Thompson v. State

885 S.W.2d 136, 1992 Tex. Crim. App. LEXIS 190, 1992 WL 278699

• Court: Court of Criminal Appeals of Texas
• Decided: October 14, 1992
• Docket: 1153-90, 1154-90
• Status: Published

Opinions

MALONEY, Judge.

A jury convicted appellants of possession with intent to deliver at least twenty-eight grams but not more than four hundred grams of amphetamine. See TEX.REV.CIV. STAT.ANN. art. 4476-15, §§ 4.02(c)(3); 4.031(d)(1) (Vernon Supp.1987).¹ The jury assessed Charlane Thompson’s punishment at thirty-five years imprisonment and a $30,-000 fine, and assessed Patrick E. Thompson’s punishment at fifty years imprisonment and a $30,000 fine. The Tenth Court of Appeals affirmed both convictions in an unpublished opinion. Thompson v. State, Nos. 10-88-056-CR, 10-88-057-CR (TexApp. — Waco, Aug. 30,1990). We granted appellants’ petition for discretionary review to determine whether the evidence was sufficient to support the convictions.² See Tex.R.App.P. 200(c)(3). We will reverse the judgments of the Court of Appeals.

On March 19, 1987 law enforcement officers in Falls County executed a search warrant based upon information regarding the presence of amphetamine at a rural residence occupied by appellants. Upon arriving at the residence, the officers arrested three men, including Patrick Thompson, near a shed adjacent to the residence, and they arrested Charlane Thompson inside the residence. The officers searched the residence and nearby buildings and confiscated weapons and controlled substances. The evidence at trial revealed that the total weight of the seized solutions and substances that contained amphetamine was 340.44 grams.³ The amount of actual amphetamine was not determined. Additionally, the evidence revealed that other substances, not containing amphetamine, contained phenylacetic acid, an ingredient used to make phenylacetone, an immediate precursor to amphetamine. These other substances weighed eight pounds and 15.5 ounces.⁴

The indictments alleged that appellants “possess[ed] with intent to deliver a controlled substance, namely: amphetamine, of an amount less than four hundred grams but at least twenty-eight grams.” The jury charges mirrored the indictments.⁵

Appellants contend that because the indictments did not contain the language “including any adulterants or dilutants”, the State had to prove that the amphetamine weighed at least twenty-eight grams.⁶ Nevertheless, the Court of Appeals held that the term “controlled substance” by definition includes adulterants and dilutants, therefore “use of the phrase ‘including adulterants and dilu-tants’ in the indictment is not necessary, nor is proof of the specific amount of adulterants and dilutants in the quantity of the controlled substance seized.” Thompson, slip op. at 7.

The Court of Appeals relied upon two cases that were then pending discretionary review before this Court and have since been decided contrary to the Court of Appeals’ reasoning in this ease. Farris v. State, 811 S.W.2d 577 (Tex.Cr.App.1990); 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 have held that the term “controlled substance” does not include the phrase “adulterants and dilutants,”⁷ and that the State cannot utilize the existence of adulterants and dilutants to satisfy the quantity requirement of the offense, unless the indictment alleges adulterants and dilutants.⁸ Given that the State is limited by the allegations in the indictment⁹ and that the indictments here did not allege “adulterants or dilutants,” the State was therefore required to prove that the amount of the amphetamine weighed at least twenty-eight grams.

The Court of Appeals also reasoned that the jury could have considered the amount of the phenylacetic acid in “determining the aggregate weight of the amphetamine, including adulterants and dilutants.” Thompson, slip op. at 6. Today, we held that immediate precursors can be included in the weight of the controlled substance in prosecutions under the Controlled Substances Act. Dowling v. State, 885 S.W.2d at 122 (Tex.Cr.App.1992) (op. on reh’g). Here, the testimony at trial revealed the presence of phenyla-eetic acid which is one ingredient used to make phenylacetone, an “immediate precursor” to amphetamine, but the record lacks any testimony regarding the presence of phe-nylacetone in the substance.

The State argues that the Texas Controlled Substances Act prohibits the possession of “any material, compound, mixture, or preparation” containing amphetamine, and therefore the amount of amphetamine within the substance is irrelevant. The State prem-fees its argument on our opinion on original submission in Dowling v. State, No. 107-89 (Tex.Cr.App. Mar. 27, 1991). However, on rehearing we withdrew our prior opinion and explained that the indictment must allege that the accused possessed a material, compound, mixture, or preparation containing amphetamine before the State can proceed under such a theory. Dowling, 885 S.W.2d at 123-124 (op. on reh’g). Here, the indictments did not allege that theory.

Because there is no evidence that the actual amphetamine weighed at least twenty-eight grams, we find that the evidence is insufficient to support the verdicts. Accordingly, we reverse the judgments of the Court of Appeals and remand this cause to the trial court with instructions to enter judgments of acquittal.

McCORMICK, P.J., concurs in the result. WHITE and OVERSTREET, JJ., dissent.

1 . Now TEX.HEALTH & SAFETY CODE ANN. §§ 481.103(a)(3); 481.113(d)(1).

2 . We also granted appellants’ petition’s second ground for review to determine whether the prosecutor’s remarks during closing argument were improper. Because of our disposition of appellants’ first ground for review, we will not address the second.

3 . A chemist with the Texas Department of Public Safety testified as to the following exhibits:

State’s Exhibit Number 6 is 239.01 grams of a liquid and powder which contains amphetamine.

State's Exhibit Number 29 ... is 17.55 grams of a substance which contains amphetamine. State's Exhibit Number 118 ... it’s 10.80 grams of a powder which contains amphetamine.

State’s Exhibit Number 107 ... is 50.83 grams of a liquid which contains amphetamine. State's Exhibit Number 43 is 20.04 grams of a liquid which contains amphetamine.

State’s Exhibit Number 28 ... is 1.74 grams of a powder which contains amphetamine. State’s Exhibit Number 11 [is] 0.47 grams of a powder which contains amphetamine.

4 . The chemist also testified as to the following exhibits:

State’s Exhibit Number 4 ... is three pounds, four and a quarter ounces of a powder which contains phenol acetic acid.

State’s Exhibit Number 80 is three pounds, fifteen and a half ounces of a powder which contains phenol acetic acid.

State’s Exhibit Number 5 ... is one pound, eleven and three quarters ounces of a powder which contains phenol acetic acid.

5 . The jury charges stated:

If you believe from the evidence beyond a reasonable doubt, that [appellants] ... possessed] with intent to deliver, a controlled substance, namely: amphetamine, of an amount less than four hundred grams but at least tweniy-eight grams, then you will find [appellants] guilty of the offense of possession with intent to deliver a controlled substance, namely: amphetamine, of an amount less than four hundred grams but at least twenty-eight grams. Unless you so believe from the evidence beyond a reasonable doubt, you will acquit [appellants] of the second paragraph in the indictment ...

6 . At trial, appellants moved for an instructed verdict on the ground that the evidence did not establish guilt beyond a reasonable doubt as to possession with intent to deliver over twenty-eight grams of amphetamine and therefore the evidence was insufficient to support a verdict of guilty. The trial court overruled the motion.

7 . Farris 811 S.W.2d at 580; Reeves, 806 S.W.2d at 545 (footnote omitted). See also TEX.REV.CIV.STAT.ANN. art. 4476-15, § 1.02(4) (" 'Controlled Substance’ means a drug, substance, or immediate precursor listed in Schedules I through V and Penalty Groups 1 through 4 of this Act.”). Now see TEX.HEALTH & SAFETY CODE ANN. § 481.002(5).

8 . Dowling v. State, 885 S.W.2d 103, 122 (Tex.Cr.App.1992) (op. on reh'g).

9 . Doyle v. State, 661 S.W.2d 726 (Tex.Cr.App.1983).