                         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.



      1
      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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