Yvette Antoinette Williams v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-92-147-CR

YVETTE ANTOINETTE WILLIAMS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 91-717-C

O P I N I O N

Appellant was convicted by a jury of the offense of delivery of less than twenty-eight grams of cocaine and was sentenced to ten years and six months in Texas Department of Criminal Justice, Institutional Division. See Tex. Health & Safety Code Ann. 481.112 (Vernon 1992). She appeals on the basis that the evidence was insufficient to support the jury's verdict of guilty. We will affirm the judgment.

The indictment alleged that Appellant possessed cocaine in an amount less than twenty-eight grams, "including any adulterants and dilutants." Appellant contends in her sole point of error that the evidence was insufficient because the State failed to show that the cocaine in question contained any adulterants or dilutants.

The record reflects that the State's chemist testified that the exhibit she examined contained 0.16 grams of cocaine and did not contain any adulterants or dilutants. She stated during cross-examination that the substance she had examined was pure cocaine. Appellant, relying on the rationale of the Court of Criminal Appeals in Farris v. State, 811 S.W.2d 577, 579 (Tex. Crim App. 1990), argues that, if it is the State's burden to prove the amount of a "pure" substance in the absence of an allegation that adulterants and dilutants contributed to the weight of the controlled substance seized, then the State "logically" is required to prove that adulterants and dilutants exist when included in the indictment, even though they need not have contributed to the requisite weight of the controlled substance. We are not persuaded by Appellant's argument.

In the present case, proof of any amount less than twenty-eight grams constituted sufficient proof of the offense charged. It is true that the Court of Criminal Appeals has held that the term "controlled substance" does not include the phrase "adulterants and dilutants," and that the State cannot utilize the presence of adulterants and dilutants to satisfy the quantity requirement of the offense unless the indictment alleges adulterants and dilutants. Thompson v. State, No. 1153-90 and 1154-90 (Tex. Crim. App. October 14, 1992); Farris, 811 S.W.2d at 580; Reeves v. State, 806 S.W.2d 540 (Tex. Crim. App. 1990), cert. denied, U.S. , 111 S. Ct. 1641, 113 L. Ed. 736 (1991).

Here, the State did not need to rely on the existence of adulterants and dilutants to satisfy the weight requirement of less than twenty-eight grams of cocaine to prove the offense alleged in the indictment. Inclusion of the words "adulterants and dilutants" in the indictment did not require the State to prove beyond a reasonable doubt that the cocaine included substances classified as adulterants and dilutants. The presence of adulterants and dilutants affects only the weight of a controlled substance and therefore the potential punishment for possession or delivery. Adulterants and dilutants are not considered part of the chemical make-up of a controlled substance. Farris, 811 S.W.2d 580. Inclusion of the words "adulterants and dilutants" in this instance, surplusage in this indictment, need not have been proven because they failed to describe a legally essential element of the charged crime. See Simpson v. State, 787 S.W.2d 539, 543 (Tex. App. Houston [1st Dist.] 1990, rev'd on other grounds, 821 S.W.2d 622 (1992); Leonard v. State, 694 S.W.2d 625, 626 (Tex. App. Beaumont 1985, no pet.). The essential elements of the offense of delivery of a controlled substance are that (1) a person (2) did knowingly or intentionally (3) deliver (4) a controlled substance (5) name of controlled substance. Martinez v. State, 640 S.W.2d 378, 380 (Tex. App. San Antonio 1982, pet. ref'd). Because we do not find the variance between the indictment and proof fatal so as to render the evidence insufficient to sustain the conviction, we affirm the judgment. See Simpson, 787 S.W.2d at 543.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed February 10, 1993

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