In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-03-521 CR
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DAVID HAROLD DAVIS, Appellant
V.
THE STATE OF TEXAS, Appellee
Montgomery County, Texas
Trial Cause No. 01-09-05998-CR
A jury convicted David Harold Davis of manufacture of a controlled substance, methamphetamine, in an amount of four hundred grams or more. The jury assessed punishment and sentenced Davis to forty years' confinement in the Texas Department of Criminal Justice, Institutional Division. Davis appeals raising two issues.
In his first point of error, Davis argues the trial court erred in refusing to instruct the jury on the lesser-included offense of manufacture of a controlled substance in the amount of one to four grams, or in the alternative, four to two hundred grams. See Tex. Health & Safety Code Ann. § 481.112(c), (d) (Vernon 2003). The jury was instructed on an amount of four hundred grams or more. See Tex. Health & Safety Code Ann. § 481.112(f) (Vernon 2003). "A two-part test is used to determine whether a lesser-included offense may be submitted to a jury." Campbell v. State, 149 S.W.3d 149, 152 (Tex. Crim. App. 2004) (citing Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993)). To be considered a lesser-included offense (1) the lesser offense must be included within the proof necessary to establish the offense charged, and (2) some evidence must exist in the record that would permit a jury to rationally find that if the defendant is guilty, he is guilty only of the lesser offense. Id.; see also Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981). The State agrees with Davis that the first requirement is satisfied in this case. See Leach v. State, 35 S.W.3d 232, 237 (Tex. App.--Austin 2000, no pet.).
However, the second part of the test is not met. Dottie Collins, a criminalist at the Texas Department of Public Safety crime laboratory in Houston, testified the sample from an Ozarka bottle, which was retrieved from the lab site, contained methamphetamine, ephedrine, and iodine. The lab report showed the sample to have an aggregate weight of 444.45 grams. Davis points out the weight of the sample attributable to methamphetamine was approximately 1.29 grams. He argues ephedrine and iodine are not adulterants or dilutants and cannot be considered in the aggregate weight of the controlled substance. However, the term "controlled substance" includes "the aggregate weight of any mixture, solution, or other substance containing a controlled substance." Tex. Health & Safety Code Ann. §481.002(5) (Vernon 2003) (emphasis added); see also Melton v. State, 120 S.W.3d 339, 343 (Tex. Crim. App. 2003). The ephedrine and iodine were part of the "mixture." There was no evidence the aggregate weight of this sample was less than 444.45 grams and consequently no evidence that would permit a jury to rationally find that if Davis is guilty, he is guilty only of manufacturing less than four hundred grams. The trial court did not err in refusing to instruct the jury on the lesser included offense. Point of error one is overruled.
In his second point of error Davis claims the evidence is legally insufficient to support his conviction. (1) In reviewing legal sufficiency, an appellate court must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Santellan v. State, 939 S.W.2d 155, 160 (Tex. Crim. App. 1997). Davis' sufficiency point challenges only the amount of the methamphetamine. As noted above, we consider the aggregate weight of any mixture, solution, or other substance containing a controlled substance. Tex. Health & Safety Code Ann. § 481.002(5). The liquid recovered from the Ozarka water bottle was a mixture that contained methamphetamine and weighed 444.45 grams. Viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that Davis manufactured a controlled substance in an amount of four hundred grams or more. See Tex. Health & Safety Code Ann. § 481.112(a), (f) (Vernon 2003).
The judgment of the trial court is AFFIRMED.
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CHARLES KREGER
Justice
Submitted on June 24, 2005
Opinion Delivered August 10, 2005
Do not publish
Before Gaultney, Kreger, and Horton, JJ.
1. Although Davis' stated point of error suggests the evidence is also factually insufficient, that issue is not briefed, nor does Davis seek a remand from this court. Accordingly, we only address the issue briefed, that of legal sufficiency. See Tex. R. App. P. 38.1(h).