Sanchez v. State

275 S.W.3d 901, 2009 Tex. Crim. App. LEXIS 99, 2009 WL 187817
CourtCourt of Criminal Appeals of Texas
DecidedJanuary 28, 2009
DocketPD-0094-08
StatusPublished
Cited by29 cases

This text of 275 S.W.3d 901 (Sanchez v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sanchez v. State, 275 S.W.3d 901, 2009 Tex. Crim. App. LEXIS 99, 2009 WL 187817 (Tex. 2009).

Opinions

OPINION

HERVEY, J.,

delivered the opinion of the Court

in which KELLER, P.J., MEYERS, PRICE, WOMACK, KEASLER, HOLCOMB and COCHRAN, JJ., joined.

Appellant was convicted of the Class B misdemeanor offense of possession of less than 28 grams of a Penalty Group 4 controlled substance (codeine).1 We granted discretionary review to address the legal sufficiency of the evidence to support an element of this offense.2

Section 481.105(1) of the Texas Health and Safety Code (also known as the Texas Controlled Substances Act), in relevant part, defines a Penalty Group 4 controlled substance as a substance containing “not more than 200 milligrams of codeine per 100 milliliters or per 100 grams” and “one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer on the compound, mixture, or preparation valuable medicinal qualities other than those possessed by the narcotic drug alone.” (Emphasis supplied).3 [903]*903The record in this case reflects that appellant was a passenger in a car that was stopped by a police officer (Hobbs), who eventually seized a plastic baby bottle from under the seat where appellant had been sitting. The officer testified at appellant’s trial that the baby bottle contained a thick, red, liquid substance with a “medici-ney” smell that the officer believed was “liquid codeine.”

A chemist (Chu), who tested the liquid substance in the baby bottle, testified that the total weight of the substance was less than 28 grams and that the substance was “[m]ost likely ... cough syrups” containing less than “200 milligrams per 100 mil” of codeine (a narcotic) and a nonnarcotic ingredient named Promethazine.4 Chu testified that Promethazine is a “typical medicine” that “on its own has a valuable medicinal quality” as a cough suppressant that is usually added to cough syrups. Chu also testified that he did not quantify the amount of Promethazine that was in the substance.

Q. [STATE]: What about Prometha-zine?
A. [CHU]: Promethazine is a typical medicine that is being prescribed by the physicians for the typical cough in patients.
[[Image here]]
Usually you can see the contents in this bottle it is a liquid. It is like a syrup material. Most likely which we call cough syrups and cough syrups contain four compounds which is sugar, glucose, alcohols, which is ethanol, Promethazine and codeines. Usually the cough syrups, the concentration of codeine will last [sic] 200 milligrams per 100 mil.
[[Image here]]
Q. [DEFENSE]: Mr. Chu, were you able to determine the amount of Prome-thazine that was in the bottle?
A. No, in the laboratory we don’t perform quantifications on the Prometha-zine as well as codeine.
[[Image here]]
Q. Since you don’t have enough information to quantify how much Prometha-zine was in that solution, you cannot testify to the jury and tell them whether or not the Promethazine had a valuable medicinal quality, can you?
A. Yes. Promethazine has been identified in this syrup.
Q. And Promethazine on its own has a valuable medicinal quality, doesn’t it?
A. It has.
⅝ ⅜ *
Q. Do you know what is the purpose of Promethazine?
A. Usually it is added to cough syrups to ease the (unintelligible) and anti-inflammatory.
Q. And as a doctor when you prescribe cough syrup, the reason that you are prescribing that either can be to suppress the cough and have the respiratory functions of an individual not be inflamed. Is that right?
A. For medical purpose?
Q. Yes, sir, medical purpose. My question, though, sir, is you know that that is what Promethazine is prescribed for, correct?
A. Yes.

[904]*904The court of appeals decided that the evidence is legally insufficient to support the elemental finding that the Prometha-zine “was in sufficient proportion to confer on the [substance] valuable medicinal qualities,” because Chu failed to quantify the amount of Promethazine in the substance.5 The court of appeals’ opinion states:

The State was required to prove, as one of the elements of the offense, that the nonnarcotic active medicinal ingredient was in sufficient proportion to confer on the mixture valuable medicinal qualities other than those possessed by the codeine alone. Chu testified repeatedly that he was not able to quantify the Promethazine in the substance. Without such quantification, his testimony does no more than establish the mere presence of Promethazine. Thus the State has failed its burden to prove that Promethazine was in the mixture in sufficient proportion to confer on the mixture valuable medicinal qualities other than those possessed by the codeine alone.6

We exercised our discretion to review this decision. The grounds upon which we granted review state:

1. Is the State required to prove the numerical concentration of the nonnarcotic ingredient in a Penalty Group Four codeine mixture under Health and Safety Code section 481.105(1) to establish that it is “in sufficient proportion to confer” on the mixture valuable medicinal qualities other than those possessed by the codeine alone?
2. Did the Court of Appeals err in holding that the State presented legally insufficient evidence that appellant possessed a Penalty Group Four codeine mixture because the chemist did not assign a numerical concentration to the nonnarcotic ingredient despite his testimony that the syrup contained codeine and Promethazine, the Promethazine possessed valuable medicinal qualities apart from the codeine as an anti-inflammatory and a cough suppressant, and Promethazine is a dangerous drug prescribed by physicians?

The State argues that the court of appeals improperly held that only a quantification of the nonnarcotic ingredient, Pro-methazine, could meet the “in sufficient proportion to confer on the [substance] valuable medicinal qualities” element of Section 481.105(1). The State argues:

The jury could have reasonably inferred that the Promethazine was in sufficient proportion to confer on the compound valuable medicinal qualities apart from the codeine because the Promethazine had such qualities “on its own[.]” [Chu] described the substance in the baby bottle as a basic cough syrup, and he explained the medicinal purpose of the Promethazine in it. [Footnote omitted]. The jury rationally inferred from his testimony that the Promethazine was in sufficient proportion to perform its intended function in the basic cough syrup. [Footnote omitted]. The State met its burden of proving the Promethazine was “in sufficient proportion to confer on the compound, mixture and preparation valuable medicinal qualities other than those possessed by the narcotic drug alone[.]”

We agree.

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Sanchez v. State
275 S.W.3d 901 (Court of Criminal Appeals of Texas, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
275 S.W.3d 901, 2009 Tex. Crim. App. LEXIS 99, 2009 WL 187817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sanchez-v-state-texcrimapp-2009.