Opinion issued April 3, 2008
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00152-CR
MARK ELLIOT MASSIE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 1081487
MEMORANDUM OPINION
A jury found appellant, Mark Elliot Massie, guilty of the offense of possession of a Penalty Group 4 controlled substance, a second degree felony. See Tex. Health & Safety Code Ann. § 481.118(a) (Vernon 2003). The jury assessed punishment at five years' imprisonment, and the trial court suspended the sentence and placed appellant on community supervision for five years. In two issues, appellant challenges the legal and factual sufficiency of the evidence.
We reverse and render.
Background
Off-duty Houston police officer, Paul Steffenauer met his colleague, Abraham Vanderberry, who was also off-duty, at a gas station to pick up a pistol for use in a training class for undercover work in the narcotics division. While at the gas station, they saw what they believed, based on their narcotics training and experience, to be a drug deal in process. They called for a patrol unit, and detained appellant and another man, who had driven the car appellant rode in. At the time, appellant was found in possession of a Sunkist soda bottle containing a mixture later found to contain soda, codeine, and promethazine.
Appellant was charged by indictment with possession of a controlled substance in Penalty Group 4, specifically, "any compound, mixture, and preparation containing limited quantities of any of the following narcotic drugs that also contain one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer on the compound, mixture, and preparation valuable medicinal qualities other than those possessed by the narcotic drug alone: namely a compound containing not more than 200 milligrams of codeine, and any of its salts per 100 milliliters and per 100 grams, weighing by aggregate weight, including any adulterants and dilutants, more than 200 grams and less than 400 grams."
At trial, Sharmista Patel, a criminalist for the Houston Police Department Crime Laboratory, testified about the lab work she performed on the mixture in the Sunkist bottle. Patel, who has more than sixteen years experience testing drugs at the crime lab, testified that the liquid in the soda bottle seized at the time of arrest weighed 308.1 grams. She further testified that she found codeine and promethazine in the mixture and that the soda was an adulterant or dilutant. On direct examination, she said that she did not determine the concentration of codeine or promethazine in the mixture.
Q. Now, do you know--did you perform any type of quality test on this substance?
A. No, ma'am.
Q. And why not?
A. It's not standard operating procedure in our lab and it does not affect on [sic] the laws. So, we don't do anymore the percentage.
She again reiterated this on cross-examination.
Q. And it is my understanding that you did not test the amount of codeine that is in this container? We don't know how much pure substance is in this container, do we?
A. It's not in standard operating procedure and it does not affect on [sic] the laws; so, we are not doing the percentage, purity.
Q. Right. So, you don't know how much of this substance in the bottle is a soft drink as opposed being codeine.
A. I don't know.
Q. Is that correct?
A. I don't know. I cannot tell that.
Q. It could be 99.9 percent soft drink and percentage of codeine; is that correct?
A. Anything possible.
Q. And the substance that is normally--that you found in this drink, is it normally used as a cough syrup? Is that what we're talking about?
A. Yes, ma'am.
[State objects.]
A. Cough syrup.
Q. And do you know what that other liquid is?
A. I did not test it, but from the bottle I can say Sunkist. That's it.
Prior to the close of the State's case-in-chief, Patel again took the stand, and the prosecutor attempted to clarify her testimony regarding the mixture.
Q. Now, the next part on there talks a little bit about--to keep going--a compound containing not more than 200 milligrams of codeine and any of its salts per 100 milliliters and per 100 grams, weighing by aggregate weight, including any adulterants and dilutants, more than 200 grams and less than 400 grams.
Now, that part. I'd like to talk to you a little bit about that. When we have something that is a mixture, correct?
A. Yes, ma'am.
Q. Now, you've been testing codeine for, you said, how many years? How long have you been at the lab?
A. 18 years.
Q. Okay. And when you have a substance that's not pure codeine, okay, just generally speaking, is it going to be less than 200 grams per milliliters in the hundred of--let me make sure I get it right--100 milliliters per 100 salts, is that going to be in that lowest penalty group like that when it's a mixture?
A. Yes, ma'am.
Q. Just so we're clear, you didn't actually do a quantity test, do you, like a quality?
A. No, no ma'am.
Q. Right. Because you don't do it on a codeine, right?
A. Right.
Q. But in a mixture case, that will fall into this lowest penalty group, right?
A. Generally.
Appellant's counsel moved for an instructed verdict based on Patel's testimony, arguing that the State did not prove "a compound containing not more than 200 milligrams of codeine and any of its salts per 100 milliliters and per 100 grams." The trial court denied appellant's motion for instructed verdict, and the jury found appellant guilty as charged.
Standard of Review
Appellant challenges the legal and factual sufficiency of the evidence to support his conviction for possession of codeine, arguing that the State did not prove that the mixture seized from him at his arrest met the Penalty Group 4 definition. Except as otherwise authorized, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 4, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of practice. Tex. Health & Safety Code Ann. § 481.118(a) (Vernon 2003). Penalty Group 4 includes a compound, mixture, or preparation that includes not more than 200 milligrams of codeine per 100 milliliters or per 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. Id. § 481.105(1) (Vernon 2003). Possession of codeine is a felony of the second degree, if the amount of codeine possessed is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams. Id. § 481.118(d).
The State is required to prove every element of the offense listed in the indictment beyond a reasonable doubt. Sanchez v. State, No. 01-06-00210-CR, 2007 WL 3227744 [Tex. App.--Houston [1st Dist.] Nov. 1, 2007, pet. filed); see Juarez v. State, 198 S.W.3d 790, 793 (Tex. Crim. App. 2006) (stating that elements of offense must be charged in indictment, submitted to jury, and proven by State beyond reasonable doubt). Therefore, the State was required to prove that appellant (1) possessed (2) a mixture containing not more than 200 milligrams of codeine and any of its salts per 100 milliliters and per 100 grams, that also (3) contains one or more nonnarcotic active medicinal ingredients (4) in sufficient proportion to confer on the mixture valuable medicinal qualities other than those possessed by the codeine alone, (5) weighing by aggregate weight, including any adulterants or dilutants, more than 200 grams and less than 400 grams. See Sanchez, 2007 WL 3227744 at *4. "Thus, the mere presence of a nonnarcotic active medicinal ingredient is not sufficient to establish that the mixture falls within Penalty Group 4. The nonnarcotic must be in sufficient proportion to confer on the mixture valuable medicinal qualities other than those possessed by the narcotic alone." Id.
Legal Sufficiency
In evaluating the legal sufficiency of the evidence, we view 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 offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We note that the trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
Penalty Group 4 Controlled Substance
In Dudley v. State, the Beaumont Court of Appeals held the evidence was both legally and factually sufficient to support a conviction for possession of a controlled substance under Penalty Group 4. Dudley v. State, 58 S.W.3d 296, 300 (Tex. App.--Beaumont 2001, no pet). In Dudley, when the defendant was arrested, the police seized a styrofoam cup containing a liquid that smelled like cough syrup. Id. at 297. Although the State's laboratory analyst testified that she did not determine the concentration of codeine in the liquid, she did testify that the liquid contained both codeine and promethazine. Id. at 299. She said, "And this is a combination commonly found in cough syrup type preparations that contain Codeine in a concentration of less than 200 milligrams per 100 milliliters of syrup." Id. In addition, the written laboratory report provided identical information about the codeine concentration. Id.
Likewise, in Reed v. State, the Fourteenth Court of Appeals held the evidence was both legally and factually sufficient to support a conviction for possession of a controlled substance under Penalty Group 4. Reed v. State, 158 S.W.3d 44, 51 (Tex. App.--Houston [14th Dist.] 2005, pet. ref'd). In Reed, the defendant argued that the laboratory report, which matched the description for Penalty Group 3, conflicted with the testimony from the laboratory analyst, who "repeatedly testified that the seized codeine was within Penalty Group 4." Id. The analyst explained that the report did not contradict his testimony because in some cases a liquid might be included in more than one Penalty Group. Id. at 50-1.
We recently addressed a related issue in Sanchez v. State, 2007 WL 3227744 In Sanchez, the defendant challenged the legal sufficiency of the evidence that nonnarcotic promethazine was present in sufficient proportion to confer valuable medicinal qualities other than those possessed by codeine alone, as the Penalty Group 4 definition requires. Id. at *3. When Sanchez was arrested, the police seized "an open plastic baby bottle containing residue of a thick, red liquid under the passenger seat where [the] appellant had been sitting." Id. at *1. The police crime laboratory chemist testified that the liquid contained both codeine and promethazine and that promethazine has a valuable medicinal quality and is used as a cough suppressant. Id. at *2-3. He also testified that he had not seen "any cough syrups more than 200 milligrams per hundred mil." Id. at *3. However, he clearly stated that he did not quantify the promethazine in the liquid. Id. at *2-3. We held that this evidence was legally insufficient.
The State was required to prove, as one of the elements of the offense, that the nonnarcotic active medicinal ingredient was in sufficient proportion to confer on the mixture valuable medicinal qualities other than those possessed by the codeine alone. Chu testified repeatedly that he was not able to quantify the Promethazine in the substance. Without such quantification, his testimony does no more than establish the mere presence of Promethazine. Thus the State has failed its burden to prove that Promethazine was in the mixture in sufficient proportion to confer on the mixture valuable medicinal qualities other than those possessed by the codeine alone.
Id. at *5.
Discussion
Here, Patel testified that the liquid seized contained codeine and promethazine but that she did not quantify either the codeine or the promethazine. Unlike Dudley, no written laboratory report was admitted into evidence. In addition, Patel did not clearly testify that "this is a combination commonly found in cough syrup type preparations that contain Codeine in a concentration of less than 200 milligrams per 100 milliliters of syrup." See Dudley, 58 S.W.3d at 299. Rather, Patel simply agreed with the prosecutor's question, which incorrectly stated the law, that a substance "that's not pure codeine . . . is it going to be less than 200 grams per milliliters in the hundred of . . .100 milliliters per 100 salts, is that going to be in that lowest penalty group like that when it's a mixture?" Unlike the analyst in Reed, Patel did not testify that the seized liquid was within Penalty Group 4. See Reed, 158 S.W.3d at 51. We conclude that the State did not prove that the liquid seized from appellant was a "mixture containing not more than 200 milligrams of codeine and any of its salts per 100 milliliters and per 100 grams."
In addition, as in Sanchez, the testimony here was not legally sufficient to prove that promethazine was present in the liquid "in sufficient proportion to confer on the mixture valuable medicinal qualities other than those possessed by the codeine alone." Sanchez, 2007 WL3227744 at *5.
Conclusion
Accordingly, we hold that the evidence offered by the State was legally insufficient to support the jury's verdict. Therefore, we sustain appellant's first issue. Because we sustain this issue, we do not reach appellant's second issue, the factual sufficiency of the evidence.
We reverse the judgment of the trial court and render a judgment of acquittal.
Sam Nuchia
Justice
Panel consists of Justices Nuchia, Hanks, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).