Biggers, Darren Lamont

• Court: Court of Criminal Appeals of Texas
• Decided: September 22, 2021
• Docket: PD-0309-20
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0309-20

DARREN LAMONT BIGGERS, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE SEVENTH COURT OF APPEALS COOKE COUNTY

KELLER, P.J., filed a dissenting opinion.

The legislature has decided that possession of codeine in cough syrup without a prescription

should be penalized less harshly than possession of codeine that is not in cough syrup. Possession

of codeine is a penalty group 4 substance when it is combined with another medicine, the other

medicine is present in a proportion sufficient to confer valuable medicinal qualities (beyond those

conferred by codeine alone), and the codeine does not exceed a certain proportion of the mixture.

If the other medicine is not present in a sufficient proportion to confer valuable medicinal qualities,

then codeine is in a higher penalty group—penalty group 1—and its possession is a greater offense. BIGGERS DISSENT — 2

So the other medicine being present in a sufficient proportion is a mitigating fact that lowers the

degree of the offense. What happens when the record does not contain enough information from

which to rationally conclude that the mitigating fact is true or false? That is, what happens if the

record shows that the codeine is mixed with another medicine but does not show whether or not the

other medicine is present in a sufficient proportion to confer valuable medicinal qualities? I would

affirm the conviction for the charged offense, possession of codeine in penalty group 4. A majority

of the members of the Court came to that conclusion in Sanchez v. State,1 the Court has never said

otherwise until now, and the Sanchez conclusion makes sense in light of the statutory scheme.

1. A majority of judges in Sanchez concluded that the State need not prove the “medicinal qualities” mitigating fact to support a conviction for the penalty group 4 offense.

In Sanchez, the chemist testified that promethazine was present in the codeine mixture but

did not testify as to the actual concentration.2 The Court, however, concluded that the jury could

have rationally inferred from the record that the promethazine was present in a sufficient amount to

confer valuable medicinal qualities and that it was not necessary for the expert to quantify the

concentration.3 Two concurring opinions concluded that the State did not have to show

concentration or valuable medicinal qualities, and the two of them combined garnered the votes of

five judges.4 Judge Johnson did not agree with the Court’s conclusion that the State had proven

1 275 S.W.3d 901 (Tex. Crim. App. 2009). 2 Id. at 903-05. 3 Id. at 904-05. 4 Id. at 905-07 (Keller, P.J., concurring, joined by Womack, Holcomb, and Cochran, JJ.), 907-08 (Johnson, J., concurring, joined by Holcomb and Cochran, JJ.). BIGGERS DISSENT — 3

valuable medicinal qualities, but she concluded that it did not matter because “that failure accrued

to the benefit of the appellant” in that it “saved appellant from a felony penalty range.”5 She

commented that if the chemist had “ascertained the proportion of promethazine, it may have been

too small to satisfy the statute and thereby enable the state to seek a greater punishment.”6 My

concurrence agreed with the Court that valuable medicinal qualities had been established, but I also

concluded that it did not matter—because the bottom line was that the defendant’s complaint was

that “he may have been guilty of a greater offense than that for which he was convicted.”7 I

emphasized that the proportion of the non-codeine medicine was a mitigating factor that the State

was explicitly required to negate to prove the penalty group 1 offense and reasoned that this made

the penalty group 4 offense a lesser-included offense of the penalty group 1 offense.8 I analogized

to the old voluntary manslaughter offense with its sudden passion mitigating element and argued that

this sort of mitigating element must be disproven by the State for the greater offense (at least if

raised) but need not be proven for the lesser offense.9 I pointed out that the view was more strongly

supported in the codeine situation because negating penalty group 4 status was an explicit

requirement of the penalty group 1 offense.10

2. The majority view articulated in the concurring opinions in Sanchez should

5 Id. at 907-08 (Johnson, J., concurring). 6 Id. at 908. 7 Id. at 906-07 (Keller, P.J., concurring). 8 Id. at 906. 9 Id. at 906-07. 10 Id. at 907. BIGGERS DISSENT — 4

be viewed as binding precedent.

We have stated that a “‘fractured decision’ is a judgment by an appellate court that has no

majority opinion.”11 A fractured decision is binding authority “if, and to the extent that, a majority

holding can be ascertained from the various opinions in the case.”12 This is true “[e]ven if the

rationales seem disparate, if a majority of the judges agree on a particular narrow ground for or rule

of decision.”13 We have never said that a fractured decision with a holding cannot coexist with a

majority opinion with a holding, and there is no logical reason to conclude that they cannot coexist.

3. The Miles case does not conflict with the view of the majority of the judges in Sanchez that the State need not prove the mitigating facts to support a conviction for a penalty group 4 offense.

In Miles v. State, there was ambiguity with respect to what codeine offense the defendant was

charged with.14 The Court concluded that Appellant was charged with possession of codeine in

penalty group 1.15 The Court further concluded that proving its penalty group 1 charge required the

State to prove that the substance was not in penalty group 3 or 4.16 And the Court concluded that the

State failed to do that because the record did not establish that promethazine “was or was not in

recognized therapeutic amounts or in sufficient proportion to confer on the compound valuable

11 Unkart v. State, 400 S.W.3d 94, 100 (Tex. Crim. App. 2013). 12 Id. 13 Id. at 100-01. 14 357 S.W.3d 629, 631-33 (Tex. Crim. App. 2011). 15 Id. at 636-37. 16 Id. at 637. BIGGERS DISSENT — 5

medicinal qualities.”17

The Court did not say that the record would be insufficient to support a conviction for

possession of penalty group 4 codeine.18 The Court rendered an acquittal,19 but at the time, we had

not decided Bowen v. State, which authorized reformation to a lesser-included offense even when

the lesser-included offense was not submitted or requested.20 In my dissent, I suggested that the

Court wait until Bowen was decided, but the Court chose not to do so, and its decision to acquit

without considering the lesser-included offense was supported by the caselaw at the time.21 I

disagreed with the Court’s conclusion that Appellant was charged with possessing codeine in penalty

group 1 and contended that he was, instead, charged with possession of codeine in penalty group 3

or 4.22 I based my conclusion on a caption in the indictment that read “PG 3/4,”23 but the Court was

not convinced.24 My dissent did not disagree with the Court’s conclusion about what was required

to prove a penalty group1 offense—that the State had to prove that the codeine did not fall within

penalty group 3 or 4 due to the concentration of the codeine or due to the non-codeine medicine not

17 Id. at 637-38. 18 See id. at 630-38. 19 Id. at 638. 20 See Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012). 21 See Miles, 357 S.W.3d at 645 n.18 (Keller, P.J., dissenting). 22 Id. at 643-44. 23 Id. 24 Id. at 637 (Court’s op.). BIGGERS DISSENT — 6

being present in sufficient proportion to confer valuable medicinal qualities.25

I went on to conclude that the evidence was sufficient to show a penalty group 4 offense in

response to Judge Cochran’s concurring opinion suggesting otherwise.26 Judge Cochran had joined

my concurring opinion in Sanchez, but in Miles she stated that she agreed with only the proposition

that no specific proportion need be proven, and Judge Johnson, by joining Judge Cochran, apparently

had rethought her position.27 But Judge Cochran’s concurring opinion in Miles garnered only three

votes, and her statements in that opinion could not retroactively cancel her vote in a majority holding

in an earlier case. The view expressed in my Sanchez concurrence was not limited to saying that

proportion need not be quantified, nor was the view expressed in Judge Johnson’s concurrence. Both

concurrences clearly staked out the position that the State, to prove a penalty group 4 offense, did

not need to prove that the non-codeine medicine was in a sufficient proportion to confer valuable

medicinal qualities.

4. Even if only persuasive, the five-judge view of the concurring opinions in Sanchez should be accepted.

Even if the five-judge view expressed in the Sanchez concurrences is only persuasive

authority, there are good reasons to accept that view. The statute listing penalty group 1 substances

lists “Codeine not listed in Penalty Group 3 or 4.”28 The penalty group 4 statute specifies that

codeine is a penalty group 4 substance if another medicine is mixed with the codeine in sufficient

25 See id. at passim. 26 Id. at 644-45 (Keller, P.J., dissenting). 27 See id. at 642 n.12 (Cocrhan, J., concurring). 28 TEX. HEALTH & SAFETY CODE § 481.102(3)(A). BIGGERS DISSENT — 7

proportion to confer valuable medicinal qualities and the codeine does not exceed a certain

proportion of the mixture (200 mg/100 ml or 200 mg/100 g).29 Thus, assuming the same amount of

the total mixture,30 the only difference between a penalty group 1 codeine possession offense and a

penalty group 4 codeine possession offense is the presence or absence of the mitigating facts that

cause codeine to fall within penalty group 4.

To be clear, there are two mitigating facts required for penalty group 4 status, even though

only one of those is at issue here: (1) the presence of the other medicine in sufficient proportion to

confer valuable medicinal qualities, and (2) codeine not exceeding a certain proportion of the

mixture. If the first mitigating fact is absent, then codeine is a penalty group 1 substance. If only

the second mitigating fact is absent, then codeine is a penalty group 1 or 3 substance depending on

the proportion of codeine in the mixture.31

We should not overlook the second mitigating fact of codeine concentration. I can see no

justification in the structure of the relevant statutes for treating the two mitigating facts differently.

If the State has to prove the first for a penalty group 4 substance, then it will also have to prove the

second. What happens if the State offers evidence of the presence of promethazine in sufficient

proportion to confer valuable medicinal qualities but fails to offer any evidence of the actual

proportion of codeine in the mixture, other than that there was some? The statute says nothing about

quantifying the non-codeine medicine, but it does specify quantifying the codeine proportion of the

29 TEX. HEALTH & SAFETY CODE § 481.105(1). 30 Offenses under both penalty groups can differ by the amount of the substance possessed, including adulterants and dilutants. See TEX. HEALTH & SAFETY CODE §§ 481.115, 481.118. 31 See TEX. HEALTH & SAFETY CODE §§ 481.104(4), 481.105(1). BIGGERS DISSENT — 8

mixture. Under the Court’s rationale today, such a defendant would have to be acquitted entirely,

even though we would know that he had to have possessed a proportion of codeine that was at least

a penalty group 4 substance (but could be more than that). Although perhaps less obvious, the same

is true of the first mitigating factor—the proportion of non-codeine medicine—if the record is

unclear about whether that proportion was sufficient to confer valuable medicinal qualities, we still

know that the codeine would at least be a penalty group 4 substance, though it might be a higher

penalty group.

This situation is analogous to the old voluntary manslaughter statute, which contained all the

elements of murder plus the mitigating element of sudden passion arising from an adequate cause.32

In Moore v. State, we held that voluntary manslaughter was in fact a lesser-included offense of

murder due to having a lesser culpable mental state.33 In doing so, we overruled a prior case that

held the evidence to be insufficient to support a conviction for voluntary manslaughter because

sudden passion had not been proven.34 That prior case, Bradley v. State, viewed the situation much

as the Court views the present case: “The State had the burden to disprove sudden passion beyond

a reasonable doubt to convict for murder, and the burden to prove the existence of sudden passion

beyond a reasonable doubt to convict for voluntary manslaughter.”35 Moore rejected that view in

the voluntary-manslaughter context, and we should do so here.

32 See TEX. PENAL CODE § 19.04(a) (West 1992). For brevity and ease of reference, I sometimes refer to the mitigating element by the label “sudden passion.” 33 969 S.W.2d 4, 9-10 (Tex. Crim. App. 1998). 34 Id. at 10 (overruling plurality opinion in Bradley v. State, 688 S.W.2d 847 (Tex. Crim. App.1985)). 35 Id. at 9 (discussing Bradley). BIGGERS DISSENT — 9

Although Moore did not adopt the reasoning of the even earlier case of Braudrick v. State,36

the reasoning in that earlier case applies more strongly to the present case than to the

murder/voluntary manslaughter situation. In Braudrick, the Court concluded that the negation of the

“sudden passion” element of voluntary manslaughter was an implied element of murder.37 So, in the

Court’s view, voluntary manslaughter was a lesser-included offense of murder because it differed

only by lacking an element of murder—it lacked murder’s implied element of not having “sudden

passion.”38 The Court further concluded that “[t]he distinguishing feature between murder and

voluntary manslaughter is not a fact that must be proven beyond a reasonable doubt to establish

voluntary manslaughter.”39 The Court further held that, if the issue is raised, it must be disproven

to establish murder, and “a reasonable doubt on the issue requires acquittal on the murder charge and

allows conviction only for voluntary manslaughter.”40

A possible hole in the court’s reasoning in Braudrick was the idea of having an implied

element. Moore perhaps implicitly criticized Braudrick by referring to the notion “that murder had

an unwritten, implied element of lack of sudden passion.”41 But in the present case, we do not have

an “implied element” problem. Penalty group 1 codeine is explicitly defined as codeine that does

not fall within penalty group 3 or 4. So, under Braudrick’s reasoning, possession of penalty group

36 572 S.W.2d 709 (Tex. Crim. App. 1978). 37 See id. at 710. 38 Id. 39 Id. at 711. 40 Id. 41 969 S.W.2d at 9. BIGGERS DISSENT — 10

4 codeine lacks an element contained in possession of penalty group 1 codeine—it lacks the penalty

group 1 element of not being in penalty group 4 (because it is in penalty group 4). Analytically, the

penalty group 4 offense is a lesser-included offense of the penalty group 1 offense because it differs

only by having fewer elements.42 And under Braudrick’s reasoning, because the mitigating

characteristics is what makes it a lesser included offense, the mitigating characteristics of penalty

group 4 codeine do not have to be proven beyond a reasonable doubt to convict on a penalty group

4 offense, but they must be disproven beyond a reasonable doubt to convict on a penalty group 1

offense.

Braudrick’s conclusion about what has to be proven in this sort of lesser-included offense

situation seems to follow from other generally accepted principles of law. Legally, a lesser-included

offense is included within the proof of the charged offense, which is why the first prong of the test

for obtaining a lesser-included offense is that it “be included within the proof necessary to establish

the greater offense for which the defendant is on trial.”43 We have said elsewhere that, “Proof of a

greater offense will sustain a conviction for a lesser included offense.”44 So establishing the greater

offense of possession of penalty group 1 codeine would necessarily establish the lesser-included

offense of possession of penalty group 4 codeine.

Moreover, it is a standard jury instruction that if the jury has a reasonable doubt as to whether

42 See TEX. CODE CRIM. PROC. art. 37.09(1). It might also be possible to characterize possession of penalty group 4 codeine as a lesser included offense on the basis that it differs from the greater offense “only in respect that a less serious injury or risk of injury to the same . . . public interest suffices to establish its commission.” See id. art. 37.09(2). 43 See Grey v. State, 269 S.W.3d 785, 788 (Tex. Crim. App. 2008). 44 Daniel v. State, 668 S.W.2d 390, 394 (Tex. Crim. App. 1984). BIGGERS DISSENT — 11

the defendant is guilty of the charged offense or of the lesser-included offense, “then [it] must

resolve that doubt in the defendant’s favor and find him guilty of the lesser offense.”45 That

proposition of law applies here. Depending on the proportions of codeine and promethazine, the

substance falls either within penalty group 1, 3, or 4. There does not exist a “no-man’s land” where

someone can possess a combination of codeine and promethazine and it not fall within one of those

three penalty groups. At worst, the record lacks clarity about which of the three penalty groups the

State has proven. Under those circumstances the evidence should be upheld as sufficient on the

lowest grade offense—possession of penalty group 4 codeine.

Of course, the State has to prove that the substance lacks the mitigating characteristics of

penalty group 4 codeine in order to obtain a conviction for penalty group 1 codeine. As the Court

explains, the State has not done this. So the State cannot obtain a conviction for penalty group 1

codeine. But Appellant was convicted of possessing penalty group 4 codeine and the evidence is

sufficient to support that conviction. Because the Court holds otherwise, I respectfully dissent.

Filed: September 22, 2021

Publish

45 See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009).