Tina Marie Wright a/k/a Tina Marie Nagel v. The State of Texas--Appeal from 104th District Court of Taylor County

11th Court of Appeals

Eastland, Texas

Opinion

Tina Marie Wright a/k/a Tina Marie Nagel

Appellant

Vs. No. 11-02-00006-CR -- Appeal from Taylor County

State of Texas

Appellee

On Remand

Tina Marie Wright a/k/a Tina Marie Nagel was charged with possessing methamphetamine in an amount of 400 grams or more. The jury convicted her of the lesser included offense of possession of 200 grams or more but less than 400 grams of methamphetamine. The trial court assessed appellant=s punishment at confinement for life. On April 3, 2003, this court affirmed appellant=s conviction. However, the Court of Criminal Appeals granted appellant=s petition for discretionary review, vacated our judgment, and remanded the cause for reconsideration of four of appellant=s points of error which the Court of Criminal Appeals held were inadequately addressed in our original opinion. Upon reconsideration, we again affirm the judgment of the trial court.

In her first point of error, appellant contends that the evidence is legally insufficient to support her conviction because a rational trier of fact could not have found that she possessed over 200 grams of methamphetamine. In her second point, appellant argues that the evidence is factually insufficient to support her conviction when the evidence is Aconsidered in light of the proper method of determining the weight of a controlled substance.@ In her third and fourth points of error, appellant contends that the statutory definition of controlled substance, both on its face and as applied in this case, is unconstitutionally vague in violation of her rights to due process under the Fourteenth Amendment to the United States Constitution and Article I, section 19 of the Texas Constitution.

At the heart of all of appellant=s points of error is the definition of the term Acontrolled substance.@ At the time of this offense, the term Acontrolled substance@ was defined as follows:

[A] substance, including a drug, an adulterant, a dilutant, an immediate precursor, listed in Schedules I through V or Penalty Groups 1, 1-A, or 2 through 4. The term includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance.

Ingram v. State, 124 S.W.3d 672, 675 (Tex.App. - Eastland 2003, no pet=n)(quoting former TEX. HEALTH & SAFETY CODE ' 481.002(5) (2000)).[1] It is a first degree felony under TEX. HEALTH & SAFETY CODE ANN. ' 481.115(e) (Vernon 2003) to possess methamphetamine, a substance found in Penalty Group 1, Aif the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams.@

In order to determine if the evidence is legally sufficient to support the jury=s verdict, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex.Cr.App.2004); Ross v. State, 133 S.W.3d 618 (Tex.Cr.App.2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewisv. State, 922 S.W.2d 126 (Tex.Cr.App.1996).

The record shows that a search of appellant=s residence revealed a glass jar containing 305.62 grams of liquid; an Everclear bottle containing 1,210 grams of liquid and powder; coffee filters containing a trace of methamphetamine; and paper towels containing 15.92 grams of a brown, powdery substance identified as Abones,@ the substance discarded after methamphetamine has been extracted. Also recovered during the search B from appellant=s pocket B was .73 grams of a gummy, powdery substance containing methamphetamine. Eddie Lee Dickie, a supervising criminalist at the Department of Public Safety Laboratory in Abilene, testified as an expert for the State. Dickie specifically testified that, based on the legal definition of the term Acontrolled substance,@ the glass jar contained 305.62 grams of a controlled substance, namely methamphetamine. Dickie also testified that the substance in the glass jar was not pure, Anot by a long shot,@ but that he has not ever encountered pure methamphetamine in his 27 years of experience. Dickie stated that the Everclear bottle Adid contain methamphetamine,@ though it appeared to be a Apill soak@that should not contain methamphetamine. Dickie testified that the purity of the methamphetamine in the Everclear bottle was unusually weak.

Appellant then called an expert to testify on her behalf. Thomas Ekis, of Forensic Consultant Services, testified that he performed chemical analyses on the substances seized from the search of appellant and her residence. According to Ekis, the glass jar was only .05 percent pure methamphetamine. In Ekis=s opinion, somebody had already powdered and taken most of the methamphetamine out of the mixture in the glass jar, leaving only a residual remaining in the jar. Ekis testified that the Everclear bottle, a Apill soak@ used to extract pseudoephedrine from tablets, had somehow been tainted with methamphetamine and, therefore, contained a trace of methamphetamine amounting to .003 percent. Ekis also testified that the Abones@ in the paper towel contained .001 percent methamphetamine.

Ekis further testified that the remaining substance found in the glass jar was a toxic hydrocarbon solution such as gasoline or Coleman fuel and that it was not an adulterant, dilutant, or precursor. As for the Everclear bottle, it contained mostly ethyl alcohol, which is commonly used to clean or extract the precursor. Ekis agreed with Dickie that, as a general rule, pure methamphetamine is not found. Ekis also admitted that, if controlled substance is defined as the aggregate weight of a mixture or a solution containing a controlled substance, then the exhibits in this case contained over 1,500 grams of the controlled substance methamphetamine.

After reviewing all of the evidence in this case, we hold that the evidence is both legally and factually sufficient to support the jury=s verdict. Both experts testified that the mixture or solution in the glass jar and the mixture or solution in the Everclear bottle contained methamphetamine and that the weight of each mixture or solution was over 200 grams. Testimony showing that a mixture, solution, or other substance contains a controlled substance is sufficient to support a conviction for possession of that controlled substance in an amount equal to the aggregate weight of the mixture or solution. See Melton v. State, 120 S.W.3d 339, 343-44 (Tex.Cr.App.2003); Dowling v. State, 885 S.W.2d 103, 127 (Tex.Cr.App.1994)(op. on reh=g on court=s motion)(recognizing that the 1989 legislative amendments would have this effect); Ingram v. State, supra. Appellant=s first and second points of error are overruled.

In her third and fourth points of error, appellant asserts that the definition of Acontrolled substance@ in Section 481.002(5) is unconstitutionally vague. We disagree.

When reviewing the constitutionality of a statute, we presume that the statute is valid and that the legislature has not acted unreasonably or arbitrarily in enacting it. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Cr.App.1978). The burden is on the party challenging the statute to establish that it is unconstitutional. Ex parte Granviel, supra. In order to establish that a statute is unconstitutional on its face, the challenger must establish that no set of circumstances exists under which the statute would be valid. Briggs v. State, 740 S.W.2d 803 (Tex.Cr.App.1987). A person who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982); Bynum v. State, 767 S.W.2d 769, 774 (Tex.Cr.App.1989). Accordingly, when challenging a statute for vagueness, a defendant must show that the statute as it applies to him in his situation is unconstitutional. Bynum v. State, supra; Briggs v. State, supra.

A criminal statute is not vague if (1) it gives a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited and (2) it provides sufficient notice to law enforcement to prevent arbitrary or discriminatory enforcement. Graynedv. City of Rockford, 408 U.S. 104, 108-09 (1972); State v. Edmond, 933 S.W.2d 120, 125 (Tex.Cr.App.1996); Long v. State, 931 S.W.2d 285, 287 (Tex.Cr.App.1996). A statutory provision need not be mathematically precise; it need only give fair warning in light of common understanding and practices. Graynedv. City of Rockford, supra at 110. In this case, appellant possessed a solution or mixture that contained methamphetamine and that was used in the process of manufacturing methamphetamine. Although the percentage of pure methamphetamine contained in the solution or mixture was relatively small, the statute clearly provided that it was illegal to possess a controlled substance and that the aggregate weight of any mixture or solution would be used to determine the amount of controlled substance possessed. We hold that appellant has not established that Section 481.002(5) is unconstitutionally vague as applied to her in her situation.

Moreover, the language in Section 481.002(5) clearly states that the term Acontrolled substance@ Aincludes the aggregate weight of any mixture, solution, or other substance containing a controlled substance.@ A person of ordinary intelligence should know what conduct is prohibited given the definition of controlled substance in Section 481.002(5). Furthermore, the definition is sufficient to notify law enforcement and to prevent the arbitrary or discriminatory enforcement of the statute. The third and fourth points of error are overruled.

The judgment of the trial court is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

January 20, 2005

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]We will refer to the former version of the statute as Section 481.002(5) in this opinion. We note, however, that the statute was amended after this offense and that the current version of the statute omits Aan immediate precursor@ from the definition but makes no other substantive changes. TEX. HEALTH & SAFETY CODE ANN. ' 481.002(5) (Vernon Supp. 2004 - 2005).