Dowling v. State

41(a)(1). request for find- Linwood filed

ings of fact and conclusions of law DOWLING, Wayne Appellant, Donald appellate attempt to extend the timetable. Tex.R.App.P. 41(a)(1). findings Because place fact conclusions of law have no in a Texas, Appellee. The STATE summary judgment proceeding, the timetable agree the court was not extended. We No. 107-89. holding language appeals “tried 41(a)(1) jury” in rule not without does Texas, Appeals Court of Criminal summary judgment proceeding. include a En Banc. however, jurisdic- appeals, has court appeal party if a tion over the files an instru- Oct. attempt ment a bona fide to invoke Opinion Clarifying Modifying appellate jurisdiction. court’s Grand Prairie Rehearing Holdings on June

Indep. Imports, Dist. v. Parts Sch. Southern Inc., (Tex.1991); Walker Apartments,

v. Blue Garden Water (Tex.1989). appeal

Linwood filed his notice of well thirty-day period judg-

within the after the signed. Although

ment was the court of

appeals correctly held that Linwood’s notice appeal improper was instrument

perfect appeal, holding his under our Prairie, dismissing appeal,

Grand before appeals give

the court of would have had to opportunity

Linwood an to correct his error

by substituting the correct instrument. Prairie,

Grand 818 S.W.2d at 500. Here days

Linwood corrected his own error 53 judgment signed by filing

after the his why party

cost bond. see no We reason

attempting appeal who corrects his own er- position

ror should be in a worse than one pointed appel-

who has the error out situation,

late court. hold that in We either party seeking appeal has made a bona attempt appellate

fide to invoke the court’s

jurisdiction prevent sufficient to dismissal for jurisdiction,

want of as we set forth in Grand Apartments.

Prairie and Blue Water Garden reason, appeals improp-

For this the court of jurisdiction.

erly for lack dismissed Ac-

cordingly, judgment we reverse the and re- appeals

mand the cause to the court of opin- proceedings

further consistent with this

ion.

SPECTOR, J., sitting. Burns, Worth, Bill

Danny D. Fort Leon- Cleburne, ard, appellant. flask, Boulware, Atty., amphetamine in the but

Dan M. Dist. and Lisa K. amount Dist, Maddux, Cleburne, Atty., testify of the remainder Asst. Robert she did that most Huttash, Paul, Atty., bi-products manufacturing pro- and Matthew W. were State’s Asst., Austin, Atty., precursors.3 State’s for the State. cess and unused

Appellant contends that the evidence is prove he insufficient to manufactured over al- four hundred OPINION ON APPELLANT’S MOTION leged Specifically, the indictment. APPEL- FOR REHEARING ON Appeals Court of held that evidence LANT’S PETITION FOR DISCRE- of the solu- sufficient because the remainder TIONARY REVIEW tion was an adulterant or dilutant and be- prohib- Act cause Controlled Substances MALONEY, Judge. any compound, mix- its the manufacture of prior opinion in Our this cause is with- ture, material, preparation containing any drawn. Dowling, slip op. quantity amphetamine. jury appellant A of manufacture convicted at 2-3. amphetamine weighing more than four petition granted appellant’s for discre- We grams punishment at hundred and assessed tionary review to determine whether the evi- $10,000 sixty-one years imprisonment and prove appellant dence was insufficient fíne. art. 4476- TEX.REV.CIV.STAT.ANN. grams of manufactured over four hundred 4.082(c) (d)(2) (Ver- 15, 4.02(d)(1)(A), §§ alleged in the indictment.4 Supp.1983).1 Ap- non The Tenth Court of peals unpub- the conviction in an affirmed submission, original held that the On State, opinion. Dowling v. No. 10-88- lished concerning of adulterants and dilutants issue 1988). 17, (Tex.App. 099-CR Nov. —Waco pur- punishment for calculation cases, manufacturing

Appellant poses apply in does not leased a house Johnson Coun- ty September precursors In can be included the summer of 1983. looking aggregate weight a controlled substance the landlord went to the house assessing punish- appellant cases when for who was late with the rent. answered, also held that the of the no one the landlord entered ment. We When the “medium” a foul and discov- controlled substance includes the house and smelled odor Thereafter, is found because laboratory. ered a homemade which the the term “controlled substance” is defined the landlord notified the authorities who ob- prepa- “any tained a search warrant for the house and any quantity ... of laboratory equipment. ration which contains discovered a flask and trial, Depart- amphetamine.” TEX.REV.CTV.STAT.ANN. At with the Texas chemist 4.02(d)(1)(A).5 4476-15, § In his motion Safety, that the en- art. ment of Public testified that we weighed rehearing, appellant contends tire substance in the flask Texas Controlled Sub- including dilutants.2 have misconstrued the grams, adulterants and legislative intent. We identify Act and its did not further the adulterants stances She testify agree for different reasons. did she as to the albeit nor jury’s presence, did the chemist CODE ANN. 3. Out of the 1. Now TEX.HEALTH SAFETY & 481.113(c) (d)(2). 481.103(a)(3), §§ tions in the text of this All cita- testify were of the substance that 76.20 Texas are to the amphetamine. at the Act as it existed Controlled Substances alleged offense in 1983. The current time granted appellant’s petition two 4. We also to the Act as exists in 1992. citations are it review, grounds because of our but other Penalty Group amphetamine was a 3 sub- review, ground for disposition appellant’s first stance, it within 2. This now is the others. we will not address change does not affect our discussion offense. ANN. & SAFETY CODE TEX.HEALTH Now response testimony elicited in to the 2. This 481.103(a)(3). questions assuming presence adul- State's and dilutants. terants denied, (Tex.Cr.App.1990), I. cert. 499 U.S. (1991), 111 S.Ct. 113 L.Ed.2d 736 Adulterants and Dilutants we, therefore, hold that and dilu- adulterants We have defined adulterants and dilu- determining aggre tants can be included “compounds, tants as substances or solutions gate weight manufacturing cases. to the with the added controlled substance Here, ap the indictment product. intent to increase the bulk of the pellant “intentionally knowingly manu Or, product increase the of the final possess[ed] intent facture[d] ” affecting activity.’ ‘without its McGlothlin than 400 manufacture and deliver more (Tex.Cr.App. 749 S.W.2d substance, Am grams of a controlled to-wit: 1988); see also Cawthon v. phetamine.” No mention was made of adul 1992) (op. denying 4 (Tex.Cr.App. 347 n. terants dilutants the indictment. and/or reh’g). original State’s motion for On sub however, charge, jury stated: mission we held that the issue of adulterants you beyond find from the Now evidence applicable and dilutants was not to manufac [appellant] that ... ... reasonable doubt turing cases because McGlothlin dealt intentionally knowingly did manufacture products possession with final cases. Amphet- a controlled to-wit: McGlothlin, However, in we did state that amine, by aggregate weight, including any “agents adulterants and dilutants include dilutants, adulterants or of more than 400 during manufacturing added in which will indictment, grams you in as set forth the yet prod crease the bulk of the unfinished [appellant] guilty will find of Manufacture McGlothlin, uct.” 749 S.W.2d at 860 n. 8. Substance, to-wit, Amphet- of a Controlled applicable The in statute effect at the time of amine, by aggregate weight, including any the commission of the offense reads: dilutants, adulterants or of more than 400 (a) person Sec. 4.032. commits an of- [A] grams. knowingly fense if he intentionally man- question presented here is whether delivers, ufactures, possesses in- with language “including any the adulterants tent to or deliver a controlled manufacture charge dilutants” in the court’s must also Penalty substance in Group listed 3 or 4. pled in have been the indictment.7 The Tex- (c) person aggravated commits an A of- in as Controlled Substances Act effect at the person fense the commits offense time of this offense defined a “controlled (a) under Subsection of this section and the substance” as follows: amount of the controlled substance manu- delivered, factured, drug, substance” possessed in- “Controlled means sub- stance, is, precursor in tent to or immediate listed ag- or deliver manufacture through Penalty gregate weight, Groups Schedules I V and including any adulterants dilutants, through 1 4 of this Act. grams 200 or more. 4476-15, 4476-15, art. art. TEX.REV.CIV.STAT.ANN. TEX.REY.CrV.STAT.ANN. 4.032(a) (c) added).6 1.02(5).8 And, § (emphasis logi § It have that the use of held cally by grouping manufacturing follows that the term “controlled substance” the indict- delivery together legislature phrase offenses the ment does not include the “adulter- State, manufacturing intended to treat cases the ants and dilutants.” Farris v. 811 Reeves, delivery (Tex.Cr.App.1990); same as cases. Since we have here S.W.2d (footnote omitted). tofore indicated that adulterants and dilu- 806 S.W.2d at 545 Since may allege tants be included determi the indictment did not adulterants and delivery jury charge nation of the named allowed the substance 'dilutants but see, cases, e.g., jury Reeves v. 806 S.W.2d to consider adulterants and dilutants tants,” propriety 6. Now TEX.HEALTH & SAFETY CODE ANN. there is no to address the need 481.113(a) (c). Reeves, charge. of the court's n. 4. appellant object charge 7. Because did not CODE on the basis that the indictment did not contain 8. Now see TEX.HEALTH & SAFETY 481.002(5). phrase "including any adulterants or dilu- ANN. substance, determining weight, jury control of was authorized which is neces- curtail, appellant upon theory sary prevent, convict different or limit the manu- Reeves, alleged in from that the indictment. facture such controlled substance. at 543. Because the trial court S.W.2d 4476-15, art. TEX.REV.CIV.STAT.ANN. could not authorize a conviction aon 1.02(15).9 The Act also a “con- defined indictment, alleged in not Martinez v. “drug, trolled substance” as (Tex.Cr.App.1982), 1.02(5). precursor.” § immediate allege the indictment here did not because trial, appellant’s At the chemist testified adulterants and we hold that the bi-products that most the remainder were prove State could the existence of adul- manufacturing process of the and unused part aggre- terants and dilutants as precursors. prove The State did not gate weight of the controlled bi-products precursors, im- and unused were appellant order to convict statute, precursors in the mediate as defined offense of manufacture of more than four prove precursors plus nor did it amphetamine. hundred amphetamine weighed more than four hun- II. Cawthon; grams. dred Reeves. There- Cf fore, prove because State failed Immediate Precursors precursors, existence of immediate it would submission, original we held that On improper aggregate be to include them in the provides statute that im weight. precursors may mediate be included aggregate weight of the named substance. agree original holding, with our but note

We III. prove them to “imme that the State must Mixture, Material, Compound, precursors” diate as defined the statute. Preparation or The Texas Controlled Act in Substances submission, effect at the time of this offense defined original held that the On precursors as immediate follows: aggregate weight of the controlled substance amphet- precursor” a the in which the “Immediate means substance includes “medium” which the commissioner has found to be amine is found. The State contends on re- designates being principal hearing any rule as a that if the mixture contains compound commonly produced pri- amphetamine, or then the entire used use, substance,” marily for is an immediate mixture is a “controlled and the and which intermediary likely weight mixture is counted in chemical used or to be of the entire determining in the of a controlled the of the offense.10 used manufacture level States, currently Act 500 U.S. 111 S.Ct. 114 L.Ed.2d 9. The Texas Controlled Substances (1991); Mahecha-Onofre, precursors” follows: United States v. defines "immediate - denied, (1st Cir.), 936 F.2d 623 cert. U.S. precursor” a the "Immediate means substance - n , (1991). 112 S.Ct. 116 L.Ed.2d 665 desig- finds to rule commissioner punishes an offender who The federal scheme being: nates a mixture or sub- manufactures or distributes (A) compound commonly principal used a containing a detectable amount of con- stance primarily produced or use manufac- for 841(a), (b). U.S.C. In trolled substance. 21 Chapman substance; ture of a controlled the defendants sold ten sheets blot- (B) an immediate chemi- a substance that is lyser- paper containing doses of ter one thousand likely intermediary cal used or to be used in (LSD). Although diethylamide gic the LSD acid substance; the manufacture of a controlled fifty milligrams, weight weighed only the paper grams. plus was 5.7 The LSD the blotter (C) a the control which is nec- to the man- trial court sentenced the defendants curtail, essary prevent, or limit the manufac- years imprisonment datory minimum of five ture of a controlled substance. distributing gram of a "mixture more than one TEX.HEALTH & CODE ANN. SAFETY containing a detectable amount" or substance 481.002(22). Supreme Court held LSD. The United States weight paper other urges the blotter or this to follow recent that the 10. The State Court computing language the interpret carrier should be included when federal decisions that similar n Mahecha-Onofre, Similarly, the de- Chapman criminal statutes. v. United sentence. in federal mixture, material, compound, or answering In and that the question we look to the alleged in portion preparation weighs relevant of the Texas Sub- the amount the Controlled stances Act in effect at time of this the indictment. Cawthon. Cf offense: 4.02(d) Penalty Sec. IV. Group following con- shall include the Summary

trolled substances: (1) mixture, Any compound, summary, proof aggregate In the any quantity of which contains must show weight of a controlled substance following having potential the substances (1) identity beyond a the reasonable doubt: effect (2) abuse associated with stimulant substance; weight of of the named system: on the central nervous any proven adul- the named substance and (A) dilutants, Amphetamine phrase “including ... if terants or alleged in adulterants and dilutants” is 4476-15, TEX.EEV.CIV.STAT.ANN. art. (3) indictment; of the named 4.02(d)(1)(A).11 precur- proven substance and immediate plain reading A statute indicates (4) sors; or, of the named sub- legislature prohibit that the intended to “material, compound, any proven stance possession, delivery, or manufacture of mate- mixture, preparation” containing rials, mixtures, compounds, preparations phrase if named Reeves, containing amphetamine. Judge the indictment. Miller, writing majority, for the indicated proceed case, could “ma- allege State under the In this the indictment failed to terial, etc.” if the indict- jui-y adulterants and but the “material, phrase ment contained the com- instructed to consider adulterants and dilu- pound, preparation containing beyond allegations in tants the indict- Reeves, amphetamine.” See properly ment. Even the trial court had 545 n. jury, proof 5: instructed the at trial did not establish the existence of adulterants and evidence this case did show Cawthon; dilutants. Reeves. Nor did ‘material, appellant delivered proof pure amphetamine show preparation’ containing some weighed grams. four We more than hundred amphetamine,

amount of and that the ma- therefore hold that the evidence is insuffi- weighed twenty-eight terial more than support Accordingly, we cient to the verdict. However, grams. charge jury to the grant appellant’s rehearing, re- motion did not allow a conviction under that theo- judgment Appeals, verse the Court ry, appellant nor was ever indicted under and remand this cause to the trial court with allegation. judgment acquittal. instructions to enter Id. therefore We hold that the indictment CLINTON, Judge, concurring. allege possessed, must accused deliv- ered, material, compound, opinion in v. manufactured Since the seminal McGlothlin State, preparation containing amphet- (Tex.Cr.App.1988), this 749 S.W.2d proceed recurring problems amine if the State is to under such a court cre- has addressed theory. Judge by We also hold that the State must ated what the late Duncan charac- statutory prove identity part complex “a of a named substance terized as possession controlling, We find these cases be- fendant was convicted of with intent do not cause, kilograms opinion, mix- this to distribute five or more of "a as will be seen in text of Texas, scheme, containing ture or a detectable amount unlike the federal the medium smug- attempted of” cocaine. The defendant which the substance is found is not named through gle by chemically automatically aggregate cocaine customs bond- included in the ing the cocaine to the suitcase. The First Circuit of the controlled substance. suitcase, held that the of the entire less parts, metal be included 11. Now TEX.HEALTH & SAFETYCODE ANN. non-bonded should 481.103(a)(3). assessing § punishment. designed prohibit scheme ing involving the manufacture conduct is defined possession variety and of a aggravated wide of controlled as an offense or offense 4.032(a) substanees[, 4.042(a) (e), (c), §§ necessitating] expert testimony and re- properly present spectively. prove a criminal combination both definitions Id., pertinent of an part, violation of the Act.” read viz: offense person “[A] commits an offense he know- Keeping Code, in mind that V.T.C.A. Penal [manufactures, ingly intentionally deliv- 1, 1.03(a) dictates, § Title “Conduct does not ers, possesses with intent to manufacture constitute an offense unless it is defined possesses] or deliver or a controlled sub- cetera];” id., by statute [et offense n 3[.]” stance listed 1.03(b), alia, § provisions inter makes Ti- (2 3) Similarly, aggravated both definitions of an applicable tle to “offenses defined laws, read: other defining unless the statute offense otherwise;” provides offense person “A Texas commits an offense Controlled provide Substances Act does not if the person commits an offense under otherwise, (a) statutory provi- must focus on Subsection of this section and the defining germane sions offenses. Practice amount of the controlled substance [manu- see, State, Commentary; e.g., factured, delivered, possessed Childress v. with in- 361, (Tex.Cr.App.1990), at 362 tent pos- to manufacture or deliver or 57, is, by aggregate weight, Gutierrez v. 628 S.W.2d at 61 including sessed] correct, (Tex.Cr.App.1980). If Part I of the adulterants or majority opinion dispositive, is all else is more.”2 dicta. again Here then are two issues of first governed by impression, statutory provisions

Like McGlothlin this cause is viz: Do the Act, intent, first, legislative the 1983 version of the in which offend- reveal a to take into 2); Although "possession" delivery indicted and tried as a it involved in a 4476-15, bag powdery type case former article small stance,” of "white wet sub 4.02(d)(1)(A) (Acts 1979, 4.042(d)(2) §§ 66th although there is no indication it came 598, 1278, 6, Leg. p. (Penalty Ch. at 1289 premises. from "lab” on the 3), 1983, Group Leg., and Acts 68th Ch. judgments entry The above were reversed for (Possession Penalty at 2383 Offenses in judgment acquittal, essentially of a due to a 3), 29, 1983, Group August effective McGlothlin appreciate failure below to understand and actually "manufacturing” a common scenario significance pivotal of the clause "the amount of 4474-15, 4.032(d)(2) (Acts under former article ,.. by aggregate weight, the controlled substance 2377-2378). supra, § including any adulterants See [.]” or dilutants "possession” (Tex. offense was committed on or Smith 937-938 1987) about November 1983. But affidavit App. present PDR refused. None —Dallas proved for search warrant and the facts question precur ed a of the role of "immediate demonstrate, “cooking” amphet- defendant was majority Majority sor” that the addresses here. barn, greatest amine II, in "lab” in his amount opinion, Part at 107-108. being containing far in a flask a batch of (Allemphasis throughout here and "mostly organic layer water" under a thin har- noted.) mine unless otherwise State, boring amphetamine. some McGlothlin v. (Tex.App. 705 S.W.2d at 4.032(a) degree felony § —Fort 2. A offense is third "if McGlothlin, 1986); supra, Worth see also at 857. manufactured, the amount of the substance deliv- Contemporaneously, similarly the Court decid ered, possessed intent to or with manufacture companion "possession” ed two cases in a labo is, by aggregate weight, including any deliver State, ratory setting. Engelking v. 750 S.W.2d dilutants, grams.” adulterants or less than State, (Tex.Cr.App.1988), and Sloan v. 4.032(b) § (Tex.Cr.App.1988), S.W.2d 788 followed soon 4.042(a) § State, A offense is a Class A misdemeanor (Tex.Cr.App. Farris v. 811 S.W.2d 577 pos- 1990) ("various "if the amount of the controlled substance materials used in is, by aggregate weight, including any sessed amphetamine," powder” "white and two con grams.” than 200 along adulterants and less liquid amphetamine); tainers of with see 4.042(b). State, (Tex.Cr. § also v. 849 S.W.2d 346 Cawthon instance, By using past of the tense in each App.1992). State, Legislature amphetamine, that as the (Tex.Cr.App. manifested Reeves v. 806 S.W.2d 540 1990), however, question, prosecuted controlled substance in must be an end under former 4476-15, 4.031(a) (c) (1985 manufacturing process, product § and article and amend thus elevating being possessed. amphetamine susceptible ment to to delivered and

HI use, monly produced primarily for precur- account the of an “immediate used or interme- determining in the con- and which is an immediate chemical sor” the amount of likely “by aggregate weight, diary in- to be used in the manu- trolled substance used Id., dilutants;” cluding any substanee[.]” adulterants or sec- of a controlled facture 1.02(15).3 ond, charging allege must instrument in presence precursor” of an “immediate precursor” Possessing a listed “immediate question. controlled substance to another con- intent manufacture According appeals to the court of the DPS may penal is a offense and trolled substance chemist described stuff the State such, punishment depend- prosecuted amphetamine to be as follows: including any ing “aggregate weight, its Id., 4.03(a), §§ of dilutants.” adulterants liquid] milliliter “[The 5000 flask of dark 4.031(a) 4.032(a), Act 1983.4 grams amphetamine, contained 704.89 including adulterants and dilutants.... production, To “manufacture” means the solution in the contained [T]he flask preparation, compounding, pro- conversion or base; grams amphetamine that the re- (other cessing of a controlled than mainder of the solution was reaction mix- marihuana), directly indirectly by “either containing bi-products ture [sic] origin, extraction from substances of natural (some) manufacturing process and unused independently by syn- means chemical (, precursors unchanged precursors); thesis, byor a combination of extraction and amphetamine liquid had not Id., 1.02(16). synthesis[.]” chemical See extracted, been separated distilled or from generally supra, v. at n. 1. Moffett * * * * the other substances. [TJhat ready solution in the flask was not testimony From the of the DPS chemist amphetamine; distribution as and that causes, in a this and other one surmises that extracted, had not been synthesis precursor” chemical “immediate separated distilled from the other sub- is combined and united with one or more stances the flask.” “cooking” pro other chemical elements in a involving produce amphet cess water (material Slip opinion, parenthesis at amine, ultimately must be distilled or 270). from 3 S.F. separated aqueous from the solution before it An precursor” “immediate listed product, leaving is final the solution penalty group schedule and inis and of itself by-products perhaps useless some un prohibited controlled substance. Act (which used, precursor experts unchanged 1.02(5). dilutant). hold is neither an adulterant nor McGlothlin, See, 857; precursor” An “immediate e.g., supra, Engelk is a “substance” Farris, authoritatively 214-215; ing, supra, supra, which is found to be and des- at 580. ignated being principal compound appears product “a com- It the final is “wet” example, given intentionally knowingly 3. For we are understand that there "manufacture phenylacetic phenylacetone, ingredient acid is an used to make possess and deliv- with intent to manufacture precur- which in turn is a direct er stance, than 400 of a controlled sub- more methamphetamine. sor Amphetamine.” it did to-wit Granted Thompson See allege possession "phenylacetone” as an "im- 1154-90, (Tex.Cr.App. Nos. 1153-90 and deliv- precursor,” given mediate case, the facts of this Indeed, day). ered as a listed grand just one is left to wonder how the "Phenylacetone possessed substance is with [when jury expected prosecution prove ap- methylamine with intent to manufacture amphetamine pellant possessed "with intent to 1983, II, methamphetamine]." Act Schedule amphetamine. Notably, the trial manufacture” 2.04(d); 1, 4.02(b)(8). Penalty Group § § In Act jury court did not authorize the to convict on 1985, however, II, it is listed in Schedule alone theory. majority opinion, See at 107. Had 2, 2.04(f)(2); 4.02(c)(2). Penalty Group § § See however, alleged, might Code, the State well it been Safety now V.T.C.A. Texas Health & II, 481.033(5); 2, phe- possession § have secured a conviction for of Schedule 481.103(a)(2). § nylacetone amphet- with intent to manufacture depend- equally punishment, serious amine with 4. As of fact the matter indictment in this cause course, ing, phenylacetone. on the amount of alleged, appellant inter alia that did then and amphetamine “dry III, still must out” to majority, below and of the Part at 108- powdery Reeves, 109, become a substance. See I do not see it as a viable supra, at 541. prosecution.6 completed process, the course of that agree insufficient, IWhile the evidence is then, precursor” sep- an “immediate loses its given accept reasons ante I cannot identity arate in forming the whole of the rationale in Part II majority opinion, manufactured controlled substance. Thus its consequences elsewhere; and its mentioned “weight” incorporated has been into and be- “material, persuaded nor am I com- inseparable part comes an prod- of the final pound, preparation” theory mixture or devel- circumstance, therefore, uct. In that there is oped Act, in Part III is tenable under the alleging separate weight no basis for applicable much less under-the facts of this any precursor up” for it has been “used showing process cause manufacturing process.5 long was aborted before there was final implicated

Also product.7 is a “criminal classifica- only judg- Thus I concur tion,” i.e., 4.02(d)(1)(A); § unlike the ment of the Court. conclusion, However, majority 5. The merely up § comes to the same sets “criminal clas- " 107-108; opinion, only upon analyzing substances, at but of controlled without de- sifications stated definition of “controlled substance” in the fining fixing punishments; offenses or whereas " viz; Act, 1.02(5), § 'Controlled substance’ only §§ prescribe respective 4.03-4.043 offenses drug, precursor means substance or immediate penalties "aggregate and attached in terms of Regardless, only "drug” listed....” not are and itself], [of controlled substance includ- precursor" “immediate identified distinct def- ing any Compare adulterants or dilutants.” initions, 1.02(14) (§ 1.02(15), § but also Code, 481.101, Safety V.T.C.A. Health Si Texas criminally each as well as "substance” is classi- §§ 481.102-481.105 and 481.112-481.118. Thus separately throughout § fied 4.02. "material, portions compound, mixture or hand, On the other whether an "unused” im- preparation” figured "aggravated are not precursor may mediate be extracted in bulk from weight" product they prov- unless are final or, matter, aqueous solution for that has not en to be "adulterants or dilutants” introduced yet manufacturing process, been included in the during process of manufacture or added and, it is still a controlled substance itself McGlothlin, supra, thereafter to "cut" it. note ante, pointed possessing penal out at it is a (no and related text at 860-861 evidence that may prosecuted offense event, as such. In that water was intended "to increase the bulk or course, precursor the immediate must quantity product”); Engelking, supra, of the final charging Again, be identified in the instrument. 216; Reeves, Farris, 544; supra, supra, at 580; at precursor” something an "immediate other Cawthon, supra, see also 849 S.W.2d at than an adulterant or dilutant. 347; cf. Blackmon v. 1990), (Tex.App. 470-473 PDR [1st] mainly testimony —Houston

6. Based from DPS refused) (crushed granulated sugar used to "cut” appeals chemist the court of concluded the evi- bulk). methamphetamine to increase prove dence was sufficient to manufacture of "penalty Thus defined offense is related to 4.02(c)(3), amphetamine grams over 400 under group” merely identify the classification of the viz: particular purposes controlled substance for “Clearly, the 704.89 of solution in the assessing punishment prescribed which is —that compound, preparation flask was a mixture or offense, defining in the same accord- section containing amphetamine. Con- aggregate ing aggregate weight. to its trary to the'rationale of McGlothlin that Penal- material, mixture, compound, ty Groups only prohibited 1 and include preparation containing any quantity of a listed substance, 4.02(c)(3) clearly controlled Section substance, amphetamine, here is the controlled amphetamine, states that as to weights combined of the manufactured substance prohibited '[a]ny but also whether and adulterants or dilutants retained in material, product. "cut” the final or later added to any quantity’ which contains 1.02(5) 4.02(d)(1)(A); 4.032(a) (29)(F); §§ Penalty Groups is included in 2. Cf. McGloth- (b), (c) (d); 4.042(a) (b), (c) lin at 860-861.” (d). Slip opinion, original). (emphasis at 3 Alas, appeals the court of overlooked that scenario,” 'manufacturing' 7.From a "common McGlothlin was decided under the Act extant in ante, 106, many foregoing Penalty cases indicate Group n. when was in Nonetheless, practitioners having difficulty analyzing are See note ante. then 4.02(d)(1) ag- "(A) operative appropriate Amphetamine” facts to determine the also included "Any gravated offense denounced the Texas Con- Charging preparation” et cetera. trolled Substances Act. instruments

113 MILLER, today Judge, concurring. and thus the observations made will pertain to current law. majority joining Before the I want Reeves, As alluded to in Footnote 5 of I made reiterate some the observations herein) (see supra, 1 is a footnote there (Tex.Crim. in Reeves v. 540 S.W.2d necessary the “materi- reconciliation between App.1990). For the convenience of the read al, mixture, that compound, preparation or lay I in germane er will out footnote the any substance listed quantity [a contains comments I made in Reeves. (3) in and the “adulter- of Section 481.103” ] language ants or dilutants” contained in Sees. Although the Act Controlled Substances 481.113 and 481.116. This is time because a quoted in in the Reeves has been recodified that is mixed adul- controlled substance with Safety 1992 Health and Code as Sections material, per a terants and dilutants is se 481.103, 481.116, 481.113 and as well as mixture, con- compound, preparation or 2; (Penalty Group Offense: Manu- “any quantity” tains of the controlled sub- Delivery Penalty facture or in Substance “mixture”, alleges stance. So if the State 2; Group Offense: Possession of Substance (and etc. in the indictment mixture of course 2; Definitions, Penalty Group respec- dilutants), proving adulterants or includes tively. Appendix.), See those sections are in they mixture for them- have removed respects all material the same as the old proving selves the burden of adulterants or Act, Preliminarily, sections of the I the Controlled Substances dilutants? would answer allege pertaining amphet- having potential criminal conduct associated stances abuse ranging simple “possession,” "pos- depressant amine from effect on the cen- or stimulant salts, system: opti- session with intent to manufacture” to actual Amphetamine, tral nervous its “manufacture,” yet prosecution isomers, isomers; both and defense optical ...” cal and salts of added). overlook that the 4.02(c) facts reveal no more than sus- (emphasis Section pects engaged pro- in or around a "lab” the wording provision, "con- From the of this "manufacturing" expected cess of what is will a) prohibited may a mate- trolled substance” rial, be: be, explained turn out to but as the chemist here mixture, compound, preparation or which not, product "ready for distribution as am- (e.g., contains amount of a listed substance short, phetamine.” there is no "manufac- b) amphetamine); or the listed substance in its "cooking” tured" flask. form, "pure” since a "material” could consist However, Leg., since Acts 67th Ch. percent of the listed The distinc- substance. 697, 2, p. Legislature provided prop- has important tion becomes when the State seeks situation, way er to deal with that viz: aggravated conviction for an offense under Sec. Code, provisions apply "The of Title Penal 4.031(c). designated to ... offenses as of- material, mixture, compound, Where a section, subchapter fenses under cept 4 of this ex- preparation quantity contains some of a listed punishment preparatory for a substance, e.g., amphetamine, punishment pre- offense is the same "controlled substance” is that accord- object scribed for the offense was the 4.02(c)(3). ing case, Section In that statute. preparatory offense.” if the of the material is over 28 4.011; Code, Safety Former now Health and grams, 4.031(c) aggravating then the element of Sec. 481.108; cf. Baxter v. hand, the State is met. On other 1986) (Tex.App. 31-32 PDR refused —Eastland 4.031(c) pos- may seek conviction under Sec. (attempted aggravated manufacture of metham- sessing, manufacturing, delivering "pure” phetamine). substance, e.g., “pure” amphetamine. In that case, previously, we discussed the State must Although appellant neither nor the State raises prove pure amphet- either that the amount of the point arguments, their are aware weighs amine more than 28 or that the delivery the manufacture or of the controlled amphetamine, plus any pure adulter- amount of "amphetamine” particular poses exist, weighs proven ants or more way in additional considerations because of the grams. than 28 which is listed in Controlled appel- case did show that 1.02(4) The evidence Substances Act. Section defines "con- "material, lant delivered a drug, trolled substance” as "a or im- containing preparation” some amount of am- precursor through mediate listed in I Schedules weighed phetamine, that the material more Groups through Penalty V of this Act.” However, jury 4.02(c) grams. charge to the than 28 Section covers 2 con- theory, nor prohibited did not allow a conviction under that trolled substances and lists as material, "... a appellant an alle- ever indicted under such Reeves, gation. following fn. 5. which contains sub- question say I preparation” language affirmative. that be- respective cause the language “adulterants or dilutants” sections. of Secs. 481.113 and 481.116 refers to the course, my musing in Of footnote 5 of entirety of Section 481.103 which includes dicta, just Reeves was as I’m sure the mus- By comparison, numerous substances. ings in concurring opinion will so “material, be compound, prepara- (3) language moving

tion” construed. But at are for- that section least we pertains very logical to seven A substances. ward to the time when the issue will be reading of all together of these sections leads joined and the full Court will asked to the conclusion that as to the seven sub- reconcile the “adulterants or dilutants” lan- (3), legislature stances listed in intended “material, guage with the mix- language “mixture” to control and ture, Doubtless, preparation” language. further intended that the “adulterants or di- begins using this will come as the State language lutants” control all of the other language charging latter instruments. reading gives substances listed. This effect join With I both the “adulterants or dilutants” lan- these observations “material, guage and the of the Court.

APPENDIX Penalty Group 481.103.

(a) consists of: (1) substances, salts, isomers, any quantity following hallucinogenic their isomers, salts, and salts of specifically excepted, unless the existence of these isomers, and possible salts isomers is within the chemical specific designation: (some 4-bromo-2, 5-dimethoxyamphetamine trade or other names: 4-bro- mo-2, 5-DMA); 5-dimethoxy-alpha-methylphenethylamine; 4-bromo-2, (some 3-(beta- Bufotenine trade and other names: Dimethylaminoethyl)-5- indolol; N, hydroxyindole; 3-(2-dimethylaminoethyl)-5- N-dimethylserotonin; 5-hydroxy-N, N-dimethyltryptamine; mappine); (some N, Diethyltryptamine trade and other N-Diethyltryptamine, names: DET); (some 5-dimethoxyamphetamine 5-dimethoxy- trade or other names: 2, 5-DMA); alpha-methylphenethylamine; (some DMT); Dimethyltryptamine trade and other names: (synthetic) Dronabinol sesame oil and in a soft encapsulated gelatin capsule (some in a Food Drug approved drug product U.S. Administration trade or 6,6,9-trime- other names for Dronabinol: (a6aR-trans)-6a,7,8,10a-tetrahydro- dibenzo thyl-3-pentyl-6H- [b,d]pyran-l-ol (-)-delta-9-(trans)-tetrahydro- cannabinol); (some

Ethylamine or other Analog Phencyclidine N-ethyl- trade names: 1-phenylcyclohexylamine, (1-phenylcyclohexyl) ethylamine, N-(l-phenylcyclo- PCE); hexyl) ethylamine, cyclohexamine, (some 7, 8, 9, 10, 12, 13- Ibogaine 7-Ethyl-6, trade or other names: beta [5, [1', 2':1, octahydro-2-methoxy-6, 9-methano-5H-pyrido azepino 4-b] 2]

indole; iboga.); tabernanthe Mescaline;

5-methoxy-3, 4-methylenedioxy amphetamine; (some 4-methoxy-alpha- trade or other names: 4-methoxyamphetamine PMA); methylphenethylamine; paramethoxyamphetamine; (MPPP, PPMP); 1-methyl- 4-phenyl-4-propionoxypiperidine (some 4- 4-methyl-2, 5-dimethoxyamphetamine trade and other names: “DOM”; “STP”); methyl-2, 5-dimethoxy-alpha-methylphenethylamine; (MDMA, MDM); 3,4-methylenedioxy methamphetamine 3,4-methylenedioxy amphetamine; MDA); (Also N-ethyl known N-ethylamphetamine

3,4-methylenedioxy (Another ( )-trans-3-(l,l-dimethylheptyl)~ + name for nabilone: Nabilone hydroxy-6,6-dimethyl-9H-dibenzo[b,d]pyran-9- 6,6a,7,8,10,10a-hexahydro-l- one; benzilate; N-ethyl-3-piperidyl (Also N-hydroxy known as

N-hydroxy-3,4-methylenedioxyamphetamine MDA);

4-methylaminorex; benzilate;

N-methyl-3-piperidyl 8, 9, (some 10- 3-Hexyl-l-hydroxy-7, trade or other names: Parahexyl [b, Synhexyl); tetrahydro-6, 9-trimethyl-6H-dibenzo pyran; d] 1-Phenylcyclohexylamine; (PCC);

1-Piperidinocyclohexanecarbonitrile

Psilocin;

Psilocybin; 1-(1- (some trade or other names:

Pyrrolidine Analog Phencyclidine PHP); PCPy, phenylcyclohexyl)-pyrrolidine, marihuana, synthetic equivalents

Tetrahydroeannabinols, other than and extractives of Canna- plant, substances contained in the the resinous the bis, derivatives, chemical substances, and their isomers with similar synthetic activity such as: pharmacological structure isomers; optical and their tetrahydrocannabinol,

delta-1 cis or trans isomers; optical and their tetrahydrocannabinol, delta-6 cis or trans isomers; delta-3, and its tetrahydrocannabinol, optical 4 cis or trans structures, designation numerical regardless compounds these internationally is not atomic standardized; nomenclature of these substances positions, since [1—(2— (some trade or other names: Thiophene Analog Phencyclidine 1— TPCP, Phencyclidine; 2-Thienyl Analog of thienyl) cyclohexyl] piperidine; TCP); (some TCPy); trade or other names: l-[l-(2-thienyl)cyclohexyl]pyrrolidine 3,4,5-trimethoxy amphetamine; (some P-2-P,

(2) Phenyl-2-propanone; Phenylacetone trade or other names: ketone, ketone); benzyl Benzymethyl methyl

(3) Penalty Group, or unless listed another specifically excepted unless any quantity that contains depressant for abuse associated following having potential substances system: effect on the central nervous stimulant isomers; isomers, salts, optical and salts optical its

Amphetamine, Hydrochloride; Etorphine salts; and its

Fenethylline salts;

Mecloqualone its salts; its

Methaqualone isomers; isomers, salts, optical salts of N-Ethylamphetamine, optical its (some N,N,alpha-trime- other names: trade or N,N-dimethylamphetamine salts, opti- its N,N,alpha-trimethylphenethylamine), thylbenzeneethaneamine; isomers, optical and salts of isomers. cal (b) (a)(1) For purposes of Subsection only, the terna “isomer” includes an

optical, position, geometric isomer. 678, 1,§ Acts 71st Leg., ch. Sept. eff. Amended Acts 71st 1100, 5.02(n), ch. Leg., 1, 1989; Sept. eff. 761, 2, Acts 72nd Leg., ch. eff. 1, Sept. 1991. Statutory

Historical and

more. 678, 1, 1, 1989, § eff. 1989. Leg., Sept.

Acts 71st ch. Department division of the Texas of Corrections shall mean the institutional 1. References the Texas 1.19(f). Leg., § by ch. Department of Criminal Justice Acts 71st Statutory Notes Historical Cross References manufacture, § analogue, delivery possession, Controlled see 481.123. substance Exemptions federally therapeutic program, § approved in see 481.111. for use research funds, Expenditure or investment of see 481.126. Punishment, Code, second-degree felony, see V.T.C.A Penal 12.33. offenders, Repeat punishment, see 481.107. of § Penalty 481.116. Group Offense: Possession of Substance 2

(a) Except as by authorized if chapter, person commits an offense person knowingly intentionally possesses or Penalty controlled substance listed in 2, Group person unless the obtained the directly substance from or under valid prescription or order of a course of practitioner acting practice. professional (b) (a) An offense under Subsection is a of the third if amount felony degree is, of the controlled possessed by aggregate weight, adulterants including dilutants, or less than 28 grams. (c) A person commits an if the person offense commits an offense (a) is, under Subsection aggregate weight, amount possessed by and the of the controlled substance dilutants, grams adulterants or 28 including more. (d) (c) An offense under is: Subsection 1 (1) punishable by confinement in the for life Department Texas of Corrections for a years term of not than 99 than 5 not is, years, more less and a fíne $50,000, if by exceed the amount of the substance possessed controlled dilutants, weight, including adulterants or

aggregate grams or more but less 400 grams; than (2) confinement punishable by in the Texas of Corrections life Department for a term of not than 99 not to years years, more or less than and a fine $100,000, is,

exceed amount of the substance possessed controlled weight, including adulterants or aggregate more. § 71st Leg., Sept. Acts ch. eff. 1989. Department 1. References to the Texas Corrections shall mean institutional division of the Texas 1.19(f).

Department § Leg., of Criminal Acts Justice 71st ch. Statutory Historical and Dist.1990) (App. 2 review State 788 S.W.2d allege proved about facts which needed to be 820 dismissed S.W.2d it a controlled substance. Id. Preludin which made 2. Affirmative link to defendant Indictment, language of Sub- in Controlled Although merely passenger in accused was Act, specifying “amphetamine” as the con- stances automobile, police nonowned in trunk of which possessed sufficient to include trolled substance isomers and salts and is not is amphetamine, found four containers of accused subject being sufficiently was linked with the contraband so as quashed apprise accused of the for failure to possession on warrant conviction offense where type possessed. Durham v. State of substances amphetamines emanating odor of solution from the Dist.1986) (App. 2 review refused. S.W.2d strong enough occupants ac- vehicle and was for WHITE, Judge, dissenting. presence, cused to be of its there was no aware by gained lock on the trunk and access thereto was majority my I set out in For the reasons screwdriver, jacket use of found nearest accused submission, Dowling v. original drug paraphernalia, appar- contained ently accused was by than intoxicated use of a substance other (Tex.Cr.App., March No. 107-89 beverage past an alcohol and accused had a record 1991), majority’s respectfully I dissent to the dealing of controlled substances. Durham v. judgment trial decision to reverse Dist.1986) (App. 2 review State appellant. acquittal for court and render refused. permeated of ether that driver’s vehicle Smell majority opinion overlooks I believe the clothing, along ducking with driver’s down pro- unique nature of the statute which officer, vicinity drug confronted were of when amphetamine, manufacture of sufficient affirmative links to sustain driver’s con- scribes grams possession of viction of of less than 28 4476.15, Art. TEX.REV.CIV.STAT.ANN. driver,’s amphetamine, found underneath seat of original (repealed). I stated on As 4.031 Dist.1991) (App. automobile. Soto State (Controlled Substances) submission, “The 861, review refused. S.W.2d 3. Indictment information punish legislative intent to Act shows clear charging Information defendant with unlawful pure form of person possession possession amphetamine not defective be- was a clear intent to amphetamine. There is also allege amphetamine cause it failed to was material, “any prohibit possession preparation unfit for for use the nose and (Cr.App.1963) internal use. Meadowes v. State preparation” contain- language The ing amphetamine.... drug methaqualone was not named Where clearly for the substances the Act intends statute, dangerous drug nor under then effective amphetamine is discovered to be any showing why which allege me- facts did indictment weight counted towards reasons, of the controlled For these I would hold that the “any the use of the words mate- evidence the instant case was sufficient to rial, compound, mixture, preparation prove appellant manufactured over 400 which amphet- contains ... grams amphetamine in the in- 2.04(e) amine.” (repealed). Art. 4476.15 dictment. I majority’s dissent to the deci- sion to decide otherwise. majority’s In the rush to reverse and ac- quit appellant, they imposed have an unreal- McCORHICK, P.J., joins this dissent. impractical istic and requirement upon the prove, separately, State to the individual OPINION ON REHEARING ON COURT’S weights of both the controlled substance and MOTION ON APPELLANT’S PETI- dilutants, the adulterants and or the immedi- TION FOR DISCRETIONARY RE- precursors. ate As I original stated also on VIEW submission, the Controlled Substances Act [Filed June 1994] was written so that MILLER, “The weight Judge. relevant calculating punishment should include the medium in Appellant charged was separate three which the is found. The rel- illegally having counts with manufactured a evant “any is that of com- Amphetamine.1 to wit: pound, which con- The trial court jury instructed the to convict any quantity tains amphet- of the ... Appellant if it Appellant found that in- had 2.04(e), amine.” supra. Sec. The lan- tentionally knowingly manufactured am- guage cannot reasonably construed as phetamine, by aggregate weight, including referring to anything other than the adulterants and of more than weight of both the controlled substance grams. jury Appellant so found and and the mixture or substance in which it is convicted of possible found. It is not to construe the amphetamine. language of the Controlled Act Substances Appeals While the acknowledged Court of penalty make the turn on the net just “amphetamine base” drug gross weight rather than the present, were it found the evidence sufficient drug and the mixture in it which prove “to manufacture of over (emphasis applied found.” original). grams” it because believed that “the 4.031(a), (d). (c), § See also Art. 4476.15 and of solution in the flask was a preparation containing mixture or language § “The clear of 4.031 shows the quantity amphetamine” a of within contem- Legislature intent of the to include sub- plation 4476-15, 4.02(d)(3), of Article R.C.S. yet ready sales, i.e., stances not for street Dowling (Tex.App. Waco, v. State No. 10- — “... the amount of the controlled substance 88-099-CR, 1989). 17, delivered November ... with intent to manufacture.” Further- more, “by aggregate weight” is original definition On Appellant’s submission and on quantity something.... entire of In rehearing, the motion for we addressed a case, Act, instant dealing prosecution this Court is not awith of under the viz: that the product possession conviction, final “any and a but “amount” of mix- instead, ture, liquid the seized was still in the which contains manufacturing process and the quantity [amphetamine]”, conviction is of former 4.02(d)(1)(A), may a controlled determining included Therefore, namely amphetamine. “aggregate weight” the issue of the controlled sub- precursor stance, dilutants”, is along whether or not the substances with’“adulterants or 4.032(a), (c), (d)(2). are to be included in the assess- under former and See when ing punishment.” compare rehearing: on motion for ma- 1983, controlling 1. As the crime occurred in the version of that time is in this case. the Texas Controlled Substances Act in effect at followingsubstances 108-109; any quantity of the III, tains at concur- jority opinion, Part a associated with Miller; having potential a abuse concurring Judge ring opinion of sys- nervous 112-113; on the central Clinton, stimulant effect see Judge at 447, (1) ...” H.B. 545, Amphetamine State, tem: v. 806 S.W.2d also Reeves (Tex.Crim.App.1990). n. 5 4.04(a)] 4.03(a) § defined resolving narrow [with To aid the Court in those Section Act, in terms reaching disposition violative of the its ultimate certain offenses

issues before intentionally cause, rehearing “knowingly or granted person on the a we delivers, manufactures, possesses in- respective Court’s own motion directed possesses] present [or and then to oral to manufacture or deliver counsel to brief tent Penalty following questions in con- listed argument on the a controlled substance 1, 2, 3, statutory provisions or 4”. applicable Groups text of the September viz: effect later, Legislature revised years Six May prosecution for manufacture of am- change the classification penalty groups to theory that phetamine be on the based substances, to add oth- certain description sub- alleging the of controlled ers, leaving amphetamine in containing any quantity amphet- stance 598, p. 1278 Leg., 66th Ch. 3. Acts 4.02(d)(1)(A) (Penalty amine under (S.B. 322), August effective is, 3), Group aggre- in an amount that Legislature far the noted is that so To be grams, proper- gate weight, more than 400 cognizance “adulterants and not taken had ly offense under states any purpose, nor included them dilutants” for (c) (d)(2)? 4.032(a), reason, The component offense. prosecution In of am- for manufacture course, a controlled (c) (d)(2), 4.032(a), phetamine under long so as it was was irrelevant may aggregate weight alleged be analyzed to be more than a trace sufficient proved by showing weight of the “ma- State, See, e.g., v. and identified. Shults terial, compound, preparation” mixture or (Tex.Crim.App.1979); Cantu containing (Tex.Crim.App. 546 S.W.2d base, showing mat- without also that such 1977). only exceptions made for The were is, contains, ter identified adulterants or quantities” of nar involving “limited offenses dilutants? 4.02(d)(6) (e)(1). §in See drugs cotic parties having complied with the order 810, 812-815 Benoit v. having been of the Court and cause (Tex.Crim.App.1977). argument, and oral submitted briefs session, Legislature adapt- its next provide background legis- will first a brief “aggravated offenses” to concept of ed the judicial then developments, lative and Act, part the Texas Substances Controlled proceed to address the issues seriatim. crime, drug especially war on of “declared Wedorf, The War on Crime: related crime”. I. 765. It Legislation, 33 Tex.Tech.L.Rev. 1981 Texas Act was The Controlled Substances clas- change in content to “criminal made no originally twenty years ago. Acts enacted revamp by penalty groups, but did sification” (H.B. 447), 429, 1973, Leg., p. 1132 63rd Ch. previously existing offenses of all definitions 27, August 4.02 of effective 1973. Section (see 447, §§ H.B. in 4.03 and 4.04 stated in prescribed Act criminal classifications that ante) according punishment to provide penalties for “violations of order to establish including weight, adulterants “aggregate according “penalty provision of this Act” 268, 1981, p. Leg., Acts 67th Ch. dilutants.” H.B. 447 groups” controlled substances. of 1, (H.B. 730), September 1981. effective 696 4.02(d)(1) 3, § Penalty Group lists at 1148.2 Appeals held material, of After the Austin Court description: “Any com- that Crisp, in Parte Ex H.B. 730 unconstitutional preparation which con- pound, Penalty Groups 1 through I IV "... Schedules substance was defined as 2. Controlled through 4 this Act". drug, precursor in or immediate listed substance 122 1982), 643 (Tex.App. only S.W.2d 487 two cases have we even alluded to the —Austin

judgment (Tex. affirmed, language 661 S.W.2d 956 at issue in this case. Crim.App.1983), revised, Legislature co 1988, Court, In in McGlothlin dified many and reenacted substantive and (Tex.Crim.App.1988), 856 grap- procedural previously laws separate enacted pled with the definition of “adulterant” and ly, course, including, of the late H.B. 730. “dilutant”, in determining whether the State however, Again, legislation that did not modi proved had possessed defendant had fy 1983, penalty groups. Leg., Acts 68th Ch. more than 400 amphetamines. In 425, (H.B. 1191), p. 28, 2361 August effective opinion, in Penalty noted dicta that 1983. Groups 1 2 only prohibited included controlled Penalty Groups substance while

Not regular until the next session did the included not prohibited “the Legislature con- separately reclassify add and trolled ‘[a]ny but also certain substances in penalty schedules and alia, groups, which moving amphetamine inter any quantity contains following from Penalty Group sub- where it had been McGlothlin, stances at 861. We designated ever since ob- first a controlled sub- stance, served that other 2; barring states had statutes Penalty Group and this time possession (emphasis origi- mixture in there was no existing modification of offenses opinion) containing nal a controlled previously defined in H.B. 730 in 1981 and opined language that such H.B. would have 1191 in supra, directly both in- in manufacture, included water which the volving delivery possession Id., had been found McGlothlin case. controlled substances. See Acts at 860. (S.B. provid- We also indicated Leg. 69th that Texas p. 639), Ch. at 1119 ed a comprehensive similar (now prohi- “mixture” September effective Y.T.C.A. Id., bition penalty for items Code, 481.103(a)(3). groups 3 and 4. Safety Health and Finally, Penalty we stated that legislative The history of S.B. indicates Groups 1 and 2 were limited to the the transfer of amphetamine from Pen- substance only Amphetamine and noted that alty Group Penalty 3 to Group 2 was done in penalty group was order to increase penalty for unlawful delivery and its immediate That imprecise final statement precursors equal penalty imposed then although amphetamine was, by the time for the manufacture methamphetamines rendered, Penalty Group McGlothlin was (then 2).3 However, 2, it comprehensive “[a]ny still retained the definition for this controlled substance was material, compound, preparation” mixture or during not altered the transfer from one language that this Court had noted inwas penalty group to the other.4 However, penalty groups 3 and 4. since that

language case, was not at issue we did not directly it. address II.

With prosecution the advent of the ag- language, Court did address such al- cases, gravated drug this Court has passing, been beit in in the case of Reeves v. faced with an increasing number of difficult (Tex.Crim.App.1990). Defen- issues related to the measure aggre- charged dant Reeves had aggra- been gate weight of a controlled delivery substance. amphetamine. vated The evi- Analysis 3. The Bill penalty groups, Revised for S.B. 639 stated 4. Under both the controlled sub- amphetamines (penalty “The manufacture of stance was defined as follows: 3) group per- has increased several hundred “(1) material, mixture, Any or basically cent because it is the same as metham- preparation any quantity which contains phetamine 2) (penalty group a but with lower following having potential substances a for abuse penalty. illegal Since manufacturers have dis- associated with a stimulant effect on the central they covered that equally can make an almost risk, system: popular drug nervous with less the manufacture of ” (A) amphetamine skyrocketed. Amphetamine.... places has This bill penalty the group substance in 2". extracted, separated from or distilled been the defendant trial indicated that dence at * n n the [TJhat the other substances. bag officer given had an undercover ready for flask was not solution contents amphetamine. The entire “wet” had not been amphetamine distribution as and contained bag weighed grams 29.76 the from the extracted, separated or distilled although percentage amphetamine some flask.” not de- substances material was other amphetamine appeal, this Court held termined. On supra at 3. The Dowling v. the entire neither shown that the State had amphet- explained that after further chemist amphetamine nor grams pure 29.76 was extracted, separated and distilled amine is am- portion was not which shown out”, “remaining chemicals “powdered legal “adulter- phetamine fit the definition of “just would be liquids” left in the flask and or “dilutants”. ants” (Statement Facts, Vol- material”. waste case, 282). to that we observed In a footnote 3, p. ume that, party had raised the although neither wording of particular theory, under B. 4.02(c) in Pen- placed amphetamine [which governed case is previously, this As stated 2], Group “controlled substance” was alty Texas Controlled version of the the 1983 mixture, material, prepara- Act, controlled Act. Under Substances containing quantity of a “listed tion some drug, “... a sub- was defined as substance substance”, amphetamine. controlled stance, precursor listed or immediate

Reeves, fn. 5. stated that We Penalty Groups 1 through I V Schedules possessing, a conviction for State could seek 1.02(5). Act.” through 4 of this manufacturing, delivering either along other sub- “Amphetamine” com- with “pure” or the containing viz: pound, stances was listed However, did not amphetamine. Id. Penalty Group 3 “Penalty Groups 3. pass directly charge as no on the issue following sub- include the controlled shall jury. theory presented to the Id. stances: (1) material, compound, Any III. any quantity contains preparation which having po- following substances A. with a stimu- tential for abuse associated Appellant tried and convict- This case was sys- on the central nervous lant effect intentionally ed on the that he “did tem: knowingly sub- manufacture ” (A) Amphetamine.... stance, Amphetamine, by aggregate to wit: 4.02(d)(1)(A) weight, including adulterants and dilu- tants, grams of more than 400 as set forth involving amphetamine Proscribed conduct the indictment.” aggregated or an as an offense was defined Safety chemist Department (e) of Public 4.032(a) §§ [manufac- offense prosecution material described the which intent, cetera], tures, et delivers Appeals found to be and the Court of (c) claimed 4.042(a) respectively. [possesses], “amphetamine” viz: here, Thus, “person commits pertinent knowingly or intentional if he liquid] offense 5000 milliliter flask dark

“[The list- manufactures ... a controlled amphetamine, contained 3”; person commits Penalty Groups “a ed in including and dilutants.... adulterants an of- he commits aggravated offense if 76.20 an solution in the flask contained [T]he (a) base; of this section under Subsection that the re fense grams of man- the controlled substance mix the amount of the solution was reaction mainder of weight, in- by aggregated ufactured ... containing of the manufac bi-products ture dilutants, 200 cluding any precursors; and adulterants turing process and unused more.” liquid had not or amphetamine To production, “manufacture” meant the a is controlled substance. preparation, compounding, pro- or AND [HEALTH conversion SAFETY CODE (other 4.02(d)(1)(A) version) (1983 cessing a (emphasis ]. of the controlled substance added). marihuana), than directly Boykin “either or indirect- See 818 S.W.2d 782 ly by (Tex.Crim.App.1991). Accordingly, extraction from natural it is substances of the origin, independently by entity aggre- or means of chemi- of this entire is which synthesis, gate weight cal or a combination of extrac- of the “controlled substance” and synthesis, any possession, tion chemical person may charged and includes a be with packaging any “material, or of repacking the or transfer or substance container!)]”. compound, or labeling relabeling preparation of its or mixture which con- 1.02CL6).5 any quantity amphetamine”, tains of ... if theory

such is the indictment. rv. reading This is also consistent with our analysis type- language of this McGloth- A. Further, reading lin Reeves7. this is rehearing majority On the said that not inconsistent with the notion adulterant legislature prohibit pos “the intended to the By very the and dilutants. definitions of session, delivery materials, or manufacture of dilutants8, adulterants and as announced in mixtures, compounds, preparations or con McGlothlin, theory the of adulterants and taining amphetamine,” and noted the dicta in materials, apply dilutants not would com- Reeves, supra; accordingly majority the held pounds, preparations or mixtures as adulter- allege indictment the “must the already ants and dilutants would be sub- delivered, possessed, accused or manufac “entity”. sumed the Therefore it would material, mixture, compound, tured a or necessary the show that there are preparation if proceed the is to State under prosecut- “adulterants” or “dilutants” theory.” Opinion, at 109. material, mixture, ing compound, under or (hereafter theory preparation referred to as slight reaffirm a holding We theory). “entity” the regarding the clarification measure “material, mixture, compound, today or prepara holding Our does not dimmish the tion” in involving import theory cases the manufacture of a adulterants and dilu- construing controlled substance. In lan language, tants. The adulterant and dilutant statute, guage presumed having aof it is that the while effect in tried no cases under mixture, “material, Legislature every compound, prepa- intended that word of a or purpose. language, applies prosecu- used statute is for a Polk v. ration” still involving (Tex.Crim.App.1984). tion offenses controlled sub- plain language in question prosecuted of the statute stances which cannot be (which “material, mixture, states a “entity” majority are substances). preparation” containing or any quantity of the listed This controlled is jury penalty groups 5. The court trial instructed that “manu- Texas had a scheme similar material, production, preparation facture” meant "the "any or and which contained com- processing language. the controlled substance either di- pound, preparation” rectly indirectly by synthe- means of chemical sis". Tr. 53. So far as this record and similar Reeves, 545, 7. fn. we that from at stated show, amphetamine produced "indepen- cases "amphetamine”, wording involving of the statute dently” synthesis. of chemical means a) prohibited the "controlled could be substance” McGlothlin, 860-861, 6. See where dis- substance; b) containing the listed listed ("total weight cussed the federal of mix- scheme pure form since "material" substance its containing ture or amount substance detectable could substance. consist of 100% listed substance”) of a controlled the Florida and Georgia ("possession [a schemes ... of con- substances, (Compounds, containing solutions added substance] trolled or of mixture substance]”), with the intent to in- [controlled stated that under product those schemes the water at issue in the crease the bulk or with- McGloth- McGlothlin, covered, activity.) clearly affecting lin case would be and noted that out its will of it is unusable general though of even most precepts the statu- and/or consistent with in- is the be discarded before tory interpretation. gested? case, However, in the instant the “en “materi- the questions, These relation to tity” place, theory has no the not State did mixture, al, are compound, preparation” indictment, theory allege did The impression in Texas. an issue of first jury not submit such to the and thus partic- only jurisdiction to this other consider support rely language cannot on such the system. The federal ular federal issue is the conviction. (whose scheme, courts controlled substances lan- admittedly, contains somewhat different B. own9) this guage on than our are divided proceeded if the an Even State had is, however, support issue10. There some “entity” theory, the conviction would not for be- system the a distinction federal11 case, this because stand under facts of products are tween items mere waste which manufacturing case involved the of a of a substance controlled manufacture controlled substance. add to ultimate bulk which will items application are aware that We of of controlled substance.12 “entity” theory manufacturing to a case pres- considered, particularly primarily Carefully Texas statutes problems, ents difficult con of proscribing related to the issues of should be con- “Unlawful Manufacture” what “material, a finished contemplate sidered a trolled substance final, one preparation”. product. Need the substance be a The offense is committed when ”13 substance; entity? suspension par- usable Would a of “manufactures tially processed amphetamine liquid punishment graded in a is the amount “cooking” which it is be considered “mate- controlled substance “manufactured”. rial, completed product of the preparation” un- terms connote a der v. amphetamine manufacturing process. the statute? What if the See Goff (that thoroughly (Tex.Crim.App.1989) has been “cooked” but is still 777 S.W.2d 418 “storage” suspended liquid? grams methamphetamine [suspended or “waste” Is of “entity” solu- “purification” that entire a controlled ether and acetone guidelines capable producing); 9. are New Most notable the federal which the defendant was some, provide 1579; Rolande-Gabriel, specified, weight "Unless otherwise at 1238. of a controlled substance ... refers to the entire weight containing mixture or substance recognition for 12. We also indicated some have detectable amount of the controlled substance”. including weight propriety of items (Note Table; following Quantity Drug United product. that do to the final or will add bulk of a 2D1.1). Sentencing States Guidelines McGlothlin, ("The argues fn. 8 State See clear, legislative intent is 'to see (5th Walker, v. See U.S. 960 F.2d 409 Cir. users, drug drug pushers and do manufacturers (use 1992) weight entire of mixture being ‘lucky’ get caught not at a the benefit liquid even if toxic waste material with cutting point manufacturing percentage methamphetamine); in their small v.U.S. Innie, (9th Cir.1993) (plain [amphetamine] always language drug 7 F.3d use ... sale or required amount of of statues that entire mixture and other found with other substances—water poison impure of substance be used even if later to used in manufacture or added chemicals Rolande-Gabriel, ous); Compare v.U.S. F.2d drug’. We fail facilitate use and sale of basic (11th Cir.1991) (holding term ap- definition we have to see how the which guidelines does in "mixture” federal get ‘lucky’ proved allow an offender to would Newsome, mixtures); clude unusable also U.S. If for an offense. and avoid conviction increased (11th Cir.1993); U.S. 998 F.2d 1571 v. Jen agent product the bulk of it is adds to the final Cir.1991) (6th nings, (inappro F.2d weight total adulterants included in the priate to consider entire of mixture if during agents added dilutants. This includes possibility no could be distributed to there was it will the bulk which increase consumers and it would not increase amount added). yet product.") (emphasis unfinished distribution). methamphetamine available for §§481.115, (for & SAFETY sentencing 13. TEX.HEALTH CODE Jennings, purposes, at 137 481.116, 481.117, methamphetamine 481.118. limited amount of weight tion for pounds] total of 4.9 if example, grams amphetamine “had been For 0.5 of completed through manufacturing pro- the suspended is found grams liquid of a cess” Appellant ingredients sufficient to show up “manufac- made of will which make more grams tured” 14.2 amphetamine entity more than 400 or a containing usable —not (but grams alleged methamphetamine; amphetamine as present in its state the —of neither nor amphetamine-liquid unusable), ether acetone is an entity “adulterant” is that “dilutant”). or liquid may weight be counted toward the of entity attempted in an manufacture case materials, by-products, Therefore waste may prove ingredients the state that the precursors14, unused part etc. should not be grams would “x” have made of of a of definition a controlled substance in a “material, mixture, or compound, of a or Rather, manufacturing “material, case. preparation including amphetamine.” Alter- preparation” or must be natively, charge the State could the defen- in a usable form order to be a controlled dant grams with manufacture of the 0.5 of manufacturing substance a case. If a amphetamine. usable, not substance is it has either not been (in fully case, manufactured charge which hand, If grams on the other 0.5 manufacture) may attempted be made of suspended is found in 200 (such else it is anot controlled substance as grams liquid by of a which is waste or waste). sludge the case product manufacturing process of the incapable being entity being a usable Accordingly, we now hold that in a entity, made into a usable then the State prosecution for “amphet manufacture of only charge could defendant manu amine,” alleged prior to have occurred facture amphetamine. of 0.5 September may prove the State not aggregate weight alleged claiming analysis provide This would for a heavier weight entire of the “product” punishment “solution” or for a defendant who has manu- “material, compound, as a mixture or prepa attempted factured or large manufacture a ration”, containing of “amphet usable of a amount controlled substance than proven amine” unless it is that the for a controlled defendant who has manufactured or substance in a attempted is usable form15. to manufacture a small amount of substance is still which mixed If the controlled substance is not in a by-products prod- with unusable and waste form, may allege attempted usable the State ucts. “material, compound, manufacture16 of a preparation case, then, containing amphet present even if and, if proven liquid alleged amine” it is Appellant that the or State had that had manu portion apart “material, entity, solid of the from the factured a mixture or of, is part capa amphetamine”, listed either a ... containing of, ble being part made into proof entity a usable because there was no entity, portion may form, then that counted a usable the conviction could not entity. toward the of the entire ground.17 be sustained that However, proves 14. process “usability” the State there are or the precursors” standpoint. prosecutorial "immediate their could be such substance from a aggregate weight included of the con- 1.02(5) per trolled attempted [now substance as HEALTH 16. We note that manufacture of a con- 481.002(5)]. AND SAFETY CODE penalty trolled carries the substance same as of a manufacture controlled substance. See form”, CODE, By a "usable HEALTH SAFETY Section do mean that the AND (Vernon Rather, 1992). ready”. Pamphlet substance must be "street clear, examples make our concern our is that product prosecuted there must be some final have manufactured We note that the State could attempted manufacturing, which is identifiable as a controlled substance. as a case but may express The fact that the controlled re- no as to whether State could suspended liquid proven main in a have "carrier” or some amount that issue finality other does not is us. solution diminish not before Bill from that same nally part of House

V. original language and a review session majority opinion rehearing, On tapes public hearings bill of that say if the phrase can be read indicate the intent of on that bill held indictment, “ag proof of the decision was to override this Court’s the bill gregate weight” of a controlled substance change of the definition in McGlothlin and “the the sub must show of named material, a to include controlled substance “material, any proven compound, stance” and mixture, contain- preparation or compound, mixture, preparation containing the sub or any amount of a listed sub- ing detectable Opinion, stance.” at 109. As much as that meeting (Tape of House of stance. 2/20/93 today modify holding, can be as our read Committee). Jurisprudence Criminal holding. As the controlled is substance mixture, “material, compound, prepa the or history, According legislative the to the containing any quantity amphet of ration impression 440 was the author of H.B. under amine”, only necessary in prove, it is to prosecutions not that McGlothlin did allow previous accordance with our admonition “material, mixture, compound, or under the form/entity, aggregate about the usable sought language apparently preparation” entity this and that the of entire origi- the bring the “into line with” to statute entity in fact contain a of am does (Tape legislative intent and federal law. nal necessary phetamine. prove It is not to the meeting of of House Criminal Juris- 2/20/93 separate weights of and the Committee). respects, In prudence some portion. non-amphetamine misinterpretation existing the a of this was McGlothlin, misreading as statutes of VI. (including am- some controlled substances holding today We note that our will have phetamine) already contained the “material” effect, very applying only limited to such passed language and this Court never on that prior September crimes committed to possible It that this issue McGlothlin. is 1989, the legislature 1989. In amended the imprecise amphet- characterization of Court’s then the Act 4.02 of Controlled Substances Penalty 2 group as a controlled sub- amine Safety [now 481.101]. Health Code implicitly part of the stance and thus not amendment, provid- Prior to the such section “material, the penalty groups that contained purpose establishing the of ed “For mixture, compound, preparation” lan- chap- penalties criminal for violation this may led to confusion. guage, have this ter, into controlled substances are divided Penalty plain language Groups through light 4”. the After read, amendment, pur- passages of the Act which refer to the section “For the those mixture, material, compound, prepa pose establishing penalties “Any criminal containing any [certain amount of ... chapter, of this sub- ration violations controlled stances, substances]”, including the compound, this amendment had a material listed expanding option prosecuting preparation containing con- the mixture or the effect theory Penalty “entity” the to all items listed trolled are divided into under Groups, just those through Leg., Penalty 4.” not which Groups 1 Acts 71st (S.B. 29). language. analysis already specified ch. 776 21 The bill contained Thus, September occurring after was for offenses S.B. 29 indicates that this amendment (sic) 1,1989, charg prosecutors option have the “qualify that violations of this made to possession, delivery, or compound, ing person Act made with can be any mixture, con- material preparation containing mixtee, just pure preparation substance trolled addition substance Penalty 1-418. origi- Groups under listed controlled substance.” Section was However, containing specifically controlled substance”. If have State would indictment, charge theory Legisla- person alleged "entity” under that change clearly ture’s prosecution indicates two modes would be actual then the State limited substance and controlled specific —the definition of "material, compound, However, expansion this recent would in CONCURRING OPINION ON REHEAR- way no diminish the authority State’s ING ON OWN ON COURT’S MOTION prosecute drug prior offenses which occurred APPELLANTS FOR PETITION DIS- (such ease) to the amendment as the instant CRETIONARY REVIEW “material, 29, 1994] June [Filed preparation” theory for such listed sub- CLINTON, amphetamine, concurring. Judge, stances where such language already present descrip- The indictment this cause tion of such controlled substances. appellant each three counts “in- did tentionally knowingly manufacture possess with intent to and de- manufacture VII. [stated liver of a amount] controlled sub- Therefore, clarifying while and modifying stance, Amphetamine.”1 to-wit: The trial holdings, certain earlier for reasons devel- jury court authorized the to convict if it oped in opinion, this we adhere to and con- appellant “intentionally found that did disposition firm our ultimate this cause on knowingly a controlled sub- manufacture Appellant’s rehearing. motion for judg- The stance, by Amphetamine, aggregate to-wit: Appeals ment of the Court of is reversed and weight, including any adulterant this is cause remanded to the trial court with grams.”2 than more 100 judgment acquittal. instructions to a enter

I P.J., McCORMICK, WHITE, J., and A dissent. The Texas Substances Act was Controlled MALONEY, J., concurs with note: Believ- twenty originally years ago. enacted Acts ing opinion that my Appellant’s on Motion for (H.B. 429, p. 447), Leg., 63rd Ch. 1132 on Rehearing Appellant’s Petition for Discre- August original effective 1973. The bill tionary correctly Review states the law and tracked act model substances

that we granted rehearing should not have agency; submitted to the states a Federal our subsequently, only own motion I can the latter in turn followed the format and in the concur result reached here. provisions contained drawn from the Federal Comprehensive Drug Abuse Prevention and Legislature Control Act of which the CAMPBELL, J., joins J. MALONEY’S the “Federal dubbed Controlled Substances note. Act.” The Uniform Controlled Substances J., OVERSTREET, Act, joins Annotated, J. Uniform MALONEY’S Laws Master Edi tion, note. federal all and the scheme classified (plus they (Tex.App. adulterants and are dilutants al- at 469 —Hous leged). 1990), (questioning propri ton PDR [1st] refused ety pleading pos shown when offense is stated, product). broadly 1. Texas Act Controlled Substances effective in session of final More I September applicable any suggestion opinion 1983 is "Act” here. have not discovered literature that possessed controlled substance could throughout emphasis opinion All is mine with intent to manufacture means Also, unless otherwise indicated. because the synthesis the same controlled chemical sub preliminary statement and Part I of the coming exceptional stance. The to situation reproduces portions of the Court substantial juris our attention found in cases from other is Court, my proposed opinion for the avoid to as may dictions where offense be committed redundancy reasonably much as feasible here I possesses law one state when a “mari provide pretermits will context that which it plant huana” with intent mari manufacture appropriate. where by harvesting plant reducing huana its course, Regarding allegation "pos appellant leaves smokeable material. Of in Tex [amphet sessed amine],” intent to manufacture as marihuana is not listed a "controlled sub with explaining any penalty group, excepted have found I case stance” possess amphetamine one Cf. how could with intent from § definition of “manufacture.” 1.02(5) (16). amphetamine. Cf. Blackmon v. manufacture penalty particular in a for matched to be controlled into schedules substances felony or degree of group prescribed purposes accord regulatory penal both misdemeanor; thus, example, an class relevant ing authoritatively determined felony amphetamine was involving factors, offense potential or relative inter alia actual except “simple” degree, involved; the third abuse, rather amount than A misdemeanor. possession was a Class groups,” such. “penalty no there were particularly seq., et See U.S.C.A. Baneroft-Whitney published three In 1974 841(a)(1). Legislature §§ chose 812 and Our Penal Statutes Annotated Texas volumes format, parte Ex Wil another however. See (Branch’s Ed.), acknowl- 3rd Forms With (Clin son, (Tex.Cr.App.1979) 588 S.W.2d Texas Dis- edging participation “the ton, J., concurring dissenting, at 911- Attorneys in the County Association trict (Tex. 912); parte Tipton, Ex vi. 1 Branch’s at preparation of this work.” (Clinton, J., Cr.App.1981) concurring, at published it Volume Four In 1978 2). n. features,” e.g., “helpful ex- format of same comments, of elements checklists planatory Legislature take from the “Feder- did offense, suggested necessary to establish Act” Uni- al Controlled Substances and the suggested charging instruments form of classify language used to form Act certain charges. jury sub- separately, by group, named controlled effect, according to nature or stances their subchap- outset Explained at the is viz: 4 ai'e found ter material, “any prep- four, groups, of there are “penalty which any quantity aration contains of the which dealing] with controlled substances.... substances, following [e.g., hallucinogenic charged illegal an person a with is When having potential substances a for abuse substance, the relating to a controlled act a associated with stimulant effect on severity the offense and seriousness of system, having central substances nervous punishment dependent upon is potential a for a abuse associated with penalty group controlled sub- which depressant effect on the central nervous regard, In this there are is stance found. system, et cetera].” major in the OFFENSES defined five Act. These Texas Substances Controlled 2.04(d) 2.05(d), 2.03(d), §§ H.B. & at 4.03, or De- Manufacture are: Unlawful original act 1137-39. Section 4.02 Substances; 4.04, livery of Un- Controlled prescribed criminal classifications in order of a Sub- lawful Possession Controlled penalties provi- a establish for “violation of stance_ punishment a viola- [T]he Act,” according “penalty sion of this for depends penalty group the on which tion groups” controlled H.B. substances. Id. question drug is found.” 447, Penalty particularly, at More 4.02(d)(1) Group 3, descrip- Id., under that lists at 3. “(A) salts, iso- amphetamine, optical tion: its §§ 4.04 are Following text of 4.03 and Id., mers, optical and salts its isomers.” elements, charging in- forms of checklists at 1151. pertinent charges forms of struments and 4.03(a) 4.04(a)] a respective offense. None includes defined each [with Section material, Act, prosecution “any com- theory of certain violative of the in terms offenses any quanti- intentionally preparation of “knowingly pound, mixture or person Instead, manufactures, following delivers, possesses ty substances!.]” in- with specifies “a controlled substance” and possesses] [or each tent manufacture or deliver Id., Penalty at “name of controlled substance.” substance listed in controlled (b) 92-93, 3, 1, 2, then 154-155. Groups or 4.” Subsection id., (or 1, (b), drugs)_ Pea Penalty Group many narcotic See Except ... substances id., (c), 1151; 2, group subgroup Penalty Group lly Group at as at described the outset id., including "any (7) (d), 3(1), (3), (5), (6), (8), at 1151- (or containing) preparation" 1153; id., (e), which contains at 1153. (or following quantities) limited Where, here, alleged crime, the offense is man- especially “declared war on drug amphetamine, ufacture of the suggested op- Wendorf, related crime.” The onWar part erative of an simple indictment is Legislation, Crime: 19S1 33 Tex.Tech.L.Rev. straightforward, viz: notes, 765. As the change Court “It made no “[named defendant] then did and there content to ‘criminal penal- classification’ knowingly intentionally manufacture a ty groups.” Slip Opinion, at 3. substance, namely: [amphet- controlled Obviously reacting amine].” to adverse decisions de nying applicability penal provisions code Id., at 94. Because ais named denouncing preparatory specifically offenses to substance that is listed penalty group, one “attempts” there was no to commit substance un offenses allege reason to more about its “criminal Act, State, e.g., der the Brown 568 S.W.2d compare classification.” See and Benoit v. (Tex.Cr.App.1978), State, and Moore v. (Tex.Cr. 561 S.W.2d at 814-815 at (Tex.Cr.App.1976), S.W.2d Wilson, App.1977); parte Ex Legislature corrected the situation con- (Tex.Cr.App.1979); 908-909 Tay see also formably newly provided “aggravated (Tex. lor v. 478-479 offenses,” viz: Cr.App.1980). provisions “See. 4.011. Title Likewise, preliminary application Code, paragraphs apply jury charge [Illegal Penal to Section 4.052 are direct and point, to the viz: designated ag- Investment] offenses provides “Our person law gravated that a Subchapter commits 4 of offenses knowingly offense he or intentionally Act, except punishment for a manufactures a controlled substance. preparatory offense is the the same as Our provides law [amphet- further that punishment prescribed for the offense that is a amine] controlled substance. object preparatory the the offense.” you beyond Now if find from the evidence Wendorf, supra, See at 779. See now a reasonable doubt that the [named defen- § Safety V.T.C.A. Health & Code 481.108. ... knowingly dant] did or intentionally substance, manufacture a controlled name- Contemporaneously legisla- with the 1981 ly [amphetamine], you then find the will alia, tion revamping, inter definitions of cer- guilty charged, you defendant as but if do existing provide tain punishment offenses to believe, not you so ifor have reasonable according “aggregate weight, including to thereof, doubt you acquit will the defen- dilutants,” 1981, adulterants and Acts 67th dant.” (H.B. 268, 730), Leg., p. Ch. 696 effective Id., at 95-96. Accord: Texas Criminal Pat 1, 1981, September Legislature the defined (State Jury Charges 1974), tern Bar of Texas include, alia, “drug paraphernalia” to inter (CS) 4.03, § CPJC at 731-732. defined, “a diluent or adulterant” as years Six Legislature later the revised extensively § proscribe amended 4.07 to sev- penalty groups both schedules change to involving “drug paraphernalia.” eral offenses the classification of certain controlled sub- (H.B. 1981, 277, Leg., p. Acts 67th Ch. others, amphet- stances and to leaving add 3; 733), not, 1, amine in September it did howev- effective er, 1979, amend definitions of offenses. Acts unconstitutional, After H.B. 730 was held (S.B. 322), Leg., p. 66th Ch. effec- revised, Legislature the codified and reen- August tive many procedural acted substantive and laws previously separately,

B modi- enacted without fying penalty groups, Majority however. Legislature adapted its next session the Opinion, separately at 107. Later it added concept “aggravated the offenses” to the Act, part Texas Controlled Substances as and classified substances schedules B penalty modifying groups, this time without Id., existing previously as offenses defined. appellant was con- This was tried case at 107-108.4 theory on that he “did intentional- victed the knowingly ly and II manufacture by aggre- Amphetamine, to-wit: A including any adulterants gate weight, reasonably diligent research re- So far as grams as set than of more veals, original not until the sub- Tr. 12 and 54. indictment.” forth by very mission cause was it ever held prosecution this Court that described the stuff The DPS chemist compare is viable. But see and con- issue appeals and the court prosecution claimed ceded dicta Reeves viz: “amphetamine,” found (Tex.Cr.App.1990). n. 5 liquid] milliliter flask of dark “[The 5000 Code, Keeping in mind that Y.T.C.A. Penal grams amphetamine, 1.03(a) contained 704.89 dictates, Title does not “Conduct including unless as adulterants and dilutants.... constitute and offense it is defined id., cetera];” by [et statute in the flask contained [T]he solution offense alia, 1.03, provisions of Title 1 inter makes base; re amphetamine (2 3) applicable to “offenses defined mix reaction solution was mainder laws, defining other unless the statute containing bi-products [sic] ture otherwise;” provides Act offense (some) unused process and that, indeed, otherwise; provide does not (unchanged precursors); precursors expressly incorporat since 1981 the Act has not liquid had Code, ed reference Penal make Title extracted, separated from distilled or been “preparatory “attempts” offenses” * * n [T]hat the other substances. apply proscribed offenses ready in the solution flask was Act, subchapter 4 of the on statuto focus ry amphetamine; and that provisions defining the distribution offense and other germane provisions extracted, implicated by the facts of had not been Commentary instant cause. Practice separated the other sub distilled from 1.03; see, e.g., Childress v. stances flask.” 361, (Tex.Cr.App.1990); at 362 S.W.2d Gu (words State, in Dowling supra, 3 (Tex.Cr. v. at State, v. 628 61 tierrez at 270).5 App.1980). parenthesis from The chemist 3 S.F. or, separate legislative aggravated concept 4. offenses Consistent treatment of since the ag by adopted, by stating alleging penally groups and then "criminal classification” on so weight, gravated or without “adulterants with the one and hand "definitions of offense” on the State, See, ante, other, I, e.g., McGlothlin v. and dilutants.” tracked in Part demonstrates that (concurring (Tex.Cr.App.1988) is, the essential connection between the two as it Clinton, J., 1); see been, cases cited note always has that the former name lists State, (Tex.Cr. Thompson also v. 885 S.W.2d 136 the controlled substance the latter alludes to 1992). App. suggested See also forms Nos. defining an offense. That is the reason the charges charging jury such instruments and charging Court held in certain situations Blackwell, helpful as McCormick & Texas works identify specific penalty must instrument Manual, Chapter and Trial Criminal Forms listed, alleged, group listing the offense or not if Chapter and 8 Texas Texas Practice penalty group. described as it is be otherwise Jury McClung, respectively, Practice and See, e.g., parte v. Ex and Benoit Wilson (Revised Charges for Texas Criminal Practice Taylor supra. all 1983) 228-231; Id., (Revised Edition Edition cause, Moreover, compan 1992) we know from this 213-219. the Court that ion causes and others before says: through attorney its 5. The State district indicting, grand juries are and have not and not charging jurors, 'cooking' judges "During manufacturing, not on a have not are or "material, prosecutorial process, precursor are based on numerous chemicals combined, preparation” language period Over a of sever- mixture or heated. hours, (by precursor any penalty group. The offense has been al chemicals combine ‘washed,’ sepa- charged by stating synthesis), jury and are or and the either forbidden chemical water, process involving make involving substance rated in a conduct named controlled explained further that after extraction from origin, substances of natural extracted, separated distilled or and then independently by or syn- means chemical out,” “powdered “remaining thesis, chemicals byor a combination of extraction and liquids” “just in the would be synthesis, chemical packag- and includes flask left Id., waste material” ing repackaging or of the substance or label- “ ing relabeling or its container[.]” ‘Controlled substance’ a drug, means sub- 1.02(16).6 stance, precursor or immediate listed through Penalty Groups Schedules I V and 1.02(5).

through 4 of this Act.” III “Amphetamine” along with other sub- Penalty Group 3, stances is listed viz: A “Penalty Group Penalty Group majority rehearing On said “the shall following include the controlled sub- legislature prohibit posses- intended to stances: sion, delivery, materials, or manufacture of (1) Any material, or mixtures, compounds, preparations con- preparation which contains taining amphetamine,” and noted the dicta in following having potential substances State, supra; Reeves v. accordingly the ma- for abuse associated awith stimulant effect jority allege held the indictment “must system: the central nervous delivered, possessed, the accused (A) Amphetamine ...” material, compound, mix- manufactured ture, 4.02(d)(1)(A). proceed the State is to if involving amphetamine Proscribed conduct theory.” Opinion, Upon at 109: is defined aggravated as an offense or an germane provisions further examination 4.032(a) (e) §§ only in offense [manufac- reflection, the Act and after considerable tures, possesses delivers with intent et persuaded should be does Act 4.042(a) (c) ], [possesses], cetera re- prose- authorize such an alternative form of Thus, spectively. here, pertinent per- “a certainly not on the facts of this cution— son commits an knowingly he offense withstanding case—not the “reaffirmation” of intentionally ... a controlled manufactures original prior holding “slight modifi- 3;” in Penalty Group substance listed “a complicated cation” followed much dicta person commits an if he offense “entity” theory present about an Ma- (a) commits an offense under Subsection jority 124-125, 125, Opinion, at 126-127. this section amount of the controlled is, by ... aggregate manufactured Again, one who “a manufactures weight, including any adulterants or dilu- substance listed in 3” commits tants, or more.” aggravated an offense “if the amount of the is, ... by controlled substance production, To “manufacture” means the manufactured weight, any preparation, compounding, aggregate including pro- or adulterants conversion (other 4.032(a) cessing of § a controlled or substance than or more.” marihuana), (c). directly by indirectly “either or and oil, 'powdered' amphetamine unlikely which is later to seems that there will be ever 100% (or product.... pure amphetamine make the Adulterants and other controlled sub- final present, stance) dilutants are not unless one adheres to when the controlled is seized added, theory precursors the the completed." that more the is before manufacture greater Brief, dope, the amount of in which case the State’s at 4-5. precursors actually to the of add bulk the fin- product. ished juty Precursor chemicals are a nec- 6. The court trial instructed the that "manu- essary part process, production, the preparation and facture” meant "the or manufacturing process, processing in the course of the of the controlled substance either di- precursor part rectly indirectly by synthe- a chemicals become the or means chemical final

product. precursor by- Because chemicals and sis.” 53. So Tr. far this record and similar show, products always present during any given produced “indepen- are cases is " stage manufacturing process, dently synthesis. by of the actual it means of chemical Legislature Legislature in its classification of am- beginning de- the From the the listing by it as a controlled sub- “drug, phetamine a sub- fined “controlled substance” as 4.02(d)(1). § Group Penalty in 3 under in stance precursor stance or immediate listed prescribe descriptive language does de- penalty groups],” and and it [schedules involving amphet- of an offense element in the listed termined that “substances proved; alleged not be and need amine con- penalty groups] shall be and [schedules and, record clear- it as this 1.02(5) thus is redundant § § 2.01. trolled substances.” reflects, real allege it will confuse the ly to Indeed, expressly explained it the “nomen- “manufacturing” in a case. Accord- issues clature,” viz: descriptive ingly, alleging it that such follows “The controlled substances listed or charging in does not language instrument I, in be Schedules listed schedules an offense under properly state III, 1, 2, II, IV, Penalty Groups and V and (e) (d)(2). 4.03-2(a), official, by and 4 are included whatever usual, common, chemical, or trade name B they designated.” may be reheating majority the also said that On designating particular indictment, § 2.02. in sub- alleged Then phrase proof is penal- weight” stances included schedule “aggregate each of a controlled ty group, Legislature weight took care to identi- show “the substance must “material, fy each any proven “listed” controlled substance named substance” name, group in a even when classified contain- according sub-group general description, Opinion, ing at 124.8 Of the substance.” effect, commonality and, prescribed course, phrase of relevant is not here Schedules, ante, factors or otherwise. See is determined not a viable 2.03-2.08; 2.09; Control, §§ Authority to applicable statute. prosecution under Tests, 2.10-2.14; §§ Schedule Criminal through attorney its The State district 4.02; Classification, § parte Tipton, Ex su- respectively, Prosecuting Attorney, the State (§ (Clinton, J., pra concurring) 2.02 identifies stoutly “en- maintain that according controlled substance name containing solution” “entire mixture” tire list).7 penalty designated group which “amphetamine any quantity base” should into We should now is and must be taken account determin- hold weight” ing “aggregate eo nomine a The de- of the substance. controlled substance. statutory Granting Rehearing;9 scriptive language merely justifies Brief State’s on Order validity uniformly charging already questioned the 7. The has We Court held ture.” have asserting offending involving asserting involving amphet- instrument conduct an offense event, purported specifically substance "not named in ante. amine. See note offense, allege penalty group” "possesses alleged facture,” a against fails "to an offense intent manu- State," longer other- unless substance is is no the case. penalty group.” parte wise in a "described Ex reasoning attor- 9.The essence of district Tipton, Nothing supra, and cases cited therein. ney is: Act as amended in 1981 and thereafter denigrates pleading that rule offense. "Manufacturing a controlled substance delivering very possessing from different testing sufficiency original 8. On submission in that difference majority opinion the evidence the stated considering major factor what should when language intent [of 4.032] “the clear shows the aggregate of the sub- constitutes the yet legislature to of the include substances not possession delivery Again, and cases stance. sales, i.e., ready the ‘... the amount of for street product, with while most often deal finished controlled substance ... with intent to manufac- Therefore, manufacturing cases do not. there ” ture.' finished be a distinction made between should product clearly ‘cut’ in- problem quote has been to One with that adumbrated is which " product the ellipsis "possessed the of the for sale on the word crease street, bulk the second omits product which immediately preceding has been "with intent to manufac- and unfinished (2). 4.032(b), (c) (d)(1) by enforcement officers before the and and seized manufacturing process law ture.” See indictment, ap- completed. Although initially has been the in respect mixtures which parently allegation, for With to solutions or the State abandoned the manufactured, being only process the jury on in the of the court instructed the "manufac- are Response Granting State’s Brief in to Order methamphetamine ed manufacture of so suc Rehearing, passim.10 cessfully pursued by attorneys of district Ste phens County County, and respectively, Wise deference, prosecutors advancing

With gain punishments fifty years to again that of confine proscrip should read the fine, Baxter, 4.011, of “Preparatory tion in $25,000 Offenses” ment and at and 30- State, v. study Baxter then 718 S.W.2d 28 31; seventy-five years confinement 1986), (Tex.App. refused; PDR Martin, $250,000 fine, 822; —Eastland at sev v. Martin (Tex.App.— enty-five years $75,000 fine, confinement and 1987), history; Lindley Fort Worth no PDR Bindley, at 269. (Tex.App. 736 S.W.2d 267 —Fort 1987), refused, plain legislative Those cases effectuate replicate Worth PDR the the “attempt” theory prosecution of attempt “attempted for intent differentiate manufac- part every "grounded entire upon principle solution should be considered as of one is the aggregate weight product. the of the [language This phrase] the defines offenses and regardless should be the case of the state of penalties weight in terms of the of the mixture pro- the is manufacture mixture in when the substance,” containing a controlled he final- interrupted by cess is law enforcement. If the conclusion, ly comes rather to a innovative viz: precursor only ‘cooking’ chemicals have been "... Section 4.032 defines the offense in terms time, period quantity a short of then the of 'aggregate weight of the of the com- ‘pure’ going very controlled substances is be mixture, pound, or which contains precur- small. The rest of the mixture will be any quantity amphetamine.’ of The additional byproducts sor chemicals of the manufac- phrase 'including adulterants dilutants' does turing process. Surely Legislature the did not not from subtract Section 4.032's definition of only portion intend to count the of the mixture Therefore, prosecution a offense. in substances; 'pure,' which is if that of manufacture 4.032(a), (c) under Section case, drug were the then the manufacturers (d)(2), aggregate weight could, fact, ‘get lucky,' upon depending in alleged may proved showing weight by be laboratory by when the was seized law en- 'material, prepa- of the forcement officers.” containing quantity ration’ a of Id.., (first emphasis original). at 5-6 in As we base, is, showing also without matter however, post, Legislature demonstrate what the contains, identified adulterant or dilutants.” drug intended in such is that man- circumstances Id., (emphasis original). at 36 charged ufacturers be tempted with and convicted "at- fact, In not did the Uniform Act declare amphetamine, manufacture" of thereby perceived danger they society offenses in relation to suffer same sanctions as if had conduct, ultimately produced quan- nature amount of without at all amphetamine. they "get lucky” only tifying according Thus could it amount or sub- prosecution pursued (as 4.01, a 1981), when on Legislature the flawed stance did cf. notion that II, "entire solution” or "entire 9 ULA Part at also but it cautioned that being mixture” of chemicals still "cooked” "departs own [of our Act from the text official part aggregate should weight considered “as Act] the Uniform in such a manner that product" “product” yet substitution, —a various instances of omission and “manufactured.” clearly additional matter cannot be indicated Id., statutory notes.” at 7. original opinion, 10. Much like the the State Pros- Moreover, fact, none of decisions from ecuting Attorney support reads the Act to simi- a jurisdiction "manufacturing other a concerned proposition, lar viz: scenario;” every one dealt with some of other language “An examination of the [the Act] i.e., involving product, posses fense finished plain legislative demonstrates intent to crimi- sion, distribute, possession delivery intent manufacture, possession, delivery nalize .the Indeed, (trafficking), or a sale. cited oldest 'material, prepa- case construes 1963 New York law which dif amphet- ration which contains penalties: possession "pure” ferentiated of a Act, amine.' Under the terms of the ‘con- misdemeanor, drug A was a Class but a "mix amphetamine. trolled substance' is not Rath- felony through depending A ture” was Class D er, the ‘controlled substance' is the mixture governing being the total amount—the notion any quantity amphetamine.” which contains "generally Brief, certain substances are marketed (emphasis original). extensively at 3 impure thesis, diluted or state.” United States ex developing pro- he alludes to certain Henderson, F.2d rel. Daneffv. visions in the Uniform Controlled Substances Act (CA2 1974). Legislature Several of the decisions summa of 1970 from which the drew its Prosecuting Attorney rized the State relied definition "controlled substance" and the “material, part Chap phrase least in such rationale. See prepa- also ration;” States, 460, reviewing jurisdic- v. 111 decisions from other man United 500 U.S. at (1991). Prosecuting Attorney argues tions the State S.Ct. at 114 L.Ed.2d 524 weight alleged claiming the entire of an ture” and “manufacture” “material, compound, as a of certain controlled such the “solution” amount substances of quanti- amphetamine, methamphet- preparation,” containing as as as well mixture amine, yet punish “attempted of- it had “amphetamine the former base.” Because ty of range extracted, latter separated the same fense” within as distilled or not been “completed” “unchanged” precursor one. “unused” from flask, we by-products chemicals considered, Carefully proscrib- the statutes of this further under facts hold should ing Manufacture” of controlled “Unlawful a fin- “amphetamine base” is not cause contemplate product. a finished manufacturing process. product of the ished The is when one “manu- offense committed substance; punish- factures” graded by the the con- IV

ment is amount of The trolled substance “manufactured” A product completed terms connote a likelihood, charged had the State In all State, manufacturing process. v. Goff attempted metham- manufacture of Goffwith (that (Tex.Cr.App.1989) 15.2 it would have achieved a convic- phetamine [suspended for grams methamphetamine of punishment assessment of stiff tion and “purification” in ether acetone solution County, judgment of Gregg instead pounds] for total of 4.9 “had been Goff, supra, at acquittal this Court ordered completed manufacturing pro- through the 421. appellant cess” sufficient to show “manufac- ” only grams tured 15.2 more than 400 —not “attempt” theo- prosecution In a grams, methamphetamine; —of ry permitted adduce State neither ether nor acetone is “adulterant” testimony supporting proposi- expert “dilutant”). State, See v. 757 S.W.2d Conner pro- of tion that continuation 1988) (evidence (Tex.App. Tyler of — pro- interruption have cess without could 1,984 glass jar containing grams liquid of maximum amount of duced the consisting only of methamphetamine, 2% testimony v. Compare in Baxter alleged. baggie containing grams material 210.5 of State, State, 30-31, supra, at and Martin v. consisting of methamphetamine, 47% supra, at supra, at and Conner baggie containing grams 5.2 mate- second any such with absence of evidence methamphet- rial estimated to consist of 50% Moreover, expert Goff, n. 2. at aggregating grams about amine — “poor” methamphetamine might be allowed estimate witness by-prod- because amphetamine in likely “pure” percentage of purity drug ucts therein lowered —insuffi- explain product, and how then the finished prove than 400 cient more manufacture “cut” the adding adulterants and dilutants to methamphetamine in grams of that no evi- “aggre- product increase its finished would methamphet- dence substances other than greater weight,” an even amount gate so that intend- amine were “adulterants dilutants” for wholesale distribution would be available product). ed to increase the bulk of the final turn, and, being again, “cut” after Id., at 808.11 sum, delivery prose- and sale. retail punishment and Accordingly, may easily gain in a more ought to cution hold by presenting “probabilities” than penalty prosecution manufacture expand “reality.”12 may prove aggregate straining to State recognized charging Compare appeals instru- "clearer” Blackmon v. 1990), (Tex.App. alleged simply "possess 471-473 PDR did [1st] ment would have —Houston (particular strongly evidence in metham- methamphetamine” refused phetamine found recommended lab, i.e., bag grams meth- give 71.703 "to no- amend form indictment State (exhibit 37) amphetamine containing jar/bag powder tice,” id., 469). grams methamphetamine imple- concept "aggravated offenses” (77.645 grams) and the balance an adulterant 1, 1981, necessarily September effective "possession mented (granulated sugar) proved with in- assaying feature of introduced determinative at least 200 meth- [of tent manufacture including "aggravated weight, amphetamine], alleged," although adulterants the court B

Therefore, developed for reasons in this

opinion, I judgment concur in the reversing judgment

Court court of

appeals and remanding the cause to the trial entry acquittal court for of an fur- —without

ther ado.13 Charlane THOMPSON and Patrick Hagler Taylor, H. Randy John on Thompson, Appellants, E. Dallas, only, appeal appellant. v. Sehon, Marlin, Thomas B. Atty., Dist. Rob- Texas, The Appellee. STATE of Huttash, Austin, Atty., ert State’s for the State. 1153-90,

Nos. 1154-90. Texas, Appeals

Court of Criminal En Banc. MALONEY, Judge. 14, 1992. Oct. jury appellants possession A convicted twenty-eight

with intent to at deliver least grams but not more than four hundred amphetamine. See TEX.REV.CIV. 4476-15, 4.02(c)(3); §§ STAT.ANN. art. 4.031(d)(1) (Vernon Supp.1987).1 jury Thompson’s assessed punishment Charlane thirty-five years imprisonment $30,- at and a fine, Thompson’s Patrick assessed E. punishment years fifty imprisonment at $30,000 Appeals fine. The Tenth Court of unpublished affirmed both in an convictions State, opinion. Thompson v. Nos. 10-88- 056-CR, (TexApp. Waco, 10-88-057-CR — 30,1990). granted Aug. appellants’ peti- We dilutants,” 1982), (Tex.App. of the listed controlled substance no PDR [1st] his- —Houston "manufactured, possessed req- delivered tory (companion arising Sep- [with cases same from statutes, indictment, prior intent].” uisite scenario). Under tember jury charge identity evidence and focused on alleged; composition, listed its majority In Part VI of its renders legally implicated content were not advisory opinion regarding the reach and consequential, although practice parties application "entity” theory of its might argue bearing punishment. their Id., legislative enactment. at 127-128. Because Therefore, judicial prior decisions under statutes proclaimed we have so Court will often that this concerning "manufacturing" particular have no advisory opinion, my- issue an I disassociate See, State, precedential today. e.g., value v. Gish self from this one. (Tex.Cr.App.1980); 606 S.W.2d at 886-887 see also Fronatt v. 630 S.W.2d 1981), refused, (Tex.App. & [1st] PDR 1. Now TEX.HEALTH SAFETY CODE ANN. —Houston Berryhill 481.103(a)(3); 481.113(d)(1). §§ 813— Notes 4. Prior Laws 1973, 995, 399, Leg., p. § Acts 63rd eh. 5. 1973, 1132, Leg., p. Acts 63rd 1905, ch. 429. Leg., p. Acts 29th 45. 1979, 1286, 598, 1919, Leg., p. 277, § Acts 66th Leg.-, pp. ch. 6. Acts 36th 278. 1985, 227, C.S., Leg., Leg., § p. Acts 36th Acts 69th ch. 2nd 156. 8. Leg., p. Acts 42nd Leg., ch. 97. Acts 70th ch. 3. Notes of Decisions Tetrahydrocannabinol, generally tetrahydrocannabinols, Congress from intended only synthetic that latter should mean and include THC, marijuana everything and that would include Tetrahydrocannabinol, generally THC, containing organic including hashish. Pew listing “Tetrahydrocannabinols Section (Cr.App.1979) other v. State 588 S.W.2d 578. marijuana synthetic equivalents” law, than any in- state’s controlled substances materi- only marijuana al, compound, tended to exclude and does not mixture or which con- marijua- exclude other hallucinogenic substance contained in tains amount of the na tetrahydrocannabinol, or the resinous marijuana, extractives of cannabis or simi- other than in substances, synthetic including synthetic lar contemplation penalty group tetra- within and thus hydrocannabinols, any preparation organic and does not exclude hashish. that contains resin ex- parte (Cr.App.1974) Ex plant synthetic Psaroudis 508 S.W.2d 390. tracted from or THC whatever (21 defining marijuana In view of federal statute form and under whatever name is embraced. Pew 802) listing separate apart (Cr.App.1979) U.S.C.A. it v. State 588 S.W.2d 578. Delivery 481.113. Offense: Manufacture or Substance (a) Except by as authorized this chapter, person commits an if offense person manufactures, delivers, knowingly intentionally or possesses intent to manufacture or deliver controlled substance listed Penalty Group (b) (a) An offense under felony Subsection is a of the second degree the amount is, controlled substance to which the applies offense aggregate weight, dilutants, adulterants or including less than 28 grams. (c) A person commits an offense if the person commits an offense (a) under Subsection and the amount of the controlled substance to which the H7 dilutants, grams is, including adulterants by aggregate weight, applies offense or more. (c) (d) is: An offense under Subsection life (1) Department Corrections1 by confinement the Texas punishable not to and a fine years, or less than 5 years a term of not more than 99 or for the offense to which $50,000, if of the controlled substance the amount exceed dilutants, grams is, including adulterants by aggregate weight, applies grams; less than 400 more but (2) for life of Corrections Department confinement the Texas punishable and a fine not years, or less than 10 years or for a term of not more than 99 to which the offense $100,000, the controlled substance if the amount of exceed is, adulterants or by aggregate weight, including applies

Notes

Notes Decisions 4 aggravated delivery Instructions Manufacture, of controlled sub- cution for sufficiency stance, evidence 2 sale on of where transaction involved deliver, sufficiency ready product to be Possession with intent to of of finished wholesale level level, though of evidence 3 cut for sale at retail even 24% Quantity by-products of 1 weight consisted of of substance Sufficiency (App. manufacturing process. Herndon v. State of evidence 2-3 Dist.1989) Manufacture 2 2 review refused. 767 S.W.2d attempts to conviction for Possession with intent to deliver 3 State obtain Where aggregate offense Quantity 1. controlled substance sold defen- of dilutants, dant, including is over delivered adulterants Amount of controlled substance prove of proved grams, first must existence to sustain conviction for 28 State need not be dilutants, any and then must punishment applicable to substance. adulterants lowest class Dist.1988) substance, plus adulter- (App. 756 show that controlled Stockton v. State 3 S.W.2d dilutants, exist, weighs proven more ants 873. (Cr.App.1990) grams. grams amphetamine Reeves v. State of sold to than 28 Entire 220.18 640, rehearing petition for discre- on in 806 S.W.2d undercover officer could be considered deter- denied, drug weight tionary certiorari denied mining proved review whether State grams prose- 113 L.Ed.2d than 200 but less than 400 S.Ct. more delivery grams dilutants,” Conviction for than of more add “adulterants and term “con- amphetamine sufficiently supported statutory was not trolled substance” did not definition that, testimony plas- while entire contents of include adulterants and Fanis v. dilutants. bag weighed grams, (Cr.App.1990) rehearing tic witness had no State on S.W.2d amphetamine, petition discretionary to how much of it was review denied. Sufficiency identity no other evidence as to other of evidence—Manufacture bag; though laboratory process substances statute allowed con- that a Evidence of man- . aggregate ufacturing viction where operating was found on including property yards adulterants less than 200 residence from grams, wife, was over 28 large there was no evidence that shared which defendant with his any nonamphetamine bag quantities was adul- found inside were dilutant, residence, person terant increase intended to bulk or and that defendant his had on product. (Cr.App. employed Reeves State handwritten notes which chemical 1990) 540, rehearing petition manufacturing amphetamine formula for and ad- discretionary laboratory supply review denied. of two chemical dresses com- support panies Evidence was not sufficient to defen- sufficient to was connect defendant to possession illegal notwithstanding dant’s conviction for of more than 400 manufacture of a controlled substance pure amphetamine, pertinent legal property where title to application paragraph charge would allow name defendant’s wife. Pinkston v. State Dist.1984) (App. rational trier of fact to mining that in conclude deter- review re- pure amphetamine amount of he could fused.

Notes H9 Cross References § analogue, possession, see 481.123. Controlled substance § federally therapeutic program, Exemptions approved see 481.111. for use in research funds, Expenditure or investment of see 481.126. Punishment, Code, felony, third-degree see V.T.C.A. Penal 12.34. offenders, Repeat punishment, see 481.107. Notes of Decisions drag, dangerous indict- thaqualone in fact a Affirmative link to defendant was of un- knowledge which defendant was convicted ment under lawfully possessing Control and drug dangerous was void Indictment and information 3 and, jurisdiction, trial court did not have since punishment Sentence subject judgment attack. Ex was to collateral Sufficiency of evidence 4 parte (Cr.App.1980) Howeth 609 S.W.2d allegation purport between Variance unlawfully acquired a petitioner had clause that knowledge 1. Control and substance, namely Amphetamine and failed to show that defendant exercised State showing forged prescrip- the tenor clause tion ment to be care, management control and over Biphetamine the indict- did not cause was laundry hamper off master found bedroom mate, bathroom fundamentally parte Ex defective. occupied that defendant with male room- (Cr.App.1980) Holbrook required to convict defendant of was fraudulently charging petitioner Indictment possessing amphetamine; possibility that room- Preludin, attempted possession to obtain which hamper reasonably put mate was penalty expressly listed in schedules and was not upon all re- consistent with evidence which State Act, groups mentally funda- of Controlled Substances McCarty prove lied its circumstantial case. for reason that indictment failed defective

Case Details

Case Name: Dowling v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 29, 1994

Citation: 885 S.W.2d 103

Docket Number: 107-89

Court Abbreviation: Tex. Crim. App.