A jury found Winston Thorpe, appellant, guilty of aggravated possession of a controlled substance, cocaine. See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.-115 (Pamph.1992). The trial court sentenced appellant to twenty-five years’ confinement in the Institutional Division of the *549 Texas Department of Criminal Justice. On appeal, appellant asserts two points of error: (1) the evidence was legally insufficient to support the jury’s guilty verdict; and (2) the trial court erred in overruling appellant’s motion for new trial based on newly discovered evidence. We will reverse the conviction and reform the judgment to reflect an acquittal.
BACKGROUND
Noel Palmer, appellant’s brother-in-law, notified police that appellant was in possession of illegal drugs. Palmer made the phone call from a convenience store located across the street from appellant’s apartment. On receiving the phone call, the police met Palmer at the convenience store, briefly questioned him, and then accompanied him to appellant’s apartment. When Palmer opened the apartment door, the police saw appellant standing in the hall of the apartment holding bags that contained crack cocaine.
A grand jury indicted appellant for the offense of intentionally and knowingly possessing cocaine, plus adulterants and dilu-tants, in the amount of twenty-eight grams or more but less than 400 grams. A jury convicted appellant of that offense, and the trial court sentenced him to twenty-five years’ imprisonment.
DISCUSSION
In his first point of error, appellant claims that the evidence was legally insufficient to prove that he was in possession of at least twenty-eight grams of cocaine, including adulterants and dilutants. In addressing a sufficiency-of-the-evidence challenge, we must determine, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.
Reeves v. State,
At trial the State introduced into evidence four exhibits that police officers had seized at appellant’s apartment and that the State’s chemist had tested for the presence of controlled substances. Two of the tested exhibits, numbers 6 and 7, contained no controlled substances; however, the other two exhibits, numbers 4 and 5, tested positively for cocaine.
Exhibit number 4 included 101 small zip-locked bags, each of which contained a solid granular substance. The State’s chemist tested 10 of these 101 small bags and found that the substance in each of the 10 small bags contained cocaine. The combined weight of all 101 small bags was 16.93 grams; however, there was no evidence as to the weight of the 10 small bags that the State’s chemist tested. Exhibit number 5 consisted of a single bag containing two large chunks of solid material. The State’s chemist determined that these chunks contained cocaine. The weight of exhibit number 5 was 27.00 grams; therefore, the aggregate weight of both exhibits 4 and 5 was 43.93 grams.
As discussed above, the State’s chemist testified that the substances in exhibits 4 and 5 “contained” cocaine; however, there is no evidence as to how much of the 43.93 grams of substance contained in those exhibits was cocaine, as opposed to some other substance. In response, the State correctly asserts that when it is proving the amount of cocaine possessed by a defendant, it is allowed to include not only the pure cocaine, but also any adulterants and dilutants present. See Tex.Health & Safety Code Ann. § 481.115 (Pamph.1992). Therefore, the State argues that the evidence is sufficient to prove that the 43.93 grams of substance seized at appellant’s apartment consisted entirely of cocaine and adulterants and dilutants. We disagree.
In
McGlothlin v. State,
[W]here the State attempts to obtain a conviction for an aggravated offense under the theory that the aggregate weight of the controlled substance, including adulterants or dilutants, is over 28 grams, the State first must prove the existence of any adulterants or dilutants, i.e., compounds, substances, or solutions added to the controlled substance to increase the bulk or quantity of the final product [without affecting its activity]. The State must then show that the controlled substance, plus any adulterants or dilutants, if proven to exist, weighs more than 28 grams.
Cawthon,
slip op. at 2-3 (quoting
Reeves,
(1) the identity of the named illegal substance, (2) that the added remainder (adulterants and/or dilutants) has not affected the chemical activity of the named illegal substance, (3) that the remainder (adulterants and/or dilutants) was added to the named illegal substance to increase the bulk or quantity of the final product, (4) the weight of the illegal substance, including any adulterants and/or dilutants.
Cawthon, slip op. at 3-4.
In the present case, the State presented two witnesses who testified both about crack cocaine in general and about the crack cocaine seized in appellant’s apartment. One of the witnesses, a police officer, testified that he knew the basics of “crack-cocaine” manufacturing, which he described as a “boiling down process with baking soda that’s mixed with cocaine with whatever — it’s called cut that you’re us-ing_ You cut it down.” When asked what “cut” means, the officer described it as anything added to the pure cocaine to dilute it. The officer also testified that crack cocaine is soft immediately after being made, hardening as it dries out, and that the crack cocaine from appellant’s apartment was soft when seized.
The other witness presented by the State was the chemist who tested the substances seized at appellant’s apartment. As discussed above, the chemist testified that both exhibits 4 and 5 contained cocaine. The following exchange then occurred:
Q: Let me ask you about — Let me also ask you quickly about State’s Exhibit No. 7 and State’s Exhibit No. 6. Did you also take a look at those substances?
A: Yes, sir, I did.
Q: And did you run any tests on those substances?
A: Yes, sir, I did.
Q: Okay. And what were the results of those tests?
A: They were negative for any controlled substances. That’s really about as far as we go on negative substances. We don’t continue to specifically identify them.
Q: Okay. Do you have any opinion as to what it might be or what it would be used for?
A: It’s very possible that it is something similar to like baking soda. A basic type compound.
* * * * * *
*551 Q: Did you also weigh the substances that you said tested positive for cocaine?
A: Yes, sir.
Q: And what was the weight of the 101 rocks?
A: 16.93 grams.
Q: What was the weight of the two larger rocks?
A: 27.00 grams.
* # * * * *
Q: And does that weight include adulterants and dilutants?
A: Yes, sir, it would.
Q: What do you mean by adulterant and dilutant?
A: That would be something that was not cocaine that might be present in the sample.
Q: Okay. Baking soda, for example?
A: Very, very possibly, yes.
Q: Something that’s added to the cocaine to dilute it?
A: That could be, also.
Q: So the total amount of the cocaine for this particular case is what amount?
A: The total amount would be 43.93 grams.
Obviously, the State presented sufficient evidence of the identity of the named illegal substance; exhibits 4 and 5 contained at least some cocaine. However, there is no evidence that the
remainder
of the substance was adulterants and dilu-tants. The State’s chemist testified only that exhibits 4 and 5
could include
adulterants and dilutants. Under the teaching of
Reeves
and
Cawthon,
this is not sufficient. “Absent facts to show that the
remainder
of the material consisted of substances intended to increase the bulk or quantity of the final product, [crack cocaine], it cannot be said that the
remainder
was an adulterant or dilutant.”
Reeves,
Further, as shown above, the State presented general testimony about how crack cocaine is manufactured and about how certain substances are generally added to the cocaine to dilute it and increase its bulk; however, the State presented absolutely no evidence that the substances added to the cocaine during the manufacturing process in the present case did not affect the chemical activity of the cocaine.
Therefore, the State failed to prove beyond a reasonable doubt at least three of the four elements listed in Cawthon. Consequently, we conclude that the evidence is legally insufficient to show that the aggregate weight of the controlled substance, including any adulterants or dilutants, was 28 grams or more.
Our conclusion also finds support in the Court of Criminal Appeals’ analysis in
Reeves
and
Cawthon.
In
Reeves
the State’s expert testified that the entire contents of a bag containing amphetamine weighed 29.76 grams. However, he also stated that he did not determine the weight of the amphetamine in the bag or the nature or weight of the other substances in the bag. The Court of Criminal Appeals held that the evidence was insufficient to prove delivery of more than 28 grams of amphetamine.
Reeves,
In Cawthon the State’s expert testified that
the weight of the total substance was 128.76 grams. He also testified that of that substance twenty percent [25.752 grams] was amphetamine with the rest *552 being adulterants and dilutants. However, when asked about the adulterants or dilutants, [the expert] responded that he ‘did not run a specific analysis to determine the adulterants or dilutants.’
See Cawthon, slip op. at 1 (emphasis added). The court determined that this evidence was insufficient. See Cawthon, slip op. at 4. The evidence in the present case does not even rise to the level of the evidence presented in Cawthon. The State’s expert in the present case did not testify as to the quantity of cocaine contained in exhibits 4 and 5, nor did he testify that all the remainder of the substance was adulterants and dilutants.
CONCLUSION
We conclude that the evidence is legally insufficient to show that appellant possessed at least 28 grams of cocaine, plus adulterants and dilutants; therefore, we sustain appellant’s first point of error. Accordingly, we need not address his second point of error. We reverse the conviction and reform the judgment to reflect an acquittal. 1
Notes
. In
Bigley v. State,
In the present case, while there was evidence that appellant was guilty of the lesser included offense of possession of cocaine in an amount less than 28 grams, the trial court did not charge the jury on that offense. The trial court charged the jury only on the offense of possession of cocaine in an amount of 28 grams or more but less than 400 grams. The trial court then charged "unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict 'not guilty.’” Therefore, unlike the jury in
Bigley,
the jury in the present case had only two choices: (1) convict of possession of 28 grams or more but less than 400 grams of cocaine; or (2) acquit. Having concluded that the evidence is insufficient to support a conviction for possession of 28 grams or more of cocaine, we must enter the only other judgment authorized by the trial court’s charge: acquittal. See
Boozer v. State,