                           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.”


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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.




                                          5
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

                                            6
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).


                                           7
      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


                                           9
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.

                                           12
      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.

                                         13
      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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