*2 WALKER, C.J., Before BURGESS and GAULTNEY, JJ.
OPINION WALKER, L.
RONALD Chief Justice. police Beaumont found Brandon Linn Dudley sitting in a car in possession of a styrofoam cup. police When sniffed the cup cough contents the smell of syrup present. Laboratory testing presence later confirmed the codeine liquid mixture contained in cup. Dudley was possession indicted for of co- deine as listed under 1 in Code, Safety the Health and in an amount (400) of “four grams hundred and more.” See Tex. Health Code Ann. & (f) (Vernon 481.115(a), Pri- Supp.2001). trial, or to moved to amend the charge Dudley indictment to with the en- tirely separate possession offense of of co- Penalty Group deine as listed under 4 of Code, the Health and in an amount of “four hundred and more.” See Code Ann. (e) 481.118(a), Supp.2001). However, convicted having committed the lesser included of- fense of of codeine as listed 4, in an amount of “200 grams or more but grams.” less than 400 Dudley presents appel us with two issues, late the first of which complains of insufficient evidence contained support Spe the record to his conviction. cifically, Dudley does not contest the suffi ciency regarding of the State’s evidence quantity of the codeine found general than the class of isomers styrofoam mixture in the harmful liquid contained sufficiency legal methamphetamine does contest cup, but listed Schedule proof regarding quality II.”) of the State’s light, legislature apparent In that liquid codeine found in the place into three ly intended n . upon partic groups the four based defined *3 words, appreciate Dudley’s appellate we as ex qualitative properties. ular Codeine’s “codeine” as complaint, definition of specifi a istence as controlled substance Penalty opposed in as Group set out cally penalty group defined each in any the definition of “codeine” as set out appears as which follows: con- penalty other IS the groups, of the 1:(2) Penalty Group following opium alleged he un- trolled substance derivatives, salts, isomers, their such, lawfully possessed. As the State isomers, ex- specifically of unless salts prove Dudley possessed was salts, if the of these cepted, existence Penalty specifically codeine defined isomers, possible and salts of isomers because set Group each specific designation: chemical within Safety in the Health and Code contain out Codeine N methylbromide; ... Codeine entirely separate distinct and lists of con- Oxide;.... traband, each with distinct chemi- its own penalty substances, more make-up. cal While two or however following generic include groups may drugs the same except narcotic produced, those arise, substance, trolled distinctions in another group: listed Codeine 1 group purposes, when a controlled penalty 4;.... or Group listed in 3 penalty is defined in one 3:(4) material, com- form, in other “pure” its while defined mixture, contain- pound, preparation or other groups certain based ing quantities following limited of the qualitative properties. distinct drugs, any or of their salts: not narcotic Ap As does Court of Criminal codeine, or grams any than 1.8 of more accept peals, this Court bound salts, per milliliters or not if its 100 or classification legislative characterization dosage per 90 milligrams more than of how prohibited regardless of substances unit, equal greater quantity with or community them. See the scientific view opium; of isoquinoline alkaloid (Tex. 588 583 Few codeine, or not more than 1.8 Crim.App.1979). has been observed salts, per milliliters or not any of its Health provisions of the that within dosage per milligrams than 90 more Code, different controlled sub active, unit, one or nonnarcot- with more varying are deemed to constitute stances therapeutic in recognized ingredients ic in their illicit degrees society of harm amounts;.... uses, autho differing punishments are so 4:(1) mix- compound, illicit various con use of the rized ture, containing limited preparation Chalin v. trolled substances. See following narcot- quantities (Tex.Crim.App.1982) non- or more drugs ic that includes one (“When classi of Health Commissioner ingredients active medicinal narcotic within Schedule phentermine name fied to confer proportion IV, to be less sufficient phentermine determined 481.102(2) 2. Tex. 1. Code Ann. Health & & Code Ann. 481.104(a)(4) Supp.2001). (3)(A) (Vernon Supp.2001). case, compound, preparation valu- this one other active medicinal medicinal gredient. able possessed by the narcotic alone: drug And, Q. what was that?
not more than 200 milligrams ingredient A. The other was Prometha- per per 100 milliliters zine. grams;.... Q. Okay. therefore, commonly A And is a agree, portion
We
combination
that,
appellant’s argument
cough syrup type preparations
found
having pleaded
of codeine “listed in
contain Codeine
a concentration
milligrams per
4 of
of less than 200
100 mil-
the Texas Controlled Sub-
Act,”
obligated
syrup.
stances
the State was
liliters of
*4
elicit evidence
prove Dudley’s
sufficient to
In addition to the above testimo
specifically
of codeine as
de- ny, Dudley introduced into evidence as
481.105(1),
fined under section
which de-
1,
Defendant’s
written
Exhibit
the
labora
Penalty
as,
fines
4
Group
“codeine”
inter
tory report in which the identical evidence
alia,
(or
milligram
a 200
to 100 milliliter
as to codeine concentration
was set out.
gram)
100
concentration ratio when mixed reviewing a
legally
record for
sufficient
required
with the
“nonnarcotic active me-
conviction,
evidence
support
to
the
we view
ingredients.”
dicinal
question
then
all the
in
light
evidence
most favorable
becomes whether the record reflects the
in
to the verdict
order to determine wheth
State satisfied
legally
its burden to elicit
er
rational
trier of fact could have
sufficient
evidence of the
Penalty
found all of the essential elements of the
Group 4 concentration amounts.
beyond
proven
a reasonable doubt.
307,
Virginia,
Jackson v.
U.S.
In support
position
issue,
of his
on this
2781,
(1979);
Dudley’s second issue contends that the in overruling objection trial court erred Tex. Ann. Health Code jury charge given. Dudley 481.184(a) (Vernon to the as Supp.2001) (emphasis 481.118(a) convicted added). under section of the Safety Code,
Texas Health and
which
Therefore,
claiming
person
states, in pertinent part,
follows:
exemption
benefit of the “ultimate user”
person
if
[A]
commits an offense
producing
defense has
burden
evi
person knowingly
intentionally pos-
Wright
dence that raises the
defense.
sesses a controlled
substance listed
(Tex.Crim.App.
person
unless the
ob- 1998).
raised,
“Once
defense is
tained the substance directly
from
must,
trial
if requested,
court
instruct the
under a
prescription
valid
or order
aof
jury that a reasonable doubt on the issue
practitioner
acting in the course of
requires
acquitted.”
that the defendant be
practice.
AId.
review of the trial record shows that
481.118(a)
Tex.
Health &
Code
Dudley offered no
pos
evidence
he
added).
Supp.2001) (emphasis
sessed the codeine
In
prescription.
481.062(a)(3)
addition,
section
fact, one
the arresting
officers was
Health
Code states that some-
found,
asked whether he had
a prescription
may possess
one
a controlled
if
for codeine in the car. He replied that he
that person is “an ultimate
per-
user or a
had not. But he did indicate that he found
son in
of the controlled sub-
baby
jar
cough syrup
food
residue
stance under a lawful
practition-
order of a
*6
car,
experience
the
which
his
was
er....”
Tex. Health &
Code
illicit,
consistent with
street level
of
abuse
481.062(a)(3) (Vernon
§
Supp.2001). At
Dudley presented
codeine. Since
no evi
trial,
objected
the defense
applica-
the
acquired
dence that he
the codeine
portion
tion
of the court’s charge because
prescription,
valid
he
a
was
entitled to
it
require
jury
did not
to find that
jury instruction on the “ultimate user” ex
Dudley lacked a
prescription
valid
emption. Dudley’s second issue is over
objection
codeine. The
was overruled.
ruled.
Now Dudley contends this omission
Appellant’s conviction and sentence are
mandates
disagree.
reversal. We
Section
affirmed.
481.184(a) of the Health and Safety Code
AFFIRMED.
states that:
The
negate
State is not
GAULTNEY, Justice,
B.
DAVID
exemption
exception
provided by this
concurring.
information,
chapter
complaint,
in a
dictment,
Appellant
or other
I concur.
pleading or
does not contest
trial, hearing, or
proceeding
proof
possessed
other
under
the State’s
that he
a con-
chapter.
substance,
A person claiming
including
trolled
adulterants or
dilutants,
an exemption
exception
has
an aggregate weight
of “200
benefit of
interesting
encompassing
present affecting legal
For an
discussion
trolled substance
suffi-
dilutants,”
evidence,
concepts
ciency
Dowling
of “adulterants and
see
"entity theory,”
"precur-
(Tex.Crim.App.1992) ("origi-
and chemical
does not contest BURGESS, Justice, dissenting. DON proof possessed State’s he a “com- containing pound, preparation” disposition I to the respectfully dissent codeine and “one or nonnarcotic ac- more point of error this is an one. While ingredients por- tive medicinal in sufficient case, relatively simple important is a ... tion to confer on the ... mixture Dudley legal sufficiency one. attacks the valuable medicinal concerning of the evidence the concentra- possessed by drug the narcotic possessed. tion of the codeine alone[.]” See Tex. Health & Code originally pos indicted for 481.105(1) (Vernon Supp.2001). Ann. codeine, penalty group session of but Rather, point his is that the Concentration allege amended indictment may he have exceeded possession of 4 codeine. requirement, 4’s jury application paragraph placed instead if charge instructed to consider Group 1 or 3. He does not contend Dudley “possessed substance a controlled in a concentration would have resulted the Texas listed in punishment, by making his milder such as Act, namely, co Controlled Substance conduct a misdemeanor rather than felo- in the allege deine....” The failure to ny; punishment classifications listed indictment the amount involved or weight 481.118 are section based punishment so as to reflect what possessed, of the controlled involved, whether is a misde aggregate weight he does not contest the the offense possessed. felony, of the controlled substance he meanor or or whether District in his following argument jurisdiction He makes the an indict has renders brief. fatally Consequently, the ment defective. *7 plead within which the con- State testimony regarding
Without centration, the fell and then any possible penalty group of mixture substance ratio prove could be inferred. To do so would it fell within the definition 810, State, in prove be to the codeine was listed v. group 4. Benoit 561 S.W.2d Penalty Group is also listed 4. also Kolbert (Tex.Crim.App.1977); see 815 (Tex.Crim. 1 3. 711, State, 712 v. 590 S.W.2d Thus, App.1979). question-did effect, appellant In maintains State it? concedes prove State The State level of codeine had show actual from a chemist only proof testimony is the establish order to Dudley was from that the substance taken he fell within cough commonly found “a combination 4 rather than a that contain co syrup type preparations requires higher codeine concentration than 200 in a concentration of less Bot- deine resulting greater punishment. per syrup,” plus line, may milligrams that he milliliters point appeal tom on in pen testimony her codeine is listed guilty greater have been of a alty 4. The also concedes for which he was convicted.
303
a fact in
Id. 509
chemist did not measure the concentration
or to determine
issue.”
589-93,
at 2795-96.
majori
U.S. at
113 S.Ct.
of the codeine. The State and the
Expert testimony that does not relate
ty
expert opinion
contend this
evidence is
helpful.
a fact in issue is not
This con
disagree.
sufficient. I
what
Supreme
sideration is
Court
necessity
by
prove
chemical anal
requirement.
referred to as the “fit”
ysis
illegal
that a material is
contraband
is,
proffered testimony
That
must be
clearly
an essential
element
“
of the case
‘sufficiently tied
the facts
State,
Aguilar
State’s case.
v.
850 S.W.2d
resolving
that it
aid the
will
640,
1993),
(Tex.App.
642
Antonio
- San
”
factual
509
at 591-
dispute.’
Id.
U.S.
grounds,
rev’d on other
887 S.W.2d
93,
(quoting
at 2796
United
(Tex.Crim.App.1994); see also Curtis v.
1224,
Downing,
States v.
753 F.2d
State,
59 (Tex.Crim.App.
(3rd Cir.1985)).
1977) (although
experienced
narcotics
In line with this Court and the United
marihuana,
may identify
may
officer
he
Court,
Supreme
the Texas
States
Su
testify
powdered
that a
substance is her
preme
recently
that under
Court
held
oin).
702, the
Texas Rule of Civil Evidence
expert’s opinion may
An
upon
be based
proponent
expert
must
facts,
sufficient relevant
but
those facts
that it is
show
relevant to the issues
personal
must be either within his
knowl
the case and is based on a reliable scien
edge,
judicial
or assumed from common or
tific foundation. E.I. du Pont de Nem
knowledge,
or established
evidence.
Robinson,
ours & Co. v.
application of dual standard. More over, consistent; we observe that the factors The Courts been there have bearing set forth in Kelly criteria underlying expert’s opin- be facts must reliability proffered scienti Simply or it is “no ion evidence.” because for adequate expert says fic evidence are measure make it ... “don’t so!”8 was, my view, necessary assuring that “novel” scientific evidence “junk actually which is science” is excluded. chemist to test the substance for language testimony were admitted 8. Consider this from Merrell Dow reason such in a Pharmaceuticals, Havner, reviewing objection, Inc. without would a trial omitted): (Tex.1997)(footnote obliged accept it as some court be evi- Gonzalez, Court, concluding dence? The answer is no. writing Justice scientifically that this unrelia- gave examples colorful of unreliable rather evidence, however, a ble and therefore no de Nem scientific evidence in E.I. du Pont Robinson, beyond what necessarily court looks & Co. v. ours (Tex.1995), Reliability said. is determined when he said that even *9 including looking at degree numerous factors expert with a should not be able flat, Daubert. testify the moon set forth Robinson and that the world is cheese, generally opinion green testimony expert is of an is made of or that the Earth is testimony. to the level of system. the center of the If for some Whether it rises solar LLOYDS she In re TRAVELERS its concentration. Since she admitted so, concerning the COMPANY. opinion did not do her INSURANCE equals “no evidence.” 10-01-360-CV. No. Therefore, prove the state did not by Dudley Texas, Appeals prove 4 codeine and failed to Waco. essential element of the indictment. Con- sequently, the evidence is insuffi- 1, Nov.
cient and this court should reverse
243,
v..
acquit. Gollihar
46 S.W.3d
(citing Greene v.
(Tex.Crim.App.2001)
19,
2151,
Massey, 437
U.S.
(1978);
States,
L.Ed.2d 15
Burks v. United
1,
2141,
evidence
determined under our rules of
evidence,
including
(quoting
Dow
Rule
which re-
at 559
Daubert Merrell
Cir.,
Pharms., Inc.,
(9th
quires
opinion
43 F.3d
courts to determine if the
1995) (on remand)
testimony
deciding
(holding
expert’s
will assist the
validity
enough;
is not
there
fact issue. While Rule 702 deals with the
assertion of
evidence,
objective, independent
admissibility of
must be
validation of
offers substan-
denied,
guidelines
determining
expert
expert’s methodology),
tive
if the
cert.
probative
U.S.
116 S.Ct.