dissenting.
Without any consideration of the opinion of the Houston [14th] Court of Appeals and the reason for its decision, the majority finds:
“The offense is complete when, by words or deed, a person offers to sell what he states is a controlled substance. Therefore, the fact that the substance is later found not to be a controlled substance does not render the evidence insufficient to prove the offense of delivery by offer to sell a controlled substance. The element of controlled substance is proved by appellant’s statement offering to sell heroin.”1
That analysis is wrong. It dispenses with requisite culpable mental states of intentionally and knowingly demanded by the statute. Article 4475-15, §§ 4.03, 4.031, 4.032, 4.044 and 4.05. Stewart v. State, 693 S.W.2d 11 (Tex.App.—Houston [14th] 1985).2 Such a strained construction *290of those sections coupled with § 1.02(8) is without precedent in this jurisdiction.3 It is contrary to what little authority there is.4 The majority fails to take into account legislative design and purpose pursuant to the Code Construction Act.5
*291Furthermore, if a bare offer to sell a purported controlled substance is enough to constitute an offense, what punishment is affixed to that offense? The quantity is of no moment under Article 4476-15b and Article 4476-15, § 4.09(a)(6) and (b)(4), but it is in Article 4476-15, §§ 4.03, 4.031, 4.032, 4.044 and 4.05(b), (c) and (d), especially the aggravated offenses. Tovar v. State, 612 S.W.2d 616, 618 (Tex.Cr.App.1981). When a cautious person makes a mere offer to sell without exhibiting or mentioning a definite amount or weight of the purported substance, how does one determine the range of punishment? Creating that kind of uncertainty in the law of controlled substances flouts objectives of the penal code stated in § 1.02(2) and (3).
Not only does the majority opinion of this Court give a novel construction to Article 4476-15, §§ 4.03 and 1.02(8), but also it misconstrues Article 4476-15b to mean that when there is an offer to sell a controlled substance the provisions of the latter “would not apply” — notwithstanding § 2(a)(1) makes it an offense where a person may believe and “expressly represents the substance to be a controlled substance” in his offer to sell what is really “a simulated controlled substance.”6
The interpretation by the majority is at odds with a legislative determination that offering to sell a purported controlled substance that is “simulated” or “counterfeit” be either a third degree felony or Class A misdemeanor, instead of a first degree felony as in the instant cause.
Finally, I believe the majority formulation may well be on a collision course with penalties attached to offenses denounced by Article 4476-15b and by Article 4476-15, § 4.09(a)(6) and (b)(4). Under the doctrine followed by the Court in Ex parte Sanford, 163 Tex.Cr.R. 16, 289 S.W.2d 776, 780 (1956), the majority puts all three statutes at risk of being held unconstitutional.
For those reasons I respectfully dissent.
TEAGUE, MILLER and CAMPBELL, JJ., join.. Emphasis is in majority opinion; all other emphasis is mine throughout unless otherwise indicated.
. In the opinion below a majority found Article 4476-15b proscribes an offer to sell a controlled substance that is really a simulated controlled substance when conduct of accused shows he knows it is simulated. Nevertheless, it was sat*290isfied that "the Texas Legislature delineated as a separate offense an ‘offer to sell’ an enumerated drug,” and that proof of such offense does not require the subject of that offer be a genuine controlled substance. Rather, the majority held the evidence must show that an accused
"(1) verbalized his intention to transfer a controlled substance in return for a fee and (2) exhibited conduct consistent with the subjective belief that the substance offered for sale was a controlled drug.”
Stewart v. State, supra, at 14. Today the majority of this Court would have it that just the first element alone is sufficient to constitute an offense — in this cause a first degree felony. It cites no direct authority for that startling proposition, and ironically that which it directs the reader to compare does require the second — as will be demonstrated post, at note 3.
. Neither federal case cited in the majority opinion involved an offer to sell a controlled substance, which apparently is not an offense eo nomine under federal law. See 21 U.S.C.A. § 841 et seq. Both cases treat conspiracy to distribute a controlled substance, that is, "agreeing with one or more individuals to undertake the distribution of ... items believed to be L.S.D. [though they] need not in fact be L.S.D.,” United States v. Roman, 728 F.2d 846, 859 (CA7 1984); since the crime of conspiracy is complete upon formation of an illegal agreement, it is enough to show that the parties “intended to possess quaaludes for purposes of distribution” and in exchange “intended to obtain cocaine with intent to distribute [emphasis in original opinion],” United States v. Pietri, 683 F.2d 877, 879 (CA5 1982): "Here the appellants believed they were engaging in a trading transaction involving genuine controlled substances,” id., at 880. Thus, the mens rea of conspirators in each federal case contemplated obtaining and distributing genuine controlled substances — not a simulated or counterfeit substance, as here.
Completely ignored by the majority, the Houston [14th] Court of Appeals used a similar rationale in finding the evidence sufficient. Stewart v. State, supra, at 14-15; see note 2, ante.
. In Lewis v. State, 503 S.W.2d 806 (Tex.Cr.App.1974), accused represented to an undercover agent that the substance being sold was L.S.D., but on trial claimed that under circumstances in which he acquired it he believed the substance was a combination of Comet washing powder and Kool-Aid and, therefore, he did not intend to sell L.S.D. However, the Court rejected his contention that the State "failed to prove intent to sell [a controlled substance],” relying on a finding in Reyes v. State, 480 S.W.2d 373 (Tex.Cr.App.1972), viz:
"Where the accused has represented he is selling a certain narcotic drug and the substance which he sells is found to contain such narcotic drug, knowledge has been shown.”
However, when the substance actually delivered is not what it was represented to be, and the only other objective facts are the representation itself and possession elsewhere of the same simulated or counterfeit substance, a federal conviction on a theory of attempted delivery is not sustainable because there is not a "strong objective basis for the determination of criminal intent and conduct consistent and supportive of that intent." United States v. Oviedo, 525 F.2d 881, 885 (CA5 1976).
.The Legislature first denounced acts and conduct involving certain controlled substances in Acts 1905, 29th Leg., Ch. 45, p. 45; in the Uniform Narcotic Drug Act, former article 725b, enacted in 1937, the related offense was to “sell ... any narcotic drug,” and “sale” included “barter, exchange, or gift, or offer thereof,” id., § 1(10). Similarly, in the Texas Controlled Substances Act of 1973, "delivery” includes "an offer to sell a controlled substance.” Article 4476-15, § 1.02(8).
The majority opinion below finds the issue it addressed presents a case of first impression in Texas. Which is to say, in more than eighty years our courts were not called on to decide whether a sale, offer to sell or other delivery of what is represented to be — but turns out not to be — a particular controlled substance offended existing law. That lack of decision, in turn, must reflect a common understanding among participants in the criminal justice system that dealing in placebos was not then a penal offense. Compare Lewis v. State and Reyes v. State, supra.
Accordingly, in 1983 the Legislature enacted Article 4476-15b, V.A.C.S., relating to "simulated controlled substances," and then in 1985 for good measure added to "fraud offenses" in Article 4476-15, § 4.09(a): "(6) to manufacture, deliver, or possess with intent to deliver a counterfeit substance.” The former is a third degree felony; the latter is a Class A misdemeanor. That accused believed it to be a controlled substance is not a defense. See § 2(c) and § 4.09(c).
In his dissenting opinion Chief Justice J. Cur-tiss Brown concludes that by enacting Article 4476-15b, "the legislature intended to cover certain behavior which had previously been excluded from the Controlled Substances Act.” Stewart v. State, 693 S.W.2d 11, 16 (Tex.App.—Houston [14th] 1985). While I would say both recent enactments reached conduct which had not previously been included in the Controlled Sub*291stances Act and its predecessors, manifestly his finding of legislative intent is correct.
. At pages 288-89 of its opinion the majority seems to read § 2(a) — "delivers a simulated controlled substance” — to embrace an offer to sell what is then and there declared to be "a simulated controlled substance." However, that notion is belied by what follows in (1) and (2) — and perhaps (3) — § 2(c) and § 3. Clearly the offer must be to sell what is in the fashion prescribed represented to be a genuine controlled substance. See Holliman v. State, 692 S.W.2d 120, 122 (Tex.App.—Waco 1985) PDR refused. An offer to sell an admittedly simulated or counterfeit substance is not likely to get any taker unless the latter expects to deceive yet another party.
In that connection, the majority erroneously reads § 2(a)(1) and (2) conjunctively when under normal rules of grammar and punctuation they are stated disjunctively by reason of the “or" following (2). Thus, there are three separate representations, each of which may constitute an offense when the substance is actually simulated.
Article 4476-15, § 4.09(a)(6), dealing with an offer to sell a counterfeit substance, is not mentioned at all by the majority.