OPINION
Kendell Glen Nichols was convicted of possession of: (1) marijuana in an amount of four ounces or more. but under five pounds (cause number 2-97-235); and (2) methamphetamine in an amount of four grams or more but under two hundred grams (cause number 2-97-236). The trial court assessed punishment at two years confinement and a $10,000 fine (probated), and twenty years confinement and a $10,000 fine, respectively. On appeal, Nichols asserts seven points of error; among other things, he argues the trial court erred by allowing the State to amend the indictment in cause number 2-97-236, which originally chаrged him with possession of cocaine, to possession of methamphetamine. For the reasons set forth below, we affirm the trial court’s judgment in cause number 2-97-235. However, because possession of cocaine and possession of methamphetamine constitute two separate statutory offenses, we conclude the trial court erred in allowing the State to amend the indictment in cause number 2-97-236 over Nichols’s objection. Thus we reverse the trial court’s judgment in cause number 2-97-236 and remand that case for further proceedings.
On August 9, 1997, Nichols wаs stopped for speeding in Rockwall County. Sergeant Parrish of the Rockwall police department searched Nichols’s vehicle. Parrish found marijuana and a hard, white rock substance. The indictment returned by the grand jury in cause number 2-97-236 originally charged Nichols with possession of cocaine but was amended to charge possession of methamphetamine. Thе record reflects the indictment was amended by interlineation; it does not reveal when.
In his second point of error Nichols contends the trial court erred in allowing the State to аmend the indictment in cause number 2-97-236, because the amended indictment violated his constitutional rights and article 28.10(c) of the Texas Code of Criminal Procedure. That statute prohibits amendment of an indictment over a defendant’s objection if the amended indictment charges a “different offense” or prejudices a defendant’s substantial rights. TexCode CRIm.PROC.Ann. art. 28.10(c) (Vernon 1989). A “different offense” means a different statutory offense.
Flowers v. State,
The Texas Controlled Substances Act classifies controlled substances into penalty groups for thе express purpose of establishing criminal penalties for violations of the Act. Tex. Health & Safety Code Ann. §§ 481.101-.105 (Vernon 1992 & Supp.2001). The Act classifies both cocaine and methamphetamine as belonging in Penalty Group 1. Id. § 481.102. Nichols was charged pursuant to section 481.115, which provides that a person commits an offense if he knowingly or intentionally possesses a controlled substance listed in Pеnalty Group 1. Id. § 481.115. Nichols contends that possession of each separate substance within a penalty group constitutes a different statutory offense. 1 The State contends that, bеcause cocaine and methamphetamine are in the same penalty group, possession of cocaine and possession of methamphetamine constitutes the same statutory offense. We reject the State’s contention.
In
Watson v. State,
Because of the Legislature’s intent, the State’s argument is unpersuasive. If possеssion of each individual substance within a penalty group was the same statutory offense, the State could amend an indictment over objection, interchanging among any one of thе
nine subsections and over one hundred complex chemical structures
individually composing Penalty Group 1, at will. This would directly contravene the statutory intent of the legislature as discussed in
Watson. See Watson,
We hold that possession of each individual substance within the same penalty group constitutes a different statutory offense. Accordingly, we conclude the trial court erred in allowing the State to amend the indictment over Nichols’s objection. Tex.Code CrimProcAnn. art. 28.10(c).
Next, we must determine whether such error warrants reversal. See Tex. R.App.P. 44.2 (setting forth separate harm analysis standards for constitutional and “other” errors). Nichols does not contend he lacked adequate notice of the offense charged by the indictment as amended. Rathеr, he contends he was denied his right under the Texas Constitution to have a grand jury determine whether there was probable cause to believe he had committed the offense of possession of methamphetamine.
*504
A defendant has a constitutional right to be indicted by a grand jury. Tex. Const. Art. I, § 10. Under that provision, a defendant has a right to have a grand jury assess whether there is prоbable cause to believe that he committed a particular statutory offense.
See Duron v. State,
Under rule 44.2(a), “if the record in a criminal сase reveals constitutional error we
must
reverse the judgment unless we determine beyond a reasonable doubt that the error did not contribute to the conviction[.]”
Veteto v. State,
Addressing his fifth point of error with respect to cause number 2-97-235 only, Nichols contends the trial court erred in admitting evidence seized from his car because it was the product of an illegal search. However, “[c]onsent to search is one of the well-recognized exceptions to the constitutional requirements of both a warrant and probable cause.”
Carmouche v. State,
With respect to cause number 2-97-235, in his sixth point of error Nichols asserts the evidence of drug possession should have been excluded because it was the product of an illegal search, and, without it, the evidence is legally and factually insufficient to support his convictiоn. As discussed in point of error five, the evidence was properly admitted. Further, we have reviewed the evidence in the record and conclude it was legally and factually sufficient to support the judgment. Thus, we overrule Nichols’s sixth point of error.
In his seventh point of error, Nichols complains the cumulation order in each sentence is void. Because we reverse Nichols’s conviction in cause number 2-97-236, Nichols’s seventh point of error is moot, and we do not address it.
In conclusion, we affirm the trial court’s judgment in cause number 2-97-235. We reverse the triаl court’s judgment in cause number 2-97-236 and remand that case for *505 further proceedings on the indictment as issued by the grand jury.
Notes
. One commentator has noted that Flowers involved a single statutory provision and left unanswered situations, such as the cаse sub judice, that involve provisions "contain[ing] several subdivisions each defining what might be regarded as an offense.” 41 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 21.56 (1995).