*1 аpplicant will be robbery expires, and six sentence supervision. years Seventeen later, robbery, confined, an addi- public expense, months he was arrested for at for 2004, August In a listed offense. when years, on an unlisted offense. tional 16 appellant was arrested on the revocation the statute as direct- interpret I would alleged commission of the warrant only the sentence on ing us to look robbery, person he still not “a de- if sought and ask time credit is which 508.149,” by although Section scribed if the for a listed offense or sentence is If the charged with a listed offense. inmate a for a listed offense has conviction Board had acted on that revocation motion on predates the sentence which hearing by holding рromptly “as as con- sought. If street-time credit is the answer days, applicant or even venient” within no, then the inmate is inquiry to each de- person would still not have been “a person “serving not a as sentence who 508.149(a)” by and scribed Section would of’ a previously for or has been convicted street-time credit. The have received person by listed offensе nor “a described Board, however, days— waited almost 150 508.283(c) 508.149(a),” ap- Section thus charge until the new had resulted plies. the does not inter- Because conviction for a listed offense new way, pret respectfully the statute years appli- sentence five revoked —then dissent. him cant denied street-time credit on mandatory supervision revoked on the was, basis that he at the time of revoca-
tion, person by “a described Section
508.149(a),” serving an inmate “is
sentence for” a listed offense.
This strikes me gamesmanship, as
perhaps, spirit violation of the 508.283, SANCHEZ, which calculation of the Steven
time remaining on the sentence in which sought street-time credit is is based on the The STATE Texas.
date on which revocation warrant was issued, alleged when violation is PD-0094-08. No. found to be true. In this the Board’s Appeals of Texas. Court Criminal “eligibility for street-time —that deрend strictly upon credit should whether 28, 2009. Jan. person by is one ‘described 508.149(a)’ revoked,”3 at they the time are
rather than on the inmate’s status on the
date on is- revocation warrant impact
sued-also has a financial applicant
state. If had been interpret
street-time that I
grant, the been 1983 sentence would have 2008,
discharged and when the sentence robbery discharges August
for the Instead,
he be released. when Keller, (Tex. parte Crim.App.2005). 3. Ex *2 902 Hamm, Houston,
Lance for Appel- C. lant. Caird,
Jessica A. Assistant District Houston, Horn, Atty., Jeffrey L. Van Austin, Atty., State’s for State. OPINION HERVEY, J., opinion delivered the Court in which MEYERS, PRICE, WOMACK, KEASLER, COCHRAN, HOLCOMB JJ., joined. B
Appellant was convicted of the Class misdemеanor offense of of less grams than 28 of a 4 con- (codeine).1 trolled substance discretionary legal review address sufficiency element of this offense.2 481.105(1) of the Texas Health (also Safety as the Texas known Act), Controlled Substances in relevant part, Penalty defines a 4 Group controlled containing substance as a “not substance than milligrams per morе 200 of codeine per grams” 100 milliliters or and “one or more nonnarcotic active medicinal ingredients in sufficient mixture, compound, or confer on the preparation valuable medicinal by possessed other than those the nar- drug (Emphasis supplied).3 cotic alone.” 481.105(1) 1. See Tex Health 3. Section states: & Code Ann. 481.105(1), 481.118(a),(b), (Vernon 2003). §§ Penalty Group 4 consists of: mixturе, (1) preparation compound, or 307, 319, Virginia, containing quantities any 2. See Jackson v. 443 U.S. limited (1979) (legal- following drugs 99 S.Ct. 61 L.Ed.2d one narcotic that includes sufficiency appellate evidentiary standard of or more nonnarcotic active medicinal reviewing gredients review court to view to confer mixture, light compound, preparation the evidence in the most favorable to the or any verdict and determine whether rational valuable medicinal other than by trier of fact could have alone: essential beyond milligrams elements of the crime reasonable doubt). grams.... per per 100 milliliters appel- The record in this case reflects that passenger
lant in a car that Chu, you Q. Mr. were [DEFENSE]: (Hobbs), stopped by police officer amount of Prome- able to determine the eventually plastic baby seized a bottle thazine that in the bottle? from under the seat had where *3 No, laboratory per- A. don’t we sitting. been The officer testified at appel- form on the Prometha- quantifications baby lant’s trial that the bottle contained a codeine. zine as well as thick, red, liquid substance with а “medici- ney” smell that the officer believed was
“liquid codeine.” Q. you enough Since don’t have infor- (Chu),
A tested the liquid chemist quantify mation to much Prometha- how bottle, baby substance in the that testified solution, you zine that cannot was weight the total of the substance less testify jury to the and tell them whether 28 grams and that the substance was or not the Promethazine had a valuable likely ... сontain- syrups” “[m]ost you? quality, medicinal can ing milligrams per less than “200 100 mil” (a narcotic) and a nonnarcotic A. Yes. Promethazine has been identi- ingredient named Promethazine.4 Chu fied in this syrup.
testified that Promethazine “typical is a Q. And Promethazine on its own has a medicine” that “on its own has valuable quality, medicinal doesn’t it? valuable quality” medicinal cough suppressant as a A. It has. usually is cough syrups. added to the amount of Promethazine that was in Chu also testified he did not quantify n n [*] the substance. Q. you purpose Do know is the what
Q. Promethazine? about [STATE]: What Prometha- zine? Usually cough syrups A. it is added A. typical Promethazine is a [CHU]: (unintelligible) and anti-in- ease being prescribed by medicine is flammatory.
physicians for the typical cough pa- Q. you prescribe And as a doctor when tients. cough syrup, you the reason thаt are can
prescribing sup- that either be to press respirato- and have Usually you can see the contents in this ry functions of an individual not be liquid. bottle it is a It is a syrup like right? flamed. Is likely material. Most call A. purpose? For medical cough syrups and cough syrups contain Yes, Q. sir, My purpose. medical compounds sugar, glucose, four which is sir, question, though, you know ethanol, alcohols, which is Promethazine prescribed that is what Promethazine is Usually cough syr- and codeines. for, correct? ups, the concentration of codeine will milligrams per last 100 mil. A. [sic] Yes. Dudley
4. See
299-301
tration of codeine in relation to the other
(Tex.App.-Beaumont
pet.) (deciding
ingredient”
no
active nonnarcotic medicinal
for
legally
purposes
similаr chemist
suf-
codeine).
regard
qualitative
ficient “with
to the
concen-
to the
sign a numerical concentration
decided that
The court
despite his testi-
ingredient
nonnarcotic
legally
insufficient
mony
syrup
contained codeine
Prometha-
finding that the
the elemental
Promethazine,
to confer
zine
“was
medicinal
possessed valuable
qual-
medicinal
aрart from the codeine as an anti-inflam-
ities,”
failed to
because Chu
matory
cough suppressant,
in the substance.5
of Promethazine
amount
drug pre-
dangerous
is a
appeals’ opinion states:
The court of
by physicians?
scribed
as one
prove,
State was
offense,
of the elements
ap-
that the court of
argues
The State
nonnarcotic active
only quantifi-
peals improperly held that
on
to confer
ingredient, Pro-
cation of the nonnarcotic
*4
qualities
medicinal
the mixture valuable
methazine,
meet
the “in sufficient
could
by the co-
possessed
other than those
to confer on the
proportion
[substance]
repeatedly
testified
deine alone. Chu
element of
qualities”
medicinal
valuаble
he
not able to
481.105(1).
was
argues:
The State
the substance. With-
Promethazine in
reasonably inferred
jury
The
could have
testimony
his
quantification,
out such
that the Promethazine was
establish the mere
does no more than
compound
proportion
Thus the
of Promethazine.
presence
qualities apart from
medicinal
valuable
to
prove
failed its burden
State hаs
the Promethazine
the codeine because
in suf-
the mixture
Promethazine was
“on its
qualities
own[.]” [Chu]
had such
the mix-
to confer on
proportion
ficient
baby
in the
bot-
described the substance
qualities
medicinal
other
ture valuable
he ex-
cough syrup,
tle as a basic
and
by the codeine
possessed
than those
purpose
the medicinal
plained
alone.6
omitted].
Promethazine in it.
[Footnote
from his
jury rationally
The
inferred
to
our discretion
review
We exercised
Promethazine
testimony that the
was
upon
grounds
which
this decision.
its in-
perform
proportion
sufficient
state:
review
syr-
in the
tended function
basic
the State
Is
The State met
up.
[Footnote omitted].
of the nonnar-
concentration
numerical
proving
its burden
Four
cotic
proportion
“in
to confer on
sufficient
Health and Safe-
codeine mixture under
preparation
mixture
compound,
and
481.105(1) to establish
ty Code section
other than
medicinal
valuable
it is
by the narcotic
possessed
mixture
medici-
confer” on the
valuable
alone[.]”
other than those
nal
(Hobbs)
alone?
by the codeine
agree. The officer
baby
bottle testified
err in
seized
Appeals
2. Did the Court
thick, red,
in the bottle
liquid substance
presented legally
that the State
holding
The chemist
“mediciney”
smell.
appellant pos- had
insufficient evidence
(Chu)
con-
this substance
codeine
testified
Penalty Group Four
sessed
(“less
milligrams
codeine
did not as-
tained
the chemist
mixture because
(Tex. 6.
Id.
[of Chu, The amount of zine, which, according to “on its own offense. element of the substance, non- quality” standing medicinal as a has valuable cough-suppressant compound narcotic it alone, established that not have would usually cough syrups qualities on medicinal conferred valuable jury rationally A could find medicines.7 This have estab- the substance.8 (whatever its quan- that the Promethazine Prome- mere just presence lished substance) “in sufficient tity thazine the substance. proportion to confer on the [substance] court of judgment appeals testi- qualities.” medicinal Chu’s there reversed, case is remanded and the not, mony did as the court of proceedings. for further decided, just establish the mere Rather, of Promethazine. Chu’s concurring filed a presence of Promethazine established the WOMACK, opinion in HOLCOMB that “on its own has a valuable medicinal COCHRAN, JJ., joined. quality.” that the Promethazine Evidence in the substance “on its has a valuable own JOHNSON, J., quality” is sufficient opinion in which HOLCOMB finding that it “in sufficient *5 me-
to confer on the
qualities.”
these circum-
dicinal
Under
HOLCOMB,
WOMACK,
opinion in which
stances,
the
State was
quantify the Promethazine in the sub-
stance.
punish
has decided to
legislature
cough
of
medicine with codeine
possession
testify
also note that Chu did not
severely
possession
less
that a failure to
the
They accomplished
by making
alone.
this
say
in the substance made him unable to
possession of codeine mixed with certain
the Promеthazine
conferred
whether
pro-
cough
ingredients,
medicine
such as
qualities”
on the sub-
“valuable
methazine,
offense,1
Penalty Group
a
disagree
sugges-
stance. We also
with the
a Pen-
making possession of codeine alone
appeals’ opinion
tion
court of
is defined
have,
alty Group
offense.2 Codeine
quantifying
might
not listed
alone,
Penalty Group
in
as “Codeine
been sufficient to
the
standing
... 4.”
sufficient
conjunc-
recreational
appears
appellant possessed
a co-
times used as a
7.
It
syrup
cough syr-
prescription
deine-based
medicine or
without
with codeine in
tion
481.118(a) (mak-
§
prescription.
a valid
See
up.”).
ing
person
knowingly or
it an offense for a
intentionally possess Penalty Group 4 cоn-
a
that the
example,
from Chu
8. For
person
trolled substance "unless the
obtained
milligrams per
"200
substance contained
directly from or under a valid
the substance
have, by
would not
mil.” of Promethazine
prescription
practitioner
act-
or order from
itself, proved
Promethazine was "in
ing
practice”); http://www.d
in the course of
confer on the [sub-
rugs.com/cdi/promethazine-codeine-syr-
qualities."
valuable medicinal
stance]
(describing
up.html
a Promethazine/Codeine
treating cough
cough syrup
and oth-
used for
481.105(1).
1. Tex
Health &
by allergies
respiratory symptoms caused
er
cold); http://en.wikipedia.org/
the common
n 481.102(3)(A).
2.
(“Promethazine is some-
wiki/Promethazine
charged
possession
-with
The controlled
sup-
substances statute
of codеine mixed
promethazine. Ap-
with
ports
compellingly
pellant’s sufficiency challenge essentially
the offenses under consideration here are
amounts to
claim
proved
greater
that the State
and lesser-included because the
codeine,
that he
but failed to
negates
mitigating
element that
factor
prove that it
proper
amount of
impliеd
expressly
need not be
con-
—-it
cough medicine. The
So,
court of
tained in the statutory language.
un-
agreed that there
proof
37.09(1),
was a failure of
der the test set out in article
and found that this
of proof
possession
failure
entitled
of cough medicine with codeine
appellant
to an acquittal.3
agree
is a
with
lesser-included offense of
Court
there was sufficient evi-
codeine.
dence to
proper proportion
show the
struggled
This Court has
with the ana-
promethazine,
prob-
but there is another
lytically similar situation of a defendant
appellant’s
lem with
argument.
an acquittal
who seeks
on the basis that
problem that,
the absence of
the evidence is insufficient to
show
proper proportion,
medicine
passion
sudden
element of voluntary man-
guilty
be
of greater
slaughter,
though
of-
implication
even
i.e., possession of codeine under
his argument
guilty
is that he is
fense —
Penalty
l.4
Group
Essentially,
greater
one element
offense of murder. When first
of the Penalty Group
negates
claim,
1 offense
type
confronted
this
with
mitigating
namely,
the status of
rejected
argument, holding
factor —
belonging
Penalty
Group
“[pjroof
greater
This Court
of a
offense
will
[murder]
has sometimes
conceived
relation-
sustain a conviction for a lesser included
ship
between
offenses of murder and
offense.”7 In Bradley v.
this Court
*6
voluntary manslaughter
was,
in a similar man-
passion
decided
sudden
for at
ner. Murder
containing
seen as
an
least
purposes,
some
an “extrа” element
implied
thus,
element of lack of
passion.
sudden
not included in murder and
the ab-
Voluntary manslaughter,
required
passion
sence of evidence of sudden
could
passion,
sudden
acquittal despite
was considered to be a
result in an
the fact that
lesser-included
holding placed
offense of murder under
such a
court
“proof
...
position
acquitting
same оr less
facts”
ludicrous
a defendant
37.09(1),5
in
test found
article
though we when there is sufficient
in the
rejected
later
guilty
favor of less-
record that he is
of murder.”8 But
er-included status
on a
culpa-
holding
based
lesser
the Court later retracted that
37.09(3).6 Moore,
voluntary
ble mental state under article
deciding
manslaugh-
State,
(Tex.App.-
3.
v.
CONCURRING OPINION
481.102(3)(A)(codeine
not listed
Penal-
4)).
ty Group
may
8 or
There
be instances
JOHNSON, J.,
may very
which a defendant
much want
opinion in which HOLCOMB and
know
level
non-narcotic active
ingredient.
charges
If the state
a first-
Therapеutic
level—With most medi-
degree felony,
may
the defendant
seek a
cations, you need a certain
drug
level of
B
charge on Class misdemeanor because of
your
bloodstream to obtain the de-
ingre-
of a non-narcotic active
sired effect. Some medications are
dient in a sufficient
to confer on
harmful if the
high
level rises too
and do
question
thе mixture in
medici-
“valuable
if the
work
levels are too low.
nal
other than
possessed by
Monitoring the amount of
drug
alone.” In such a
in your
your
blood allows
health
*7
the failure
of
state to
provider
care
to make sure the drug
proportion of the non-narcotic was insuffi-
levels are
range.1
within
effective
cient
to confer such medicinal
The
at
requires,
issue here
might
the defendant to an
entitle
instruc-
mixture,
presence
codeine
of a non-
tion on the lesser-included offense.
narcotic active
in a sufficient
that,
I agree
proved
mixture
while the state
question
presence
promethazine,
“valuable medicinal
oth-
of
it did not prove
possessed by
er than those
the element
the offense that
English,
alonе.” Translated from the
therapeutic
promethazine,
level of
but in
http://www.umm.edu/ency/article/003430.
9.
methazine saved had, fact, If the
penalty range. chemist prometha-
ascertained
zine, satisfy too small to may it have been the state to thereby
the statute and enable punishment. greater
seek a join judgment of the Court. WASYLINA,
Anthony of Texas. STATE
No. PD-0519-07. Appeals of Texas. of Criminal 28, 2009.
Jan.