Dgjuan Fields v. the State of Texas

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-24-00066-CR No. 02-24-00067-CR ___________________________

DGJUAN FIELDS, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 432nd District Court Tarrant County, Texas Trial Court Nos. 1765791, 1809749

Before Sudderth, C.J.; Kerr and Bassel, JJ. Memorandum Opinion by Justice Bassel MEMORANDUM OPINION

I. Introduction

Appellant Dgjuan Fields appeals three convictions, two in appellate cause

number 02-24-00066-CR (trial court cause number 1765791) and one in appellate cause

number 02-24-00067-CR (trial court cause number 1809749).

In appellate cause number 02-24-00066-CR, a jury found Fields guilty of (1) the

first-degree felony of possessing methamphetamine, a controlled substance, of four

grams or more but less than two hundred grams with the intent to deliver, see Tex.

Health & Safety Code Ann. §§ 481.102(6) (“Penalty Group 1”), 481.112(d) (“Offense:

Manufacture or Delivery of Substance in Penalty Group 1”), and (2) the first-degree

felony of possessing fentanyl, a controlled substance, of four grams or more but less

than two hundred grams with the intent to deliver, see id. §§ 481.1022 (“Penalty Group

1-B”), 481.1123(d) (“Offense: Manufacture or Delivery of Substance in Penalty Group

1-B”). The jury also made a deadly weapon finding. For the methamphetamine offense,

the jury assessed a punishment of confinement for forty years, and for the fentanyl

offense, the jury assessed a punishment of confinement for fifty years.

In appellate cause number 02-24-00067-CR, a jury found Fields guilty of the third-

degree felony offense of unlawful possession of a firearm by a felon and assessed his

2 punishment at imprisonment for ten years. See Tex. Penal Code Ann. § 46.04(a), (e). The

three sentences run concurrently.1

Fields appeals all three convictions. In three issues, Fields argues: (1) the trial court

erred by refusing an evidentiary hearing on his motion for new trial; (2) the evidence was

insufficient to show that he possessed a “controlled substance” as that term is defined in

the Texas Health and Safety Code; and (3) the jury charge contained error because (a) it

included an abstract instruction of a “constructive transfer” but did not incorporate a

constructive transfer into the application paragraph, and (b) it did not define “controlled

substance” as that term is defined in the Texas Health and Safety Code.

We hold that (1) because Fields did not present his motion for new trial or

request a hearing, he has not preserved his first issue; (2) whether a substance is a

controlled substance is a question of law and not of fact; (3)(a) assuming that including

a “constructive transfer” instruction in the charge was error, Fields cannot show

egregious harm; and (3)(b) the charge did not have to include the statutory controlled-

substances definition or identify the statutes identifying methamphetamine and fentanyl

1 The record shows the trial court reciting the jury’s verdicts but not actually sentencing Fields. “There, of course, is the presumption of the regularity of the judgment of conviction and the proceedings absent a showing to the contrary.” Ex parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986) (op. on reh’g); Barnard v. State, No. 05-93-00156-CR, 1995 WL 110158, at *1 (Tex. App.—Dallas Mar. 15, 1995, no pet.) (not designated for publication) (“[The appellant] contends . . . that the trial court erred by assessing his punishment without sentencing him. Although the [reporter’s record] does not reflect a sentencing, the judgment reflects that [he] was sentenced. . . . The recitations in the judgment [bind the appellant] in the absence of direct proof to the contrary.”).

3 as controlled substances. Accordingly, we overrule Fields’s three issues and affirm the

trial court’s judgments.

II. Background

In December 2022, an agent from the Drug Enforcement Administration

provided Officer William Snow with information regarding Fields and with the name

that Fields used on Instagram. Officer Snow discovered that on Instagram, Fields

would have daily postings of different drugs for sale; for example, Fields would post

the prices for marijuana—by the pound—and on January 24, 2023, he posted, “Blues

are in.” “Blues,” explained Officer Snow to the jury, was the street term for fentanyl

pills.

Officer Snow also noted multiple pictures and stories of Fields in possession of

firearms. After doing some research, Officer Snow determined that Fields was a

convicted felon—for aggravated robbery with a deadly weapon, a firearm—and had

served five years in prison. Officer Snow also learned that in January 2023, a warrant

had issued for Fields’s arrest.

To determine where Fields lived, Officer Snow had a confidential informant

contact Fields through Instagram and ask for a specific amount of narcotics. Fields

responded with a price and an address—3501 R*** Street.

From experience, however, Officer Snow knew that dealers usually did not

provide correct addresses. He explained at trial that dealers gave false addresses for

4 their personal safety because they had to worry about getting robbed by either

customers or other drug dealers. Dealers also had to look out for law enforcement.

One day after Fields had posted that the “blues” were in, on January 25, Officer

Snow used a different confidential informant to go to the 3501 R*** Street address to

make a purchase. In the process, from surveillance, Officer Snow determined that

Fields was actually dealing from a house across the street at 3424 R*** Street. Officer

Snow explained, “We observed vehicles coming and going to that one particular house

and basically people walking up to the house and back, short-term traffic.” Armed with

this new information, Officer Snow instructed the confidential informant to purchase

fentanyl pills from the 3424 R*** Street residence. The informant purchased fentanyl

pills, but based on the informant’s description of the seller, the informant did not buy

the drugs from Fields personally; the informant was, however, able to verify that Fields

was inside the house. Officer Snow then drafted and obtained a search warrant for the

residence.

Officer Snow used a special-weapons-and-tactics unit (SWAT) to execute the

search warrant. SWAT’s job was to secure the residence, any individuals inside the

residence, and any individuals running from the residence.

SWAT arrived within an hour after the confidential informant had made the

controlled purchase. When SWAT approached the residence, people were in the front

yard. Some individuals ran north, some ran south, and some ran back into the house.

5 Sergeant Justin Williams arrested Fields about three houses down from the

targeted house. When searched, Fields had neither drugs nor weapons. But officers

discovered $5,050 in cash on his person.

And Officer Daniel Villeneuve chased and eventually arrested Alrod Stewart.2

While Officer Villeneuve chased Stewart, he saw Stewart toss an object to the ground,

and when Officer Villeneuve later searched the area, he found under a car a bag of chips

that contained several baggies of blue pills. A photograph of the baggies shows five

baggies and, beside them, a tally of the number of pills in each baggie; the total count

was 228 pills. A forensic scientist later tested forty tablets and determined that they

consisted of 4.303 grams of fentanyl, including any adulterants and diluents.

Also recovered from Fields and Stewart were two $20 bills linked to the

controlled buy. Officer Snow explained that before making a controlled purchase, the

bills given to the informant to buy the narcotics were photographed for their serial

numbers. Officer Snow recovered $40 of the $60 “buy money.” Fields and Stewart

each had $20.

Inside the house, SWAT detained Fields’s brother, Trayveon. The police

interviewed Trayveon, who admitted that he would meet clients and send them to the

house, which was Fields’s, and Fields would supply them with marijuana or whatever

other drug they wanted.

2 Alrod Stewart was also referred to as Andron Stewart or Anrod Stewart.

6 Officer Snow also found contraband inside the house. Officer Snow testified

that the kitchen the police searched was the same one shown in Fields’s Instagram

postings. In a kitchen cabinet, the police found a baggie of multicolored pills that they

believed were MDMA or, as known on the street, “ecstasy.” A photograph of the

baggie showed innumerable pills. The forensic scientist later tested fifteen of the pills

as a sample and determined that they contained 4.273 grams of methamphetamine,

including adulterants or diluents. Regarding Officer Snow’s misidentification of the

pills as MDMA, he explained that MDMA and methamphetamine were both stimulants

and contained methamphetamine, so it was possible for a field test to show one

controlled substance but a confirmatory test to show an additional or different

controlled substance.

Also found in the kitchen was a baggie of “small blue M30 pills”3 that Officer

Snow believed to be fentanyl. A photograph of the baggie found inside the kitchen

showed perhaps six pills. A forensic scientist later determined that one of these pills

consisted of .115 grams of fentanyl, including any adulterants and diluents. The blue pills

found inside the kitchen had the same M30 stamp as those found in the bag of chips.

On the kitchen counter was a Glock pistol. In the master bedroom were the

buttstock of an AR pistol, the AR pistol, and a second Glock pistol with a drum magazine.

3 Blue pills sold on the street are known to be stamped with an “M” and a “30” to counterfeit Percocet. See Jimenez v. State, No. 02-23-00348-CR, 2025 WL 211319, at *1, *4 (Tex. App.—Fort Worth Jan. 16, 2025, no pet.) (mem. op., not designated for publication).

7 The police found other items linking Fields to the house and to drug dealing.

On the kitchen counter were multiple scales. Body armor was on the floor in the living

room. Body armor, Officer Snow noted, was illegal for a felon to possess. In addition

to the methamphetamine and fentanyl, police found several baggies of a green leafy

substance believed to be marijuana in the kitchen cabinet and thirty-five THC vape pens

in the living room. Officer Snow explained that THC was more potent than marijuana

and was a controlled substance. In the bedroom was a video recorder for the cameras

that were mounted around the outside of the house. Officer Snow stated that based

on his experience, it was common for drug dealers to have surveillance cameras. In the

bedroom too were a check made payable to Fields and two letters from the IRS

addressed to him—but none with the address from which Fields was dealing drugs.

Despite that, Officer Snow stated that in his experience, individuals do not carry around

their mail to locations where they do not live. A third letter from Spectrum had both

Fields’s name and the 3424 R*** Street address. Fields’s social security card was also

found in the residence.

III. Discussion

Fields presents three issues. The first addresses the absence of a hearing on his

motion for new trial, the second questions whether the evidence was sufficient to show

that the drugs that the police found were controlled substances, and the third complains

about two instances of alleged error in the jury charge.

8 A. Absence of Hearing on Motion for New Trial

In Fields’s first issue, he argues that the trial court erred by refusing an evidentiary

hearing on his motion for new trial. The record, however, does not show that Fields

ever presented his motion or requested a hearing.

A hearing on a motion for new trial is not an absolute right. Rozell v. State, 176

S.W.3d 228, 230 (Tex. Crim. App. 2005). Generally, if the motion and attached affidavit

raise matters that are not determinable from the record that could entitle the defendant

to relief, a trial court should hold a hearing. Id. But in addition to timely filing the

motion with supporting affidavits showing reasonable grounds for believing that some

error has occurred, the defendant must present the motion to the trial court, and if he

wants a hearing on it, he must request one. Id.

Under the Texas Rules of Appellate Procedure, a criminal defendant must timely

“present” a motion for new trial to the trial court. Tex. R. App. P. 21.6. To prove

presentment, the record must show that the trial court had actual notice that the

defendant wanted a ruling or a hearing on the motion. Harris v. State, 668 S.W.3d 83,

91–92 (Tex. App.—Houston [1st Dist.] 2022, pet. ref’d) (op. on en banc

reconsideration). “Merely filing the motion is not sufficient alone to show

presentment.” Stokes v. State, 277 S.W.3d 20, 21 (Tex. Crim. App. 2009). Examples of

presentment include obtaining the trial court’s ruling on the motion for new trial, the

judge’s signature or notation on a proposed order, or a hearing date on the docket sheet.

Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998); Burrus v. State, 266 S.W.3d

9 107, 115 (Tex. App.—Fort Worth 2008, no pet.) (mem. op.). An electronic filing does

not satisfy the presentment requirement. See Huff v. State, No. 02-22-00254-CR, 2023

WL 5617124, at *4 (Tex. App.—Fort Worth Aug. 31, 2023, no pet.) (mem. op., not

designated for publication). To preserve a complaint that the trial court erred by not

having a hearing, a defendant must first request one. Rozell, 176 S.W.3d at 230.

Here, Fields points to a letter that counsel filed showing that the motion was

successfully faxed to the court along with the fax confirmation. But all the letter and the

fax confirmation show are that something forty-one pages long was faxed successfully.

Fields’s motion for new trial, along with the attachments, was thirteen pages long.

Assuming, without deciding, that the document faxed was or included Fields’s motion

for new trial, all the letter and fax confirmation show is that the motion was filed.

Fields also asserts that the motion appears on the trial court’s docket. The

document in question is the “Record of Criminal Actions,” and all that its entries show

is that Fields filed a motion for new trial.

We also note that the fiat attached to the motion is left blank and is not signed

by the judge.

Thus, our record shows that Fields filed his motion for new trial, but it does not

show that he presented it or that he requested a hearing. See Carranza, 960 S.W.2d at

79. He has not preserved his complaint. See Rozell, 176 S.W.3d at 230. We overrule

Fields’s first issue.

10 B. Whether Sufficient Evidence Shows the Drugs were Controlled Substances

In Fields’s second issue, he contends that the evidence was not sufficient to show

that he possessed a “controlled substance” as that term is defined in the Texas Health

and Safety Code. Specifically, Fields contends that although there was evidence that

the substances found were methamphetamine and fentanyl, there was no evidence that

methamphetamine and fentanyl were controlled substances.

But whether a drug is a controlled substance is a question of law, not a question

of fact. Raymos v. State, Nos. 05-23-00294-CR, 05-23-00295-CR, 2024 WL 3218221, at

*1 (Tex. App.—Dallas June 28, 2024, no pet.) (mem. op., not designated for

publication); Plumlee v. State, No. 02-17-00174-CR, 2018 WL 3153543, at *5 (Tex.

App.—Fort Worth June 28, 2018, pet. ref’d) (mem. op., not designated for publication).

The jury charge informed the jurors that methamphetamine and fentanyl were, under

Texas law, controlled substances: “Under our law, methamphetamine, fentanyl, and

alpha-methylfentanyl are controlled substances.” The penalty group is not an element

of the offense.4 Roberson v. State, No. 05-15-00550-CR, 2016 WL 3517937, at *2 (Tex.

App.—Dallas June 20, 2016, no pet.) (mem. op., not designated for publication). Once

the State proves which controlled substance the defendant possessed, it necessarily

proves the penalty group applicable to the offense. Raymos, 2024 WL 3218221, at *1.

4 This is consistent with Fields’s indictment, which identified the controlled substances (methamphetamine and fentanyl) but did not identify the penalty groups under which methamphetamine and fentanyl fell.

11 We thus overrule Fields’s second issue.5

C. Alleged Error in Jury Charge

In Fields’s third issue, he maintains that the jury charge contained error because

(a) it contained an abstract instruction on “constructive transfer” but did not

incorporate “constructive transfer” into the application paragraph and (b) it did not

define “controlled substance” as that term is defined in the Texas Health and Safety

Code. Fields thus complains about two alleged errors in the jury charge. We address

the alleged errors separately.

1. Constructive Transfer

Fields maintains that an indictment for delivery of a controlled substance must

specify which type of delivery was performed. See Conaway v. State, 738 S.W.2d 692, 694

(Tex. Crim. App. 1987); Young v. State, 183 S.W.3d 699, 706 (Tex. App.—Tyler 2005,

pet. ref’d). Fields complains that although the instructions addressed a constructive

transfer, the application paragraphs did not incorporate constructive transfers. Fields

asserts that the trial court necessarily erred by either (1) including an instruction on

constructive transfer or (2) assuming the constructive-transfer instruction was properly

included, not incorporating constructive transfer into the application paragraph.

Officer Snow testified that the police found “contraband” inside the house. 5

“Contraband” would have included controlled substances. See Contraband, Black’s Law Dictionary (12th ed. 2024) (“Goods that are unlawful to import, export, produce, or possess.”).

12 Fields, however, was not charged with delivery of methamphetamine and

fentanyl. See Jackson v. State, 84 S.W.3d 742, 744–45 (Tex. App.—Houston [1st Dist.]

2002, no pet.) (addressing delivery-of-a-controlled-substance offense). When delivery

is alleged, the defendant is entitled to know on which of the three possible modes of

delivery the State will rely. Gonzales v. State, 638 S.W.2d 41, 44 (Tex. App.—Houston

[1st Dist.] 1982, pet. ref’d).

Rather, Fields was charged with possessing methamphetamine and fentanyl with

the intent to deliver. The question was not whether Fields delivered any controlled

substances. The question was whether he possessed any controlled substances with the

intent to deliver. When the State alleges possession with the intent to deliver, courts

are not concerned with delivery because no delivery occurred. Id.; see Lopez v. State, 108

S.W.3d 293, 300 (Tex. Crim. App. 2003) (stating that “if an actor possesses a quantity

of drugs sufficient to permit the jury to conclude that he possessed them with the intent

to distribute them, . . . any existing offer to sell or prospective buyer” is not necessary

for conviction).

The only evidence of an arguably constructive transfer6 was the confidential

informant’s purchase of fentanyl from someone other than Fields, but the State did not

6 The charge provided,

“Delivery” means the actual or constructive transfer from one person to another of a controlled substance, whether or not there is an agency relationship. Constructive transfer is the transfer of a controlled

13 rely on those drugs when calculating the amount he possessed. Instead, the State relied

on the methamphetamine and the fentanyl found inside the house and the fentanyl that

Stewart discarded under the car.

The State argues that the abstract instruction can be ignored as surplusage and

is, thus, not erroneous. Curry v. State, 30 S.W.3d 394, 399 (Tex. Crim. App. 2000)

(relying on Burrell v. State, 526 S.W.2d 799, 802 (Tex. Crim. App. 1975), overruled by

Gollihar v. State, 46 S.W.3d 243, 256 (Tex. Crim. App. 2001)). Because we decide that

any error in the charge would ultimately not constitute egregious harm, we will assume,

without deciding, that the abstract instruction was erroneous. See Olivarez v. State, No.

substance either belonging to an individual or under his direct or indirect control by some other person at the instance or direction of the individual accused of such constructive transfer.

The Eastland Court of Appeals has written,

For the evidence to be sufficient in cases that involve the constructive delivery or transfer of drugs when the transferee is not the immediate transferee, a defendant must have had either “direct or indirect control of the substance transferred” and “the transferor must know of the existence of the transferee.” Sims v. State, 117 S.W.3d 267, 277 (Tex. Crim. App. 2003). A “defendant must have contemplated that there would in fact be a third party transferee.” Id. It is not necessary, however, for the State to prove that Appellant knew the identity of the ultimate recipient of the drugs, only that Appellant knew that his initial transfer was not the end of the distribution cycle. Daniels v. State, 754 S.W.2d 214, 222 (Tex. Crim. App. 1988).

Jackson v. State, Nos. 11-18-00308-CR, 11-18-00309-CR, 11-18-00310-CR, 2020 WL 6790937, at *6 (Tex. App.—Eastland Nov. 19, 2020, pet. ref’d) (mem. op., not designated for publication).

14 10-19-00214-CR, 2020 WL 6685901, at *2–3 (Tex. App.—Waco Nov. 12, 2020, pet.

ref’d) (mem. op., not designated for publication) (holding that “unnecessary and

inappropriate” abstract instruction that was not incorporated into the application

paragraph was error but was not egregiously harmful).

Fields did not object to the jury charge. Unpreserved charge error warrants

reversal only when the error resulted in egregious harm. Nava v. State, 415 S.W.3d 289,

298 (Tex. Crim. App. 2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1985) (op. on reh’g); see Tex. Code Crim. Proc. Ann. art. 36.19. The appropriate inquiry

for egregious harm is fact- and case-specific. Gelinas v. State, 398 S.W.3d 703, 710 (Tex.

Crim. App. 2013); Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).

In making an egregious-harm determination, we must consider “the actual degree

of harm . . . in light of the entire jury charge, the state of the evidence, including the

contested issues and weight of probative evidence, the argument of counsel[,] and any

other relevant information revealed by the record of the trial as a whole.” Almanza, 686

S.W.2d at 171. See generally Gelinas, 398 S.W.3d at 708–10 (applying Almanza). Errors

that result in egregious harm are those “that affect the very basis of the case, deprive

the defendant of a valuable right, vitally affect the defensive theory, or make a case for

conviction clearly and significantly more persuasive.” Taylor, 332 S.W.3d at 490 (citing

Almanza, 686 S.W.2d at 172). The purpose of this review is to illuminate the actual, not

just theoretical, harm to the accused. Almanza, 686 S.W.2d at 174.

15 Here, the record does not show egregious harm for two reasons—the strength

of the State’s evidence and the State’s theory of the case.

The State’s case against Fields was very strong. The evidence showed that Fields

advertised that he was dealing drugs on Instagram. Officer Snow saw activity that he

associated with drug dealing at Fields’s house. When SWAT arrived, Fields ran from

the house with a large amount of cash and Stewart ran from the house with the bulk of

the fentanyl that Fields had advertised only the day before as having arrived. Fields and

Stewart each possessed a $20 bill that Officer Snow had used in a controlled fentanyl

purchase only an hour earlier. The charge instructed the jury on the law of parties. The

evidence that Fields possessed the methamphetamine and fentanyl with the intent to

deliver was overwhelming.

Regarding the State’s theory of the case, Fields was not charged with a delivery—

constructive or otherwise. The evidence that the State relied on to convict Fields was

the methamphetamine and fentanyl found inside the house and the fentanyl that

Stewart discarded while being chased. The only delivery in the evidence—the drugs

purchased during the controlled buy—were not tested or weighed by the forensic

scientist. So the application paragraph, regardless of the abstract instruction, correctly

reflected the State’s theory of the case. See Yzaguirre v. State, 394 S.W.3d 526, 530 (Tex.

Crim. App. 2013) (stating that the application portion of the charge, not the abstract

portion, is what authorizes a conviction). We hold that Fields was not egregiously

harmed. See Olivarez, 2020 WL 6685901, at *2–3; Chavez v. State, No. 10-13-00015-CR,

16 2013 WL 6409788, at *4–5 (Tex. App.—Waco Dec. 5, 2013, pet. ref’d) (mem. op., not

designated for publication) (stating that in case alleging possession with intent to deliver,

including a definition of constructive transfer was surplusage where there was no

evidence of any constructive transfers and that appellant was not egregiously harmed

by the definition where the evidence showed that the appellant was a dealer).

We overrule Fields’s constructive-transfer contention.

2. Failure to Define “Controlled Substance” or Identify Penalty Group

Fields contends that the charge failed to define “controlled substance” and that

the charge did not identify to which penalty group the substances belonged. Because

there is a statutory definition of “controlled substance,” Fields maintains that the charge

had to include it. Specifically, Fields relies on Section 481.002(5) of the Texas Health

and Safety Code, which provides:

“Controlled substance” means a substance, including a drug, an adulterant, and a dilutant, listed in Schedules I through V or Penalty Group 1, 1-A, 1-B, 2, 2-A, 3, or 4. The term includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance. The term does not include hemp, as defined by Section 121.001, Agriculture Code, or the tetrahydrocannabinols in hemp.

Tex. Health & Safety Code Ann. § 481.002(5); see, e.g., Cochran v. State, No. 06-22-00089-

CR, 2022 WL 17686575, at *1–2 (Tex. App.—Texarkana Dec. 15, 2022, no pet.). (mem.

op., not designated for publication) (addressing defendant’s contention that failure to

include Section 481.002(5) definition was error).

17 The trial court’s jury charge must set forth the law applicable to the case. Tex.

Code Crim. Proc. Ann. art. 36.14. Thus, the trial court must instruct the jury on each

element of the offense or offenses charged and include each statutory definition that

affects the meaning of an element of the offense. McIlroy v. State, 188 S.W.3d 789, 797

(Tex. App.—Fort Worth 2006, no pet.).

Here, the jury charge informed the jurors that methamphetamine and fentanyl

were controlled substances under Texas law. The jury was thus told the law applicable

to the case. See Tex. Code Crim. Proc. Ann. art. 36.14. The charge did not, however,

quote the Section 481.002(5) definition or specify which statutes made

methamphetamine and fentanyl illegal. See Tex. Health & Safety Code Ann.

§§ 481.102(6) (“Penalty Group 1”), 481.1022 (“Penalty Group 1-B”).

But whether a drug is a controlled substance is a question of law, not a question

of fact. Raymos, 2024 WL 3218221, at *1; Plumlee, 2018 WL 3153543, at *5. The penalty

group is not an element of the offense. Roberson, 2016 WL 3517937, at *2.

The factual question for the jury was whether Fields possessed

methamphetamine and fentanyl, not whether methamphetamine and fentanyl were

controlled substances. See Raymos, 2024 WL 3218221, at *2; Onick v. State, No. 02-18-

00356-CR, 2019 WL 1950063, at *3 (Tex. App.—Fort Worth May 2, 2019, no pet.)

(mem. op., not designated for publication) (“[B]ecause the individual controlled

substance and not the penalty group is the essential element of the offense, the jury

charge does not contain error with respect to the lack of definition or instruction that

18 cocaine, heroin, and methamphetamine are ‘controlled substances listed in Penalty

Group 1.’”). The jury determined that Fields possessed methamphetamine and fentanyl

with the intent to deliver; as a matter of law, methamphetamine and fentanyl are

controlled substances. See Roberson, 2016 WL 3517937, at *2 (“Cocaine is listed in

penalty group one according to statute, so there was no fact-finding role for the jury as

to whether cocaine is or is not listed in penalty group one.”).

We hold that not including the statutory “controlled substance” definition and

not identifying the respective penalty groups of methamphetamine and fentanyl was

not charge error. See Raymos, 2024 WL 3218221, at *1; Plumlee, 2018 WL 3153543, at

*5; Roberson, 2016 WL 3517937, at *2. We overrule Fields’s controlled-substance

argument.

Having overruled both of Fields’s contentions, we overrule his third issue.

IV. Conclusion

Having overruled Fields’s three issues, we affirm the trial court’s judgments.

/s/ Dabney Bassel

Dabney Bassel Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: April 10, 2025