OPINION
STONE, Justice.
This appeal presents the question of whether an individual is subject to prosecution under the Texas Controlled Substances Act1 for possession of a scheduled drug prescribed by a foreign physician.
BACKGROUND FACTS
Dianne Wright, a forty-three year old grandmother with no history of criminal conduct, travelled from her home in Sherman, Texas to Nuevo Laredo, Mexico where she was examined by Dr. Ortiz De Dominguez, a fully licensed physician in Mexico. Dr. Dominguez prescribed valium and diethypropion to Wright, and she filled the prescription at a pharmacy in Nuevo Laredo, Mexico. Upon returning to Texas, Wright informed U.S. Customs officials she had prescription drugs and presented her medication and related papers to them. She also completed paperwork indicating that the medication was for personal use. The Customs officials stamped the documents with the notation “Cleared U.S. Customs, Laredo, Texas,” and she was allowed to proceed. Twenty miles north, Wright stopped at a border check point where her medications were reviewed. All was found in order and she was again allowed to proceed.
Unfortunately for Wright, the car in which she was travelling was stopped for speeding in Frio County. Sheriff Carl Burris asked for identification and asked if the occupants had any prescription drugs from Mexico. Wright answered affirmatively, and presented her medications and prescription documents to Sheriff Burris. Sheriff Burris then informed Wright that possession of Mexican prescription medication was a felony offense. Wright was indicted for felony possession of controlled substances in violation of section 481.117 of the Texas Controlled Substances Act (hereinafter “the Act”). She was ultimately convicted of this charge and sentenced to two years probation.
On appeal Wright brings forward six points of error in which she urges that the Act is unconstitutionally vague, or alternatively preempted by federal law, and that the trial court abused its discretion in refusing to allow her to confront and examine a witness and in omitting requested instructions from the jury charge.
VAGUENESS
A statute is void for vagueness if it fails to give a person of ordinary intelligence fair notice of the conduct it prohibits, or is so indefinite that it is susceptible to arbitrary and discriminatory arrests and convictions. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983); State v. Edmond, 933 S.W.2d 120, 125-26 (Tex.Crim.App.1996). When addressing a vagueness challenge where, as in the instant case, no constitutionally protected right is concerned, we determine whether the statute is impermissibly vague as applied to the challenging party’s specific conduct. Arnold v. State, 853 S.W.2d 543, 546 (Tex.Crim.App.[395]*3951993); Bynum v. State, 767 S.W.2d 769, 774 (Tex.Crim.App.1989).
The State prosecuted Wright under section 481.117 of the Texas Health & Safety Code. Section 481.117, entitled “Offense: Possession of Substance in Penalty Group 3,” provides in pertinent part:
(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 3, unless the person obtains the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.
Tex. Health & Safety Code Ann. § 481.117(a) (Vernon 1992). The Act defines practitioner as one who is licensed in Texas to prescribe controlled substances, or one who holds a current Federal Drug Enforcement Administration registration number who may legally prescribe controlled substances in another state. See Tex. Health & Safety Code Ann. § 481.002(39) (Vernon 1992).
The State argued both in the trial court and in this court that section 481.117 is constitutionally sound because it clearly identifies the conduct which is prohibited and the defenses available for such offense. The State maintains that under section 481.117, which expressly states that one cannot legally possess a controlled substance unless such substance was prescribed by a Texas physician or a physician registered with the Federal Drug Enforcement Administration, possession of a controlled substance prescribed by a foreign physician is a criminal offense. Citing to section 481.002(24), which provides that lawful possession includes possession of a substance obtained pursuant to federal law, Wright argues that under the Act, possession of a foreign-prescribed controlled substance is not criminal conduct because federal law expressly authorizes such behavior. The State counters that an inquiry into whether Wright’s actions were authorized under federal law is immaterial to the instant case because the term “lawful possession” does not appear in section 481.117. The trial court agreed with both the State’s interpretation of section 481.117 and its position that section 481.002(24) is inapplicable.
Wright argues that such interpretation, if correct, renders the statute void for vagueness because one provision criminalizes certain behavior which another provision seemingly legalizes, thereby failing to apprise an individual of ordinary intelligence of the conduct it prohibits.
We agree with the State that the Act is not unconstitutionally vague because it provides fair warning to an individual of ordinary intelligence of the conduct it proscribes. Moreover, despite the artful interpretation given to the Act by Frio County law enforcement officials, we believe that the Act, as written, provides sufficient guidelines to law enforcement authorities to obviate capricious application. However, our agreement with the State’s position ends here. As noted, the State has argued that the Act clearly criminalizes the act of possession of foreign-prescribed controlled substances. This position is untenable in light of the express language of section 481.117. Moreover, such an interpretation, taken to its logical conclusion, would lead to absurd results. Any foreign visitor in our state trav-elling with personal medication would be subject to felony prosecution for illegal possession of controlled substances. The plain wording of the Act indicates the Legislature did not intend to criminalize such behavior, or enact a statute that conflicts with federal law. We read the statute as a cohesive, integrated whole and construe it to give meaning to every part. See Tex. Gov’t Code Ann. § 312.005 (Vernon 1988).
The introductory language, “except as authorized by this chapter,” indicates that other statutory provisions in conjunction with section 481.117 define the offense of illegal possession of controlled substances and the defenses thereto. Thus, contrary to the State’s argument, section 481.002(24) is material to the instant case and particularly to the determination of whether Wright’s actions constitute criminal behavior. As noted, section 481.002(24) defines lawful possession as “possession of a controlled substance that has been obtained in accordance with state or federal law.” Tex. Health & Safety Code [396]*396Ann. § 481.002
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
STONE, Justice.
This appeal presents the question of whether an individual is subject to prosecution under the Texas Controlled Substances Act1 for possession of a scheduled drug prescribed by a foreign physician.
BACKGROUND FACTS
Dianne Wright, a forty-three year old grandmother with no history of criminal conduct, travelled from her home in Sherman, Texas to Nuevo Laredo, Mexico where she was examined by Dr. Ortiz De Dominguez, a fully licensed physician in Mexico. Dr. Dominguez prescribed valium and diethypropion to Wright, and she filled the prescription at a pharmacy in Nuevo Laredo, Mexico. Upon returning to Texas, Wright informed U.S. Customs officials she had prescription drugs and presented her medication and related papers to them. She also completed paperwork indicating that the medication was for personal use. The Customs officials stamped the documents with the notation “Cleared U.S. Customs, Laredo, Texas,” and she was allowed to proceed. Twenty miles north, Wright stopped at a border check point where her medications were reviewed. All was found in order and she was again allowed to proceed.
Unfortunately for Wright, the car in which she was travelling was stopped for speeding in Frio County. Sheriff Carl Burris asked for identification and asked if the occupants had any prescription drugs from Mexico. Wright answered affirmatively, and presented her medications and prescription documents to Sheriff Burris. Sheriff Burris then informed Wright that possession of Mexican prescription medication was a felony offense. Wright was indicted for felony possession of controlled substances in violation of section 481.117 of the Texas Controlled Substances Act (hereinafter “the Act”). She was ultimately convicted of this charge and sentenced to two years probation.
On appeal Wright brings forward six points of error in which she urges that the Act is unconstitutionally vague, or alternatively preempted by federal law, and that the trial court abused its discretion in refusing to allow her to confront and examine a witness and in omitting requested instructions from the jury charge.
VAGUENESS
A statute is void for vagueness if it fails to give a person of ordinary intelligence fair notice of the conduct it prohibits, or is so indefinite that it is susceptible to arbitrary and discriminatory arrests and convictions. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983); State v. Edmond, 933 S.W.2d 120, 125-26 (Tex.Crim.App.1996). When addressing a vagueness challenge where, as in the instant case, no constitutionally protected right is concerned, we determine whether the statute is impermissibly vague as applied to the challenging party’s specific conduct. Arnold v. State, 853 S.W.2d 543, 546 (Tex.Crim.App.[395]*3951993); Bynum v. State, 767 S.W.2d 769, 774 (Tex.Crim.App.1989).
The State prosecuted Wright under section 481.117 of the Texas Health & Safety Code. Section 481.117, entitled “Offense: Possession of Substance in Penalty Group 3,” provides in pertinent part:
(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 3, unless the person obtains the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.
Tex. Health & Safety Code Ann. § 481.117(a) (Vernon 1992). The Act defines practitioner as one who is licensed in Texas to prescribe controlled substances, or one who holds a current Federal Drug Enforcement Administration registration number who may legally prescribe controlled substances in another state. See Tex. Health & Safety Code Ann. § 481.002(39) (Vernon 1992).
The State argued both in the trial court and in this court that section 481.117 is constitutionally sound because it clearly identifies the conduct which is prohibited and the defenses available for such offense. The State maintains that under section 481.117, which expressly states that one cannot legally possess a controlled substance unless such substance was prescribed by a Texas physician or a physician registered with the Federal Drug Enforcement Administration, possession of a controlled substance prescribed by a foreign physician is a criminal offense. Citing to section 481.002(24), which provides that lawful possession includes possession of a substance obtained pursuant to federal law, Wright argues that under the Act, possession of a foreign-prescribed controlled substance is not criminal conduct because federal law expressly authorizes such behavior. The State counters that an inquiry into whether Wright’s actions were authorized under federal law is immaterial to the instant case because the term “lawful possession” does not appear in section 481.117. The trial court agreed with both the State’s interpretation of section 481.117 and its position that section 481.002(24) is inapplicable.
Wright argues that such interpretation, if correct, renders the statute void for vagueness because one provision criminalizes certain behavior which another provision seemingly legalizes, thereby failing to apprise an individual of ordinary intelligence of the conduct it prohibits.
We agree with the State that the Act is not unconstitutionally vague because it provides fair warning to an individual of ordinary intelligence of the conduct it proscribes. Moreover, despite the artful interpretation given to the Act by Frio County law enforcement officials, we believe that the Act, as written, provides sufficient guidelines to law enforcement authorities to obviate capricious application. However, our agreement with the State’s position ends here. As noted, the State has argued that the Act clearly criminalizes the act of possession of foreign-prescribed controlled substances. This position is untenable in light of the express language of section 481.117. Moreover, such an interpretation, taken to its logical conclusion, would lead to absurd results. Any foreign visitor in our state trav-elling with personal medication would be subject to felony prosecution for illegal possession of controlled substances. The plain wording of the Act indicates the Legislature did not intend to criminalize such behavior, or enact a statute that conflicts with federal law. We read the statute as a cohesive, integrated whole and construe it to give meaning to every part. See Tex. Gov’t Code Ann. § 312.005 (Vernon 1988).
The introductory language, “except as authorized by this chapter,” indicates that other statutory provisions in conjunction with section 481.117 define the offense of illegal possession of controlled substances and the defenses thereto. Thus, contrary to the State’s argument, section 481.002(24) is material to the instant case and particularly to the determination of whether Wright’s actions constitute criminal behavior. As noted, section 481.002(24) defines lawful possession as “possession of a controlled substance that has been obtained in accordance with state or federal law.” Tex. Health & Safety Code [396]*396Ann. § 481.002(24) (Vernon 1992) (emphasis added).
The federal Controlled Substances Act, a chapter of the Comprehensive Drug Abuse Prevention and Control Act of 1970, provides that an individual is in lawful possession of a controlled substance if the substance was obtained directly, or pursuant to a valid prescription or order from a practitioner while acting in the course of his professional practice. 21 U.S.C. § 844(a) (1988). A practitioner is one who is licensed in the United States or the jurisdiction in which he practices. 21 U.S.C. § 802(21) (1988) (emphasis added). The Controlled Substances Import and Export Act, another section of the Comprehensive Drug Abuse Prevention and Control Act of 1970, prohibits the importation and exportation of controlled substances, see 21 U.S.C. §§ 952-955 (1988), but provides that the Attorney General may, by regulation, exempt an individual who has a controlled substance for personal medical use from the import/export requirements of 21 U.S.C. sections 952-955. See 21 U.S.C. § 956 (1988). The regulation promulgated in connection with 21 U.S.C. § 956 states that individuals may enter into the United States with a controlled substance which has been lawfully obtained for personal medical use, provided that it is in the original container in which it was dispensed, bearing the name and address of the pharmacy or practitioner who dispensed the substance, and the appropriate declaration that the substance is for personal medical use is made to U.S. Customs officials. 21 CFR § 1311.27 (1996).
The record in the instant case establishes that Wright was engaged in lawful conduct. She travelled to Nuevo Laredo, Mexico to visit Dr. Ortiz De Dominguez, a fully-licensed Mexican physician. Dr. Dominguez prescribed valium and diethypropion to Wright and she filled the prescriptions in Nuevo Laredo, Mexico. At the border, Wright presented her medication and related papers to U.S. Customs officials. She completed paperwork indicating that the medication was for personal use. Wright’s documents were stamped with the notation “Cleared U.S. Customs, Laredo, Texas,” and she was allowed to proceed. The record thus establishes that Wright was in lawful possession of her prescription medication as defined by the Act because her actions were authorized under federal law. See 21 U.S.C. § 844 (1988); 21 CFR § 1311.27 (1996). It is axiomatic that one who is in lawful possession of a substance should not be indicted for and convicted of unlawful possession of a controlled substance. Cf. Lawton v. State, 913 S.W.2d 542, 551 (Tex.Crim.App.1995), cert. denied, — U.S. —, 117 S.Ct. 88, 136 L.Ed.2d 44 (1996) (noting that a conviction can never rest upon conduct which is not criminal offense). In light of our disposition of this issue, we do not reach Wright’s remaining points of error. See Tex.R. App. P. 90(a).
The judgments of the trial court are reversed, and the causes are remanded to the trial court with instructions to dismiss the indictment.