Lashundra Tana Lockhart v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00410-CR
LASHUNDRA TANA LOCKHART APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant Lashundra Tana Lockhart was charged with fraudulent
possession of a controlled substance or prescription, namely dihydrocodeinone
(hydrocodone). See Tex. Health & Safety Code Ann. § 481.129(a-1) (West
Supp. 2013). Lockhart filed a motion to quash the indictment, alleging that
section 481.129(a-1) of the health and safety code is unconstitutionally vague.
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See Tex. R. App. P. 47.4.
The trial court denied the motion after a hearing. Lockhart then entered into a
plea bargain, expressly reserving her right to appeal the denial of her motion to
quash. Pursuant to the plea bargain, the trial court deferred adjudication, placed
Lockhart on community supervision for three years, and imposed a $300 fine.
In one issue, Lockhart appeals the denial of her motion to quash the
indictment. Lockhart alleges that health and safety code section 481.129(a-1)
fails to give persons of common intelligence fair notice that their conduct was
prohibited by the statute because the term “medically necessary” is not
specifically defined and is not a term of common understanding. Section
481.129(a-1) provides,
A person commits an offense if the person, with intent to
obtain a controlled substance or combination of controlled
substances that is not medically necessary for the person or an
amount of a controlled substance or substances that is not medically
necessary for the person, obtains or attempts to obtain from a
practitioner a controlled substance or a prescription for a controlled
substance by misrepresentation, fraud, forgery, deception,
subterfuge, or concealment of a material fact. For purposes of this
subsection, a material fact includes whether the person has an
existing prescription for a controlled substance issued for the same
period of time by another practitioner.
Id.
When a court analyzes a statute pursuant to a vagueness challenge and
when, as here, no First Amendment rights are involved, the reviewing court need
only scrutinize the statute to determine whether it is impermissibly vague as
applied to the challenging party’s specific conduct. Bynum v. State, 767 S.W.2d
769, 774 (Tex. Crim. App. 1989). The challenging party bears the burden to
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establish that the statute is unconstitutional as applied to her; that it might be
unconstitutional as applied to others is not sufficient. See Vuong v. State, 830
S.W.2d 929, 941 (Tex. Crim. App.), cert. denied, 506 U.S. 997 (1992).
Lockhart asserted in her motion and asserts on appeal that the phrase “not
medically necessary” depends upon the circumstances of the individual receiving
treatment. She states, “What is medically necessary as to one person may be
medically absurd to another.” While this statement may be true, Lockhart does
not articulate how the statute is impermissibly vague as applied to her specific
conduct. She was charged with obtaining or attempting to obtain from a
practitioner hydrocodone that was not medically necessary for her by concealing
the material fact “that she had an existing prescription for the controlled
substance issued for the same period of time by another practitioner.”2 Lockhart
presented no argument to the trial court and presents none on appeal that the
phrase “not medically necessary” is vague as applied to her alleged conduct,
which involved concealing the fact that she had an existing prescription for that
2
Specifically, the indictment alleged that Lockhart
knowingly with the intent to possess, obtain or attempt to possess or
obtain a controlled substance or a combination of controlled
substances that was not medically necessary for [her] or an amount
of a controlled substance or substances that was not medically
necessary for [her], obtain[ed] or attempt[ed] to obtain from a
practitioner a controlled substance, to-wit: not more than 15
milligrams of dihydrocodeinone (hydrocodone) or any of its salts, per
dosage unit, with one or more active, nonnarcotic ingredients in
recognized therapeutic amounts, by concealment of a material fact,
to-wit: that she had an existing prescription for the controlled
substance issued for the same period of time by another practitioner.
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same substance. Similarly, we cannot see how the statute is impermissibly
vague as applied to the specific conduct alleged in the indictment. See Bynum,
767 S.W.2d at 775; see also Corwin v. State, 870 S.W.2d 23, 29 (Tex. Crim.
App. 1993) (“That there may be marginal cases in which it is difficult to determine
the side of the line on which a particular fact situation falls is no sufficient reason
to hold language too ambiguous to define a criminal offense.”) (quoting United
States v. Petrillo, 332 U.S. 1, 7, 67 S. Ct. 1538, 1542 (1947)), cert. denied, 513
U.S. 826 (1994).
Because Lockhart has not satisfied her burden to show that section
481.129(a-1) is unconstitutionally vague specifically as applied to her conduct,
we hold that the trial court did not err by denying her motion to quash the
indictment. See Vuong, 830 S.W.2d at 941. We overrule her sole issue on
appeal and affirm the trial court’s judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 12, 2014
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