Billy Raymond Hughes v. The State of Texas--Appeal from 422nd District Court of Kaufman County

NO. 12-05-00123-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

BILLY RAYMOND HUGHES, APPEAL FROM THE 422ND

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE KAUFMAN COUNTY, TEXAS

MEMORANDUM OPINION

A jury found Appellant guilty of delivery of methamphetamine in an amount greater than four grams but less than two hundred grams and assessed his punishment at imprisonment for fifteen years and an $800 fine. In two issues, Appellant contends that the trial court submitted an incorrect instruction in its charge and that the evidence is insufficient to support the conviction. We affirm.

Background

The indictment in this case alleged that Appellant did knowingly deliver, by actual transfer to Mark Negri, a controlled substance, namely methamphetamine, in an amount of four grams or more but less than 200 grams. The State introduced a Texas Department of Public Safety laboratory report showing that the controlled substance alleged to have been delivered to Mark Negri weighed 28.02 grams and contained both amphetamine and methamphetamine. The trial court submitted the following statutory definition of controlled substance in its charge:

Controlled substance means a substance including a drug, an adulterant, and or dilutant, listed in schedules I through V or penalty groups 1, 1A or 2 through 4. The term includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance.

Drew Fout, the DPS chemist who analyzed the substance delivered to Mark Negri, testified that it contained methamphetamine, a penalty group one drug, and amphetamine, a penalty group two drug. He testified that the amphetamine added to the weight of the mixture.

Charge Error

Appellant contends that since the evidence shows the substance delivered by Appellant to Negri contained methamphetamine and amphetamine, both controlled substances, the inclusion of the statutory definition of controlled substance in the charge authorized the jury to convict him for delivery of amphetamine, a theory not alleged in the indictment.

Standard of Review

When charge error has been preserved by a proper objection at trial, reversal is required upon a showing of some actual harm. Where charge error is urged for the first time on appeal, the charge error must have caused defendant egregious harm; the error must have been so harmful that the defendant was denied a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).

Appellant cites four cases that he maintains are illustrative of the trial court s error and dispositive of the issue. In Rodriguez v. State, 18 S.W.3d 228 (Tex. Crim. App. 2000), the information alleged that defendant was intoxicated by reason of the introduction of alcohol into his body. At trial, the defendant testified that he had not been drinking, but had taken flu medicine that made him drowsy. The application paragraph of the charge authorized the jury to convict if they found that he was intoxicated by reason of the introduction of alcohol into his body but also authorized conviction upon a finding that defendant was intoxicated by the reason of the introduction of a combination of unknown drugs and alcohol into his body. The court of criminal appeals held the charge allowed a conviction on a theory not alleged in the charging instrument, reversed the judgment of the court of appeals, and remanded the case for a harm analysis. Id. at 232.

In Morris v. State, 609 S.W.2d 782 (Tex. Crim. App. 1980), the aggravated robbery indictment charged that the defendant did, by exhibiting a deadly weapon, place Mary Lou Anderson in fear of imminent bodily injury. The court s charge, however, authorized conviction upon a jury finding that the defendant did threaten or place the victim in fear of imminent bodily injury or death. The court of criminal appeals reversed and remanded because the inclusion of threaten in the charge permitted a conviction on proof different from that required to prove the allegations in the indictment. Id. at 784.

In Scott v. State, 593 S.W.2d 724 (Tex. Crim. App. 1980), the murder indictment charged the defendant caused the death of the victim by shooting him with a gun. In its charge, the court authorized the jury to convict if they found that the defendant caused the victim s death by shooting him with a firearm, to wit: a gun, or did then and there intend to cause serious bodily injury to the said Edward Glenn Owens and with said intent to cause such injury did commit an act clearly dangerous to human life, to wit: shooting at Edward Glen Owens with a gun and causing the death of said Edward Glenn Owens, as alleged in the indictment. . . . The court of criminal appeals reversed Scott s conviction holding the charge authorized conviction upon a theory not alleged in the indictment. Id. at 725.

The court of criminal appeals also reversed the appellant s conviction and remanded the cause in Gonzales v. State, 578 S.W.2d 736 (Tex. Crim. App. 1979). In Gonzales, the indictment charged that the defendant, while in the course of committing theft, used a deadly weapon (a knife) to threaten Delfino Motta with imminent bodily injury and death and place Delfino Motta in fear of imminent bodily injury or death. The charge, however, also permitted conviction on the additional theory that while committing theft, the defendant caused serious bodily injury to Delfino Motta. Id. at 737-38.

The application paragraph of the charge in the instant case instructs the jury that in order to return a guilty verdict, they must find that Appellant did then and there intentionally and knowingly deliver a controlled substance, to wit, methamphetamine, to Mark Negri. . . . If they do not find that he delivered a controlled substance, to wit, methamphetamine, to Mark Negri, they are instructed to find Appellant not guilty. Unlike the jury charges in the cases cited by Appellant, the charge in this case does not enlarge the allegations in the indictment to permit the jury to convict Appellant upon finding facts not alleged. The definition of controlled substance correctly served to inform the jury that in determining the amount of methamphetamine delivered, they should use the aggregate weight of the mixture containing the methamphetamine. Appellant s first issue is without merit and is overruled.

Legal Sufficiency

Appellant insists the evidence supporting his conviction is legally insufficient and that he is therefore entitled to an acquittal.

Standard of Review

In reviewing a legal sufficiency challenge, an appellate court must view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found all of the essential elements of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003).

Appellant argues that the evidence does not show how much methamphetamine he delivered, but only the aggregate weight of the mixture containing both methamphetamine and amphetamine. The indictment alleges that Appellant delivered a controlled substance, namely methamphetamine in an amount of four grams or more but less than 200 grams. The indictment does not allege that the amount delivered included adulterants and dilutants. Therefore, he argues, there is no proof that he delivered more than four grams of methamphetamine.

Prior to 1997, Appellant s interpretation of the indictment was required by case law. See Reeves v. State, 806 S.W.2d 540, 544 (Tex. Crim. App. 1990); Vera v. State, 800 S.W.2d 310, 311-12 (Tex. Crim. App. 1990). In 1997, however, the Texas Legislature amended the definition of controlled substance to add an adulterant, and a dilutant to the definition. Act of May 26, 1997, 75th Leg., R.S., ch. 745, 1, 1997 Tex. Gen. Laws 2411. The 1997 amendment also added the following sentence to the Health and Safety Code definition: The term includes the aggregate weight of any mixture, solution or other substance containing a controlled substance. Id. Since 1997, the Texas Health and Safety Code has defined controlled substance to include a drug, an adulterant, and a dilutant. See Tex. Health & Safety Code Ann. 481.002(5) (Vernon Supp. 2005). Appellant s argument has been rejected by this court in Jackson v. State, 94 S.W.3d 45 (Tex. App. Tyler 2002, pet. ref d) where we held that the amount of controlled substance delivered includes adulterants and dilutants. Id. at 49. The State need not prove the amount of pure controlled substance contained in the mixture. Melton v. State, 120 S.W.3d 339, 344 (Tex. Crim. App. 2003). The State has to prove only that the aggregate weight of the controlled substance mixture, including adulterants and dilutants, equals the alleged minimum weight. Id. The proof in the instant case shows that Appellant delivered a mixture weighing more than four grams that contained methamphetamine. The fact that amphetamine, another controlled substance, was an other substance contained in the mixture delivered does not add to the proof required of the State. We find no authority supporting Appellant s contention that the legislature did not intend to include other regulated drugs in the definition of adulterant or dilutant as any material that increases the bulk or quantity of the controlled substance. See Tex. Health & Safety Code Ann. 481.002(49) (Vernon Supp. 2005). Appellant s second issue is overruled.

Disposition

The judgment is affirmed.

BILL BASS

Justice

Opinion delivered May 10, 2006.

Panel consisted of Worthen, C.J., DeVasto, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(DO NOT PUBLISH)