### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00345- CR

William Whittington Roberts, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 403 RD JUDICI AL DISTRICT NO. D-1 -DC- 07- 2067 17, H ONO RAB LE B RENDA KENNEDY , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Following a benc h trial, the district court c onvicted appe llant Wi lliam W hittington Roberts of the of

fense of attemptingto obtain a controlled substanc e by fra ud. See Tex. Health & Safety Code Ann. § 481.129(a) (5) (West 2003). Roberts pleade d true to an enhanc ement para g raph alleg ing a prior felony conviction for the offe nse of possession of a controlled s u b s t an ce , and the district court assessed puni shment at s even year s’ imprisonment. I n three points of error , Roberts assert s t h at the evidenc e is leg ally and fac tually insufficient to sustain the conviction and that the district court committed “funda mental err or” by not sua sponte excluding cer tain evidenc e. 1 Althou gh we wi ll overr

ule eac h of Roberts’s points, we have noticed that the written judgme nt

After appellant’ s bri ef was filed, this Court rec eived a supplemental pro se brief raising 1 additional arguments. Howeve r, a criminal defe ndant has no rig ht to hy brid repr es en t at i o n or to repr esent himself on direc t appea l. Scheane tte v. State , 144 S.W .3d 503, 505 n.2. (Tex. Crim. App. 2004). Acc ording ly , we will not addre ss any of Roberts’s pro se points. See id .; Berry v. State , 278 S.W .3d 492, 495 (Tex. App.—Austin 2009, pet. ref ’d).contains a cler ical err or with respe ct t o the applicable subsection of the statute under which

Roberts was convicted. We will modify the judgme nt to ref lect the corr ect subsection of the statute under w hich Roberts wa s convicted a nd, as modified, af

firm.

BACK GR OUND Roberts was indicted for knowing ly attempting to possess or obtain a controlled substance, namely hydrocodone , by misrepre sentation, to wit: by g iving false names and birth date for the purposes of treatment. See id

. § 481.129(a) (5)( A). The dist rict court h ea rd ev i d ence t hat,

on November 9, 2007, Roberts attempted to obtain a presc ription for narc otic pain medication from two differ ent hos pitals in Aust i n . Dr

. Rex Medfor d, an emerg ency room phy sician at St. David’s Hospital, testified that Roberts was admitted to the hospital complaining o f a “s u d d en onset of testicular pain.” Acc ording to Medfor d, at reg istration, Roberts identifi ed h imself as “Micha el R obertson” and provided a birth dat e o f J u l y 18, 1970. Roberts’s actual date of birth is Fe bruar y 5, 1965. Roberts al s o provided a social secur ity number. When hospital staff enter ed this number into the hosp i t al computer sy stem, the name Roberts provided did not appea r in the hospital computer. At that point, the hospital staff asked Roberts for identification, which, acc ording to Medford, Rober

ts “did not have.” Neve rtheless, the hospital beg an treating Roberts. Medfor d testified that a nurse aler ted him to the fac t that Roberts had possible “tra ck marks” on his arms “that would be consistent with I V drug use.” Medfor d asked Roberts if he could look at his wrists and then asked him “what happene d, without a ccusation.” Acc ording to Me dford, Roberts volunteere d, “‘I don’t use drug s,’ and that made me a littl e suspicious.” Medfor d then order ed an ultrasound, which Roberts declined.

2“And at that point in time,” Medfor d explained, “he told me that he was a heroin addict.” Medfor d

asked Roberts “if he was rea lly having pain or if h e j u s t s ai d that to g et drug s.” Acc ording to Medfor d, Roberts told him “that he was just trying to g et some medication.” Medfor d then canc eled the ul trasound and offe red Roberts “social wor k consultation to help him with his drug problem.” Roberts’s response to this offe r, Medfor d testified, was “to barg ain for medication which I denied.” Roberts then “sig ned out ag ainst medical a dvice” and lef t the hospital at approximately 3:05 p.m. At approximately 3:30 p.m., Roberts chec ked into Seton Medica l Center. This time, Roberts identified himself as “Willi am Whit tington” and p ro v i d ed a date of birth of Fe bruar y 7, 1970. Dr. J ohn Be rdolla, the emer g ency room phy sician assig ned to Roberts, testified that Roberts had complained of a toothache. Although Be rdolla observe d that Roberts h ad a deca y ed tooth, he noted that Roberts “didn’t have any signs of pain or distress.” Be rdolla also noticed that Roberts “had a kind of g uarde d aff ect” and “did not have any form of I D prese nt with him or available .” His suspicion arouse d, Be rdolla chec ked “a public d ataba se to see if there was a rec ord of someone with the name of Wil liam Whit tington and that date of birth, and there was nobody .” Be rdolla asked Roberts about thi s , an d R oberts claimed that he had “made a mistake” and “that his name was Wil liam Whi ttington Roberts.” B erdolla then ran this name thr oug h the databa se. He rec alled, “I didn’t look at the specific birth date, but there was a close enoug h match that I g ave him the benef it of t he doubt.” Be rdolla t h en wrote Roberts a prescription for Vicodin, which is a combination of hy drocodone and ace taminophen. Roberts was then di s ch ar ged from the hospital, and Be rdolla observe d that Roberts “wa s in a rea l hurry to leave.”

3Short ly there afte r, Be rdolla testified, he lear ned from a para

medic that Roberts had been seen ear lier that day at another emer g ency room reg isteri n g “under a clea rly differ ent name” and prese nting “a differ ent chief complaint.” Be rdolla then beg an calling local pharma cies to canc el the presc ription he had g iven Roberts. Be rdolla eventua lly lear ned that Roberts was at the pharma cy located inside Seton, a

nd he aske d the emer g ency room secur ity office r, Chris Ry barski of the Austin Police Depa rtment, to locate a

nd appre hend Roberts. Offic er Ry

barski testified that, a fter he had located Roberts, he asked f or Roberts’s identification. Roberts was unable to produce a photo I D, but he did inform Ry barski that his name

was Wil liam Roberts and that his date of birth was Fe bruar y 5, 1965. Ry

barski then asked Roberts to acc ompany him back to the emerg en cy ro o m . Once they arr ived, R y barski called di spatch and

ran a background che ck on Roberts. Dispatc h informed Ry barski that Roberts had an outstanding

wa rr ant out of Dallas County for a probation violation. When Ry barski asked Roberts if he was

awa re of this, Roberts confirmed that he was. At this point, Ry barski testified, Roberts wa s under

arr est and was not fre e to leave

. Ry barski then went to the front desk and asked to look at Roberts’s reg istration form. The front desk personne l provi d ed Ry b arski with the reg istration form, and Ry barski observe d that the name and date of birth provided on the form was “Willi am Whit tington, 2/7 of ‘70.” Roberts’s last name was nowher e on th e form, nor was his corr ect date of birth. Ry barski took the form back to Roberts and asked him if he had f illed it out. “And at that point,” Ry barski rec alled, “he said he had nothing further to say .” Dr. Berd o l l a, who was prese nt during this conver sation, took the p re s cr i p t i o n s lip from Roberts, ripped it to piece s, and threw it awa y . Howeve r, afte r Ry

barski informed Be rdolla that the slip might be need ed as evidenc e, he and

4Ry

b ar s k i retrie ved it from the trash and taped it back toge ther. Ry barski also testified t hat, upon 2 further investigation, he lear ned that Roberts had reg istered at Seton Medica l Cent er o n o t h er

occa sions using three differ ent birth dates a nd three differ ent social sec urity numbers. After Ry barski testified, the State rested its case . Roberts then asked for a “dire cted verdic t,” which the district court denied. The defe nse then rested its case without ca l l i ng any witnesses. The district court found Roberts g uilty as char g ed, and the case proce eded to punishment. Roberts pleade d true to the enhanc ement al l egation, and the district court sentenc ed him to seven y ear s’ imprisonment. This appeal f ollowed.

ANALYSIS “F und am ental er ror”

We first addre ss Roberts’s third point of err or, i n wh i ch he claims that the district court commit ted “fundamental error” by not sua spont e ex cluding cer tain evidenc e. First, Roberts asser

ts that the di strict court should not have a dmitted “backdoor hear say” testimony

that Dr. Be rd o l l a overhe ard a comment by an unidentified para medic that the para

medic had seen Roberts leave another hospital’s emer g ency room ear lier that day

. Second, Roberts claims that the district court should not have admitted Roberts’s medical re co rds that Offic er Ry barski obtained,

acc ording to Robe rts, in violation of the Hea lth I nformation Privacy and Portability Act (HI PPA). The State, observing that Robert s d i d n o t prese nt either of these complaints to the district court,

The tap ed -t o get h er presc ription slip was admitted into evidenc e at trial, as was the 2 reg istration form, Roberts’s medical rec ords from St. David’s, and his medical rec ords from Seton. 5argues that Roberts failed to prese rve err or an d t h at a t ri al court’s ruling on the admissibili ty of

evidenc e does not c onstitut e “f undamental e rror .” We ag ree with the State. I n most circ umstances, a party raising a complaint on appea l must have made a timely and specific objection in the trial court and the court must have ruled on the objection. Tex. R. App. P. 33.1(a) ; Mende z v. State , 138 S.W .3d 334, 341 (Tex. Crim. App. 2004). “Except for complaints involving sy stemic (or absolute) require ments, or rig hts that are waivable only , . . . all other complaints, whether constitutional, statutory , or otherwise, are forf eited by failure to comply with Rule 33.1(a) .” Mende z , 138 S.W .3d at 342. Th e court of criminal appea ls has “consistently held that the failure to object in a timely and speci fi c m anner during trial forf eits complaints about the admissibili ty of evidenc e.” Saldano v. State , 70 S.W .3d 873, 889 (Tex. Crim. App. 2002). “This is true even though the err or may conce rn a constitutional rig ht of the defe ndant.” Id

. Whil e it is true that nothing in the rules of evidenc e “pre cludes taking not i ce o f fundame ntal

err ors aff ecting substantial rig hts althoug h they wer e not brough t t o the attention of the court,” Tex. R. Evid. 103(d), the evidenc e of which Roberts complains does not rise to that level. See, e.g. , Moore v. State , 935 S.W .2d 124, 130 (Tex. Crim. App. 1996) (holding that err oneous admission of hear say is not fundame ntal err or and must be prese rved at trial); Holland v. State , 802 S.W .2d 696, 7 0 0 (T ex. Crim. App. 1991) (holding that violation of confr ontation clause must be prese rved b y timely and specific objection at trial); Lopez v. State , 482 S.W .2d 179, 182 (Tex. Crim. App. 1972) (“[T]here must be a timely objection to prese rve err or of illega lly obtained evidenc e.”)

. Be cause

6Roberts did not prese nt his evidentiar y complaints to the district court, he has failed to prese rve err or, and ther e is nothing f

or this Court to review. SeeTex. R. App. P . 33.1(a)

. 3 We overrule Roberts’s third point of err or.

Evid entiary suff

iciency I n his first and second points of err or, R o berts asser ts that the evidenc e is leg ally

an d fac tually insufficient to support his convictions. I n a leg al sufficie ncy revie w, we consider whether , afte r viewing the evidenc e in the light most favor able to the finding of g uilt, a rational trier of fac t could have found the elements of the offe nse beyond a rea sonable doubt. See Jackson

v. Virginia , 443 U.S. 307, 324 (1979); Clayton v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007). “This standard acc ounts for the fac tfinder’ s duty ‘to resolve conflicts in the t est imony , to weig h the evidenc e, and to draw rea sonable infere nces from basic fac ts to ultimate fac ts.’” Clayton , 235 S.W .3d at 778 (quoting Jack son , 443 U.S. at 319). I t is not nece ssary t h at ev er y fact point direc tly and independently to the defendant’s guilt, but it is enoug h if the conclusion is war ra n ted by the combined and cumul ative forc e of all the incriminating circ umstances. Hooper v. State , 214 S.W .3d 9, 13 (Tex. Crim. App. 2007).

The only case Roberts cites for his argument that the admission of evidenc e constitutes 3 fundame ntal err or i s Blue v. State , 41 S.W .3d 129 (Tex. Crim. App. 2000). I n Blue , a plurality of the court of criminal appea ls ruled that a trial judge ’s comments “which tainted [t he defe ndant’s] presumption of innocenc e in front of the venire , wer e fundame ntal err or of constitutional dimension and require d no objection.” Id

. at 132. Blue is not binding prec edent. Peav ey v. State , 248 S.W .3d 455, 471 (Tex. App.—Austin 2008, pet. ref ’d). Moreove r, Roberts fails to show how a trial court’s i n ac tion in not sua sponte excluding supposedly inadmissible evidenc e is compar abl e t o a trial court’ s action in making comments that taint a def endant’ s presumption of innocenc e. 7I n a factual sufficiency revie w, we consider whether , afte r vi ewing the evidence in a neutr al light, a

rational trier

of fac t w as justified in finding g uilt beyond a rea sonable doubt. See W atson v. State , 204 S.W .3d 404, 414 (Tex. Crim. App. 2006). A finding of g uilt should be set aside only if the evidenc e supporting the findi n g i s s o weak as to rende r the finding clea rly wrong or manifestly

unjust. See id

. at 705; Korell v

. State , 253 S.W .3d 405, 412 (Tex. App.—Austin 2008, pet. ref ’d). There fore , we will not reve rse a judgme nt on a fac tual sufficie ncy challeng e unless we

can say , with some objective basis in the rec ord, that the g reat weig ht and p reponde ranc e of the evidenc e contr adicts the finding of guilt. W

atson , 204 S.W .3d at 417. I n this case , the State was require d to prove beyond a rea sonable doubt that Roberts knowing ly attempted to possess or obtain a controlled substance, namely hy drocodone , by misrepre sentation. See Tex. Hea lth & Safety Code Ann. § 481.129(a) (5)( A). Acc ording to Roberts, “no clea r evidenc e was offe red to unequivoca lly establish that the Appellant misrepre sented himself in order to obtain a presc ription,” and, even if there was, it “is too weak in itself and too controve rted by other e vidence to support the conviction.” We disag ree .

Dr. Medfor d t es tified that, at St. David’s, Roberts provided a false name, “Micha el Robertson,” and an incorre ct date of birth. Roberts’s medical rec ords from St. Da v i d’s confirm that these misrepre sentations wer e made. Also, Roberts claime d t o b e s u ffe ring from testicular pain but, when asked by Medfor d “if he was rea lly having pain or if he just said that to g et drug s,” Roberts, acc ording to Me dford, admitted “that he was just try ing to g et some medication” and then attempted to “bar g ain” f or medica tion. The district court could have re asonably inferr ed

8from this evidenc e that Roberts, throug h his misrepre sentations, was attempting t o obtain a

controlled substanc e.

T h e district court could have also found that Roberts continued to make misrepre sentations when he arr ived at Set o n an d that he persisted in doing so until afte r he had obtained a pres cr i p t i o n from Dr. Be rdolla. Acc ording to Be rdolla, Roberts reg istered under the

name “Willi am Whit tington”—c ompletely omitti ng his last name from the reg istration form—and provided an incorre ct date of birth. The reg istration form that was admitted into evidenc e confirms these misrepre sentations. I t was not until afte r Be rdolla was unable to find a “Willi am Whit tington” in the databa se that Roberts disclosed his f ull name. Even then, Roberts did not corr ect the ear lier misrepre sentation that he had made about his date of birth. The label on the presc ription slip shows both the incorre ct date of birth and the incorre ct last name. Also, Roberts complained of a toothache,

a claimed condition quite distinct from the testicular pain of which Roberts had complained at St. David’ s l ess than an hour ear lier. The district court could have found that this was another misrepre sentation that Roberts had made in order to obtain a controlled substance, espec ially in light of B erdolla’ s testimony

that Roberts “didn’t have any signs of pain or distress.” Viewin g t h e ab ove evidenc e in the light most favor able to the finding of g uilt, the d i s trict court could have found that, beg inning when he chec ked into St. David’s and contin u i n g until he obtained a presc ription from Dr. Be rdolla at Seton, Roberts attempted to obtain a controlled substance by misrepre sentation. Thus, the evide nce is leg ally sufficie nt to sustain the conviction. See Oler v. State , 998 S.W .2d 363, 369-70 (Tex. App.—Dallas 1999, pet. ref’d, untimely filed) (explaining that statute imposes aff irmative leg al duty on one obtaining controlled substance to do

9so without eng ag ing in “misrepr esentation, fra ud, fo rge ry , dece ption, or subterfug e” and that defe ndant’s intent to obtain controlled substance by fra ud may be proved by circ umstantial evidenc e). We rea ch the same con cl u s ion when considering the evidenc e in a neutra l light. Roberts claims that he mistakenly omitted his last name from the reg istration form, perha ps due to hospital staff hastily assi sting Roberts in filling out the form. Roberts also points to an addendum by Dr. Be rdolla attache d to his emer g ency room repor t in which Be rdolla wrote, “The patient prese nted with what appea rs to have been either an unintent i o n al or intentional use of a differ ent name.” Roberts urg es that the omission was unintentional. Howeve r, it would not have been ag ainst the g reat weig ht and preponde ranc e of the evidenc e for the district court to co n cl u d e o t h erw ise. Be rdolla testified that the patient fills out the reg istration form himself. I n the space for hi s l as t name, Roberts wrote “Whitti ng ton,” completely omitti ng his actua l last name from the form. And,

even if hospital staff had assisted Roberts in fi l l i n g out the form and mistakenly omitted his last name, this would not explain the incorre ct date of birth that was also on the form. Additionally , Offic er Ry

barski testified that Roberts had previously appea red at Seton and provided incorre ct information i n an attempt to obtain medication. Acc ording to Ry barski, Roberts ha d reg istered at Seton on other occa sions using three differ ent birth dates and three differ ent social secur ity numbers. The district court could have rea sonably inferr ed that this evidence t en d ed to neg ate some sort of g ood-fa ith e rror or miscommunication and instead tended to prove that Roberts’s misrepre sentations

on the reg istration form wer e intentional. As for Be rdolla’s initial uncer tainty about wh et her the

o m i s s ion was intentional or unintentional, we observe that there is a second, later addendum

10attache d to the emergen cy room repor t in which Be rdolla unequivoca lly expresses his belief that the omission was i n t en t i o n al : “I t turned out that he had g iven a false name on arr ival and it was confirme d by looking at the orig inal reg istration sheet that he had written Wil liam Whit tington, not that he had written Wil liam Whi ttington Roberts or any thing that might be c onstrued as a mistake at reg istration.” Moreove r, the evidenc e tending to show that Roberts misrepre sented h i m s el f at St. David’s supports a finding by the district court that Roberts simil arly m i s re p resented himself at Seton. Ba sed on this and other evidenc e, we cannot say , with some objective basis in the rec ord, that the g reat w eig ht a

nd preponde ranc e of the evidenc e contra dicts the finding of g uilt. Thus, the evidenc e is fac tually

sufficie nt to sustain the conviction. We overrule Roberts’s first and se cond points of er ror.

Incorre ct st atute r efere nced in jud gm ent

Finally , we observe that while the written judgme nt identifies section 481.129, subsection (a)(4), of the health and safety code as the s tatute under which R oberts wa s convicted, Roberts was actua lly char g ed and convicted under subsection (a) (5) of the statute. The appropr iate

reme dy is to mod i fy the district court’s judgme nt to ref lect the corr ect statute. See Tex. R. App. P. 43.2(b); Bigley v. State , 865 S.W .2d 26, 2 7 -28 (Tex. Crim. App. 1993); Nicholas v. State , 56 S.W .3d 760, 767 (Tex. App.—Houston [14t h Dist.] 2001, pet. re f’d)

.

11CONCLUSION We modify the district court’s judgme nt to ref lect that the “Statute for Offe nse”

was “Section 481.129(a) (5), Hea lth and Safety Code.” As modified, we aff irm the judgme nt of the district court.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop Modified and, a s Modified, Aff irmed Filed: Apr il 1, 2010 Do Not Publish

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