Full opinion text
OPINION ON APPELLANT’S MOTION FOR REHEARING ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW MALONEY, Judge. Our prior opinion in this cause is withdrawn. A jury convicted appellant of manufacture of amphetamine weighing more than four hundred grams and assessed punishment at sixty-one years imprisonment and a $10,000 fíne. TEX.REV.CIV.STAT.ANN. art. 4476-15, §§ 4.02(d)(1)(A), 4.082(c) and (d)(2) (Vernon Supp.1983). The Tenth Court of Appeals affirmed the conviction in an unpublished opinion. Dowling v. State, No. 10-88-099-CR (Tex.App. — Waco Nov. 17, 1988). Appellant leased a house in Johnson County in the summer of 1983. In September of 1983, the landlord went to the house looking for appellant who was late with the rent. When no one answered, the landlord entered the house and smelled a foul odor and discovered a homemade laboratory. Thereafter, the landlord notified the authorities who obtained a search warrant for the house and discovered a flask and laboratory equipment. At trial, a chemist with the Texas Department of Public Safety, testified that the entire substance in the flask weighed 704.89 grams, including adulterants and dilutants. She did not further identify the adulterants and dilutants, nor did she testify as to the amount of the amphetamine in the flask, but she did testify that most of the remainder were bi-products of the manufacturing process and unused precursors. Appellant contends that the evidence is insufficient to prove he manufactured over four hundred grams of amphetamine as alleged in the indictment. Specifically, the Court of Appeals held that the evidence was sufficient because the remainder of the solution was an adulterant or dilutant and because the Controlled Substances Act prohibits the manufacture of any compound, mixture, material, or preparation containing any quantity of amphetamine. Dowling, slip op. at 2-3. We granted appellant’s petition for discretionary review to determine whether the evidence was insufficient to prove that appellant manufactured over four hundred grams of amphetamine as alleged in the indictment. On original submission, we held that the issue of adulterants and dilutants concerning calculation of weight for punishment purposes does not apply to manufacturing cases, and that precursors can be included in the aggregate weight of a controlled substance in manufacturing cases when assessing punishment. We also held that the weight of the controlled substance includes the “medium” in which the amphetamine is found because the term “controlled substance” is defined as “any material, compound, mixture, or preparation which contains any quantity ... of amphetamine.” TEX.REV.CTV.STAT.ANN. art. 4476-15, § 4.02(d)(1)(A). In his motion for rehearing, appellant contends that we have misconstrued the Texas Controlled Substances Act and its legislative intent. We agree albeit for different reasons. I. Adulterants and Dilutants We have defined adulterants and dilu-tants as “compounds, substances or solutions added to the controlled substance with the intent to increase the bulk of the product. Or, increase the quantity of the final product ‘without affecting its activity.’ ” McGlothlin v. State, 749 S.W.2d 856, 860 (Tex.Cr.App.1988); see also Cawthon v. State, 849 S.W.2d 346, 347 n. 4 (Tex.Cr.App.1992) (op. denying State’s motion for reh’g). On original submission we held that the issue of adulterants and dilutants was not applicable to manufacturing cases because McGlothlin dealt only with final products and possession cases. However, in McGlothlin, we did state that adulterants and dilutants include “agents added during manufacturing which will increase the bulk of the yet unfinished product.” McGlothlin, 749 S.W.2d at 860 n. 8. The applicable statute in effect at the time of the commission of the offense reads: Sec. 4.032. (a) [A] person commits an offense if he knowingly or intentionally manufactures, delivers, or possesses with intent to manufacture or deliver a controlled substance listed in Penalty Group 3 or 4. (c) 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 is, by aggregate weight, including any adulterants or dilutants, 200 grams or more. TEX.REY.CrV.STAT.ANN. art. 4476-15, § 4.032(a) and (c) (emphasis added). It logically follows that by grouping manufacturing and delivery offenses together the legislature intended to treat manufacturing cases the same as delivery cases. Since we have heretofore indicated that adulterants and dilu-tants may be included in the weight determination of the named substance in delivery cases, see, e.g., Reeves v. State, 806 S.W.2d 540 (Tex.Cr.App.1990), cert. denied, 499 U.S. 984, 111 S.Ct. 1641, 113 L.Ed.2d 736 (1991), we, therefore, hold that adulterants and dilu-tants can be included in determining aggregate weight in manufacturing cases. Here, the indictment alleged that appellant “intentionally and knowingly manufacture[d] and possess[ed] with intent to manufacture and deliver more than 400 grams of a controlled substance, to-wit: Amphetamine.” No mention was made of adulterants and/or dilutants in the indictment. The jury charge, however, stated: Now if you find from the evidence beyond a reasonable doubt that ... [appellant] ... did intentionally or knowingly manufacture a controlled substance, to-wit: Amphetamine, by aggregate weight, including any adulterants or dilutants, of more than 400 grams as set forth in the indictment, you will find [appellant] guilty of Manufacture of a Controlled Substance, to-wit, Amphetamine, by aggregate weight, including any adulterants or dilutants, of more than 400 grams. The question here presented is whether the language “including any adulterants and dilutants” in the court’s charge must also have been pled in the indictment. The Texas Controlled Substances Act in effect at the time of this offense defined a “controlled substance” as follows: “Controlled substance” means a drug, substance, or immediate precursor listed in Schedules I through V and Penalty Groups 1 through 4 of this Act. TEX.REV.CIV.STAT.ANN. art. 4476-15, § 1.02(5). And, we have held that the use of the term “controlled substance” in the indictment does not include the phrase “adulterants and dilutants.” Farris v. State, 811 S.W.2d 577, 580 (Tex.Cr.App.1990); Reeves, 806 S.W.2d at 545 (footnote omitted). Since the indictment did not allege adulterants and 'dilutants but the jury charge allowed the jury to consider adulterants and dilutants in determining weight, the jury was authorized to convict appellant upon a theory different from that alleged in the indictment. Reeves, 806 S.W.2d at 543. Because the trial court could not authorize a conviction on a theory not alleged in the indictment, Martinez v. State, 641 S.W.2d 526 (Tex.Cr.App.1982), and because the indictment here did not allege adulterants and dilutants, we hold that the State could not prove the existence of adulterants and dilutants as part of the aggregate weight of the controlled substance in order to convict appellant of the aggravated offense of manufacture of more than four hundred grams of amphetamine. II. Immediate Precursors On original submission, we held that the manufacturing statute provides that immediate precursors may be included in the aggregate weight of the named substance. We agree with our original holding, but note that the State must prove them to be “immediate precursors” as defined in the statute. The Texas Controlled Substances Act in effect at the time of this offense defined immediate precursors as follows: “Immediate precursor” means a substance which the commissioner has found to be and by rule designates 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, the control of which is necessary to prevent, curtail, or limit the manufacture of such controlled substance. TEX.REV.CIV.STAT.ANN. art. 4476-15, § 1.02(15). The Act also defined a “controlled substance” as a “drug, substance, or immediate precursor.” § 1.02(5). At appellant’s trial, the chemist testified that most of the remainder were bi-products of the manufacturing process and unused precursors. The State did not prove that the bi-products and unused precursors, were immediate precursors as defined in the statute, nor did it prove that the precursors plus the amphetamine weighed more than four hundred grams. Cf Cawthon; Reeves. Therefore, because the State failed to prove the existence of immediate precursors, it would be improper to include them in the aggregate weight. III. Material, Compound, Mixture, or Preparation On original submission, we held that the aggregate weight of the controlled substance includes the “medium” in which the amphetamine is found. The State contends on rehearing that if the mixture contains any quantity of amphetamine, then the entire mixture is a “controlled substance,” and the weight of the entire mixture is counted in determining the level of the offense. In answering this question we look to the relevant portion of the Texas Controlled Substances Act in effect at the time of this offense: Sec. 4.02(d) 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 ... TEX.EEV.CIV.STAT.ANN. art. 4476-15, § 4.02(d)(1)(A). A plain reading of the statute indicates that the legislature intended to prohibit the possession, delivery, or manufacture of materials, compounds, mixtures, or preparations containing amphetamine. In Reeves, Judge Miller, writing for the majority, indicated that the State could proceed under the “material, compound, etc.” theory if the indictment contained the phrase “material, compound, mixture, or preparation containing amphetamine.” See Reeves, 806 S.W.2d at 545 n. 5: The evidence in this case did show that appellant delivered a ‘material, compound, mixture, or preparation’ containing some amount of amphetamine, and that the material weighed more than twenty-eight grams. However, the charge to the jury did not allow a conviction under that theory, nor was appellant ever indicted under such allegation. Id. We therefore hold that the indictment must allege that the accused possessed, delivered, or manufactured a material, compound, mixture, or preparation containing amphetamine if the State is to proceed under such a theory. We also hold that the State must prove the identity of the named substance and that the material, compound, mixture, or preparation weighs the amount alleged in the indictment. Cf Cawthon. IV. Summary In summary, the proof of the aggregate weight of a controlled substance must show beyond a reasonable doubt: (1) the identity of the named substance; (2) the weight of the named substance and any proven adulterants or dilutants, if the phrase “including any adulterants and dilutants” is alleged in the indictment; (3) the weight of the named substance and any proven immediate precursors; or, (4) the weight of the named substance and any proven “material, compound, mixture, or preparation” containing the named substance, if that phrase is alleged in the indictment. In this case, the indictment failed to allege adulterants and dilutants, but the jui-y was instructed to consider adulterants and dilu-tants beyond the allegations in the indictment. Even if the trial court had properly instructed the jury, the proof at trial did not establish the existence of adulterants and dilutants. Cawthon; Reeves. Nor did the proof show that the pure amphetamine weighed more than four hundred grams. We therefore hold that the evidence is insufficient to support the verdict. Accordingly, we grant appellant’s motion for rehearing, reverse the judgment of the Court of Appeals, and remand this cause to the trial court with instructions to enter a judgment of acquittal. . Now TEX.HEALTH & SAFETY CODE ANN. §§ 481.103(a)(3), 481.113(c) and (d)(2). All citations in the text of this opinion are to the Texas Controlled Substances Act as it existed at the time of the alleged offense in 1983. The current citations are to the Act as it exists in 1992. In 1983, amphetamine was a Penalty Group 3 substance, now it is within Penalty Group 2. This change does not affect our discussion of the offense. . This testimony was elicited in response to the State's questions assuming the presence of adulterants and dilutants. . Out of the jury’s presence, the chemist did testify that 76.20 grams of the substance were amphetamine. . We also granted appellant’s petition on two other grounds for review, but because of our disposition of appellant’s first ground for review, we will not address the others. . Now TEX.HEALTH & SAFETY CODE ANN. § 481.113(a) and (c). . Because appellant did not object to the charge on the basis that the indictment did not contain the phrase "including any adulterants or dilu-tants,” there is no need to address the propriety of the court's charge. Reeves, 806 S.W.2d at 543 n. 4. . Now see TEX.HEALTH & SAFETY CODE ANN. § 481.002(5). . The Texas Controlled Substances Act currently defines "immediate precursors” as follows: "Immediate precursor” means a substance the commissioner finds to be and by rule designates as being: (A) a principal compound commonly used or produced primarily for use in the manufacture of a controlled substance; (B) a substance that is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance; and (C) a substance the control of which is necessary to prevent, curtail, or limit the manufacture of a controlled substance. TEX. HEALTH & SAFETY CODE ANN. § 481.002(22). . The State urges this Court to follow recent federal decisions that interpret similar language in federal criminal statutes. ■ Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991); United States v. Mahecha-Onofre, 936 F.2d 623 (1st Cir.), cert. denied, - U.S. -■, 112 S.Ct. 648, 116 L.Ed.2d 665 (1991). The federal scheme punishes an offender who manufactures or distributes a mixture or substance containing a detectable amount of a controlled substance. 21 U.S.C. § 841(a), (b). In Chapman the defendants sold ten sheets of blotter paper containing one thousand doses of lyser-gic acid diethylamide (LSD). Although the LSD weighed only fifty milligrams, the weight of the LSD plus the blotter paper was 5.7 grams. The trial court sentenced the defendants to the mandatory minimum of five years imprisonment for distributing more than one gram of a "mixture or substance containing a detectable amount" of LSD. The United States Supreme Court held that the weight of the blotter paper or other carrier should be included when computing the sentence. Similarly, in Mahecha-Onofre, the defendant was convicted of possession with intent to distribute five kilograms or more of "a mixture or substance containing a detectable amount of” cocaine. The defendant attempted to smuggle cocaine through customs by chemically bonding the cocaine to the suitcase. The First Circuit held that the weight of the entire suitcase, less the non-bonded metal parts, should be included in assessing punishment. We do not find these cases controlling, because, as will be seen in the text of this opinion, in Texas, unlike the federal scheme, the medium in which the named substance is found is not automatically included in the aggregate weight of the controlled substance. . Now TEX.HEALTH & SAFETY CODE ANN. § 481.103(a)(3).
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 substanees[, necessitating] expert testimony to properly present and prove a criminal violation of the Act.” Id., at 859. 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 (e), 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. * * * * [TJhat 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 substanee[.]” Id., § 1.02(15). 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. 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. Also implicated is a “criminal classification,” i.e., § 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. 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. . 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.) . A § 4.032(a) offense is a third degree felony "if the amount of the substance manufactured, delivered, or possessed with intent to manufacture or deliver is, by aggregate weight, including any adulterants or dilutants, less than 200 grams.” § 4.032(b) A § 4.042(a) offense is a Class A misdemeanor "if the amount of the controlled substance possessed is, by aggregate weight, including any adulterants and dilutants, less than 200 grams.” § 4.042(b). By using of the past tense in each instance, the Legislature manifested that amphetamine, as the controlled substance in question, must be an end product of the manufacturing process, and thus susceptible to being delivered and possessed. . 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). . 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 phe-nylacetone with intent to manufacture amphetamine with equally serious punishment, depending, of course, on the amount of phenylacetone. . 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 (§ 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. . 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. McGloth-lin 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 Si 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). .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. 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 Sees. 481.113 and 481.116. This is time 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-bro-mo-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-trime-thyl-3-pentyl-6H- dibenzo [b,d]pyran-l-ol or (-)-delta-9-(trans)-tetrahydro-cannabinol); Ethylamine Analog of Phencyclidine (some trade or other names: N-ethyl-1-phenylcyclohexylamine, (1-phenylcyclohexyl) ethylamine, N-(l-phenylcyclo-hexyl) 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-methylphenethylamine; “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: ( + )-trans-3-(l,l-dimethylheptyl)~ 6,6a,7,8,10,10a-hexahydro-l- 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-l-hydroxy-7, 8, 9, 10-tetrahydro-6, 6, 9-trimethyl-6H-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); Tetrahydroeannabinols, 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); l-[l-(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 that 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-trime-thylbenzeneethaneamine; N,N,alpha-trimethylphenethylamine), its salts, optical isomers, and salts of optical isomers. (b) For the purposes of Subsection (a)(1) only, the terna “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 Prior Laws 4. 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 1973, 63rd Leg., p. 995, eh. 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. Ex parte 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. Pew 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 that contains organic resin extracted from plant or synthetic THC in whatever form and under whatever name is embraced. Pew 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 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. 1. References to the Texas Department of Corrections shall mean the institutional division of the Texas Department of Criminal Justice by Acts 1989, 71st Leg., ch. 785, § 1.19(f). Historical and Statutory Notes Cross References Controlled substance analogue, manufacture, delivery or 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, second-degree felony, see V.T.C.A Penal Code, § 12.33. Repeat offenders, punishment, see § 481.107. Notes of Decisions Instructions 4 Manufacture, sufficiency of evidence 2 Possession with intent to deliver, sufficiency of evidence 3 Quantity 1 Sufficiency of evidence 2-3 Manufacture 2 Possession with intent to deliver 3 1. Quantity Amount of controlled substance delivered need not be proved to sustain conviction for lowest punishment class applicable to substance. Stockton v. State (App. 3 Dist.1988) 756 S.W.2d 873. Entire 220.18 grams of amphetamine sold to undercover officer could be considered in determining whether State proved drug weight of more than 200 but less than 400 grams in prosecution for aggravated delivery of controlled substance, where transaction involved sale on wholesale level of finished product ready to be cut for sale at retail level, even though 24% of weight of substance consisted of by-products of manufacturing process. Herndon v. State (App. 2 Dist.1989) 767 S.W.2d 510, review refused. Where State attempts to obtain conviction for aggravated offense under theory that aggregate weight of controlled substance sold by defendant, including adulterants or dilutants, is over 28 grams, State first must prove existence of any adulterants and dilutants, and then must show that controlled substance, plus any adulterants or dilutants, if proven to exist, weighs more than 28 grams. Reeves v. State (Cr.App.1990) 806 S.W.2d 640, rehearing on petition for discretionary review denied, certiorari denied 111 S.Ct. 1641, 113 L.Ed.2d 736. 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. Fanis 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 for life or for a term of not more than 99 years or less than 5 years, and a fíne 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 adulterants or dilutants, 400 grams or more. Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. 1. References to the Texas Department of Corrections shall mean the institutional division of the Texas Department of Criminal Justice by Acts 1989, 71st Leg., ch. 785, § 1.19(f). Historical and Statutory Notes 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 thereto 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 me-thaqualone was in fact a dangerous drag, 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. Ex parte 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. 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. McCORHICK, P.J., joins this dissent. . Although neither appellant nor the State raises the point in their arguments, we are aware that the manufacture or delivery of the controlled substance "amphetamine” in particular poses additional considerations because of the way in which amphetamine is listed in the Controlled Substances Act. Section 1.02(4) defines "controlled substance” as "a drug, substance, or immediate precursor listed in Schedules I through V or Penalty Groups 1 through 4 of this Act.” Section 4.02(c) covers Penalty Group 2 controlled substances and lists as prohibited "... a material, compound, mixture, or preparation which 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; ...” Section 4.02(c) (emphasis added). From the wording of this provision, the "controlled substance” prohibited may be: a) a material, compound, mixture, or preparation which contains any amount of a listed substance (e.g., amphetamine); or b) the listed substance in its "pure” form, since a "material” could consist of 100 percent of the listed substance. The distinction becomes important when the State seeks conviction for an aggravated offense under Sec. 4.031(c). Where a material, compound, mixture, or preparation contains some quantity of a listed controlled substance, e.g., amphetamine, the "controlled substance” is that material, according to the statute. Section 4.02(c)(3). In that case, if the weight of the material is over 28 grams, then the aggravating element of Sec. 4.031(c) is met. On the other hand, the State may seek conviction under Sec. 4.031(c) for possessing, manufacturing, or delivering the "pure” substance, e.g., “pure” amphetamine. In that case, as we discussed previously, the State must prove either that the amount of the pure amphetamine weighs more than 28 grams or that the amount of pure amphetamine, plus any adulterants or dilutants, if proven to exist, weighs more than 28 grams. The evidence in this case did show that appellant delivered a "material, compound, mixture, or preparation” containing some amount of amphetamine, and that the material weighed more than 28 grams. However, the charge to the jury did not allow a conviction under that theory, nor was appellant ever indicted under such an allegation. Reeves, 806 S.W.2d at 545, fn. 5. . As the crime occurred in 1983, the version of the Texas Controlled Substances Act in effect at that time is controlling in this case.
OPINION ON REHEARING ON COURT’S MOTION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW [Filed June 29, 1994] MILLER, Judge. Appellant was charged in three separate counts with having illegally manufactured a controlled substance, to wit: Amphetamine. The trial court instructed the jury to convict Appellant if it found that Appellant had intentionally and knowingly manufactured amphetamine, by aggregate weight, including any adulterants and dilutants, of more than 400 grams. The jury so found and Appellant was convicted of aggravated manufacturing of amphetamine. While the Court of Appeals acknowledged that just 76.20 grams of “amphetamine base” were present, it found the evidence sufficient “to prove manufacture of amphetamine over 400 grams” because it believed that “the 704.89 grams of solution in the flask was a compound, mixture or preparation containing a quantity of amphetamine” within contemplation of Article 4476-15, 4.02(d)(3), R.C.S. Dowling v. State (Tex.App. — Waco, No. 10-88-099-CR, delivered November 17, 1989). On original submission and on Appellant’s motion for rehearing, we addressed a theory of prosecution under the Act, viz: that the “amount” of “any material, compound, mixture, or preparation which contains any quantity of [amphetamine]”, former 4.02(d)(1)(A), may be included in determining the “aggregate weight” of the controlled substance, along with’ “adulterants or dilutants”, under former 4.032(a), (c), and (d)(2). See and compare on motion for rehearing: majority opinion, Part III, at 108-109; concurring opinion of Judge Miller; concurring opinion of Judge Clinton, at 112-113; see also Reeves v. State, 806 S.W.2d 540, at 545, n. 5 (Tex.Crim.App.1990). To aid the Court in resolving those narrow issues before reaching its ultimate disposition of the cause, we granted rehearing on the Court’s own motion and directed respective counsel to brief and then to present oral argum