TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-02-00354-CR
Jack Elwood Hooper, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. CR-2001-620, HONORABLE JACK H. ROBISON, JUDGE PRESIDING1
OPINION
Appellant Jack Elwood Hooper appeals his conviction for possession of a controlled-
substance analogue of more than four hundred grams. See Tex. Health & Safety Code Ann.
' 481.123(b)(2) (West Supp. 2003). In a bench trial, the trial court found appellant guilty of the
offense charged. Appellant Aentered a plea of true@ to the enhancement paragraph of the indictment
alleging a prior felony theft conviction. The trial court assessed appellant=s punishment at fifteen
years= imprisonment. We will affirm the trial court=s judgment.
1
The judgment of conviction was signed by Judge Gary Steele, but Judge Jack H. Robison
presided at appellant=s trial.
BACKGROUND
Appellant was originally indicted for this offense on March 2, 1995. The first count of
the original indictment alleged that on or about November 17, 1994, appellant:
knowingly and intentionally possess[ed] a controlled substance analogue, namely,
dextromethorphan and ephedrine, a substance which is intended in whole or in part for
human consumption and which is specifically designed to produce an effect substantially
similar to or greater than the effect of the controlled substance, to wit: 3, 4 methylenedioxy
methamphetamine in an amount of aggregate weight, including any adulterants and dilutants,
of more than four hundred grams.
The primary offense was prosecuted under the provisions of section 481.123(b)(2) of the health and safety
code, which were in effect in 1994. See Act of May 18, 1989, 71st Leg., R.S., ch. 678, ' 1, 1989 Tex.
Gen. Laws 2230, 2940 (Tex. Health & Safety Code Ann. ' 481.123(b)(2)).2 On December 5, 2001,
appellant was reindicted while the original 1995 indictment was pending. The reindictment contained a
tolling paragraph alleging that appellant had been indicted on March 2, 1995, for the same offense and that
2
The indictment tracks the language of section 481.123(b)(2), which provides:
(b) For the purposes of this chapter, a controlled substance analogue is considered to
be a controlled substance listed in Penalty Group 2 if the analogue in whole or in
part is intended for human consumption and:
....
(2) the analogue is specifically designed to produce an effect substantially similar
to or greater than the effect of a controlled substance listed in Schedule II or
Penalty Group 2.
Tex. Health & Safety Code Ann. ' 481.123(b)(2) (West Supp. 2003).
2
indictment was pending when the reindictment was returned. The third paragraph of the reindictment
alleged a prior felony theft conviction on September 26, 1991, for enhancement of punishment.
3
On May 7, 2002, appellant waived trial by jury and entered a plea of Anot guilty@ to the
primary offense, the only count in the reindictment. Appellant entered pleas of Atrue@ to the tolling
paragraph and to the allegations in the enhancement paragraph. The evidence was presented in the form of
affidavits and stipulations after appellant waived the appearance, confrontation, and cross-examination of
witnesses. In a sworn stipulation, appellant admitted that on November 17, 1994, he knowingly and
intentionally possessed dextromethorphan and ephedrine in an amount of more than four hundred grams.
Appellant also stipulated to the admission of the State=s exhibits. Among the exhibits offered were the
offense report, and news articles from the Associated Press [printed in the Corpus Christi-Caller-Times]
and the Dallas Morning News concerning the increasing use by young people of high doses of
dextromethorphan, a noncontrolled substance, which can produce the effects of the controlled substance
known as Aecstacy.@ Department of Public Safety Chemist Joel Budge stated in his affidavit that the 930
tablets submitted to him were dextromethorphan and ephedrine and were similar in appearance and
designed to produce an effect that was substantially similar to 3, 4 methylenedioxy methamphetamine, which
is ecstasy, and were intended for human consumption. Dr. William Watson, of the University of Texas
Health Science Center at San Antonio, described in his affidavit that the effects on the human body of a
combination of dextromethorphan and ephedrine would be indistinguishable from the effect of ecstasy.
Pharmacist David Zatopek detailed in his affidavit the effects of high doses of dextromethorphan and
ephedrine, and that together they were being abused for their side effects. Hays County Narcotic Task
Force Sergeant Chase Stapp swore in his affidavit that, based upon his experience, dextromethorphan and
ephedrine are packaged together and sold by drug dealers as ecstasy.
4
Appellant offered the affidavit of Max Courtney, a forensic chemist, who stated that
dextromethorphan and ephedrine were non-controlled substances and sold to the public over the counter
and often used as a cough suppressant. We observe that 3, 4 methylenedioxy methamphetamine (ecstasy)
was a controlled substance listed in Penalty Group 2 at the time of the charged offense. See Act of May
18, 1989, 71st Leg., R.S., ch. 678, ' 1, 1989 Tex. Gen. Laws 2230, 2928-29 (Tex. Health & Safety
Code Ann. ' 481.103(1), since amended).
DISCUSSION
5
Under ABrief of the Argument,@ appellant presents his single point of error as follows: AThe
Statute making it an offense to possess a chemical analogue >specifically designed to produce an effect
substantially similar to a controlled substance= is vague as applied to appellant.@ (Emphasis added.)
However, our review of the record reveals that appellant failed to raise the Aas applied@ issue at the trial
court in any manner. The question first presented is whether appellant=s contention was preserved for
review. See Tex. R. App. P. 33.1(a)(1). As a general rule, trial counsel must object or otherwise preserve
error, even if it is Aincurable@ or Aconstitutional.@ Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App.
1996). Without proper preservation, even constitutional error may be waived. See Wright v. State, 28
S.W.3d 526, 536 (Tex. Crim. App. 2000). Questions, however, about the facial constitutionality of a
statute upon which a defendant=s conviction is based should be addressed even when such issues are raised
for the first time on appeal. See Holberg v. State, 38 S.W.3d 137, 139 n.7 (Tex. Crim. App. 2000);
Rabb v. State, 730 S.W.2d 751, 752 (Tex. Crim. App. 1987); Bryant v. State, 47 S.W.3d 80, 84 (Tex.
App.CWaco 2001, pet. ref=d); 43A George E. Dix & Robert O. Dawson, Texas Practice: Criminal
Practice and Procedure ' 42.253 (2d ed. 2001).
By contrast, a contention that a statute is unconstitutional as applied to an accused
because of vagueness and uncertainty must be asserted in the trial court or it is waived. See Curry v. State,
910 S.W.2d 490, 496 n.2 (Tex. Crim. App. 1995); Garcia v. State, 887 S.W.2d 846, 861 (Tex. Crim.
App. 1994); State v. West, 20 S.W.3d 867, 873 (Tex. App.CDallas 2000, pet. ref=d); Sullivan v. State,
986 S.W.2d 708, 711 (Tex. App.CDallas 1999, no pet.). In McGowan v. State, the rationale underlying
the foregoing rules was explained. 938 S.W.2d 732, 736 (Tex. App.CHouston [14th Dist.] 1996), aff=d
6
on other grounds, 975 S.W.2d 621 (Tex. Crim. App. 1998). The McGowan holding has been analyzed
in detail:
In McGowan v. State, the Fourteenth Court of Appeals concluded that the rationale
for the basic rule is that an unconstitutional statute affects the jurisdiction or power of the
courts to render a criminal judgment against the accused, and the lack of this jurisdiction or
power can be raised at any time. Thus, McGowan reasoned, the rule should be applied
only to those constitutional challenges that contest the power of the trial court to enter and
enforce a judgment. A Afacial challenge@ contests this power; a challenge to the statute as
applied does not, although it raises a possible Adefense@ to conviction pursuant to this
power. Invoking the categorization of rights in Marin v. State, [851 S.W.2d 275 (Tex.
Crim. App.1993)], the court reasoned that the right not to be convicted of a Penal Code
provision vague and overbroad as applied to the facts of the case is a right subject to
forfeiture by failure to assert it. Thus failure to raise the issue in the trial court means it is not
preserved for appellate consideration.
43A George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure ' 42.254
(2d ed. 2001); see also McGowan, 938 S.W.2d at 739-41 (op. on reh=g); accord Bader v. State, 15
S.W.3d 599, 603 (Tex. App.CAustin 2000, pet. ref=d); Medina v. State, 986 S.W.2d 733, 735-36 (Tex.
App.CAmarillo 1999, pet. ref=d).
Because appellant failed to raise the Aas applied@ issue in the trial court in any fashion, he
has waived any right to review on his point of error to the extent that he challenges the validity of section
481.123(b)(2) solely as applied to him. Furthermore, even had appellant not waived his Aas applied@
contention, he has failed to show that in its operation the statute is unconstitutionally vague as applied to him;
that it may be unconstitutional as to others is not sufficient. Bynum v. State, 767 S.W.2d 764, 774 (Tex.
Crim. App. 1989); Vuong v. State, 830 S.W.2d 929, 941 (Tex. Crim. App. 1992).
7
Appellant=s point of error expressly challenges the constitutionality of the statute as applied,
but he did not preserve error. However, in the argument of his brief, appellant cites four cases for general
propositions of law dealing with a Afacial@ challenge to the constitutionality of a statute on the basis of
vagueness. It is obvious that appellant must have reference to that portion of the statute under which
he was convicted, which qualifies a substance analogue as a controlled substance if the analogue is
intended for human consumption and Athe analogue is specifically designed to produce an effect
substantially similar to or greater than the effect of a controlled substance listed in Schedule II or
Penalty Group 2.@ Tex. Health & Safety Code Ann. ' 481.123 (b)(2). Appellant urges that section
481.123(b)(2) is unconstitutionally vague because the statute does not define the words Adesigned@ and
Aeffect.@ Appellant does not tell us of which constitutional provision this statute runs afoul. Because
appellant does not cite any state constitutional provision or claim any greater protection under the
Texas constitution, we presume that appellant only relies on the due process clause of the Fourteenth
Amendment to the United States Constitution. Under the circumstances, we believe it appropriate to
address the Afacial@ challenge to the statute, a claim not required to be raised in the trial court below. See
Rabb, 730 S.W.2d at 752.
When reviewing the constitutionality of a statute, we presume that the statute is valid and the
legislature has not acted unreasonably or arbitrarily in enacting the statute. Ex parte Granviel, 561
S.W.2d 503, 511 (Tex. Crim. App. 1978); Ex parte Anderson, 902 S.W.2d 695, 698 (Tex.
App.CAustin 1995, pet. ref=d). The burden rests upon the individual challenging the statute to establish its
unconstitutionality. Cotten v. State, 686 S.W.2d 140, 145 (Tex. Crim. App. 1985); Granviel, 561
8
S.W.2d at 511. This Court must uphold a statute if a reasonable construction can be ascertained which will
render the statute constitutional and carry out the legislative intent. Ely v. State, 582 S.W.2d 416, 419
(Tex. Crim. App. 1979).
As argued in his brief, appellant seems to challenge the statute as being unconstitutionally
vague on its face.3 Such a challenge will be sustained only if the statute is impermissibly vague in all its
applications. Briggs v. State, 740 S.W.2d 803, 806 (Tex. Crim. App. 1987). A facial challenge to the
constitutionality of a statute imposes a heavy burden because the challenger must establish that no set of
circumstances exists under which the act would be valid. Briggs v. State, 789 S.W.2d 918, 923 (Tex.
Crim. App. 1990); Anderson, 902 S.W.2d at 699.
In examining a criminal statute for vagueness, the Court considers two factors. First, the
statute must give a person of ordinary intelligence a reasonable opportunity to know an act is prohibited.
See Kolender v. Lawson, 461 U.S. 352, 357 (1983); Grayned v. Rockford, 408 U.S. 104, 108 (1972);
State v. Edmond, 933 S.W.2d 120, 125 (Tex. Crim. App. 1996); Long v. State, 931 S.W.2d 285, 287
(Tex. Crim. App. 1996); State v. Wofford, 34 S.W.3d 671, 678-79 (Tex. App.CAustin 2000, no pet.).
A statutory provision, however, need not be mathematically precise: it need only give fair warning in light of
common understanding and practices. Grayned, 408 U.S. at 110. Second, the statute in question must
3
There is no claim of impermissible Aoverbreadth@ or that appellant=s rights under the First
Amendment to the United States Constitution are involved. See Bynum v. State, 767 S.W.2d 769,
712 (Tex. Crim. App. 1989).
9
provide sufficient notice to law-enforcement personnel to prevent arbitrary or discriminatory enforcement.
Id. at 108-09; Papachristoee v. City of Jacksonville, 405 U.S. 156, 162 (1972). AStatutes without
identifiable standards allow policemen, prosecutors, and juries to pursue their personal predilections.@
Smith v. Gogven, 415 U.S. 566, 575 (1974).
As noted, appellant urges that the failure to define the words Adesigned@ and Aeffect@
renders section 481.123(b)(2) unconstitutionally vague. A statute, however, is not unconstitutionally vague
merely because it fails to define words or phrases. Engelking v. State, 750 S.W.2d 213, 215 (Tex. Crim.
App. 1988); Ahearn v. State, 588 S.W.2d 327, 338 (Tex. Crim. App. 1979). When words are not
defined in a statute, they are ordinarily given their plain meaning unless the statute clearly shows that they
were used in some other sense. Daniels v. State, 754 S.W.2d 214, 219 (Tex. Crim. App. 1988); Ely,
582 S.W.2d at 419. Words defined in dictionaries with meanings so well known as to be understood by a
person of ordinary intelligence have been held not to be vague and indefinite. Floyd v. State, 575 S.W.2d
21, 23 (Tex. Crim. App. 1978); Anderson, 902 S.W.2d at 700. Statutory words are to be read in context
and construed according to the rules of grammar and common usage. Tex. Gov=t Code Ann. ' 311.011(a)
(West 1988).
Common definitions of the word Adesign@ include A[t]o conceive; invent; contrive; . . . [t]o
have as a goal or purpose; intent.@ The American Heritage Dictionary of the English Language 357
(William Morris ed., 1973). ADesign@ is synonymous with Aintend,@ Apurpose,@ or Acontemplate.@
Webster=s Third New International Dictionary 611 (Philip Babcock Gove ed., 1986). The word has
also been defined as Aa deliberate undercover project or scheme entertained with discreditable or hostile or
10
often dishonest, treacherous, sinister, or seductive intent.@ Id. Black=s Law Dictionary defines Adesign@
simply as A[a] plan or scheme@ or A[p]urpose or intention combined with a plan.@ Black=s Law Dictionary
457 (7th ed. 1999). The word Aeffect@ has been defined as A[s]omething brought about by a cause or
agent; result@ and A[t]he way in which something acts upon or influences an object: the effect of a drug on
the nervous system.@ The American Heritage Dictionary of the English Language 415 (William
Morris ed., 1973) (emphasis in original). AEffect@ is also defined as Athat which is produced by an agent or
cause; a result, outcome, or consequence.@ Black=s Law Dictionary 532 (7th ed. 1999).
The statute does not clearly show that the words Adesigned@ and Aeffect@ were used in a
sense different from their plain meaning; rather, these words are so well known that, in the context of the
statute, it would be difficult to attribute any other meaning to them. The use of the word Adesigned@ is
precise because, under section 481.123(b)(2), a controlled substance analogue is a drug that does not
naturally occur and therefore must be an agent purposefully created to cause a particular result or Aeffect@
upon consumption. Further, the use of the word Aeffect@ is precise because the statute determines the
particular Aeffect@ to be Asubstantially similar to, or greater than@ that Aof a controlled substance listed in
Schedule II or Penalty Group 2.@ Tex. Health & Safety Code Ann. ' 481.123(b)(2). Given these
common, plain definitions of Adesign@ and Aeffect,@ and given that the statute targets a specific induced
Aeffect,@ we cannot say that the statute fails to give a person of ordinary intelligence a reasonable
opportunity to know what is prohibited. Floyd, 575 S.W.2d at 23. Furthermore, the statute establishes
determinate guidelines for law enforcement. Grayned, 408 U.S. at 108-09. We therefore hold that the
11
failure to statutorily define Adesigned@ and Aeffect@ in section 481.123(b)(2) does not render that portion of
the controlled substance analogue statute unconstitutionally vague on its face.
Appellant further expresses a disdain for controlled substance analogue statutes, and
complains that the Texas statute in question is not like its federal statutory counterpart which is clearer and
more precise. The fact that a state statute does not correspond with its federal counterpart does not render
it unconstitutionally vague. A mere determination that a statute is confusing or difficult to understand is
insufficient to render it unconstitutional. Dahl v. State, 707 S.W.2d 694, 700 (Tex. App.CAustin 1986,
pet. ref=d). A statute is not vague merely because it is imprecise. Texas Dep=t of Pub. Safety v. Chavez,
981 S.W.2d 449, 452 (Tex. App.CFort Worth 1988, no pet.). ACondemned to the use of words, we can
never expect mathematical certainty from our language.@ Grayned, 408 U.S. at 110.
Further, we observe that other constitutional attacks upon Texas controlled substances
analogue statutes have been rejected in other contexts. See Robinson v. State, 783 S.W.2d 648 (Tex.
App.CDallas 1990), aff=d, 841 S.W.2d 392 (Tex. Crim. App. 1992); Porter v. State, 806 S.W.2d 316
(Tex. App.CSan Antonio, no pet.); One Thousand Four Hundred Sixty-Two Dollars in U.S. Currency
v. State, 774 S.W.2d 17 (Tex. App.CDallas 1989, writ denied).
CONCLUSION
Appellant=s contentions are without merit. The judgment is affirmed.
__________________________________________
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W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices B. A. Smith and Puryear
Affirmed
Filed: April 24, 2003
Publish
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