Summary
In Biggers, police officers observed a Sprite bottle and a white Styrofoam cup during a buy-bust operation, both filled with "a purple-type substance."
Summary of this case from Bamburg v. StateOpinion
NO. PD-0309-20
09-22-2021
Darren Lamont BIGGERS, Appellant v. The STATE of Texas
Emily Johnson-Liu, for State of Texas. Jeromie Oney, Darren Lamont Biggers, for Appellant.
Emily Johnson-Liu, for State of Texas.
Jeromie Oney, Darren Lamont Biggers, for Appellant.
OPINION
McClure, J., delivered the opinion of the Court in which Hervey, Richardson, Newell, and Walker, JJ., joined.
When the State alleges, but fails to prove, the codeine mixture the defendant possessed contains a sufficient proportion of another medicine to be medicinal, should he be acquitted or convicted of the greater offense? Because we hold that the evidence was insufficient to prove that Appellant possessed Penalty Group 4 codeine but was not negated beyond a reasonable doubt as required for Penalty Group 1 codeine, we hold that he did not possess Penalty Group 1 codeine. We agree with the court of appeals that Appellant is entitled to an acquittal.
BACKGROUND
A confidential informant employed by a police agency arranged to purchase methamphetamine from Appellant. When Appellant arrived in his vehicle at the arranged place and time, officers detained him for a narcotics investigation. The investigating officer saw a Sprite bottle and a white Styrofoam cup, both filled with "a purple-type substance." Appellant admitted that it was "lean"—a commonly used term for codeine cough syrup mixed in a beverage. The substance field-tested positive for codeine, and officers arrested Appellant for possession of a controlled substance.
The State charged Applicant with possession of a Penalty Group 4 controlled substance (codeine) in an amount over 400 grams. (Appellant was also charged with tampering with physical evidence, but that conviction is not at issue in this proceeding.)
The amended indictment in this case read:
THE GRAND JURORS, duly selected, organized, sworn and impaneled, as such for the County of Cooke, State of Texas, at the January Term, A.D., 2017, of the 235th Judicial District Court of said county, upon their oaths present in and to said Court, that on or about the 7th day of February 2017, in the county and state aforesaid, and anterior to the presentment of this indictment, Darren Lamont Biggers, hereinafter styled "defendant," did then and there intentionally and knowingly possess a Penalty Group 4 controlled substance, namely, a compound, mixture, or preparation in an amount of 400 grams or more, that contained not more than 200 milligrams of codeine per 100 milliliters or 100 grams and one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer on the compound, mixture, or preparation valuable medicinal qualities other than those possessed by the narcotic drug alone.
During the State's case-in-chief, the State proffered testimony from a chemist regarding the contents of the two items seized from the cupholders in Appellant's vehicle: a Sprite bottle and a Styrofoam cup. The chemist testified that both items "had a similar odor to cough syrup or something of the like" and that both contained "an unspecified amount of codeine and promethazine." On voir dire , the chemist explained that she was not asked to quantify the amount of codeine and promethazine in the Sprite bottle or the Styrofoam cup and she did not know the concentration level of codeine in either sample. She did testify, however, that labels on "common cough syrup" do "usually state that it is a Penalty Group 4" and has "not more than 200 milligrams of codeine per 100 milliliters." Finally, the chemist testified that promethazine was a nonnarcotic active medicinal ingredient, but she never testified as to "whether the combination of promethazine and codeine had valuable medicinal qualities other than those possessed by the codeine alone." When the prosecutor asked, "[d]oes the promethazine add something to this mixture medicinally ...?" the chemist responded, "It appears to, but I can't say for sure."
DIRECT APPEAL
On appeal, Appellant argued that, at best, the State only established the mere presence of promethazine, and that by failing to prove the level of concentration of codeine in the substances possessed by Appellant, as required by the statute, the State failed to establish an essential element of the offense. The court of appeals agreed, holding that the statute requires more than the mere presence of promethazine. Biggers v. State , 601 S.W.3d 369, 376–78 (Tex. App.—Amarillo, 2020). Therefore, the court of appeals found the evidence was insufficient to establish that (1) the concentration level of the codeine was not more than 200 milligrams of codeine per 100 milliliters, and (2) the presence of promethazine was in a sufficient proportion to convey on the mixture valuable medicinal qualities other than those possessed by the codeine alone. Id.
The court of appeals rendered a judgment of acquittal, stating that:
"[B]ecause the insufficiency of the evidence in this case goes to the nature of the substance possessed, as opposed to the amount possessed, applying the standards of evidentiary review to each of these lesser included offenses, we find the evidence is still insufficient to support a conviction as to any of the lesser included offenses."
Id. at 378.
STATE'S PETITION
We granted review to answer the State's question as to what is the proper remedy in this circumstance. By the State's failure to prove the proportion of the codeine mixture as required in the lowest tier of the codeine and codeine-derivative statute (Penalty Group 4), is Applicant actually guilty of the higher tier offense (Penalty Group 1)?
In analyzing this question, we look to the statute itself. The Texas Health & Safety Code establishes different tiers of punishment for codeine possession:
• Penalty Group 1: "Codeine not listed in Penalty Group 3 or 4." TEX. HEALTH & SAFETY CODE § 481.102(3)(A).
• Penalty Group 3: A mixture of "not more than 1.8 grams of codeine ... per 100 millimeters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts." Id. at § 481.104(a)(4).
• Penalty Group 4: A mixture "that includes one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer on the ... mixture ... valuable medicinal qualities other than those possessed by the narcotic drug alone" and "not more than 200 milligrams of codeine per 100 milliliters or per 100 grams." Id. at § 481.105(1).
SANCHEZ & MILES
Members of this Court have previously addressed this somewhat confusing statutory scheme in both Sanchez v. State , 275 S.W.3d 901 (Tex. Crim. App. 2009) and Miles v. State , 357 S.W.3d 629 (Tex. Crim. App. 2011).
Judge Cochran stated in her concurring opinion in Miles that, "The law concerning possession of codeine is confusing and incoherent." 357 S.W.3d at 638-39.
In Sanchez v. State , the appellant was charged with Penalty Group 4 codeine possession. Sanchez , 275 S.W.3d at 902. Similar to the instant case, the State offered evidence that promethazine was present in the mixture in an unquantified proportion. Id. at 903. A majority of this Court held that the evidence was sufficient for a Penalty Group 4 conviction because:
"[E]vidence that the promethazine in the substance ‘on its own has a valuable medicinal quality’ is sufficient to support
a finding that it was ‘in sufficient proportion to confer on the substance valuable medicinal qualities.’ Under these circumstances, the State was not required to quantify the promethazine in the substance."
Id. at 905.
In her concurring opinion in Sanchez , Presiding Judge Keller (joined by three other judges), noted that, "The legislature has decided to punish possession of cough medicine with codeine less severely than possession of codeine alone." Id. Judge Keller further stated that possession of cough medicine with codeine is a lesser included offense of possession of codeine, and, therefore, if the promethazine was not in the proper proportion, an appellant "would be guilty of a greater offense—i.e. , possession of codeine under Penalty Group 1." Id. at 906.
Judge Johnson also concurred in Sanchez (joined by two other judges), pointing out that any failure of proof regarding the proportion of promethazine accrued to the benefit of the appellant because "[t]he presence of promethazine saved appellant from a felony penalty range." Id. at 908.
In Miles v. State , the record was unclear as to which penalty group the appellant was charged and convicted for. Miles , 357 S.W.3d at 631-32. This Court reviewed the record and concluded that Miles was charged with Penalty Group 1 possession, but the evidence failed to prove that. Id. at 636, 638. The Court noted that "the qualitative elements of a Penalty Group 4 offense" were "a mitigating factor, or an exception, to the offense of possession of Penalty Group 1 codeine." Id. at 636. The Court found that the evidence at trial "showed only the mere presence of promethazine" but no evidence as to the "therapeutic or medicinal qualities, or lack thereof, of the amount or concentration of promethazine." Id. at 638. As a result, "a rational juror could not infer whether the promethazine was or was not in recognized therapeutic amounts or in sufficient proportion to confer on the compound valuable medicinal qualities other than those possessed by the codeine alone." Id. Further, this evidence was necessary to show that this was codeine "not listed in Penalty Group 3 or 4." Id. at 637. In conclusion, the Court held in Miles that the evidence was insufficient, and an acquittal was the appropriate remedy. Id. at 638.
In her dissenting opinion, Presiding Judge Keller once again stated that if promethazine was not present in sufficient proportion to confer valuable medicinal qualities, then the defendant was "guilty of a greater offense than that for which he was convicted." Id. at 645. Specifically, Judge Keller stated:
Judge Cochran contends, among other things, that the evidence is insufficient to show a Penalty Group 4 offense because the evidence does not show that promethazine was present "in sufficient proportion to confer ... valuable medicinal qualities." [citation omitted] In other words, appellant did not prove that there was enough non-codeine cough medicine in the mixture. But that is a mitigating fact that distinguishes Penalty Group 4 codeine from Penalty Group 1 codeine. To obtain a conviction for a Penalty Group 1 codeine offense, the State has to disprove that mitigating fact; it does not actually have to prove that fact to obtain a conviction for the lesser, Penalty Group 4 codeine offense.
Id. at 644.
ANALYSIS
Now, ten years later, we find ourselves once again struggling with this confusing statutory scheme. Appellant, much like Sanchez and Miles, has alleged that the evidence is insufficient to prove that he possessed Penalty 4 Group codeine. The court of appeals agrees. We also agree. But what is the proper remedy?
The court of appeals held that the proper remedy is an acquittal. Biggers , 601 S.W.3d at 380. The intermediate court found that the State was unable to provide any testimony establishing an essential element of the State's case, namely the level of concentration of codeine in the substances possessed by Appellant, making the evidence insufficient to support his conviction. Id. at 377-78.
The court below then proceeded to conduct a " Bowen analysis" to see if the case should be remanded to the trial court for modification of the judgment to reflect a lesser included offense. Id. at 378. The intermediate court held that the evidence is insufficient to support a lesser included offense because the nature of the evidence, as opposed to the amount of the evidence, was insufficient. Id.
In Bowen v. State , 374 S.W.3d 427, 431–32 (Tex. Crim. App. 2012), this Court held that, when an intermediate court finds the evidence insufficient to support a conviction, the court is not required to order an acquittal if the judgment can be modified to a lesser included offense.
The lesser included offenses of Penalty Group 4 are: (1) possession of a controlled substance, Penalty Group 4, 200 grams or more but less than 400 grams, (2) possession of a controlled substance. Penalty Group 4, 28 grams or more but less than 200 grams, and (3) possession of a controlled substance. Penalty Group 4, less than 28 grams. See Tex. Health & Safety Code § 481.118(b), (c), and (d).
The State disagrees and argues that Appellant should not be acquitted because he is actually guiltier than the State alleged. The State directs our attention to our opinion in Miles, which held that Penalty Group 4's "valuable medicinal qualities" language functions as an element to negating guilt for Penalty Group 1 codeine. Miles , 357 S.W.3d at 636. Therefore, the State argues, if the State fails to prove the medicinal quality, the only remaining possibility is that it is codeine not listed in Penalty Group 3 or 4, and thereby, Penalty Group 1 codeine.
In order to prove that Appellant is guilty of the greater offense we need to, once again, look at the statute. Penalty Group 1 codeine possession is defined as "codeine not listed in Penalty Group 3 or 4." See TEX. HEALTH & SAFETY CODE § 481.102(3)(A).
In Miles , this Court held that to prove this element, the State could show that (1) the concentration of the codeine was more than 1.8 grams of codeine per 100 milliliters, or (2) the codeine was not combined with active nonnarcotic ingredients in recognized therapeutic amounts or in sufficient proportion to confer on the compound valuable medicinal qualities other than those possessed by the codeine alone. Miles , 357 S.W.3d at 637–38 ; see also TEX. HEALTH & SAFETY CODE §§ 481.104(a)(4), 481.105(1).
In the instant case, we know the substance possessed by Appellant contained other nonnarcotic therapeutic ingredients because: (1) Appellant himself admitted the substance was "lean," (2) the chemist testified that both items "had a similar odor to cough syrup or something of the like," and (3) the chemist testified that both contained "an unspecified amount of codeine and promethazine."
There is no question that promethazine is present in this mixture. And while the chemist did testify that promethazine was a nonnarcotic active medicinal ingredient, she failed to testify whether the codeine was combined with the promethazine in recognized therapeutic amounts or in sufficient proportion to confer on the compound valuable medicinal qualities other than those possessed by the codeine alone. Without this evidence, a rational juror could not infer that the promethazine was or was not in recognized therapeutic amounts or in sufficient proportion to confer on the compound valuable medicinal qualities other than those possessed by the codeine alone.
By the statute's very language, in a Penalty Group 1 prosecution, the State, which has the burden of proving the essential elements of a crime beyond a reasonable doubt, must prove that the codeine does not fall in Penalty Group 3 or 4. To put it simply: The State must negate the possibility that the mixture was a Penalty Group 3 or 4 substance. Because we lack proof that the substance in this case is not a Penalty Group 4 substance, we cannot say it is then a Penalty Group 1 substance.
Perhaps if the chemist had been asked by the State to quantify the amount of codeine and promethazine in the Sprite bottle or the Styrofoam cup in order to determine the concentration level of codeine in either sample, she could have testified as to whether the presence of promethazine was in a sufficient proportion to convey on the mixture valuable medicinal qualities other than those possessed by the codeine alone. If her answer was yes, the State could have successfully obtained a conviction for possession of codeine Penalty Group 4. If her answer was that the substance did contain some nonnarcotic therapeutic ingredients, but the codeine concentration was greater than 1.8 grams (Penalty Group 3) or 200 mg (Penalty Group 4) per 100 milliliters of substance, then the State could have successfully obtained a conviction for possession of codeine Penalty Group 1 (because that is proof that the codeine is not listed in Penalty Group 3 or 4). Because this was not done in this case, we lack the proof (or the negation of the proof) as to what the substance actually is.
Although the State would find it "absurd" to acquit the defendant based on these facts, we disagree. When the State brings a defendant to trial for possession of a specific penalty group (where that penalty group requires a specific quantity and proportion analysis), fails to ensure that the proper testing is conducted, and fails to provide testimony to the jury as to the specific quantity and proportion analysis as required by the statute, and then turns to this Court to invent a creative way to uphold this conviction, perhaps this is a scenario that borders on absurdity. We sympathize with the State that these statutes are confusing and, to borrow a few words from Judge Cochran from Miles , are not user- and jury-friendly. Miles , 357 S.W. 3d at 643. But until the Legislature changes the statute, the State must prove that an alleged controlled substance containing codeine meets the statutory definition of codeine as set out in Penalty Group 1, 2, 3, or 4.
We affirm the decision of the court of appeals in Cause Number 07-18-00375-CR.
Keller, P.J., filed a dissenting opinion.
Slaughter, J., filed a dissenting opinion in which Keller, P.J., Yeary and Keel, JJ., joined.
Keller, P.J., filed a dissenting opinion.
The legislature has decided that possession of codeine in cough syrup without a prescription should be penalized less harshly than possession of codeine that is not in cough syrup. Possession of codeine is a penalty group 4 substance when it is combined with another medicine, the other medicine is present in a proportion sufficient to confer valuable medicinal qualities (beyond those conferred by codeine alone), and the codeine does not exceed a certain proportion of the mixture. If the other medicine is not present in a sufficient proportion to confer valuable medicinal qualities, then codeine is in a higher penalty group—penalty group 1—and its possession is a greater offense. So the other medicine being present in a sufficient proportion is a mitigating fact that lowers the degree of the offense. What happens when the record does not contain enough information from which to rationally conclude that the mitigating fact is true or false? That is, what happens if the record shows that the codeine is mixed with another medicine but does not show whether or not the other medicine is present in a sufficient proportion to confer valuable medicinal qualities? I would affirm the conviction for the charged offense, possession of codeine in penalty group 4. A majority of the members of the Court came to that conclusion in Sanchez v. State, the Court has never said otherwise until now, and the Sanchez conclusion makes sense in light of the statutory scheme.
275 S.W.3d 901 (Tex. Crim. App. 2009).
See Biggers v. State, 601 S.W.3d 369, 377-78 (Tex. App.—Amarillo 2020) ; Tex. Health & Safety Code § 481.105(1) (Penalty Group 4 consists of "a compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs [including codeine] that includes one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer on the compound, mixture, or preparation valuable medicinal qualities other than those possessed by the narcotic drug alone[.]").
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1. A majority of judges in Sanchez concluded that the State need not prove the "medicinal qualities" mitigating fact to support a conviction for the penalty group 4 offense.
In Sanchez , the chemist testified that promethazine was present in the codeine mixture but did not testify as to the actual concentration. The Court, however, concluded that the jury could have rationally inferred from the record that the promethazine was present in a sufficient amount to confer valuable medicinal qualities and that it was not necessary for the expert to quantify the concentration. Two concurring opinions concluded that the State did not have to show concentration or valuable medicinal qualities, and the two of them combined garnered the votes of five judges. Judge Johnson did not agree with the Court's conclusion that the State had proven valuable medicinal qualities, but she concluded that it did not matter because "that failure accrued to the benefit of the appellant" in that it "saved appellant from a felony penalty range." She commented that if the chemist had "ascertained the proportion of promethazine, it may have been too small to satisfy the statute and thereby enable the state to seek a greater punishment." My concurrence agreed with the Court that valuable medicinal qualities had been established, but I also concluded that it did not matter—because the bottom line was that the defendant's complaint was that "he may have been guilty of a greater offense than that for which he was convicted." I emphasized that the proportion of the non-codeine medicine was a mitigating factor that the State was explicitly required to negate to prove the penalty group 1 offense and reasoned that this made the penalty group 4 offense a lesser-included offense of the penalty group 1 offense. I analogized to the old voluntary manslaughter offense with its sudden passion mitigating element and argued that this sort of mitigating element must be disproven by the State for the greater offense (at least if raised) but need not be proven for the lesser offense. I pointed out that the view was more strongly supported in the codeine situation because negating penalty group 4 status was an explicit requirement of the penalty group 1 offense.
Id. at 903-05.
Id. at 904-05.
Id. at 905-07 (Keller, P.J., concurring, joined by Womack, Holcomb, and Cochran, JJ.), 907-08 (Johnson, J., concurring, joined by Holcomb and Cochran, JJ.).
Id. at 907-08 (Johnson, J., concurring).
Id. at 908.
Id. at 906-07 (Keller, P.J., concurring).
Id. at 906.
Id. at 906-07.
Id. at 907.
2. The majority view articulated in the concurring opinions in Sanchez should be viewed as binding precedent.
We have stated that a " ‘fractured decision’ is a judgment by an appellate court that has no majority opinion." A fractured decision is binding authority "if, and to the extent that, a majority holding can be ascertained from the various opinions in the case." This is true "[e]ven if the rationales seem disparate, if a majority of the judges agree on a particular narrow ground for or rule of decision." We have never said that a fractured decision with a holding cannot coexist with a majority opinion with a holding, and there is no logical reason to conclude that they cannot coexist.
Unkart v. State , 400 S.W.3d 94, 100 (Tex. Crim. App. 2013).
Id.
Id. at 100-01.
3. The Miles case does not conflict with the view of the majority of the judges in Sanchez that the State need not prove the mitigating facts to support a conviction for a penalty group 4 offense.
In Miles v. State , there was ambiguity with respect to what codeine offense the defendant was charged with. The Court concluded that Appellant was charged with possession of codeine in penalty group 1. The Court further concluded that proving its penalty group 1 charge required the State to prove that the substance was not in penalty group 3 or 4. And the Court concluded that the State failed to do that because the record did not establish that promethazine "was or was not in recognized therapeutic amounts or in sufficient proportion to confer on the compound valuable medicinal qualities."
357 S.W.3d 629, 631-33 (Tex. Crim. App. 2011).
Id. at 636-37.
Id. at 637.
Id. at 637-38.
The Court did not say that the record would be insufficient to support a conviction for possession of penalty group 4 codeine. The Court rendered an acquittal, but at the time, we had not decided Bowen v. State , which authorized reformation to a lesser-included offense even when the lesser-included offense was not submitted or requested. In my dissent, I suggested that the Court wait until Bowen was decided, but the Court chose not to do so, and its decision to acquit without considering the lesser-included offense was supported by the caselaw at the time. I disagreed with the Court's conclusion that Appellant was charged with possessing codeine in penalty group 1 and contended that he was, instead, charged with possession of codeine in penalty group 3 or 4. I based my conclusion on a caption in the indictment that read "PG 3/4," but the Court was not convinced. My dissent did not disagree with the Court's conclusion about what was required to prove a penalty group 1 offense—that the State had to prove that the codeine did not fall within penalty group 3 or 4 due to the concentration of the codeine or due to the non-codeine medicine not being present in sufficient proportion to confer valuable medicinal qualities.
See id. at 630-38.
Id. at 638.
See Bowen v. State , 374 S.W.3d 427 (Tex. Crim. App. 2012).
See Miles , 357 S.W.3d at 645 n.18 (Keller, P.J., dissenting).
Id. at 643-44.
Id.
Id. at 637 (Court's op.).
See id. at passim.
I went on to conclude that the evidence was sufficient to show a penalty group 4 offense in response to Judge Cochran's concurring opinion suggesting otherwise. Judge Cochran had joined my concurring opinion in Sanchez , but in Miles she stated that she agreed with only the proposition that no specific proportion need be proven, and Judge Johnson, by joining Judge Cochran, apparently had rethought her position. But Judge Cochran's concurring opinion in Miles garnered only three votes, and her statements in that opinion could not retroactively cancel her vote in a majority holding in an earlier case. The view expressed in my Sanchez concurrence was not limited to saying that proportion need not be quantified, nor was the view expressed in Judge Johnson's concurrence. Both concurrences clearly staked out the position that the State, to prove a penalty group 4 offense, did not need to prove that the non-codeine medicine was in a sufficient proportion to confer valuable medicinal qualities.
Id. at 644-45 (Keller, P.J., dissenting).
See id. at 642 n.12 (Cochran, J., concurring).
4. Even if only persuasive, the five-judge view of the concurring opinions in Sanchez should be accepted.
Even if the five-judge view expressed in the Sanchez concurrences is only persuasive authority, there are good reasons to accept that view. The statute listing penalty group 1 substances lists "Codeine not listed in Penalty Group 3 or 4." The penalty group 4 statute specifies that codeine is a penalty group 4 substance if another medicine is mixed with the codeine in sufficient proportion to confer valuable medicinal qualities and the codeine does not exceed a certain proportion of the mixture (200 mg/100 ml or 200 mg/100 g). Thus, assuming the same amount of the total mixture, the only difference between a penalty group 1 codeine possession offense and a penalty group 4 codeine possession offense is the presence or absence of the mitigating facts that cause codeine to fall within penalty group 4.
Tex. Health & Safety Code § 481.102(3)(A).
Offenses under both penalty groups can differ by the amount of the substance possessed, including adulterants and diluents. See Tex. Health & Safety Code §§ 481.115, 481.118.
To be clear, there are two mitigating facts required for penalty group 4 status, even though only one of those is at issue here: (1) the presence of the other medicine in sufficient proportion to confer valuable medicinal qualities, and (2) codeine not exceeding a certain proportion of the mixture. If the first mitigating fact is absent, then codeine is a penalty group 1 substance. If only the second mitigating fact is absent, then codeine is a penalty group 1 or 3 substance depending on the proportion of codeine in the mixture.
We should not overlook the second mitigating fact of codeine concentration. I can see no justification in the structure of the relevant statutes for treating the two mitigating facts differently. If the State has to prove the first for a penalty group 4 substance, then it will also have to prove the second. What happens if the State offers evidence of the presence of promethazine in sufficient proportion to confer valuable medicinal qualities but fails to offer any evidence of the actual proportion of codeine in the mixture, other than that there was some? The statute says nothing about quantifying the non-codeine medicine, but it does specify quantifying the codeine proportion of the mixture. Under the Court's rationale today, such a defendant would have to be acquitted entirely, even though we would know that he had to have possessed a proportion of codeine that was at least a penalty group 4 substance (but could be more than that). Although perhaps less obvious, the same is true of the first mitigating factor—the proportion of non-codeine medicine—if the record is unclear about whether that proportion was sufficient to confer valuable medicinal qualities, we still know that the codeine would at least be a penalty group 4 substance, though it might be a higher penalty group.
This situation is analogous to the old voluntary manslaughter statute, which contained all the elements of murder plus the mitigating element of sudden passion arising from an adequate cause. In Moore v. State , we held that voluntary manslaughter was in fact a lesser-included offense of murder due to having a lesser culpable mental state. In doing so, we overruled a prior case that held the evidence to be insufficient to support a conviction for voluntary manslaughter because sudden passion had not been proven. That prior case, Bradley v. State , viewed the situation much as the Court views the present case: "The State had the burden to disprove sudden passion beyond a reasonable doubt to convict for murder, and the burden to prove the existence of sudden passion beyond a reasonable doubt to convict for voluntary manslaughter." Moore rejected that view in the voluntary-manslaughter context, and we should do so here.
See Tex. Penal Code § 19.04(a) (West 1992). For brevity and ease of reference, I sometimes refer to the mitigating element by the label "sudden passion."
969 S.W.2d 4, 9-10 (Tex. Crim. App. 1998).
Id. at 10 (overruling plurality opinion in Bradley v. State , 688 S.W.2d 847 (Tex. Crim. App. 1985) ).
Id. at 9 (discussing Bradley ).
Although Moore did not adopt the reasoning of the even earlier case of Braudrick v. State , the reasoning in that earlier case applies more strongly to the present case than to the murder/voluntary manslaughter situation. In Braudrick , the Court concluded that the negation of the "sudden passion" element of voluntary manslaughter was an implied element of murder. So, in the Court's view, voluntary manslaughter was a lesser-included offense of murder because it differed only by lacking an element of murder—it lacked murder's implied element of not having "sudden passion." The Court further concluded that "[t]he distinguishing feature between murder and voluntary manslaughter is not a fact that must be proven beyond a reasonable doubt to establish voluntary manslaughter." The Court further held that, if the issue is raised, it must be disproven to establish murder, and "a reasonable doubt on the issue requires acquittal on the murder charge and allows conviction only for voluntary manslaughter."
572 S.W.2d 709 (Tex. Crim. App. 1978).
See id. at 710.
Id.
Id. at 711.
Id.
A possible hole in the court's reasoning in Braudrick was the idea of having an implied element. Moore perhaps implicitly criticized Braudrick by referring to the notion "that murder had an unwritten, implied element of lack of sudden passion." But in the present case, we do not have an "implied element" problem. Penalty group 1 codeine is explicitly defined as codeine that does not fall within penalty group 3 or 4. So, under Braudrick ’s reasoning, possession of penalty group 4 codeine lacks an element contained in possession of penalty group 1 codeine—it lacks the penalty group 1 element of not being in penalty group 4 (because it is in penalty group 4). Analytically, the penalty group 4 offense is a lesser-included offense of the penalty group 1 offense because it differs only by having fewer elements. And under Braudrick ’s reasoning, because the mitigating characteristics is what makes it a lesser included offense, the mitigating characteristics of penalty group 4 codeine do not have to be proven beyond a reasonable doubt to convict on a penalty group 4 offense, but they must be disproven beyond a reasonable doubt to convict on a penalty group 1 offense.
See Tex. Code Crim. Proc. art. 37.09(1). It might also be possible to characterize possession of penalty group 4 codeine as a lesser included offense on the basis that it differs from the greater offense "only in respect that a less serious injury or risk of injury to the same ... public interest suffices to establish its commission." See id. art. 37.09(2).
Braudrick ’s conclusion about what has to be proven in this sort of lesser-included offense situation seems to follow from other generally accepted principles of law. Legally, a lesser-included offense is included within the proof of the charged offense, which is why the first prong of the test for obtaining a lesser-included offense is that it "be included within the proof necessary to establish the greater offense for which the defendant is on trial." We have said elsewhere that, "Proof of a greater offense will sustain a conviction for a lesser included offense." So establishing the greater offense of possession of penalty group 1 codeine would necessarily establish the lesser-included offense of possession of penalty group 4 codeine.
See Grey v. State , 269 S.W.3d 785, 788 (Tex. App.—Austin 2008).
Daniel v. State , 668 S.W.2d 390, 394 (Tex. Crim. App. 1984).
Moreover, it is a standard jury instruction that if the jury has a reasonable doubt as to whether the defendant is guilty of the charged offense or of the lesser-included offense, "then [it] must resolve that doubt in the defendant's favor and find him guilty of the lesser offense." That proposition of law applies here. Depending on the proportions of codeine and promethazine, the substance falls either within penalty group 1, 3, or 4. There does not exist a "no-man's land" where someone can possess a combination of codeine and promethazine and it not fall within one of those three penalty groups. At worst, the record lacks clarity about which of the three penalty groups the State has proven. Under those circumstances the evidence should be upheld as sufficient on the lowest grade offense—possession of penalty group 4 codeine.
See Barrios v. State , 283 S.W.3d 348, 350 (Tex. Crim. App. 2009).
Of course, the State has to prove that the substance lacks the mitigating characteristics of penalty group 4 codeine in order to obtain a conviction for penalty group 1 codeine. As the Court explains, the State has not done this. So the State cannot obtain a conviction for penalty group 1 codeine. But Appellant was convicted of possessing penalty group 4 codeine and the evidence is sufficient to support that conviction. Because the Court holds otherwise, I respectfully dissent.
DISSENTING OPINION
Slaughter, J., filed a dissenting opinion in which Keller, P.J., Yeary, and Keel, JJ., joined.
We granted review in this case primarily to address the question of what remedy applies when the evidence is insufficient to support conviction for possession of a penalty group 4 substance (codeine) but would be sufficient to establish a greater offense, possession of penalty group 1 codeine. The court of appeals concluded that the evidence was insufficient to support penalty group 4 codeine possession because the chemist's testimony failed to establish that the mixture in question contained enough promethazine to confer valuable medicinal qualities outside of the codeine itself.1 Now, this Court summarily upholds the court of appeals’ conclusion as to this sufficiency question and largely focuses on whether a defendant is entitled to acquittal under these circumstances. But, as discussed below, the Court's conclusion that the evidence was in fact insufficient runs contrary to our precedent in Sanchez v. State, 275 S.W.3d 901 (Tex. Crim. App. 2009). Moreover, we have never required a chemist to explicitly recite the relevant statutory language or use magic words to support finding that the "valuable medicinal quality" element was satisfied. Instead, we are bound to defer to the jury's drawing of reasonable inferences from the testimony as long as its verdict is not irrational or speculative. Based on the chemist's testimony in this case, I would hold that the evidence was sufficient to support Appellant's conviction for possession of Penalty Group 4 codeine, and his conviction should be upheld under that theory. It is thus unnecessary to grapple with the question of what remedy would apply for evidentiary insufficiency under these circumstances.
The relevant trial evidence regarding whether the promethazine conferred valuable medicinal qualities was the testimony of Mallory Jenkins, a forensic chemist with the Texas Department of Public Safety ("DPS") Crime Laboratory. Jenkins generally testified that the substance smelled like cough syrup and tested positive for codeine and promethazine. She identified promethazine as "an antihistamine" but acknowledged that she was not a medical doctor. When asked whether it was "common" to see promethazine combined with codeine in cough syrup, Jenkins testified that DPS chemists "usually" see promethazine and codeine "paired together" in cough syrup. As for the substance possessed by Appellant, she stated that promethazine was "prevalent" in this mixture, noting that "both the codeine and promethazine peaks are almost even," with the promethazine being only "slightly lower" than the codeine. She did not, however quantify the exact amounts of each substance because it is not her typical practice to do so when analyzing a codeine mixture. The following relevant exchange occurred at trial:
Q: Does promethazine, it can have a medicinal quality like we spoke about, it's an antihistamine, correct?
A: It's listed as an antihistamine in most literature, yes.
Q: Okay. And there's—so it's not like there's sugar or food coloring or something that's mixed in with this mixture, correct?
A: The promethazine ?
Q: Right?
A: Correct, it is not.
Q: It does something, that's what I mean. Okay. And again, is that—that's a mixture that you see, typically, in those type of pharmaceutical grade packaging and things for—does promethazine come in those things as well?
A: Yes. We see promethazine and codeine quite often in syrups that smell sort of like a cough syrup.
Q: Okay. So does that promethazine that's in there, first, that is a nonnarcotic, correct?
A: Correct, it is not narcotic.
Q: But it is an active medicinal ingredient ... correct?
A: Correct.
Q: And it is prevalent in this substance?
A: Yes.
...
Q: Does the promethazine add something to this mixture medicinally, from your point of view? Is there enough there for that antihistamine to have some effect?
A: It appears to, but I can't say for sure.
Q: Okay. That's fine. And typically, again, when we've talked about cough syrups and those sort of things, you see that [the promethazine ] in there and it's obviously there for a reason, correct?
A: I can assume that.
On cross-examination, defense counsel focused on the fact that Jenkins had not quantified the amount of codeine or promethazine in the mixture. Counsel also focused on the fact that Jenkins was not a medical doctor who could write prescriptions, nor was she a pharmacologist. When asked by defense counsel whether her training or degree in forensic biochemistry would allow her to "say that there was a medicinal quantity of promethazine in that mixture," she replied, "No, I cannot." At another point, defense counsel asked, "You have no training and no expertise that would allow you to say that there was enough promethazine in this mixture to impart a valuable medicinal quality to it?" she responded, "Correct, all that I know that [sic] it is an antihistamine."
In holding the evidence insufficient to support Appellant's conviction, the court of appeals reasoned that Jenkins’ testimony failed to expressly state that the promethazine was in a sufficient proportion to confer valuable medicinal qualities other than those possessed by the codeine alone, such that the jury could not rationally have reached that conclusion without engaging in impermissible speculation. Biggers v. State, 601 S.W.3d 369, 377 (Tex. App.—Amarillo 2020). The court rejected the State's contention that this case was analogous to Sanchez v. State , 275 S.W.3d 901, in which we upheld a conviction for possession of penalty group 4 codeine over a sufficiency challenge under similar circumstances. But an examination of the testimony in Sanchez reveals that it is analogous to the testimony in this case.
In Sanchez , the expert witness, also a crime laboratory chemist, testified that the substance in question was "most likely cough syrup," and that the included promethazine was a "typical medicine" that "on its own has a valuable medicinal quality" as a cough suppressant that is added to cough syrups. Sanchez , 275 S.W.3d at 903. As was the case here, the chemist in Sanchez testified that the lab did not quantify the amount of promethazine in the substance. Further, when asked whether he could say that the promethazine in that mixture had a valuable medicinal quality even though he had not quantified the amount, the chemist gave ambiguous testimony, saying, "Yes, promethazine has been identified in this syrup." Id. Immediately after that, the chemist was asked whether promethazine generally "on its own has a valuable medicinal quality," and he replied, "It has." Id.
In upholding the conviction in Sanchez , we cited the chemist's testimony that promethazine generally has a "valuable medicinal quality" on its own "as a nonnarcotic cough-suppressant compound that is usually found in cough syrups or cough medicines." Id. at 905. We concluded,
A jury could rationally find that the Promethazine (whatever its quantity in the substance) was "in sufficient proportion to confer on the [substance] valuable medicinal qualities." [The chemist's] testimony did not, as the court of appeals decided, establish just the mere presence of Promethazine. Rather, Chu's testimony established the presence of Promethazine that "on its own has a valuable medicinal quality." Evidence that the Promethazine in the substance "on its own has a valuable medicinal quality" is sufficient to support a finding that it was "in sufficient proportion to confer on the [substance] valuable medicinal qualities." Under these circumstances, the State was not required to quantify the Promethazine in the substance.
Id. We further noted that the chemist had not testified that a failure to quantify the promethazine "made him unable to say whether the Promethazine conferred ‘valuable medicinal qualities’ on the substance." Id.
Given the testimony in the instant case as compared to the testimony in Sanchez , a different result is not warranted here. Both in Sanchez and here, the chemists generally testified that promethazine has a valuable medicinal purpose and is typically paired with codeine in cough syrup. The quantity of promethazine was unknown in both cases. The chemist in Sanchez did not state with certainty that the promethazine in that mixture was enough to confer on the mixture some medicinal qualities apart from those conferred by the codeine. When asked that particular question, his testimony essentially reiterated that promethazine was present and that promethazine generally has recognized medicinal properties. And yet we upheld the conviction there, presumably because the jury was permitted to infer that the promethazine had valuable medicinal qualities in the mixture—otherwise, there would be no purpose for the promethazine to have been present in the cough syrup in the first place.
Here, the chemist testified that promethazine is an antihistamine that is an active nonnarcotic ingredient with "medicinal qualities," and it was "prevalent" in this mixture in near-equal proportions to the codeine. While the defense's cross-examination focused on the chemist's lack of qualifications to definitively say, from a medical standpoint, whether there was enough promethazine in this mixture to actually confer medicinal qualities, her agreement that she was not a medical doctor and therefore could not make such an assertion to a degree of scientific medical certainty should not foreclose holding the evidence sufficient here. In Sanchez , we rejected the idea that explicit testimony was required to establish the quantity of promethazine necessary to support a jury's finding on this element. Sanchez , 275 S.W.3d at 905. Jenkins’ only qualified testimony was in response to questions asking whether there was "enough" promethazine in this mixture to be medicinal on its own, but her testimony overall supported the conclusion that promethazine is medicinal and was prevalent in the mixture. The jury was permitted to draw reasonable inferences from these basic facts to the ultimate conclusion that because promethazine generally has valuable medicinal qualities, its presence in the mixture at issue here was medicinal. In short, if we held the evidence was sufficient in Sanchez , we should do so here. I cannot discern any plausible basis for reaching a different result on these facts.
The court of appeals also cited this Court's subsequent opinion in Miles v. State , 357 S.W.3d 629 (Tex. Crim. App. 2011). In Miles , the issue was slightly different—we were initially tasked with discerning the codeine possession offense with which the defendant had actually been charged. Id. at 633. After determining that Miles had been charged with penalty group 1 codeine possession, we held the evidence was insufficient because it failed to negate the lesser penalty groups, including penalty group 4. Id. at 638. We reasoned that the chemist's testimony simply noting the presence of promethazine and that it was an antihistamine "contained no implications supporting a finding with respect to the therapeutic or medicinal qualities, or lack thereof, of the amount or concentration of promethazine in the particular substances seized and tested in this case." Id. In contrast to the chemist's testimony in Miles , Jenkins did testify that promethazine generally has medicinal qualities and was prevalent in the mixture at issue. Thus, the evidence in this case is more like the evidence in Sanchez , and less like the evidence in Miles , such that Miles does not foreclose holding the evidence sufficient here. Alternatively, given the unusual circumstances in Miles involving the State's failure to allege a particular penalty group, it is arguable that Miles should be limited to its facts.
Based on the foregoing, the evidence in this record is sufficient to show that the promethazine in the substance possessed by Appellant conferred valuable medicinal qualities on the mixture apart from those conferred by codeine alone. By adopting the court of appeals’ conclusion rejecting the jury's finding, the Court fails to view the evidence in a light most favorable to the verdict and fails to permit the drawing of reasonable inferences by the jury. Therefore, I respectfully dissent.