concurring.
I concur. Appellant does not contest the State’s proof that he possessed a controlled substance, including adulterants or dilutants, with an aggregate weight of “200 *302grams or more but less than 400 grams.” See Tex. Health & Safety Code Ann. § 481.118 (Vernon Supp.2001). The controlled substance’s aggregate weight puts it squarely within the second degree felony range of section 481.118(d). Appellant does not contest the sufficiency of the State’s proof that he possessed a “compound, mixture, or preparation” containing codeine and “one or more nonnarcotic active medicinal ingredients in sufficient portion to confer on the ... mixture ... valuable medicinal qualities other than those possessed by the narcotic drug alone[.]” See Tex. Health & Safety Code Ann. § 481.105(1) (Vernon Supp.2001). Rather, his point is that the Concentration he possessed may have exceeded Penalty Group 4’s concentration requirement, and instead placed his offense in Penalty Group 1 or 3. He does not contend that the concentration would have resulted in a milder punishment, such as by making his conduct a misdemeanor rather than a felony; the punishment classifications listed in section 481.118 are based upon the weight of the controlled substance possessed, and he does not contest the aggregate weight of the controlled substance he possessed. He makes the following argument in his brief.
Without testimony regarding the concentration, any possible ratio of mixture could be inferred. To do so would not be to prove the codeine was listed in Penalty Group 4. It is also listed in Penalty Group 1 and Penalty Group 3.
In effect, appellant maintains the State had to show the actual level of codeine concentration in order to establish that the substance he possessed fell within Penalty Group 4 rather than a penalty group that requires a higher codeine concentration with resulting greater punishment. Bottom line, his point on appeal is that he may have been guilty of a greater offense than that for which he was convicted.
Because I believe the evidence was sufficient as to his guilt of possession of codeine in at least the concentration for which he was convicted, I concur in the affirmance of his conviction and sentence.