Cawthon v. State

795 S.W.2d 818, 1990 Tex. App. LEXIS 1799, 1990 WL 101980
CourtCourt of Appeals of Texas
DecidedJuly 20, 1990
DocketNo. 12-88-00333-CR
StatusPublished
Cited by4 cases

This text of 795 S.W.2d 818 (Cawthon v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cawthon v. State, 795 S.W.2d 818, 1990 Tex. App. LEXIS 1799, 1990 WL 101980 (Tex. Ct. App. 1990).

Opinion

COLLEY, Justice.

Appellant Leonard Ray Cawthon was convicted of possession of at least twenty-[819]*819eight grams of amphetamine with intent to deliver1 by a jury who assessed his punishment at confinement for twenty years. We will affirm the conviction.

Appellant presents three points of error. First, he challenges the sufficiency of the evidence to support his conviction. Second, he specifically contends that the evidence is insufficient to establish that he possessed “at least 28 grams” of amphetamine. Third, he claims that the court erred in overruling his pretrial motion to suppress the amphetamines seized by officers under a search warrant because the information relied on by the affiant, Chief Deputy Sheriff Tim Monk, was “stale,” and therefore no probable cause exists to support the issuance of the search warrant by the magistrate.

We summarize the pertinent evidence adduced by the State.

On June 18, 1988, Rains County Chief Deputy Sheriff Tim Monk signed an “Affidavit for Search and Arrest Warrant” before Inez Ivy, Justice of the Peace, Precinct No. 1, Rains County, Texas. Judge Ivy, on the same day, signed and issued the warrant, authorizing the search of appellant’s residence located near Point on farm-to-market road 514. On its face, the warrant purports to authorize a search for “stolen weapons and a usable amount of [marijuana], Methamphetamines and other Contraband.” Monk’s affidavit recites that he had been advised by a confidential informant that Cawthon and his wife “[have] a quantity of usable amount of Marijuana, Methamphetamines and other Contraband, concealed in their residence ... [and] ... that [the informant] had observed [appellant and his wife] in possession of said Marijuana, Methamphetamines ... in the last 72 hours at [their] ... residence[.]” Monk also stated in the affidavit that he received the information from the informant on June 14, 1988.

The record reveals that an eight-man search team executed the search warrant on the date of its issuance. During that search, State Exhibit No. 9, a “box,” was found and seized. The “box” contained what was identified at trial as State Exhibit No. 9A, a bag of white powder. The powder was taken to the Department of Public Safety Laboratory in Tyler where it was examined and analyzed by Keith Pridgen, a chemist employed there. Pridgen testified that the white powder weighed 128.76 grams and “[was] 20 percent amphetamine [including] adulterants and dilutents.” His words were that State Exhibit 9A “[was] 20 percent amphetamine with adulterants and dilutents [sic].” Pridgen said that he could not identify the adulterants or dilu-tants, but related that he “did notice what appeared to be the presence of nicotinam-ide[.]”2

Nevertheless, Pridgen’s testimony on direct and cross-examination establishes that the substance found in the Cawthon residence and identified before the jury as State Exhibit 9A contained substances which consisted of twenty percent amphetamine blended with unidentified adulterants and dilutants weighing in the aggregate 128.76 grams.

We now address appellant’s points of error numbers 1 and 2 by which he challenges the sufficiency of the evidence to support his conviction.

The paragraph of the court’s charge applying the law to the facts at the guilt/innocence phase reads in pertinent part:

[I]f you believe ... that [appellant], either acting alone or with another as a party to the offense, as that term3 is herein defined, on or about the 18th day of June, 1988, ... did then and there knowingly or intentionally possess with [820]*820intent to deliver a controlled substance, namely, amphetamine, having an aggregate weight, including any adulterants or dilutants, of less than four hundred grams but at least twenty-eight grams, you will find the defendant guilty....

Appellant makes two arguments under these points. First, he questions the proof of his intent to deliver the substance. He claims that since the evidence does not show that the amphetamine was “separately packaged” and therefore “delivery ready,” there is insufficient evidence of the requisite intent. He contends that the “adulterants” and “dilutants” are unidentified, and therefore may be, in fact, uningestable or even poisonous. He argues that although a large amount of cash ($9,421) consisting mainly of one hundred dollar bills was found in his residence, defense evidence showed that “street dosage of amphetamine sold for ‘from $10 to $15.”’ Based on these facts, appellant claims that such evidence disproves that he had an intent to deliver (sell) the substance.

We find these arguments unpersuasive. According to the testimony of State witness Rick Easterwood, a criminal investigator for the Department of Public Safety, and a long-time narcotics agent, the seized substance was in a quantity large enough to provide 1,287.6 street doses4 — an amount sufficient to supply ten users for 32 days, and one user for 321 days. We conclude that there are ample facts and circumstances established by the State from which reasonable jurors could infer that appellant possessed the amphetamine with intent to deliver it to others for money-

Second, appellant challenges the sufficiency of the State’s proof that the amphetamine, adulterants and dilutants weighed 28 grams or more. He argues that the evidence is insufficient because the State failed to establish that the tested sample “was representative” of the whole bag of amphetamine. He also contends that the State’s proof is deficient because the State failed to introduce evidence that the adulterants and dilutants were “added to the [amphetamine] with the intent to increase the bulk or quantity of the final product.” In support of his latter argument, appellant refers us to McGlothlin v. State, 749 S.W.2d 856, 860 (Tex.Cr.App.1988), and Engelking v. State, 750 S.W.2d 213, 215-216 (Tex.Cr.App.1988). The court in McGlothlin adopted definitions of “adulterants” and “dilutants” that it attributed to the legislature by way of the court’s interpretation of the source law5 of Tex. Health & Safety Code Ann. § 481.002(17)(F) (Vernon Supp.1990). Those definitions articulated by the McGlothlin court recite that “adulterants” and “dilutants”

[A]re compounds, substances or solutions added to the controlled substance with the intent to increase the bulk of the product. Or, increase the quantity of the final product ‘without affecting its activity.

749 S.W.2d at 860 (emphasis ours).

The court in McGlothlin (opinion delivered on April 6, 1988) concluded that the terms “adulterants” and “dilutants,” as used in the Tex. Controlled Substance Act, have “a technical ... meaning, ... [and] must be read in context ...” with that meaning or sense of the words. 749 S.W.2d at 858. So the court reached a conclusion, actually mandated by the clear language of the statute, that “adulterants” and “diluents” are substances, compounds [821]*821or solutions “added to the controlled substance with the intent to increase the bulk of the product.” 749 S.W.2d at 860. Since under the McGlothlin

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Related

Jimmy Roland Keith, Jr. v. State of Texas
Court of Appeals of Texas, 2001
Guerra v. State
860 S.W.2d 609 (Court of Appeals of Texas, 1993)
Cawthon v. State
849 S.W.2d 346 (Court of Criminal Appeals of Texas, 1992)

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Bluebook (online)
795 S.W.2d 818, 1990 Tex. App. LEXIS 1799, 1990 WL 101980, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cawthon-v-state-texapp-1990.