                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-039-CR


KENNETH MATTHEW STARN                                              APPELLANT

                                              V.

THE STATE OF TEXAS                                                      STATE

                                          ------------

     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                                          ------------

                          MEMORANDUM OPINION 1

                                          ------------

      Appellant Kenneth Matthew Starn appeals his conviction for possession

of a controlled substance, dihydrocodeinone (hydrocodone), by fraud.        We

affirm.

      In his first, second, and sixth points, appellant challenges the legal and

factual sufficiency of the evidence to support his conviction. Specifically, he



      1
          … See T EX. R. A PP. P. 47.4.
argues that the State failed to prove that he knowingly obtained the

hydrocodone by fraudulent means.2

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all 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.3 When reviewing the factual

sufficiency of the evidence to support a conviction, we view all the evidence

in a neutral light, favoring neither party. 4 We then ask whether the evidence

supporting the conviction, although legally sufficient, is nevertheless so weak

that the fact-finder’s determination is clearly wrong and manifestly unjust or

whether conflicting evidence so greatly outweighs the evidence supporting the

conviction that the fact-finder’s determination is manifestly unjust. 5



      2
       … A person commits an offense if he “knowingly . . . (5) possesses,
obtains, or attempts to possess or obtain a controlled substance . . . (A) by
misrepresentation, fraud, forgery, deception, or subterfuge; . . . or (C) through
use of a fraudulent oral or telephonically communicated prescription.” T EX.
H EALTH & S AFETY C ODE A NN. § 481.129(a)(5)(A), (C) (Vernon 2003).
      3
      … 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).
      4
      … Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006);
Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005).
      5
       … Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23 S.W.3d
1, 11 (Tex. Crim. App. 2000).

                                        2
      The legal and factual sufficiency standards of review are the same for

cases based on direct and circumstantial evidence. 6 In a sufficiency review,

however, the jury’s inference of intent is afforded more deference than the

evidence supporting proof of conduct, and circumstantial evidence of a

defendant’s guilty knowledge is not “required to meet the same rigorous criteria

for sufficiency as circumstantial proof of other offensive elements.” 7

      The evidence at trial showed as follows:

      Appellant worked as a medical assistant at the University of North Texas

Health Science Center in Fort Worth (“UNT HSC”). On May 1, 2006, before

8 a.m., appellant arrived at a CVS pharmacy near UNT HSC to pick up a refill

of his hydrocodone prescription. No refill order was on file, so the pharmacist

faxed a refill request form to appellant’s doctor, John Willis. Appellant told the

pharmacist that he was having surgery and that Dr. Willis had approved the

refill. After the pharmacist faxed the refill request, appellant left the pharmacy.

      Appellant then went to work and spoke to his friend and coworker,

Kimberly Johnson. Johnson was a medical assistant who worked in the “drug

room” and had access to Dr. Willis’s signature stamp. Appellant asked Johnson




      6
          … King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000).
      7
          … Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).

                                        3
to refill his hydrocodone prescription. Despite knowing that Dr. Willis had not

authorized the refill, Johnson stamped Dr. Willis’s signature on the CVS refill

form and faxed it back to the pharmacy. Johnson then accompanied appellant

to the CVS and paid for the prescription. Appellant took possession of the

controlled substance.

      Debra Scott, a pharmacy technician, recognized appellant from a previous

visit to the pharmacy. During the earlier encounter, appellant mentioned that

he worked for Dr. Willis and that Dr. Willis usually let him call the pharmacy and

leave his own refill approvals, and Scott told appellant that was illegal. Scott

testified that on May 1, 2006, appellant was “pacing around, staring at his

watch and acting kind of nervous.” Based on her suspicions, after appellant

and Johnson left, Scott called Dr. Willis and learned that he had not authorized

the refill. Appellant and Johnson were arrested later that day.8

      There was also evidence that appellant had an ongoing problem abusing

prescription drugs. Dr. Willis refilled the hydrocodone prescription once but

refused appellant’s request for a second refill. Further, appellant had asked

Johnson to approve the refill four or five times in the past, and she apparently

had refused. Appellant also asked another doctor at work for prescription pain


      8
       … Pursuant to a plea agreement, Johnson was on deferred adjudication
for a misdemeanor in connection with her role in the offense.

                                        4
medication, resulting in appellant’s transfer out of that doctor’s department.

Finally, the jury saw a printout of appellant’s prescription history at various CVS

pharmacies.         The summary indicated that since May 2000 appellant had

obtained ninety-five hydrocodone prescriptions from at least sixty different

doctors.9

         Even though Johnson did not testify that she told appellant she had no

actual authority to refill his prescription, there was ample circumstantial

evidence from which the jury could have reasonably concluded that appellant

asked Johnson for the refill knowing that Dr. Willis had not authorized it.

Applying the appropriate standards of review, therefore, we hold that the

evidence was legally and factually sufficient to support appellant’s conviction

for possession of a controlled substance, dihydrocodeinone (hydrocodone), by

fraud.

         We overrule appellant’s first, second, and sixth points.

         In his third, fourth, and fifth points, appellant contends that the trial court

improperly admitted the CVS records of his prescription medications, arguing

the records were inadmissible character evidence, hearsay, and irrelevant, and




         9
             … The summary showed several other prescriptions as well.

                                            5
that their probative value was substantially outweighed by the danger of unfair

prejudice.

      To preserve a complaint for our review, a party must have presented to

the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling if they are not apparent from the context of the

request, objection, or motion.10 Further, the trial court must have ruled on the

request, objection, or motion, either expressly or implicitly, or the complaining

party must have objected to the trial court’s refusal to rule.11 The complaint

raised on appeal must comport with the objection made at trial. 12

      At trial, appellant made several objections to the CVS pharmacy records,

arguing they “pertain[ed] to other things besides the prescription requested,”

were “not relevant,” “hearsay,” “not expert opinion,” and “more prejudicial than

probative.” Because appellant did not assert in the trial court that the records




      10
       … T EX. R. A PP. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265
(Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
      11
       … T EX. R. A PP. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341
(Tex. Crim. App. 2004).
      12
       … See Bell v. State, 938 S.W.2d 35, 54 (Tex. Crim. App. 1996), cert.
denied, 522 U.S. 827 (1997).

                                       6
constituted inadmissible character evidence, we hold that he forfeited this

complaint.13

      Further, when making his objections to the exhibit, appellant agreed that

the CVS records were business records, but appeared to argue that they

contained double hearsay. 14 Appellant, however, failed to specify or identify

the objectionable part of the exhibit. When an exhibit contains both admissible

and inadmissible material, the objection must specifically refer to the material




      13
       … See, e.g., Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App.
1999) (holding that defendant’s complaint regarding extraneous offense was
not preserved by relevancy objection), cert. denied, 529 U.S. 1102 (2000);
Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App. 1993) (holding that
defendant’s complaint of improper character evidence was not preserved by
relevancy and hearsay objections), cert. denied, 510 U.S. 1215 (1994).
      14
       … Appellant’s attorney stated, “the business record exception,
that’s—that is fine. But it has a lot of information in there that is not
necessarily determined to be business records . . . and would be hearsay.”

                                       7
deemed objectionable.15 Appellant’s objections, therefore, were insufficiently

specific to preserve the hearsay complaint he makes on appeal.16

      In addition, appellant argues that the CVS records were irrelevant and

that their probative value was substantially outweighed by the danger of unfair

prejudice. We review the trial court’s rulings on these grounds for an abuse of

discretion.17

      “All relevant evidence is admissible, except as otherwise provided . . . .

Evidence which is not relevant is inadmissible.” 18 Evidence is relevant if it has

any tendency to make the existence of any fact that is of consequence to the



      15
        … See Jones v. State, 843 S.W.2d 487, 492 (Tex. Crim. App. 1992)
(explaining that trial court need not sort through challenged evidence to
segregate admissible from excludable), cert. denied, 507 U.S. 1035 (1993),
abrogated on other grounds by Maxwell v. State, 48 S.W.3d 196, 200 (Tex.
Crim. App. 2001); Hernandez v. State, 599 S.W.2d 614, 617 (Tex. Crim. App.
1980) (op. on reh’g) (holding objection inadequate to preserve error because it
was leveled at entire exhibit and failed to specify and identify objectionable
part); see also Willover v. State, 70 S.W.3d 841, 847 (Tex. Crim. App. 2002)
(following Jones and holding that when proffer contains both admissible and
inadmissible statements and proponent fails to segregate and specifically offer
the admissible statements, trial court may properly exclude entire proffer).
      16
       … See Jones, 843 S.W.2d at 492; Hernandez, 599 S.W.2d at 617; see
also Willover, 70 S.W.3d at 847.
      17
       … Wyatt v. State, 23 S.W .3d 18, 26 (Tex. Crim. App. 2000) (Rule
403); Brown v. State, 96 S.W.3d 508, 511 (Tex. App.—Austin 2002, no pet.)
(Rule 401).
      18
           … T EX. R. E VID. 402.

                                        8
determination of the action more probable or less probable than it would be

without the evidence. 19

      The CVS records—showing appellant obtained hydrocodone and other

prescriptions numerous times in the past, from many different doctors—made

it more probable that, when appellant could not get Dr. Willis to refill his

prescription, he knowingly asked Johnson to refill it through fraudulent means.

We hold that the trial court did not abuse its discretion in concluding that the

CVS records were relevant.

      Although relevant, however, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion

of the issues, or misleading the jury, or by considerations of undue delay, or

needless presentation of cumulative evidence. 20 Once appellant makes a rule

403 objection, the trial court must weigh the probativeness of the evidence to

determine if it is substantially outweighed by its potential for unfair prejudice.21

In conducting this analysis, the trial court must balance (1) the inherent

probative force of the proffered item of evidence along with (2) the proponent’s

need for that evidence against (3) any tendency of the evidence to suggest


      19
           … T EX. R. E VID. 401.
      20
           … T EX. R. E VID. 403.
      21
           … Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997).

                                         9
decision on an improper basis, (4) any tendency of the evidence to confuse or

distract the jury from the main issues, (5) any tendency of the evidence to be

given undue weight by a jury that has not been equipped to evaluate the

probative force of the evidence, and (6) the likelihood that presentation of the

evidence will consume an inordinate amount of time or merely repeat evidence

already admitted.22

      The rules of evidence favor the admission of relevant evidence and carry

a presumption that relevant evidence is more probative than prejudicial. 23 When

determining whether evidence is admissible under rule 403, we do not ask

whether the evidence is more prejudicial than probative; rather, we consider

whether the probative value is substantially outweighed by the danger of unfair

prejudice.24

      Appellant’s defensive theory was that Johnson stamped the refill request

on her own initiative.   The evidence that appellant had obtained the same

medication from over sixty doctors tended to make more probable the fact that



      22
       … Gigliobianco v. State, 210 S.W.3d 637, 641–42 & n.8 (Tex. Crim.
App. 2006).
      23
       … Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996), cert.
denied, 522 U.S. 832 (1997).
      24
       … T EX. R. E VID. 403; Garcia v. State, 201 S.W.3d 695, 704 (Tex. Crim.
App. 2006), cert. denied, 127 S. Ct. 1289 (2007).

                                      10
he knowingly obtained the controlled substance through fraudulent means in

this instance. The only direct evidence of appellant’s culpable mental state was

Johnson’s testimony that appellant asked her for the refill, and Johnson was

thoroughly impeached with her own guilt and plea bargain. Thus, the trial court

could have reasonably concluded that the probative force of and the State’s

need for the CVS records were considerable.

      Further, the trial court could have concluded that the CVS records were

not inflammatory and did not suggest a decision on an improper basis; indeed,

the records did not invite an emotional response such as hostility or sympathy.

Although the CVS records may have briefly distracted the jury from the May 1,

2006 prescription, the trial court could have reasonably concluded that the

evidence would not mislead the jury, took only a short amount of time to

present, and was not repetitive.

      After balancing the 403 factors, the trial court could have reasonably

concluded that the probative value of the CVS records was not substantially

outweighed by the countervailing factors specified in the rule. We, therefore,

hold that the trial court did not abuse its discretion in overruling appellant’s rule

403 objection.




                                         11
      For these reasons, we overrule appellant’s third, fourth, and fifth points.

Having overruled all of appellant’s points, we affirm the trial court’s judgment.


                                                 PER CURIAM

PANEL A: CAYCE, C.J.; LIVINGSTON and MCCOY, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED:     April 3, 2008




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