Dowling v. State

885 S.W.2d 103, 1994 Tex. Crim. App. LEXIS 87, 1992 WL 278415

• Court: Court of Criminal Appeals of Texas
• Decided: June 29, 1994
• Docket: 107-89
• Status: Published

Opinions

OPINION ON APPELLANT’S MOTION FOR REHEARING ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge.

Our prior opinion in this cause is withdrawn.

A jury convicted appellant of manufacture of amphetamine weighing more than four hundred grams and assessed punishment at sixty-one years imprisonment and a $10,000 fíne. TEX.REV.CIV.STAT.ANN. art. 4476-15, §§ 4.02(d)(1)(A), 4.082(c) and (d)(2) (Vernon Supp.1983).¹ The Tenth Court of Appeals affirmed the conviction in an unpublished opinion. Dowling v. State, No. 10-88-099-CR (Tex.App. — Waco Nov. 17, 1988).

Appellant leased a house in Johnson County in the summer of 1983. In September of 1983, the landlord went to the house looking for appellant who was late with the rent. When no one answered, the landlord entered the house and smelled a foul odor and discovered a homemade laboratory. Thereafter, the landlord notified the authorities who obtained a search warrant for the house and discovered a flask and laboratory equipment. At trial, a chemist with the Texas Department of Public Safety, testified that the entire substance in the flask weighed 704.89 grams, including adulterants and dilutants.² She did not further identify the adulterants and dilutants, nor did she testify as to the amount of the amphetamine in the flask, but she did testify that most of the remainder were bi-products of the manufacturing process and unused precursors.³

Appellant contends that the evidence is insufficient to prove he manufactured over four hundred grams of amphetamine as alleged in the indictment. Specifically, the Court of Appeals held that the evidence was sufficient because the remainder of the solution was an adulterant or dilutant and because the Controlled Substances Act prohibits the manufacture of any compound, mixture, material, or preparation containing any quantity of amphetamine. Dowling, slip op. at 2-3.

We granted appellant’s petition for discretionary review to determine whether the evidence was insufficient to prove that appellant manufactured over four hundred grams of amphetamine as alleged in the indictment.⁴

On original submission, we held that the issue of adulterants and dilutants concerning calculation of weight for punishment purposes does not apply to manufacturing cases, and that precursors can be included in the aggregate weight of a controlled substance in manufacturing cases when assessing punishment. We also held that the weight of the controlled substance includes the “medium” in which the amphetamine is found because the term “controlled substance” is defined as “any material, compound, mixture, or preparation which contains any quantity ... of amphetamine.” TEX.REV.CTV.STAT.ANN. art. 4476-15, § 4.02(d)(1)(A).⁵ In his motion for rehearing, appellant contends that we have misconstrued the Texas Controlled Substances Act and its legislative intent. We agree albeit for different reasons.

I.

Adulterants and Dilutants

We have defined adulterants and dilu-tants as “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.’ ” McGlothlin v. State, 749 S.W.2d 856, 860 (Tex.Cr.App.1988); see also Cawthon v. State, 849 S.W.2d 346, 347 n. 4 (Tex.Cr.App.1992) (op. denying State’s motion for reh’g). On original submission we held that the issue of adulterants and dilutants was not applicable to manufacturing cases because McGlothlin dealt only with final products and possession cases. However, in McGlothlin, we did state that adulterants and dilutants include “agents added during manufacturing which will increase the bulk of the yet unfinished product.” McGlothlin, 749 S.W.2d at 860 n. 8. The applicable statute in effect at the time of the commission of the offense reads:

Sec. 4.032. (a) [A] person commits an offense if he knowingly or intentionally manufactures, delivers, or possesses with intent to manufacture or deliver a controlled substance listed in Penalty Group 3 or 4. (c) A person commits an aggravated offense if the person commits an offense under Subsection (a) of this section and the amount of the controlled substance manufactured, delivered, or possessed with intent to manufacture or deliver is, by aggregate weight, including any adulterants or dilutants, 200 grams or more.

TEX.REY.CrV.STAT.ANN. art. 4476-15, § 4.032(a) and (c) (emphasis added).⁶ It logically follows that by grouping manufacturing and delivery offenses together the legislature intended to treat manufacturing cases the same as delivery cases. Since we have heretofore indicated that adulterants and dilu-tants may be included in the weight determination of the named substance in delivery cases, see, e.g., Reeves v. State, 806 S.W.2d 540 (Tex.Cr.App.1990), cert. denied, 499 U.S. 984, 111 S.Ct. 1641, 113 L.Ed.2d 736 (1991), we, therefore, hold that adulterants and dilu-tants can be included in determining aggregate weight in manufacturing cases.

Here, the indictment alleged that appellant “intentionally and knowingly manufacture[d] and possess[ed] with intent to manufacture and deliver more than 400 grams of a controlled substance, to-wit: Amphetamine.” No mention was made of adulterants and/or dilutants in the indictment. The jury charge, however, stated:

Now if you find from the evidence beyond a reasonable doubt that ... [appellant] ... did intentionally or knowingly manufacture a controlled substance, to-wit: Amphetamine, by aggregate weight, including any adulterants or dilutants, of more than 400 grams as set forth in the indictment, you will find [appellant] guilty of Manufacture of a Controlled Substance, to-wit, Amphetamine, by aggregate weight, including any adulterants or dilutants, of more than 400 grams.

The question here presented is whether the language “including any adulterants and dilutants” in the court’s charge must also have been pled in the indictment.⁷ The Texas Controlled Substances Act in effect at the time of this offense defined a “controlled substance” as follows:

“Controlled substance” means a drug, substance, or immediate precursor listed in Schedules I through V and Penalty Groups 1 through 4 of this Act.

TEX.REV.CIV.STAT.ANN. art. 4476-15, § 1.02(5).⁸ And, we have held that the use of the term “controlled substance” in the indictment does not include the phrase “adulterants and dilutants.” Farris v. State, 811 S.W.2d 577, 580 (Tex.Cr.App.1990); Reeves, 806 S.W.2d at 545 (footnote omitted). Since the indictment did not allege adulterants and 'dilutants but the jury charge allowed the jury to consider adulterants and dilutants in determining weight, the jury was authorized to convict appellant upon a theory different from that alleged in the indictment. Reeves, 806 S.W.2d at 543. Because the trial court could not authorize a conviction on a theory not alleged in the indictment, Martinez v. State, 641 S.W.2d 526 (Tex.Cr.App.1982), and because the indictment here did not allege adulterants and dilutants, we hold that the State could not prove the existence of adulterants and dilutants as part of the aggregate weight of the controlled substance in order to convict appellant of the aggravated offense of manufacture of more than four hundred grams of amphetamine.

II.

Immediate Precursors

On original submission, we held that the manufacturing statute provides that immediate precursors may be included in the aggregate weight of the named substance. We agree with our original holding, but note that the State must prove them to be “immediate precursors” as defined in the statute.

The Texas Controlled Substances Act in effect at the time of this offense defined immediate precursors as follows:

“Immediate precursor” means a substance which the commissioner has found to be and by rule designates as being a principal compound commonly used or produced primarily for use, and which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail, or limit the manufacture of such controlled substance.

TEX.REV.CIV.STAT.ANN. art. 4476-15, § 1.02(15).⁹ The Act also defined a “controlled substance” as a “drug, substance, or immediate precursor.” § 1.02(5).

At appellant’s trial, the chemist testified that most of the remainder were bi-products of the manufacturing process and unused precursors. The State did not prove that the bi-products and unused precursors, were immediate precursors as defined in the statute, nor did it prove that the precursors plus the amphetamine weighed more than four hundred grams. Cf Cawthon; Reeves. Therefore, because the State failed to prove the existence of immediate precursors, it would be improper to include them in the aggregate weight.

III.

Material, Compound, Mixture, or Preparation

On original submission, we held that the aggregate weight of the controlled substance includes the “medium” in which the amphetamine is found. The State contends on rehearing that if the mixture contains any quantity of amphetamine, then the entire mixture is a “controlled substance,” and the weight of the entire mixture is counted in determining the level of the offense.¹⁰

In answering this question we look to the relevant portion of the Texas Controlled Substances Act in effect at the time of this offense:

Sec. 4.02(d) Penalty Group 3. Penalty Group 3 shall include the following controlled substances:

(1) Any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a stimulant effect on the central nervous system:

(A) Amphetamine ...

TEX.EEV.CIV.STAT.ANN. art. 4476-15, § 4.02(d)(1)(A).¹¹

A plain reading of the statute indicates that the legislature intended to prohibit the possession, delivery, or manufacture of materials, compounds, mixtures, or preparations containing amphetamine. In Reeves, Judge Miller, writing for the majority, indicated that the State could proceed under the “material, compound, etc.” theory if the indictment contained the phrase “material, compound, mixture, or preparation containing amphetamine.” See Reeves, 806 S.W.2d at 545 n. 5:

The evidence in this case did show that appellant delivered a ‘material, compound, mixture, or preparation’ containing some amount of amphetamine, and that the material weighed more than twenty-eight grams. However, the charge to the jury did not allow a conviction under that theory, nor was appellant ever indicted under such allegation.

Id.

We therefore hold that the indictment must allege that the accused possessed, delivered, or manufactured a material, compound, mixture, or preparation containing amphetamine if the State is to proceed under such a theory. We also hold that the State must prove the identity of the named substance and that the material, compound, mixture, or preparation weighs the amount alleged in the indictment. Cf Cawthon.

IV.

Summary

In summary, the proof of the aggregate weight of a controlled substance must show beyond a reasonable doubt: (1) the identity of the named substance; (2) the weight of the named substance and any proven adulterants or dilutants, if the phrase “including any adulterants and dilutants” is alleged in the indictment; (3) the weight of the named substance and any proven immediate precursors; or, (4) the weight of the named substance and any proven “material, compound, mixture, or preparation” containing the named substance, if that phrase is alleged in the indictment.

In this case, the indictment failed to allege adulterants and dilutants, but the jui-y was instructed to consider adulterants and dilu-tants beyond the allegations in the indictment. Even if the trial court had properly instructed the jury, the proof at trial did not establish the existence of adulterants and dilutants. Cawthon; Reeves. Nor did the proof show that the pure amphetamine weighed more than four hundred grams. We therefore hold that the evidence is insufficient to support the verdict. Accordingly, we grant appellant’s motion for rehearing, reverse the judgment of the Court of Appeals, and remand this cause to the trial court with instructions to enter a judgment of acquittal.

1 . Now TEX.HEALTH & SAFETY CODE ANN. §§ 481.103(a)(3), 481.113(c) and (d)(2). All citations in the text of this opinion are to the Texas Controlled Substances Act as it existed at the time of the alleged offense in 1983. The current citations are to the Act as it exists in 1992. In 1983, amphetamine was a Penalty Group 3 substance, now it is within Penalty Group 2. This change does not affect our discussion of the offense.

2 . This testimony was elicited in response to the State's questions assuming the presence of adulterants and dilutants.

3 . Out of the jury’s presence, the chemist did testify that 76.20 grams of the substance were amphetamine.

4 . We also granted appellant’s petition on two other grounds for review, but because of our disposition of appellant’s first ground for review, we will not address the others.

6 . Now TEX.HEALTH & SAFETY CODE ANN. § 481.113(a) and (c).

7 . Because appellant did not object to the charge on the basis that the indictment did not contain the phrase "including any adulterants or dilu-tants,” there is no need to address the propriety of the court's charge. Reeves, 806 S.W.2d at 543 n. 4.

8 . Now see TEX.HEALTH & SAFETY CODE ANN. § 481.002(5).

9 . The Texas Controlled Substances Act currently defines "immediate precursors” as follows:

"Immediate precursor” means a substance the commissioner finds to be and by rule designates as being:

(A) a principal compound commonly used or produced primarily for use in the manufacture of a controlled substance;

(B) a substance that is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance; and

(C) a substance the control of which is necessary to prevent, curtail, or limit the manufacture of a controlled substance.

TEX. HEALTH & SAFETY CODE ANN. § 481.002(22).

10 . The State urges this Court to follow recent federal decisions that interpret similar language in federal criminal statutes. ■ Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991); United States v. Mahecha-Onofre, 936 F.2d 623 (1st Cir.), cert. denied, - U.S. -■, 112 S.Ct. 648, 116 L.Ed.2d 665 (1991).

The federal scheme punishes an offender who manufactures or distributes a mixture or substance containing a detectable amount of a controlled substance. 21 U.S.C. § 841(a), (b). In Chapman the defendants sold ten sheets of blotter paper containing one thousand doses of lyser-gic acid diethylamide (LSD). Although the LSD weighed only fifty milligrams, the weight of the LSD plus the blotter paper was 5.7 grams. The trial court sentenced the defendants to the mandatory minimum of five years imprisonment for distributing more than one gram of a "mixture or substance containing a detectable amount" of LSD. The United States Supreme Court held that the weight of the blotter paper or other carrier should be included when computing the sentence. Similarly, in Mahecha-Onofre, the defendant was convicted of possession with intent to distribute five kilograms or more of "a mixture or substance containing a detectable amount of” cocaine. The defendant attempted to smuggle cocaine through customs by chemically bonding the cocaine to the suitcase. The First Circuit held that the weight of the entire suitcase, less the non-bonded metal parts, should be included in assessing punishment.

We do not find these cases controlling, because, as will be seen in the text of this opinion, in Texas, unlike the federal scheme, the medium in which the named substance is found is not automatically included in the aggregate weight of the controlled substance.

11 . Now TEX.HEALTH & SAFETY CODE ANN. § 481.103(a)(3).