prescribers must use when prescribing a Schedule II controlled substance. The section 14

does not mention prescriptions for Schedule III controlled substances.

The copy of the appellant’s prescription contained in the record does not appear to be

sequentially numbered, as Section 481.075(b) requires of an “official prescription form.”

Moreover, “official prescription forms” are printed by the Department of Public Safety, and the 15

appellant directs us to a page on the Department of Public Safety’s website that shows samples of

“official prescription forms” that are significantly different from the appellant’s prescription

form. There is nothing in the record or in the statutes to lead us to believe that the appellant 16

used an “official prescription form.” Thus Section 481.075 is, at most, of limited utility in

analyzing this case.

C. Subsections of a Statute Need Not Be Mutually Exclusive

In comparing Section 481.129(a)(5)(A) to Section 481.129(a)(5)(B), the Court of Appeals

began its analysis by looking at the history of the statute. The Court of Appeals noted that 17

before the section was recodified in 1989, the three subsections that are currently under Section

481.129(a)(5) had all been part of a single subsection. The predecessor statute, Article 4476-15

See Avery, 341 S.W.3d, at 496 (“We find section 481.075(e) to be applicable because the drug involved

13

in this matter–Lortab–is a Schedule II controlled substance.”).

TEX. HEALTH & SAFETY CODE § 481.075(a).

14

Id., at (c).

15

Texas Prescription Drug Program Forms,

16

http://www.txdps.state.tx.us/RegulatoryServices/prescription_program/prescriptionforms.htm (last visited February

27, 2012).

Avery, 341 S.W.3d, at 497.

17
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Section 4.09, was enacted in 1979 and amended in 1985. Before the 1989 recodification, it 18 19

read, in relevant part:

(a) It is unlawful for any person knowingly or intentionally:

(3) to acquire, obtain, or attempt to acquire or obtain possession of a

controlled substance by misrepresentation, fraud, forgery, deception, or

subterfuge, or through use of a fraudulent prescription form or fraudulent oral

or telephonically communicated prescription ....

The 1989 recodification placed the Controlled Substances Act, including former Article 4476-15

in the Health & Safety Code. The fraud sections became part of Section 481.129, which at the

time read:

(a) A person commits an offense if the person knowingly or intentionally:

(4) possesses or attempts to possess a controlled substance:

(A) by misrepresentation, fraud, forgery, deception, or subterfuge;

(B) through use of a fraudulent prescription form; or

(C) through use of a fraudulent oral or telephonically communicated

prescription ....20

Despite the Legislature’s specific statement that the 1989 recodification was “a

nonsubstantive revision,” the Court of Appeals saw in the 1989 recodification “a significant 21

change.” By dividing the long list of manner and means in old Article 4476-15 into three

subsections in Section 481.129, the Legislature, according to the Court of Appeals, “clearly

intended for each provision to constitute a separate offense, rather than two sides of the same

coin.” The Court of Appeals believed that the subsections should have completely independent

Act of May 2, 1979, 66th Leg., R.S., ch. 90, § 6, 1979 Tex. Gen. Laws 163, 165.

18

Act of May 25, 1985, 69th Leg., R.S., ch. 227 § 10, 1985 Tex. Gen. Laws 1102, 1123.

19

Act of June 14, 1989, 71st Leg., R.S., ch. 678 § 1, 1989 Tex. Gen. Laws 2230, 2942.

20

Id., at 2230. See Avery, 341 S.W.3d, at 503 (Perkes, J., dissenting) (“The majority’s opinion is premised

21

on a mistaken notion that the 1989 recodification of the controlled-substances fraud statute was a substantive change

in the law.”).
Avery - 8

meanings, to avoid rendering a subsection “superfluous.” Therefore, the Court of Appeals saw 22

its task as “determining whether [the appellant’s] actions fall within Section 481.129(a)(5)(A) or

481.129(a)(5)(B).”

The task in conducting a sufficiency review is not to determine which offense the

appellant should or could have been charged with; it is to determine whether a rational fact finder

could have found beyond a reasonable doubt that the defendant was guilty of the elements of the

offense with which she was actually charged. Our criminal laws are numerous, and some of 23

them are quite broad. It is not infrequently the case that an act that violates one penal statute may

violate another statute as well. When statutory provisions overlap in this way, there is no inherent

reason to infer that the Legislature intended them to be mutually exclusive. A legislature may 24

decide that overlap is in some ways desirable; it allows prosecutors the discretion to charge the

offense that they believe is most descriptive of a particular action, or that has the most

appropriate penalty range for a particular action.

Section 481.129(a)(5) is an example of overlapping statutory provisions. The language in

subsection (A) (“misrepresentation, fraud, forgery, deception, or subterfuge”) is broad and would

seem to encompass virtually every action that would fall under subsections (B) or (C). The

overlapping nature of these terms can be seen in the dictionary definitions used by the Court of

Appeals. Its definitions of “fraud” all involved “misrepresentation,” its definition of

“misrepresentation” involved “an intent to deceive,” and its definitions of forgery all involved

Avery, 341 S.W.3d, at 497 n.9.

22

Jackson v. Virginia, 443 U.S. 307, 319 (1979).

23

See, e.g., Gray v. State, 152 S.W.3d 125, 133 (Tex. Cr. App. 2004) (noting that list of intoxicants in DWI

24

statute was “patently overlapping”).
Avery - 9

“fraudulently” making a document. To interpret “use of a fraudulent prescription form” or “use 25

of a fraudulent oral or telephonically communicated prescription” in a way that did not overlap

with subsection (A)’s “fraud” would require doing great violence to the plain language of the

statute.

The fact that terms in these statutory subsections overlap does not render any of the

subsections meaningless. While subsection (A) is broad enough to encompass most fraudulent

attempts to obtain controlled substances, the other subsections allow the State, if it chooses, to

draft a more specific charge that allows the trial court to craft a better and more informative jury

instruction, and that provides more notice to the defendant regarding the specific act on which

the charge is based. By treating overlapping statutory provisions as mutually exclusive, the Court

of Appeals impinged on the State’s discretion in determining what charge to bring. 

An appellate court’s belief that an appellant’s actions more closely resemble an

uncharged offense than the offense actually charged is not a legitimate basis for an acquittal.

Sufficiency of evidence is reviewed by comparing the evidence adduced at trial to the elements

of the offense actually charged.

IV. Sufficiency Review

Our disagreement with the Court of Appeals’s reasoning does not mean it reached the

wrong result. The fact that subsections of Section 481.129 overlap in some circumstances does

not change the State’s burden of proving the statutory manner and means that it actually charged.

A. Standard of Review

On a challenge to the sufficiency of the evidence, a court must determine “whether, after

Avery, 341 S.W.3d, at 498.

25
Avery - 10

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” When a 26

statute lays out alternative manner and means of committing an offense, the manner and means

included in the charging instrument becomes an essential element that the State must prove

beyond a reasonable doubt. Proof of a different, uncharged, manner and means will not support 27

a conviction for the offense that was charged.28

The question for us to determine here is whether there is sufficient evidence of the

offense that was charged: that the appellant “use[d] a fraudulent prescription form.” In construing

a statute, we look first to the statute’s literal text, and “we read words and phrases in context and

construe them according to the rules of grammar and usage.” “[W]e may presume that each

29

word in the statute has a purpose, and that words not defined in the statute are used in their

ordinary and common sense.”30

B. Prescription and Prescription Form

The “Definitions” section of the Controlled Substances Act defines “prescription” as “an

order by a practitioner to a pharmacist for a controlled substance for a particular patient that

specifies [certain information about the patient, the prescriber, and the prescribed drug].” There 31

is no specific definition of a “prescription form,” but provisions of the Health & Safety Code

Jackson, 443 U.S., at 319 (emphasis in original).

26

See Geick v. State, 349 S.W.3d 542, 545 (Tex. Cr. App. 2011).

27

Cada v. State, 334 S.W.3d 766, 776 (Tex. Cr. App. 2011).

28

Lopez v. State, 253 S.W.3d 680, 685 (Tex. Cr. App. 2008).

29

Prudhom v. State, 333 S.W.3d 590, 594 (Tex. Cr. App. 2011).

30

TEX. HEALTH & SAFETY CODE § 481.002(41).

31
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provide clues as to its meaning.

As we have said above, Section 481.075 describes the “Official Prescription Program”

used for prescribing Schedule II controlled substances and, as such, is not directly applicable to

this case under Schedule III. Nonetheless, we can use it as a tool to help us understand other,

applicable statutes. Section 481.075(a) states that a prescription for a Schedule II controlled

substance should be recorded on an official prescription form. This comports with the common

usage of the word “form.” Just as tax information should be recorded on a tax form to create a

completed tax return, so too prescription information should be recorded on a prescription form

to create a completed prescription. The information that is written on the form is not the form

32

itself. As Subsection 481.075(e) says, “Each official prescription form or electronic prescription

used to prescribe a Schedule II controlled substance must contain [certain information]”

(emphasis added). This section describes the written information that must be written on the form

at the time it is used. The written information becomes part of the completed prescription, not a

part of the form.

In other parts of Section 481.129, it is obvious that the legislature intended that the

distinction between a prescription and a prescription form be legally relevant:

(c) A person commits an offense if the person knowingly or intentionally:

(1) delivers a prescription or a prescription form for other than a valid medical

purpose in the course of professional practice; or

(2) possesses a prescription for a controlled substance or a prescription form

unless the prescription or prescription form is possessed [in certain

enumerated circumstances]. 

(f) An offense under Subsection (c)(1) is:

Compare § 481.075(e)(1) (information from a prescriber that must be written on an official prescription

32

form used to prescribe a Schedule II controlled substance) with § 481.002(41) (information required for a

prescription, generally).
Avery - 12

(1) a felony of the second degree if the defendant delivers:

(A) a prescription form; or

(B) a prescription for a controlled substance listed in Schedule II; and

(2) a felony of the third degree if the defendant delivers a prescription for a

controlled substance listed in Schedule III, IV, or V.

(g) An offense under Subsection (c)(2) is:

(1) a state jail felony if the defendant possess:

(A) a prescription form; or

(B) a prescription for a controlled substance listed in Schedule II or III;

and

(2) a Class B misdemeanor if the defendant possesses a prescription for a

controlled substance listed in Schedule IV or V.

In a scheme in which the illegal possession or delivery of a prescription is punished more or less

severely depending on the Schedule of the prescribed controlled substance, the illegal possession

or delivery of a prescription form receives the highest level of punishment. This would seem to

flow from the prescription form’s potential to become a prescription for any type of prescribable

controlled substance. 

From these statutory inferences, as well as common usage of language, we hold that

“prescription form” refers to a pre-printed form designed to have prescription information written

on it. Through statutory inference, we also conclude that the Legislature intended for there to be a

legal distinction between prescription forms and completed prescriptions.

C. Written Prescription Information Is Not Mentioned in Section 481.129(a)(5)(B)

The State argues that interpreting “use of a fraudulent prescription form” to refer only to

situations in which the form is fraudulent, rather than to situations in which the written

prescription is fraudulent, will result in a statutory offense with no real-world applications. 

The State makes this argument under the mistaken belief that, under our interpretation,

Section 481.129(a)(5)(B) will apply only to acts of obtaining (or attempting to obtain) controlled
Avery - 13

substances using fraudulent prescription forms that are blank. But there is no reason to so

constrict the statute. Subsection (B) applies to situations where an individual knowingly

possesses, obtains, or attempts to possess or obtain a controlled substance or an increased

quantity of a controlled substance through use of a fraudulent prescription form. The writing on

the form is not an element of that offense.

D. Application

The State charged the appellant with attempting to obtain a controlled substance “through

use of a fraudulent prescription form.” It then adduced evidence that the appellant fraudulently

altered information that was handwritten on a legitimate prescription form. While this evidence

would have supported a conviction had the State charged the appellant using other statutory

manner and means that were available, the evidence does not support a conviction for the offense

that was actually charged.

V. Conclusion

We agree with the Court of Appeals judgment, albeit for different reasons. We affirm the

Court of Appeals’s judgment of acquittal.

Delivered February 29, 2012.

Publish.