DOWLING v. STATE

CLINTON, Judge, concurring.

Since the seminal opinion in McGlothlin v. State, 749 S.W.2d 856 (Tex.Cr.App. 1988), this court has addressed recurring problems created by what the late Judge Duncan characterized as "a part of a complex statutory scheme designed to prohibit the manufacture and possession of a wide variety of controlled substances[, necessitating] expert testimony to properly present and prove a criminal violation of the Act." Id., at 859.

Although indicted and tried as a "possession" case under former article 4476-15, §§ 4.02(d)(1)(A) and 4.042(d)(2) (Acts 1979, 66th Leg. Ch. 598, p. 1278, § 6, at 1289 (Penalty Group 3), and Acts 1983, 68th Leg., Ch. 425, § 11, at 2383 (Possession Offenses in Penalty Group 3), effective August 29, 1983, McGlothlin is actually a common "manufacturing" scenario under former article 4474-15, § 4.032(d)(2) (Acts 1983, supra, § 9, at 2377-2378).
The "possession" offense was committed on or about November 30, 1983. But as the affidavit for search warrant alleged and the facts proved demonstrate, defendant was "cooking" amphetamine in a "lab" in his barn, the greatest amount by far being in a flask containing a batch of "mostly water" under a thin organic layer harboring some amphetamine. McGlothlin v. State, 705 S.W.2d 851, at 856, 864 (Tex.App. — Fort Worth 1986); see also McGlothlin, supra, at 857.
Contemporaneously, the Court similarly decided two companion "possession" cases in a laboratory setting. Engelking v. State, 750 S.W.2d 213 (Tex.Cr.App. 1988), and Sloan v. State, 750 S.W.2d 788 (Tex.Cr.App. 1988), followed soon by Farris v. State, 811 S.W.2d 577 (Tex.Cr.App. 1990) ("various materials used in manufacturing amphetamine," "white powder" and two containers of liquid along with amphetamine); see also Cawthon v. State, 849 S.W.2d 346 (Tex.Cr.App. 1992).
Reeves v. State, 806 S.W.2d 540 (Tex.Cr.App. 1990), however, was prosecuted under former article 4476-15, § 4.031(a) and (c) (1985 amendment elevating amphetamine to Penalty Group 2); it involved delivery of amphetamine in a small bag of "white wet powdery type substance," although there is no indication it came from a "lab" on the premises.
The judgments above were reversed for entry of a judgment of acquittal, essentially due to a failure below to understand and appreciate the pivotal significance of the clause "the amount of the controlled substance . . . by aggregate weight, including any adulterants or dilutants [.]" See Smith v. State, 737 S.W.2d 933, 937-938 (Tex.App. — Dallas 1987) PDR refused. None presented a question of the role of " immediate precursor " that the majority addresses here. Majority opinion, Part II, at 107-108.
(All emphasis here and throughout this opinion is mine unless otherwise noted.)

Keeping in mind that V.T.C.A. Penal Code, Title 1, § 1.03(a) dictates, "Conduct does not constitute an offense unless it is defined as an offense by statute [et cetera];" that id., § 1.03(b), inter alia, makes provisions of Title 1 (2 and 3) applicable to "offenses defined by other laws, unless the statute defining the offense provides otherwise;" that the Texas Controlled Substances Act does not provide otherwise, we must focus on statutory provisions defining germane offenses. Practice Commentary; see, e.g., Childress v. State, 784 S.W.2d 361, at 362 (Tex.Cr.App. 1990), and Gutierrez v. State, 628 S.W.2d 57, at 61 (Tex.Cr.App. 1980). If correct, Part I of the majority opinion is dispositive, and all else is dicta.

Like McGlothlin this cause is governed by the 1983 version of the Act, in which offending conduct involving amphetamine is defined as an offense or aggravated offense only in §§ 4.032(a) and (c), and 4.042(a) and (c), respectively. In combination both definitions of an offense read in pertinent part, viz:

"[A] person commits an offense if he knowingly or intentionally [manufactures, delivers, possesses with intent to manufacture or deliver or possesses] a controlled substance listed in Penalty Group 3[.]"

Similarly, both definitions of an aggravated offense read:

"A person commits an aggravated offense if the person commits an offense under Subsection (a) of this section and the amount of the controlled substance [manufactured, delivered, or possessed with intent to manufacture or deliver or possessed] is, by aggregate weight, including any adulterants or dilutants, 200 grams or more."

Here again then are two issues of first impression, viz: Do the statutory provisions reveal a legislative intent, first, to take into account the weight of an "immediate precursor" in determining the amount of the controlled substance "by aggregate weight, including any adulterants or dilutants;" second, must the charging instrument allege presence of an "immediate precursor" in the controlled substance in question.

According to the court of appeals the DPS chemist described the stuff the State alleged to be amphetamine as follows:

"[The 5000 milliliter flask of dark liquid] contained 704.89 grams of amphetamine, including adulterants and dilutants. . . . [T]he solution in the flask contained 76.20 grams of amphetamine base; that the remainder of the solution was reaction mixture containing bi-products [sic] of the manufacturing process and (some) unused precursors (, unchanged precursors ); and that the amphetamine in the liquid had not been extracted, distilled or separated from the other substances. * * * * [T]hat the solution in the flask was not ready for distribution as amphetamine; and that the amphetamine had not been extracted, distilled or separated from the other substances in the flask."

Slip opinion, at 2, 3 (material in parenthesis from 3 S.F. 270).

An "immediate precursor" listed in a schedule and penalty group is in and of itself a prohibited controlled substance. Act 1983, § 1.02(5).

An "immediate precursor" is a "substance" which is authoritatively found to be and designated as being "a principal compound commonly used or produced primarily for use, and which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance[.]" Id., § 1.02(15).

For example, we are given to understand that phenylacetic acid is an ingredient used to make phenylacetone, which in turn is a direct precursor to amphetamine and methamphetamine. See Thompson v. State, 885 S.W.2d 136, 137 (Tex.Cr.App. Nos. 1153-90 and 1154-90, delivered this day). Indeed, listed as a controlled substance is "Phenylacetone [when possessed with methylamine with intent to manufacture methamphetamine]." Act 1983, Schedule II, § 2.04(d); Penalty Group 1, § 4.02(b)(8). In Act 1985, however, it is listed alone in Schedule II, § 2.04(f)(2); Penalty Group 2, § 4.02(c)(2). See now V.T.C.A. Texas Health Safety Code, Schedule II, § 481.033(5); Penalty Group 2, § 481.103(a)(2).

Possessing a listed "immediate precursor" with intent to manufacture another controlled substance is a penal offense and may be prosecuted as such, punishment depending on its "aggregate weight, including any adulterants of dilutants." Id., §§ 4.03(a), 4.031(a) and 4.032(a), Act 1983.

As matter of fact the indictment in this cause alleged, inter alia that appellant did then and there intentionally and knowingly "manufacture and possess with intent to manufacture and deliver more than 400 grams of a controlled substance, to-wit Amphetamine." Granted it did not allege possession of "phenylacetone" as an "immediate precursor," and given the facts of this case, one is left to wonder just how the grand jury expected the prosecution to prove that appellant possessed amphetamine "with intent to manufacture" amphetamine. Notably, the trial court did not authorize the jury to convict on that theory. See majority opinion, at 107. Had it been alleged, however, the State might well have secured a conviction for possession of phenylacetone with intent to manufacture amphetamine with equally serious punishment, depending, of course, on the amount of phenylacetone.

To "manufacture" means the production, preparation, compounding, conversion or processing of a controlled substance (other than marihuana), "either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis[.]" Id., § 1.02(16). See generally Moffett v. State, supra, at n. 1.

From the testimony of the DPS chemist in this and other causes, one surmises that in a chemical synthesis an "immediate precursor" is combined and united with one or more other chemical elements in a "cooking" process involving water to produce amphetamine, that ultimately must be distilled or separated from the aqueous solution before it is final product, leaving in the solution only useless by-products and perhaps some unused, unchanged precursor (which experts hold is neither an adulterant nor dilutant). See, e.g., McGlothlin, supra, at 857; Engelking, supra, at 214-215; Farris, supra, at 580. It appears that the final product is "wet" amphetamine that still must "dry out" to become a powdery substance. See Reeves, supra, at 541.

In the course of that completed process, then, an "immediate precursor" loses its separate identity in forming the whole of the manufactured controlled substance. Thus its "weight" has been incorporated into and becomes an inseparable part of the final product. In that circumstance, therefore, there is no basis for alleging the separate weight of any such precursor for it has been "used up" in the manufacturing process.

The majority comes to the same conclusion, opinion, at 107-108; but only upon analyzing the stated definition of "controlled substance" in the 1983 Act, § 1.02(5), viz: "`Controlled substance' means a drug, substance or immediate precursor listed. . . ." Regardless, not only are "drug" and "immediate precursor" identified by distinct definitions, § 1.02(14) and (s 1.02(15), but also each as well as "substance" is criminally classified separately throughout § 4.02.
On the other hand, whether an "unused" immediate precursor may be extracted in bulk from the aqueous solution or, for that matter, has not yet been included in the manufacturing process, it is still a controlled substance itself and, as pointed out ante, at 107, possessing it is a penal offense and may be prosecuted as such. In that event, of course, the immediate precursor must be identified in the charging instrument. Again, an "immediate precursor" is something other than an adulterant or dilutant.

Also implicated is a "criminal classification," i.e., s 4.02(d)(1)(A); unlike the opinion below and of the majority, Part III, at 108-109, I do not see it as a viable theory of prosecution.

Based mainly on testimony from the DPS chemist the court of appeals concluded the evidence was sufficient to prove manufacture of amphetamine over 400 grams under § 4.02(c)(3), viz:

"Clearly, the 704.89 grams of solution in the flask was a compound, mixture or preparation containing a quantity of amphetamine. Contrary to the rationale of McGlothlin that Penalty Groups 1 and 2 include only the prohibited controlled substance, Section 4.02(c)(3) clearly states that as to amphetamine, not only the prohibited controlled substance, but also '[a]ny material, compound, mixture, or preparation which contains any quantity' of amphetamine is included in Penalty Groups 2. Cf. McGlothlin at 860-861."

Slip opinion, at 3 (emphasis in original).
Alas, the court of appeals overlooked that McGlothlin was decided under the Act extant in 1983, when amphetamine was in Penalty Group 3. See note 1, ante. Nonetheless, then § 4.02(d)(1) also included "(A) Amphetamine" under "Any material, compound, mixture, or preparation" et cetera.
However, § 4.02 merely sets up " criminal classifications " of controlled substances, without defining offenses or fixing punishments; whereas only §§ 4.03-4.043 prescribe respective offenses and attached penalties in terms of "aggregate weight [of the controlled substance itself], including any adulterants or dilutants." Compare V.T.C.A. Texas Health Safety Code, § 481.101, 481.102-481.105 and §§ 481.112-481.118. Thus portions of "material, compound, mixture or preparation" are not figured in "aggravated weight" of the final product unless they are proven to be "adulterants or dilutants" introduced during the process of manufacture or added thereafter to "cut" it. McGlothlin, supra, note 8, and related text at 860-861 (no evidence that water was intended "to increase the bulk or quantity of the final product"); Engelking, supra, at 216; Reeves, supra, at 544; Farris, supra, at 580; see also Cawthon, supra, 849 S.W.2d at 347; cf. Blackmon v. State, 786 S.W.2d 467, at 470-473 (Tex.App. — Houston [1st] 1990), PDR refused) (crushed granulated sugar used to "cut" methamphetamine to increase bulk).
Thus a defined offense is related to a "penalty group" merely to identify the classification of the particular controlled substance for purposes of assessing punishment — that which is prescribed in the same section defining the offense, according to its aggregate weight. The aggregate weight of any material, compound, mixture, or preparation containing any quantity of a listed controlled substance, here amphetamine, is the combined weights of the manufactured substance and adulterants or dilutants whether retained in or later added to "cut" the final product. §§ 1.02(5) and (29)(F); 4.02(d)(1)(A); 4.032(a) and (b), or (c) and (d); 4.042(a) and (b), or (c) and (d).

While I agree the evidence is insufficient, for reasons given ante I cannot accept the rationale in Part II of the majority opinion, and its consequences mentioned elsewhere; nor am I persuaded that the "material, compound, mixture or preparation" theory developed in Part III is tenable under the Act, much less applicable under the facts of this cause showing the manufacturing process was aborted long before there was any final product. Thus I concur only in the judgment of the Court.

From a "common 'manufacturing' scenario," ante, 106, n. 1, many foregoing cases indicate that practitioners are having difficulty analyzing operative facts to determine the appropriate aggravated offense denounced by the Texas Controlled Substances Act. Charging instruments allege criminal conduct pertaining to amphetamine ranging from simple "possession," "possession with intent to manufacture" to actual "manufacture," yet both prosecution and defense overlook that the facts reveal no more than suspects in or around a "lab" engaged in the process of "manufacturing" what is expected will turn out to be, but as the chemist here explained is not, a product "ready for distribution as amphetamine." In short, there is no "manufactured" amphetamine in the "cooking" flask.
However, since Acts 1981, 67th Leg., Ch. 268, p. 697, § 2, the Legislature has provided a proper way to deal with that situation, viz:

"The provisions of Title 4, Penal Code, apply to . . . offenses designated as aggravated offenses under subchapter 4 of this section, except that the punishment for a preparatory offense is the same as the punishment prescribed for the offense that was the object of the preparatory offense."

Former § 4.011; now Health and Safety Code, § 481.108; cf. Baxter v. State, 718 S.W.2d 28, at 31-32 (Tex.App. — Eastland 1986) PDR refused (attempted aggravated manufacture of methamphetamine).

MILLER, Judge, concurring.

Before joining the majority opinion I want to reiterate some of the observations I made in Reeves v. State, 806 S.W.2d 540 (Tex.Crim.App. 1990). For the convenience of the reader I will lay out in footnote the germane comments I made in Reeves .

References to the Texas Department of Corrections shall mean the Note institutional division of the Texas Department of Criminal Justice by Acts 1989, 71st Leg., ch. 785, § 1.19(f).

Although the Controlled Substances Act quoted in Reeves has been recodified in the 1992 Health and Safety Code as Sections 481.103, 481.113 and 481.116, as well as 481.002 (Penalty Group 2; Offense: Manufacture or Delivery of Substance in Penalty Group 2; Offense: Possession of Substance in Penalty Group 2; and Definitions, respectively. See Appendix.), those sections are in all material respects the same as the old sections of the Controlled Substances Act, and thus the observations made today will pertain to current law.

As alluded to in Footnote 5 of Reeves, supra, (see footnote 1 herein) there is a reconciliation necessary between the "material, compound, mixture, or preparation that contains any quantity of [a substance listed in (3) ] of Section 481.103" and the "adulterants or dilutants" language contained in Secs. 481.113 and 481.116. This is true because a controlled substance that is mixed with adulterants and dilutants is per se a material, compound, mixture, or preparation that contains "any quantity" of the controlled substance. So if the State alleges "mixture", etc. in the indictment (and mixture of course includes adulterants or dilutants), in proving mixture have they not removed for themselves the burden of proving adulterants or dilutants? Preliminarily, I would answer the question in the affirmative. I say that because the "adulterants or dilutants" language of Secs. 481.113 and 481.116 refers to the entirety of Section 481.103 which includes numerous substances. By comparison, the "material, compound, mixture, or preparation" language in (3) of that section only pertains to seven substances. A very logical reading of all of these sections together leads to the conclusion that as to the seven substances listed in (3), the legislature intended the any "mixture" language to control and further intended that the "adulterants or dilutants" language control all of the other substances listed. This reading gives effect to both the "adulterants or dilutants" language and the "material, compound, mixture, or preparation" language in the respective sections.

Of course, my musing in footnote 5 of Reeves was dicta, just as I'm sure the musings in this concurring opinion will be so construed. But at least we are moving forward to the time when the issue will be joined and the full Court will be asked to reconcile the "adulterants or dilutants" language with the "material, compound, mixture, or preparation" language. Doubtless, this will come as the State begins using the latter language in charging instruments.

With these observations I join the opinion of the Court.

APPENDIX

§ 481.103. Penalty Group 2

(a) Penalty Group 2 consists of:

(1) any quantity of the following hallucinogenic substances, their salts,isomers, and salts of isomers, unless specifically excepted, if the existence of these salts, isomers, and salts of isomers is possible within the specific chemical designation:

4"bromo"2, 5"dimethoxyamphetamine (some trade or other names: 4"bromo"2, 5"dimethoxy "alpha"methylphenethylamine; 4"bromo"2, 5"DMA);

Bufotenine (some trade and other names: 3"(beta" Dimethylaminoethyl)"5"hydroxyindole; 3"(2"dimethylaminoethyl)"5" indolol; N, N"dimethylserotonin; 5"hydroxy"N, N"dimethyltryptamine; mappine);

Diethyltryptamine (some trade and other names: N, N"Diethyltryptamine, DET);

2, 5"dimethoxyamphetamine (some trade or other names: 2, 5"dimethoxy"alpha"methylphenethylamine; 2, 5"DMA);

Dimethyltryptamine (some trade and other names: DMT);

Dronabinol (synthetic) in sesame oil and encapsulated in a soft gelatin capsule in a U.S. Food and Drug Administration approved drug product (some trade or other names for Dronabinol: (a6aR"trans)"6a,7,8,10a"tetrahydro" 6,6,9"trimethyl"3"pentyl"6H" dibenzo [b,d]pyran"1"ol or (-)"delta"9"(trans)"tetrahydrocannabinol);

Ethylamine Analog of Phencyclidine (some trade or other names: N"ethyl"1"phenylcyclohexylamine, (1"phenylcyclohexyl) ethylamine, N"(1"phenylcyclohexyl) ethylamine, cyclohexamine, PCE);

Ibogaine (some trade or other names: 7"Ethyl"6, 6, beta 7, 8, 9, 10, 12, 13"octahydro"2"methoxy"6, 9"methano"5H"pyrido [1', 2':1, 2] azepino [5, 4"b] indole; tabernanthe iboga.);

Mescaline;

5"methoxy"3, 4"methylenedioxy amphetamine;

4"methoxyamphetamine (some trade or other names: 4"methoxy"alpha"methylphenethylamine; paramethoxyamphetamine; PMA);

1"methyl" 4"phenyl"4"propionoxypiperidine (MPPP, PPMP);

4"methyl"2, 5"dimethoxyamphetamine (some trade and other names: 4"methyl"2, 5"dimethoxy"alpha"methylphe nethylamine; "DOM"; "STP");

3,4"methylenedioxy methamphetamine (MDMA, MDM);

3,4"methylenedioxy amphetamine;

3,4"methylenedioxy N"ethylamphetamine (Also known as N"ethyl MDA);

Nabilone (Another name for nabilone: (k)"trans"3"(1,1"dimethylheptyl)" 6,6a,7,8,10,10a "hexahydro"1" hydroxy"6, 6"dimethyl"9H"dibenzo[b,d]pyran"9"one;

N"ethyl"3"piperidyl benzilate;

N"hydroxy"3,4"methylenedioxyamphetamine (Also known as N"hydroxy MDA);

4"methylaminorex;

N"methyl"3"piperidyl benzilate;

Parahexyl (some trade or other names: 3"Hexyl"1" hydroxy"7, 8, 9, 10"tetrahydro"6, 6, 9"trimethyl"6 H"dibenzo [b, d] pyran; Synhexyl);

1"Phenylcyclohexylamine;

1"Piperidinocyclohexanecarbonitrile (PCC);

Psilocin;

Psilocybin;

Pyrrolidine Analog of Phencyclidine (some trade or other names: 1"(1"phenylcyclohexyl)"pyrrolidine, PCPy, PHP);

Tetrahydrocannabinols, other than marihuana, and synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as:

delta"1 cis or trans tetrahydrocannabinol, and their optical isomers;

delta"6 cis or trans tetrahydrocannabinol, and their optical isomers;

delta"3, 4 cis or trans tetrahydrocannabinol, and its optical isomers;

compounds of these structures, regardless of numerical designation of atomic positions, since nomenclature of these substances is not internationally standardized;

Thiophene Analog of Phencyclidine (some trade or other names:

1"[1"(2"thienyl) cyclohexyl] piperidine; 2"Thienyl Analog of Phencyclidine; TPCP, TCP);

1"[1"(2"thienyl)cyclohexyl]pyrrolidine (some trade or other names: TCPy);and

3,4,5"trimethoxy amphetamine;

(2) Phenylacetone (some trade or other names: Phenyl"2"propanone; P"2"P, Benzymethyl ketone, methyl benzyl ketone); and

(3) unless specifically excepted or unless listed in another Penalty Group, a material, compound, mixture, or preparation tha contains any quantity of the following substances having a potential for abuse associated with a depressant or stimulant effect on the central nervous system:

Amphetamine, its salts, optical isomers, and salts of optical isomers;

Etorphine Hydrochloride;

Fenethylline and its salts;

Mecloqualone and its salts;

Methaqualone and its salts;

N"Ethylamphetamine, its salts, optical isomers, and salts of optical isomers; and

N,N"dimethylamphetamine (some trade or other names: N,N,alpha"trimethylbenzeneethaneamine; N,N,alpha"trimethylphenethylamine), its salts, optical isomers, and salts of optical isomers.

(b) For the purposes of Subsection (a)(1) only, the term "isomer" includes an optical, position, or geometric isomer. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1989, 71st Leg., ch. 1100, § 5.02(n), eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 761, § 2, eff. Sept. 1, 1991.

Historical and Statutory Notes

The 1989 amendment, to conform to Acts 1989, 71st Leg., ch. 776, § 21, in subsec. (a), subd. (1) inserted "3,4"methylenedioxy N"ethylamphetamine (Also known as N"ethyl MDA);" and "N"hydroxy"3, 4"methylenedioxyamphetamine (Also known as N"hydroxy MDA); 4 "methylaminorex;".

The 1991 amendment, in subd. (a)(1), substituted (a6aR"trans)"6a,7,8,10a"tetrahydro"6,6,9"trimethyl"3"pentyl"6H" dibenzo[b,d]pyran"1"ol" for "(a6aR"trans)"6a,7,8,10a"tetrahydro "6,6,9"trimet-hyl"3"penty1"6H"dibenzo[b,d]pyran"1"ol"; "1"methyl"4"phenyl"4"propionoxypiperidine (MPPP, PPMP)" for "1"methyl"4"phenyl"1,2,5,6"tetrahydro"pyridine (MPTP); 1"methyl"4"phenyl"4"propionoxy"piperidine (MPPP, PPMP)" ; "3,4"methylenedioxy methamphetamine (MDMA, MDM)" for "3,4"methylenedioxy methamphetamine (MDMA, MDM)"; inserted the reference to "Nabilone";substituted "1"Piperidinocyclohexanecarbonitrile (PCC)" for "1"Piperidinocyclohexane"Carbonitrile (PCC)"; inserted the reference to "1"[1"(2"thienyl)cyclohexyl] pyrrolidine"; and in subd. (a)(3), added the reference to "N,N"dimethylamphetamine".

Prior Laws:

Acts 1905, 29th Leg., p. 45.

Acts 1919, 36th Leg., pp. 277, 278.

Acts 1919, 36th Leg., 2nd C.S., p. 156.

Acts 1931, 42nd Leg., p. 154, ch. 97.

Acts 1933, 43rd Leg., p. 609, ch. 204.

Vernon's Ann.P.C. (1925) arts. 720 to 725d, 725f.

Acts 1937, 45th Leg., p. 333, ch. 169.

Acts 1941, 47th Leg., p. 647, ch. 392, §§ 1, 2.

Acts 1943, 48th Leg., p. 346, ch. 225, § 1.

Acts 1943, 48th Leg., p. 703, ch. 391.

Acts 1953, 53rd Leg., p. 594, ch. 237.

Acts 1953, 53rd Leg., p. 812, ch. 328, §§ 1 to 7.

Acts 1954, 53rd Leg., 1st C.S., p. 103, ch. 50, § 1.

Acts 1955, 54th Leg., p. 810, ch. 300.

Acts 1955, 54th Leg., p. 903, ch. 354, § 1.

Acts 1955, 54th Leg., p. 1026, ch. 385, § 1.

Acts 1955, 54th Leg., p. 1027, ch. 386, § 1.

Acts 1955, 54th Leg., p. 1215, ch. 486, § 1.

Acts 1957, 55th Leg., p. 215, ch. 101, § 1.

Acts 1961, 57th Leg., p. 310, ch. 161, § 1.

Acts 1961, 57th Leg., p. 315, ch. 167, § 1.

Acts 1963, 58th Leg., p. 570, ch. 206, §§ 1, 2.

Acts 1969, 61st Leg., p. 703, ch. 242, § 1.

Acts 1971, 62nd Leg., p. 816, ch. 87.

Acts 1971, 62nd Leg., p. 2805, ch. 908, §§ 1 to 4.

Acts 1971, 62nd Leg., p. 2913, ch. 963, §§ 1, 2.

Acts 1971, 62nd Leg., p. 3069, ch. 1023, §§ 1 to 4.

Acts 1973, 63rd Leg., p. 995, ch. 399, § 5.

Acts 1973, 63rd Leg., p. 1132, ch. 429.

Acts 1979, 66th Leg., p. 1286, ch. 598, § 6.

Acts 1985, 69th Leg., ch. 227, § 8.

Acts 1987, 70th Leg., ch. 666, § 3.

Notes of Decisions

Tetrahydrocannabinol, generally 1

________ 1. Tetrahydrocannabinol, generally

Section listing "Tetrahydrocannabinols other than marijuana and synthetic equivalents" was intended to exclude only marijuana and does not exclude any other substance contained in marijuana or the resinous extractives of cannabis or similar synthetic substances, including synthetic tetrahydrocannabinols, and does not exclude hashish. Exparte Psaroudis (Cr.App. 1974) 508 S.W.2d 390.

In view of federal statute defining marijuana (21 U.S.C.A. § 802) and listing it separate and apart from tetrahydrocannabinols, Congress intended that latter should mean and include only synthetic THC, and that marijuana would include everything containing organic THC, including hashish. Few v. State (Cr.App. 1979) 588 S.W.2d 578.

In state's controlled substances law, any material, compound, mixture or preparation which contains any amount of the hallucinogenic substance tetrahydrocannabinol, other than in marijuana, is within contemplation of penalty group 2, and thus any preparation thatcontains organic resin extracted from plant or synthetic THC in whatever form and under whatever name is embraced. Few v. State (Cr.App. 1979) 588 S.W.2d 578.

§ 481.113. Offense: Manufacture or Delivery of Substance in Penalty Group 2

(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally manufactures, delivers, or possesses with intent to manufacture or deliver a controlled substance listed in Penalty Group 2.

(b) An offense under Subsection (a) is a felony of the second degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, less than 28 grams.

(c) A person commits an aggravated offense if the person commits an offense under Subsection (a) and the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 28 grams or more.

(d) An offense under Subsection (c) is:

(1) punishable by confinement in the Texas Department of Corrections 1 for life or for a term of not more than 99 years or less than 5 years, and a fine not to exceed $50,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 28 grams or more but less than 400 grams; and

(2) punishable by confinement in the Texas Department of Corrections for life or for a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 400 grams or more.

Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.

Conviction for delivery of more than 28 grams of amphetamine was not sufficiently supported by testimony that, while entire contents of plastic bag weighed 29.76 grams, witness had no opinion as to how much of it was amphetamine, and no other evidence as to identity of other substances in bag; though statute allowed conviction where aggregate weight of controlled substance, including adulterants or dilutants, was over 28 grams, there was no evidence that any nonamphetamine substance in bag was adulterant or dilutant, intended to increase bulk or quantity of product. Reeves v. State (Cr.App. 1990) 806 S.W.2d 540, rehearing on petition for discretionary review denied.

Evidence was not sufficient to support defendant's conviction for possession of more than 400 grams of pure amphetamine, where pertinent application paragraph of charge would allow any rational trier of fact to conclude that in determining amount of pure amphetamine he could add "adulterants and dilutants," and term "controlled substance" in statutory definition did not include adulterants and dilutants. Farris v. State (Cr.App. 1990) 811 S.W.2d 577, rehearing on petition for discretionary review denied.

2. Sufficiency of evidence — Manufacture

Evidence that a laboratory in process of manufacturing amphetamine was found operating on property less than 200 yards from residence which defendant shared with his wife, that large quantities of amphetamine were found inside residence, and that defendant had on his person handwritten notes which employed a chemical formula for manufacturing amphetamine and addresses of two chemical laboratory supply companies was sufficient to connect defendant to illegal manufacture of a controlled substance notwithstanding that legal title to property was in name of defendant's wife. Pinkston v. State (App. 2 Dist. 1984) 681 S.W.2d 893, review refused. §

481.116. Offense: Possession of Substance in Penalty Group 2

(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 2, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.

(b) An offense under Subsection (a) is a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than 28 grams.

(c) A person commits an aggravated offense if the person commits an offense under Subsection (a) and the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 28 grams or more.

(d) An offense under Subsection (c) is:

(1) punishable by confinement in the Texas Department of Corrections 1 for life or for a term of not more than 99 years or less than 5 years, and a fine not to exceed $50,000, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 28 grams or more but less than 400 grams; and

(2) punishable by confinement in the Texas Department of Corrections for life or for a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000, if the amount of the controlled substance possessed is, by aggregate weight, including adultrants or dilutants, 400 grams or more.

Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Note FN1. References to the Texas Department of Corrections shall mean the Note institutional division of the Texas Department of Criminal Justice by Acts Note 1989, 71st Leg., ch. 785, § 1.19(f).

Historical and Statutory Notes

Prior Laws:

Acts 1905, 29th Leg., p. 45.

Acts 1919, 36th Leg., pp. 277, 278.

Acts 1919, 36th Leg., 2nd C.S., p. 156.

Acts 1931, 42nd Leg., p. 154, ch. 97.

Acts 1933, 43rd Leg., p. 609, ch. 204.

Vernon's Ann.P.C. (1925) arts. 720 to 725d, 725f.

Acts 1937, 45th Leg., p. 333, ch. 169.

Acts 1941, 47th Leg., p. 647, ch. 392, §§ 1, 2.

Acts 1943, 48th Leg., p. 346, ch. 225, § 1.

Acts 1943, 48th Leg., p. 703, ch. 391.

Acts 1953, 53rd Leg., p. 594, ch. 237.

Acts 1953, 53rd Leg., p. 812, ch. 328, §§ 1 to 7.

Acts 1954, 53rd Leg., 1st C.S., p. 103, ch. 50, § 1.

Acts 1955, 54th Leg., p. 810, ch. 300.

Acts 1955, 54th Leg., p. 903, ch. 354, § 1.

Acts 1955, 54th Leg., p. 1026, ch. 385, § 1.

Acts 1955, 54th Leg., p. 1027, ch. 386, § 1.

Acts 1955, 54th Leg., p. 1215, ch. 486, § 1.

Acts 1957, 55th Leg., p. 215, ch. 101, § 1.

Acts 1961, 57th Leg., p. 310, ch. 161, § 1.

Acts 1961, 57th Leg., p. 315, ch. 167, § 1.

Acts 1963, 58th Leg., p. 570, ch. 206, §§ 1, 2.

Acts 1969, 61st Leg., p. 703, ch. 242, § 1.

Acts 1971, 62nd Leg., p. 816, ch. 87.

Acts 1971, 62nd Leg., p. 2805, ch. 908, §§ 1 to 4.

Acts 1971, 62nd Leg., p. 2913, ch. 963, §§ 1, 2.

Acts 1971, 62nd Leg., p. 3069, ch. 1023, §§ 1 to 4.

Acts 1973, 63rd Leg., p. 995, ch. 399, § 5.

Acts 1973, 63rd Leg., p. 1132, ch. 429.

Acts 1981, 67th Leg., p. 700, ch. 268, § 6.

Acts 1983, 68th Leg., p. 2381, ch. 425, § 10.

Vernon's Ann.Civ.St. arts. 4413(37); 4476"15, § 4.041.

Cross References

Controlled substance analogue, possession, see § 481.123.

Exemptions for use in federally approved therapeutic research program, see § 481.111.

Expenditure or investment of funds, see § 481.126.

Punishment, third-degree felony, see V.T.C.A. Penal Code, § 12.34.

Repeat offenders, punishment, see § 481.107.

Notes of Decisions

Affirmative link to defendant 2

Control and knowledge 1

Indictment and information 3

Sentence and punishment 5

Sufficiency of evidence 4

________ 1. Control and knowledge

State failed to show that defendant exercised care, control and management over amphetamine found in laundry hamper in bathroom off master bedroom that defendant occupied with male roommate, as was required to convict defendant of possessing amphetamine; possibility that roommate put amphetamine in hamper was reasonably consistent with all evidence upon which State relied to prove its circumstantial case. McCarty v. State (App. 2 Dist. 1990) 788 S.W.2d 213, review dismissed 820 S.W.2d 795.

2. Affirmative link to defendant

Although accused was merely a passenger in nonowned automobile, in trunk of which police found four containers of amphetamine, accused was sufficiently linked with the contraband so as to warrant conviction on possession offense where odor of amphetamines solution emanating from the vehicle and occupants was strong enough for accused to be aware of its presence, there was no lock on the trunk and access there to was gained by use of screwdriver, jacket found nearest accused contained drug paraphernalia, accused was apparently intoxicated by use of a substance other than an alcohol beverage and accused had a past record of dealing with controlled substances. Durham v. State (App. 2 Dist. 1986) 701 S.W.2d 951, review refused.

Smell of ether that permeated driver's vehicle and clothing, along with driver's ducking down in vicinity of drug when confronted by officer, were sufficient affirmative links to sustain driver's conviction of possession of less than 28 grams of amphetamine, found underneath driver's seat of automobile. Soto v. State (App. 2 Dist. 1991) 810 S.W.2d 861, review refused.

3. Indictment and information

Information charging defendant with unlawful possession of amphetamine was not defective because it failed to allege that amphetamine was not a preparation for use in the nose and unfit for internal use. Meadowes v. State (Cr.App. 1963) 368 S.W.2d 203.

Where drug methaqualone was not named as dangerous drug under then effective statute, nor did indictment allege any facts showing why methaqualone was in fact a dangerous drug, indictment under which defendant was convicted of unlawfully possessing a dangerous drug was void and, since trial court did not have jurisdiction, such judgment was subject to collateral attack. Exparte Howeth (Cr.App. 1980) 609 S.W.2d 540.

Variance between allegation in the purport clause that petitioner had unlawfully acquired a controlled substance, namely Amphetamine and the tenor clause showing that the forged prescription was for Biphetamine did not cause the indictment to be fundamentally defective. Ex parte Holbrook (Cr.App. 1980) 609 S.W.2d 541.

Indictment charging that petitioner fraudulently attempted to obtain possession of Preludin, which was not expressly listed in schedules and penalty groups of Controlled Substances Act, was fundamentally defective for reason that indictment failed to allege facts which needed to be proved about Preludin which made it a controlled substance.Id.

Indictment, in language of Controlled Substances Act, specifying "amphetamine" as the controlled substance possessed is sufficient to include isomers and salts and is not subject to being quashed for failure to apprise the accused of the type of substances possessed. Durham v. State (App. 2 Dist. 1986) 701 S.W.2d 951, review refused.

CLINTON, Judge, concurring.

The indictment in this cause alleged in each of three counts that appellant did "intentionally and knowingly manufacture and possess with intent to manufacture and deliver [stated amount] of a controlled substance, to-wit: Amphetamine." The trial court authorized the jury to convict if it found that appellant did "intentionally or knowingly manufacture a controlled substance, to-wit: Amphetamine, by aggregate weight, including any adulterant or dilutants, of more than 400 grams."

Texas Controlled Substances Act effective in September 1983 is the "Act" applicable here.
All emphasis throughout this opinion is mine unless otherwise indicated. Also, because the preliminary statement and Part I of the opinion of the Court reproduces substantial portions of my proposed opinion for the Court, to avoid as much redundancy as reasonably feasible here I will provide in context that which it pretermits where appropriate.

Regarding the allegation that appellant "possessed with intent to manufacture [amphetamine]," I have not found any case explaining how one could possess amphetamine with intent to manufacture amphetamine. Cf. Blackmon v. State, 786 S.W.2d 467, at 469 (Tex.App. — Houston [1st] 1990), PDR refused (questioning propriety of such pleading when offense shown is possession of final product). More broadly stated, I have not discovered any suggestion in opinion or literature that any controlled substance could be possessed with intent to manufacture by means of chemical synthesis the same controlled substance. The only exceptional situation coming to our attention is found in cases from other jurisdictions where the offense may be committed under the state law when one possesses a "marihuana" plant with intent to manufacture marihuana by harvesting the plant and reducing its leaves to smokeable material. Of course, in Texas marihuana is not listed as a "controlled substance" in any penalty group, and is excepted from the definition of "manufacture." Cf. § 1.02(5) and (16).

I A

The Texas Controlled Substances Act was originally enacted twenty years ago. Acts 1973, 63rd Leg., Ch. 429, p. 1132 (H.B. 447), effective August 27, 1973. The original bill tracked a model controlled substances act submitted to the states by a Federal agency; the latter in turn followed the format and contained provisions drawn from the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, which the Legislature dubbed the "Federal Controlled Substances Act." The Uniform Controlled Substances Act, 9 Uniform Laws Annotated, Master Edition, and the federal scheme classified all substances to be controlled into schedules for both regulatory and penal purposes according to authoritatively determined relevant factors, inter alia actual or relative potential for abuse, rather than amount involved; there were no "penalty groups," as such. See 21 U.S.C.A. § 801, et seq., particularly §§ 812 and 841(a)(1). Our Legislature chose another format, however. See Ex parte Wilson, 588 S.W.2d 905 (Tex.Cr.App. 1979) (Clinton, J., concurring and dissenting, at 911-912); Ex parte Tipton, 617 S.W.2d 262 (Tex.Cr.App. 1981) (Clinton, J., concurring, at 264, n. 2).

The Legislature did take from the "Federal Controlled Substances Act" and the Uniform Act certain language used to classify separately, by group, named controlled substances according to their nature or effect, viz:

"any material, compound, mixture, or preparation which contains any quantity of the following [e.g., hallucinogenic substances, substances having a potential for abuse associated with a stimulant effect on the central nervous system, substances having a potential for abuse associated with a depressant effect on the central nervous system, et cetera]."

H.B. 447 §§ 2.03(d), 2.04(d) 2.05(d), at 1137-39. Section 4.02 of the original act prescribed criminal classifications in order to establish penalties for "violation of a provision of this Act," according to "penalty groups" of controlled substances. Id. H.B. 447, at 1148. More particularly, in Penalty Group 3, § 4.02(d)(1) lists under that description: "(A) amphetamine, its salts, optical isomers, and salts of its optical isomers." Id., at 1151.

Except for Penalty Group 1, id., (b), many a group or subgroup is described at the outset as including "any material, compound, mixture, or preparation" which contains (or containing) any quantity (or limited quantities) of the following . . . substances (or narcotic drugs). . . . See Penalty Group 2, id., (c), at 1151; Penalty Group 3(1), (3), (5), (6), (7) and (8), id., (d), at 1151-1153; Penalty Group 4, id., (e), at 1153.

Section 4.03(a) [with § 4.04(a) ] defined certain offenses violative of the Act, in terms that a person "knowingly or intentionally manufactures, delivers, or possesses with intent to manufacture or deliver [or possesses] a controlled substance listed in Penalty Groups 1, 2, 3, or 4." Subsection (b) then matched a substance in a particular penalty group with a prescribed degree of felony or class of misdemeanor; thus, for example, an offense involving amphetamine was a felony of the third degree, except that "simple" possession was a Class A misdemeanor.

In 1974 Bancroft-Whitney published three volumes of Texas Annotated Penal Statutes With Forms (Branch's 3rd Ed.), acknowledging "the participation of the Texas District and County Attorneys Association in the preparation of this work." 1 Branch's at vi. In 1978 it published Volume Four in the same format of "helpful features," e.g., explanatory comments, checklists of elements necessary to establish an offense, suggested form of charging instruments and suggested jury charges.

Explained at the outset is that in subchapter 4 are found

"penalty groups, of which there are four, deal[ing] with controlled substances. . . . When a person is charged with an illegal act relating to a controlled substance, the seriousness of the offense and the severity of the punishment is dependent upon which penalty group the controlled substance is found. In this regard, there are five major OFFENSES defined in the Texas Controlled Substances Act. These are: § 4.03, Unlawful Manufacture or Delivery of Controlled Substances; 4.04, Unlawful Possession of a Controlled Substance. . . . [T]he punishment for a violation depends on which penalty group the drug in question is found."

Id., at 3.

Following the text of §§ 4.03 and 4.04 are checklists of elements, forms of charging instruments and forms of charges pertinent to each respective offense. None includes a theory of prosecution for "any material, compound, mixture or preparation of any quantity of the following substances[.]" Instead, each specifies "a controlled substance" and the "name of controlled substance." Id., at 92-93, 154-155. Where, as here, the offense alleged is manufacture of amphetamine, the suggested operative part of an indictment is simple and straightforward, viz:

"[named defendant] did then and there knowingly and intentionally manufacture a controlled substance, namely: [amphetamine]."

Id., at 94. Because amphetamine is a named controlled substance that is specifically listed in only one penalty group, there was no reason to allege more about its "criminal classification." See and compare Benoit v. State, 561 S.W.2d 810, at 814-815 (Tex.Cr.App. 1977); Ex parte Wilson, 588 S.W.2d 905, at 908-909 (Tex.Cr.App. 1979); see also Taylor v. State, 610 S.W.2d 471, at 478-479 (Tex.Cr.App. 1980).

Likewise, preliminary and application paragraphs in the jury charge are direct and to the point, viz:

"Our law provides that a person commits an offense if he knowingly or intentionally manufactures a controlled substance.

Our law further provides that [amphetamine] is a controlled substance.

Now if you find from the evidence beyond a reasonable doubt that the [named defendant] . . . did knowingly or intentionally manufacture a controlled substance, namely [amphetamine], then you will find the defendant guilty as charged, but if you do not so believe, or if you have reasonable doubt thereof, you will acquit the defendant."

Id., at 95-96. Accord: Texas Criminal Pattern Jury Charges (State Bar of Texas 1974), CPJC (CS) § 4.03, at 731-732.

Six years later the Legislature revised both schedules and penalty groups to change the classification of certain controlled substances and to add others, leaving amphetamine in Penalty Group 3; it did not, however, amend definitions of offenses. Acts 1979, 66th Leg., Ch. 598, p. 1278 (S.B. 322), effective August 27, 1979.

B

In its next session the Legislature adapted the concept of "aggravated offenses" to the Texas Controlled Substances Act, as part of a "declared war on crime, especially drug related crime." Wendorf, The War on Crime: 1981 Legislation, 33 Tex.Tech.L.Rev. 765. As the Court notes, "It made no change in content to 'criminal classification' by penalty groups." Slip Opinion, at 3.

Obviously reacting to adverse decisions denying applicability of penal code provisions denouncing preparatory offenses to alleged "attempts" to commit substance offenses under the Act, e.g., Brown v. State, 568 S.W.2d 137 (Tex.Cr.App. 1978), and Moore v. State, 545 S.W.2d 140, at 142 (Tex.Cr.App. 1976), the Legislature corrected the situation conformably with newly provided "aggravated offenses," viz:

"Sec. 4.011. The provisions of Title 4, Penal Code, apply to Section 4.052 [Illegal Investment] and offenses designated as aggravated offenses under Subchapter 4 of this Act, except that the punishment for a preparatory offense is the same as the punishment prescribed for the offense that was the object of the preparatory offense."

See Wendorf, supra, at 779. See now V.T.C.A. Health Safety Code § 481.108.

Contemporaneously with the 1981 legislation revamping, inter alia, definitions of certain existing offenses to provide punishment according to "aggregate weight, including adulterants and dilutants," Acts 1981, 67th Leg., Ch. 268, p. 696 (H.B. 730), effective September 1, 1981, the Legislature defined "drug paraphernalia" to include, inter alia, "a diluent or adulterant" as defined, and extensively amended § 4.07 to proscribe several offenses involving "drug paraphernalia." Acts 1981, 67th Leg., Ch. 277, p. 742 (H.B. 733), effective September 1, 1981.

After H.B. 730 was held unconstitutional, the Legislature revised, codified and reenacted many substantive and procedural laws previously enacted separately, without modifying penalty groups, however. Majority Opinion, at 107. Later it separately added and classified substances in schedules and penalty groups, this time without modifying existing offenses as previously defined. Id., at 107-108.

Consistent separate legislative treatment of "criminal classification" by penalty groups on the one hand and "definitions of offense" on the other, tracked in Part I, ante, demonstrates that the essential connection between the two is, as it always has been, that the former lists by name the controlled substance the latter only alludes to in defining an offense. That is the reason the Court held in certain situations the charging instrument must identify the specific penalty group listing the offense alleged, or if not listed, be otherwise described as it is in a penalty group. See, e.g., Benoit v. State, Ex parte Wilson and Taylor v. State, all supra.
Moreover, we know from this cause, companion causes and others before the Court that grand juries have not and are not indicting, and judges have not and are not charging jurors, on a prosecutorial theory based on the "material, compound, mixture or preparation" language in any penalty group. The offense has been alleged and the jury charged either by stating forbidden conduct involving a named controlled substance or, since the concept of aggravated offenses was adopted, by so stating and then alleging the aggravated weight, with or without "adulterants and dilutants." See, e.g., McGlothlin v. State, 749 S.W.2d 856 (Tex.Cr.App. 1988) (concurring opinion of Clinton, J., cases cited at note 1); see also Thompson v. State, 885 S.W.2d 136 (Tex.Cr.App. Nos. 1992). See also suggested forms for charging instruments and jury charges in such helpful works as McCormick Blackwell, Texas Criminal Forms and Trial Manual, Chapter 23, 7 Texas Practice 153, and Chapter 111, 8 Texas Practice 738, respectively, and McClung, Jury Charges for Texas Criminal Practice (Revised Edition 1983) 228-231; Id., (Revised Edition 1992) 213-219.

II A

So far as reasonably diligent research reveals, not until the opinion on original submission in this very cause was it ever held by this Court that the theory of prosecution at issue is viable. But see and compare conceded dicta in Reeves v. State, 806 S.W.2d 540, at 545, n. 5 (Tex.Cr.App. 1990).

Keeping in mind that V.T.C.A. Penal Code, Title 1, § 1.03(a) dictates, "Conduct does not constitute and offense unless it is defined as an offense by statute [et cetera];" that id., § 1.03, inter alia, makes provisions of Title 1 (2 and 3) applicable to "offenses defined by other laws, unless the statute defining the offense provides otherwise;" that the Act does not provide otherwise; that, indeed, since 1981 the Act has expressly incorporated by reference Title 4, Penal Code, to make "preparatory offenses" such as "attempts" apply to aggravated offenses proscribed in subchapter 4 of the Act, we focus on statutory provisions defining the offense and other germane provisions implicated by the facts of the instant cause. Practice Commentary to § 1.03; see, e.g., Childress v. State, 784 S.W.2d 361, at 362 (Tex.Cr.App. 1990); Gutierrez v. State, 628 S.W.2d 57, at 61 (Tex.Cr.App. 1980).

B

This case was tried and appellant was convicted on the theory that he "did intentionally and knowingly manufacture a controlled substance, to-wit: Amphetamine, by aggregate weight, including any adulterants and dilutants, of more than 400 grams as set forth in the indictment." Tr. 12 and 54.

The DPS chemist described the stuff the prosecution claimed and the court of appeals found to be "amphetamine," viz:

"[The 5000 milliliter flask of dark liquid] contained 704.89 grams of amphetamine, including adulterants and dilutants . . . . [T]he solution in the flask contained 76.20 grams of amphetamine base; that the remainder of the solution was reaction mixture containing bi-products [sic] of the manufacturing process and (some) unused precursors (unchanged precursors); and that the amphetamine in the liquid had not been extracted, distilled or separated from the other substances. * * * [T]hat the solution in the flask was not ready for distribution as amphetamine; and that the amphetamine had not been extracted, distilled or separated from the other substances in the flask."

Dowling v. State, supra, at 2, 3 (words in parenthesis from 3 S.F. 270). The chemist further explained that after amphetamine is extracted, distilled or separated and then "powdered out," the "remaining chemicals and liquids" left in the flask would be " just waste material." Id., at 282.

The State through its district attorney says:

"During the manufacturing, or 'cooking' process, numerous precursor chemicals are combined, and heated. Over a period of several hours, the precursor chemicals combine (by chemical synthesis), and are 'washed,' or separated in a process involving water, to make amphetamine oil, which is later 'powdered' to make the final product. . . . Adulterants and dilutants are not present, unless one adheres to the theory that the more precursors added, the greater the amount of dope, in which case the precursors actually add to the bulk of the finished product. Precursor chemicals are a necessary part of the manufacturing process, and in the course of the manufacturing process, precursor chemicals become a part of the final product. Because precursor chemicals and by-products are always present during any given stage of the actual manufacturing process, it seems unlikely that there will ever be 100% pure amphetamine (or other controlled substance) when the controlled substance is seized before manufacture is completed."

State's Brief, at 4-5.

"`Controlled substance' means a drug, substance, or immediate precursor listed in Schedules I through V and Penalty Groups 1 through 4 of this Act." § 1.02(5).

"Amphetamine" along with other substances is listed in Penalty Group 3, viz:

"Penalty Group 3. Penalty Group 3 shall include the following controlled substances:

(1) Any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a stimulant effect on the central nervous system:

(A) Amphetamine . . ."

§ 4.02(d)(1)(A).

Proscribed conduct involving amphetamine is defined as an offense or an aggravated offense only in §§ 4.032(a) and (c) [manufactures, delivers or possesses with intent et cetera ], and 4.042(a) and (c) [possesses], respectively. Thus, as pertinent here, "a person commits an offense if he knowingly or intentionally manufactures . . . a controlled substance listed in Penalty Group 3;" "a person commits an aggravated offense if he commits an offense under Subsection (a) of this section and the amount of the controlled substance manufactured . . . is, by aggregate weight, including any adulterants or dilutants, 200 grams or more."

To "manufacture" means the production, preparation, compounding, conversion or processing of a controlled substance (other than marihuana), "either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container[.]" § 1.02(16).

The trial court instructed the jury that "manufacture" meant "the production, preparation or processing of the controlled substance either directly or indirectly by means of chemical synthesis." Tr. 53. So far as this record and similar cases show, amphetamine is produced " independently " by means of chemical synthesis.

III A

On rehearing the majority said that "the legislature intended to prohibit the possession, delivery, or manufacture of materials, compounds, mixtures, or preparations containing amphetamine," and noted the dicta in Reeves v. State, supra; accordingly the majority held that the indictment " must allege that the accused possessed, delivered, or manufactured a material, compound, mixture, or preparation if the State is to proceed under such theory." Opinion, at 109. Upon further examination of germane provisions of the Act and after considerable reflection, we should be persuaded that the Act does not authorize such an alternative form of prosecution — certainly not on the facts of this case — not withstanding the "reaffirmation" of the original prior holding with "slight modification" followed by much complicated dicta about an "entity" theory in the present Majority Opinion, at 124-125, 125, 126-127.

Again, one who manufactures "a controlled substance listed in Penalty Group 3" commits an aggravated offense "if the amount of the controlled substance manufactured . . . is, by aggregate weight, including any adulterants or dilutants, 200 grams or more." s 4.032(a) and (c).

From the beginning the Legislature defined "controlled substance" as a "drug, substance or immediate precursor listed in [schedules and penalty groups]," and it determined that the "substances listed in [schedules and penalty groups] shall be controlled substances." § 1.02(5) and § 2.01.

Indeed, it expressly explained the "nomenclature," viz:

"The controlled substances listed or to be listed in the schedules in Schedules I, II, III, IV, and V and Penalty Groups 1, 2, 3, and 4 are included by whatever official, common, usual, chemical, or trade name they may be designated."

§ 2.02. Then in designating particular substances included in each schedule and penalty group, the Legislature took care to identify each "listed" controlled substance by name, even when classified in a group or sub-group according to general description, prescribed effect, commonality of relevant factors or otherwise. See Schedules, §§ 2.03-2.08; Authority to Control, § 2.09; Schedule Tests, §§ 2.10-2.14; and Criminal Classification, § 4.02; Ex parte Tipton, supra (Clinton, J., concurring) (s 2.02 identifies controlled substance according to name by which designated in penalty group list).

The Court has uniformly held that a charging instrument asserting offending conduct involving a purported substance "not specifically named in a penalty group" fails "to allege an offense against the State," unless the substance is otherwise "described in a penalty group." Ex parte Tipton, supra, and cases cited therein. Nothing in the Act as amended in 1981 and thereafter denigrates that rule for pleading an offense.

We should now hold that amphetamine is eo nomine a controlled substance. The descriptive statutory language merely justifies the Legislature in its classification of amphetamine by listing it as a controlled substance in Penalty Group 3 under § 4.02(d)(1). The descriptive language does not prescribe any element of an offense involving amphetamine and need not be alleged or proved; thus it is redundant and, as this record clearly reflects, to allege it will confuse the real issues in a "manufacturing" case. Accordingly, it follows that alleging such descriptive language in a charging instrument does not properly state an aggravated offense under § 4.03-2(a), (c) and (d)(2).

B

On rehearing the majority also said that if the phrase is alleged in the indictment, proof of the "aggregate weight" of a controlled substance must show "the weight of the named substance" and any proven "material, compound, mixture, or preparation containing the substance." Opinion, at 124. Of course, the phrase is not alleged here and, as we determined ante, is not a viable theory of prosecution under the applicable statute.

On original submission in testing sufficiency of the evidence the majority opinion stated that "the clear language [of § 4.032] shows the intent of the legislature to include substances not yet ready for street sales, i.e., '. . . the amount of the controlled substance . . . with intent to manufacture.' "
One problem with that adumbrated quote is the second ellipsis omits the word " possessed " immediately preceding "with intent to manufacture." See § 4.032(b), (c) and (d)(1) and (2). Although initially alleged in the indictment, apparently the State abandoned the allegation, for the court instructed the jury only on "manufacture." We have already questioned the validity of asserting such an offense involving amphetamine. See note 2, ante. In any event, the alleged offense, "possesses with intent to manufacture," is no longer in the case.

The State through its district attorney and the State Prosecuting Attorney, respectively, stoutly maintain that the weight of the "entire solution" or "entire mixture" containing any quantity of "amphetamine base" should and must be taken into account in determining "aggregate weight" of the substance. State's Brief on Order Granting Rehearing;

The essence of reasoning of the district attorney is:

" Manufacturing a controlled substance is very different from possessing or delivering a controlled substance, and that difference should be major factor when considering what constitutes the aggregate weight of the substance. Again, possession and delivery cases most often deal with finished product, while manufacturing cases do not. Therefore, there should be a distinction made between finished product which has clearly been 'cut' to increase the bulk of the product for sale on the street, and unfinished product which has been seized by law enforcement officers before the manufacturing process has been completed. With respect to solutions or mixtures which are in the process of being manufactured, the entire solution should be considered as part of the aggregate weight of the product. This should be the case regardless of the state of manufacture the mixture is in when the process is interrupted by law enforcement. If the precursor chemicals have only been 'cooking' for a short period of time, then the quantity of 'pure' controlled substances is going to be very small. The rest of the mixture will be precursor chemicals and byproducts of the manufacturing process. Surely the Legislature did not intend to count only the portion of the mixture which is 'pure,' controlled substances; if that were the case, then the drug manufacturers could, in fact, 'get lucky,' depending upon when the laboratory was seized by law enforcement officers."

Id., at 5-6 (first emphasis in original). As we demonstrate post, however, what the Legislature intended in such circumstances is that drug manufacturers be charged with and convicted of " attempted manufacture" of amphetamine, and thereby suffer the same sanctions as if they had ultimately produced an aggravated amount of amphetamine. Thus they could "get lucky" only when a prosecution is pursued on the flawed notion that weight of "entire solution" or "entire mixture" of chemicals still being "cooked" should be considered "as part of the aggregate weight of the product" — a "product" not yet "manufactured."

State's Brief in Response to Order Granting Rehearing, passim.

Much like the original opinion, the State Prosecuting Attorney reads the Act to support a similar proposition, viz:

"An examination of the language of [the Act] demonstrates a plain legislative intent to criminalize the possession, manufacture, or delivery of any 'material, compound, mixture, or preparation which contains any quantity of amphetamine.' Under the terms of the Act, the 'controlled substance' is not amphetamine. Rather, the 'controlled substance' is the mixture which contains any quantity of amphetamine."

Brief, at 3 (emphasis in original). In extensively developing that thesis, he alludes to certain provisions in the Uniform Controlled Substances Act of 1970 from which the Legislature drew its definition of "controlled substance" and the phrase "material, compound, mixture, or preparation;" reviewing decisions from other jurisdictions the State Prosecuting Attorney argues that every one is "grounded upon the principle that the [language in the phrase] defines offenses and penalties in terms of the weight of the mixture containing a controlled substance," and he finally comes to a rather innovative conclusion, viz:

". . . Section 4.032 defines the offense in terms of the 'aggregate weight of the material, compound, mixture, or preparation which contains any quantity of amphetamine.' The additional phrase 'including adulterants or dilutants' does not subtract from Section 4.032's definition of the offense. Therefore, in a prosecution for manufacture of amphetamine under Section 4.032(a), (c) and (d)(2), the aggregate weight alleged may be proved by showing the weight of the 'material, compound, mixture, or preparation' containing a quantity of amphetamine base, without also showing such matter is, or contains, identified adulterant or dilutants."

Id., at 36 (emphasis in original).
In fact, not only did the Uniform Act declare offenses in relation to perceived danger to society in the nature of the conduct, without at all quantifying it according amount or weight of the substance (as the Legislature did in 1981), cf. § 4.01, 9 ULA Part II, at 91, but it also cautioned that our own Act "departs from the official text [of the Uniform Act] in such a manner that the various instances of substitution, omission and additional matter cannot be clearly indicated by statutory notes." Id., at 7.
Moreover, in fact, none of the decisions from other jurisdiction concerned a "manufacturing scenario;" every one dealt with some other offense involving a finished product, i.e., possession, possession with intent to distribute, delivery (trafficking), or a sale. Indeed, the oldest cited case construes a 1963 New York law which differentiated penalties: possession of a "pure" drug was a Class A misdemeanor, but a "mixture" was Class A through D felony depending on the total amount — the governing notion being that certain substances are "generally marketed in a diluted or impure state." United States ex rel. Daneff v. Henderson, 501 F.2d 1180, at 1184 (CA2 1974). Several of the decisions summarized by the State Prosecuting Attorney relied at least in part on such rationale. See also Chapman v. United States, 500 U.S. 453, at 460, 111 S.Ct. 1919, at 1925, 114 L.Ed.2d 524 (1991).

With deference, prosecutors advancing that theory should read again the proscription of "Preparatory Offenses" in § 4.011, then study Baxter v. State, 718 S.W.2d 28 (Tex.App. — Eastland 1986), PDR refused; Martin v. State, 727 S.W.2d 820 (Tex.App. — Fort Worth 1987), no PDR history; Lindley v. State, 736 S.W.2d 267 (Tex.App. — Fort Worth 1987), PDR refused, and replicate the "attempt" theory of prosecution for attempted manufacture of methamphetamine so successfully pursued by district attorneys of Stephens County and Wise County, respectively, to gain punishments of fifty years confinement and $25,000 fine, Baxter, at 28, and 30-31; seventy-five years confinement and $250,000 fine, Martin, at 821, and 822; seventy-five years confinement and $75,000 fine, Lindley, at 269.

Those cases effectuate the plain legislative intent to differentiate "attempted manufacture" and "manufacture" of an aggravated amount of certain controlled substances such as amphetamine, as well as methamphetamine, yet punish the former "attempted offense" within the same range as the latter "completed" one.

Carefully considered, the statutes proscribing "Unlawful Manufacture" of controlled substance contemplate a finished product. The offense is committed when one "manufactur es " a controlled substance; punishment is graded by the amount of the controlled substance "manufactur ed." The terms connote a completed product of the manufacturing process. Goff v. State, 777 S.W.2d 418 (Tex.Cr.App. 1989) (that 15.2 grams of methamphetamine [suspended for "purification" in ether and acetone solution for total weight of 4.9 pounds] "had been completed through the manufacturing process" sufficient to show appellant "manufactur ed " only 15.2 grams — not more than 400 grams, as alleged — of methamphetamine; neither ether nor acetone is "adulterant" or "dilutant"). See Conner v. State, 757 S.W.2d 806 (Tex.App. — Tyler 1988) (evidence of glass jar containing 1,984 grams of liquid consisting of only 2% methamphetamine, baggie containing 210.5 grams of material consisting of only 47% methamphetamine, second baggie containing 5.2 grams of material estimated to consist of 50% methamphetamine — aggregating about 140 grams of "poor" methamphetamine because by-products therein lowered purity of drug — insufficient to prove manufacture of more than 400 grams of methamphetamine in that no evidence substances other than methamphetamine were "adulterants or dilutants" intended to increase the bulk of the final product). Id., at 808.

Compare Blackmon v. State, 786 S.W.2d 467, at 471-473 (Tex.App. — Houston [1st] 1990), PDR refused (particular evidence found in methamphetamine lab, i.e., bag with 71.703 grams methamphetamine (exhibit 37) and jar/bag of powder containing 146.5 grams of methamphetamine (77.645 grams) and the balance an adulterant (granulated sugar) proved "possession with intent to manufacture at least 200 grams [of methamphetamine], as alleged," although the court of appeals recognized "clearer" charging instrument would have alleged simply did "possess methamphetamine" and strongly recommended State amend form indictment "to give such notice," id., at 469).

Accordingly, we ought to hold that in a prosecution for manufacture of amphetamine the State may not prove the aggregate weight alleged by claiming the entire weight of the "solution" as a "material, compound, mixture or preparation," containing a quantity of "amphetamine base." Because it had not been extracted, distilled or separated from "unused" or "unchanged" precursor chemicals and by-products in the flask, we should further hold under the facts of this cause that "amphetamine base" is not a finished product of the manufacturing process.

IV A

In all likelihood, had the State charged Goff with attempted manufacture of methamphetamine it would have achieved a conviction and assessment of stiff punishment in Gregg County, instead of the judgment of acquittal this Court ordered in Goff, supra, at 421.

In a prosecution under the "attempt" theory the State is permitted to adduce opinion and expert testimony supporting the proposition that continuation of manufacturing process without interruption could have produced the maximum amount of amphetamine alleged. Compare testimony in Baxter v. State, supra, at 30-31, and Martin v. State, supra, at 822, and Conner v. State, supra, at 808, with absence of any such evidence in Goff, at 420 and n. 2. Moreover, an expert witness might be allowed to estimate the likely percentage of "pure" amphetamine in the finished product, and explain how then adding adulterants and dilutants to "cut" the finished product would increase its "aggregate weight," so that an even greater amount would be available for wholesale distribution and, in turn, after being "cut" again, for retail delivery and sale. In sum, the prosecution may easily gain more punishment and penalty by presenting "probabilities" than by straining to expand "reality."

The concept of "aggravated offenses" implemented effective September 1, 1981, necessarily introduced the determinative feature of assaying "aggravated weight, including adulterants and dilutants," of the listed controlled substance "manufactured, delivered or possessed [with requisite intent]." Under prior statutes, indictment, evidence and jury charge focused on identity of the listed substance as alleged; its composition, content and weight were not legally implicated or consequential, although in practice parties might argue their bearing on punishment. Therefore, judicial decisions under prior statutes concerning "manufacturing" have no particular precedential value today. See, e.g., Gish v. State, 606 S.W.2d 883, at 886-887 (Tex.Cr.App. 1980); see also Fronatt v. State, 630 S.W.2d 703, at 704 (Tex.App. — Houston [1st] 1981), PDR refused, and Berryhill v. State, 630 S.W.2d 812, at 813-814 (Tex.App. — Houston [1st] 1982), no PDR history (companion cases arising from same September 17, 1979 scenario).

B

Therefore, for reasons developed in this opinion, I concur in the judgment of the Court reversing the judgment of the court of appeals and remanding the cause to the trial court for entry of an acquittal — without further ado.

In Part VI of its opinion the majority renders an advisory opinion regarding the reach and application of its "entity" theory under a 1989 legislative enactment. Id., at 127-128. Because we have so often proclaimed that this Court will not issue an advisory opinion, I disassociate myself from this one.

WHITE, Judge, dissenting.

For the reasons I set out in my majority opinion on original submission, Dowling v. State, No. 107-89 (Tex.Cr.App., March 27, 1991), I respectfully dissent to the majority's decision to reverse the judgment of the trial court and render an acquittal for appellant.

I believe the majority opinion overlooks the unique nature of the statute which proscribes the manufacture of amphetamine, TEX.REV.CIV.STAT.ANN. Art. 4476.15, § 4.031 (repealed). As I stated on original submission, "The (Controlled Substances) Act shows a clear legislative intent to punish a person for possession of the pure form of amphetamine. There is also a clear intent to prohibit the possession of "any material, compound, mixture, or preparation" containing the amphetamine. . . . The language of the Act clearly intends for the substances in which the amphetamine is discovered to be counted towards the weight of the controlled substance by the use of the words "any material, compound, mixture, or preparation which contains any quantity of . . . amphetamine." Art. 4476.15 § 2.04(e) (repealed).

In the majority's rush to reverse and acquit appellant, they have imposed an unrealistic and impractical requirement upon the State to prove, separately, the individual weights of both the controlled substance and the adulterants and dilutants, or the immediate precursors. As I stated also on original submission, the Controlled Substances Act was written so that

"The relevant weight for calculating the punishment should include the medium in which the amphetamine is found. The relevant weight is that of " any material, compound, mixture, or preparation which contains any quantity of the . . . amphetamine." Sec. 2.04(e), supra. The language cannot be reasonably construed as referring to anything other than the weight of both the controlled substance and the mixture or substance in which it is found. It is not possible to construe the language of the Controlled Substances Act to make the penalty turn on the net weight of the drug rather than the gross weight of the drug and the mixture in which it is found." (emphasis applied in original).

See also Art. 4476.15 § 4.031(a), (c), and (d).

"The clear language of § 4.031 shows the intent of the Legislature to include substances not yet ready for street sales, i.e., ". . . the amount of the controlled substance . . . with intent to manufacture." Furthermore, "by aggregate weight" is by definition the entire quantity of something. . . . In the instant case, this Court is not dealing with a final product and a possession conviction, but instead, the seized liquid was still in the manufacturing process and the conviction is for manufacturing a controlled substance, namely amphetamine. Therefore, the issue is whether or not the precursor substances are to be included in the weight when assessing punishment."

For these reasons, I would hold that the evidence in the instant case was sufficient to prove appellant manufactured over 400 grams of amphetamine as alleged in the indictment. I dissent to the majority's decision to decide otherwise.

McCORMICK, P.J., joins this dissent.

OPINION ON REHEARING ON COURT'S MOTION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW [Filed June 29, 1994]