dissenting.
I respectfully dissent to the disposition of point of error one. While this is an important case, it is a relatively simple one. Dudley attacks the legal sufficiency of the evidence concerning the concentration of the codeine possessed.
Dudley was originally indicted for possession of penalty group 1 codeine, but the State amended the indictment to allege possession of penalty group 4 codeine. The application paragraph of the jury charge instructed the jury to consider if Dudley “possessed a controlled substance listed in Penalty Group 4 of the Texas Controlled Substance Act, namely, codeine....” The failure to allege in the indictment the amount involved or penalty group so as to reflect what punishment is involved, whether the offense is a misdemeanor or felony, or whether a District Court has jurisdiction renders an indictment fatally defective. Consequently, the State was required to plead within which penalty group the substance fell and then prove it fell within the definition of penalty group 4. Benoit v. State, 561 S.W.2d 810, 815 (Tex.Crim.App.1977); see also Kolbert v. State, 590 S.W.2d 711, 712 (Tex.Crim.App.1979). Thus, the question-did the State prove it? The State concedes the only proof is the testimony from a chemist that the substance taken from Dudley was “a combination commonly found in cough syrup type preparations that contain codeine in a concentration of less than 200 milligrams per milliliters of syrup,” plus her testimony that codeine is listed in penalty group 4. The State also concedes the *303chemist did not measure the concentration of the codeine. The State and the majority contend this expert opinion evidence is sufficient. I disagree.
The necessity to prove by chemical analysis that a material is illegal contraband clearly is an essential element of the State’s case. Aguilar v. State, 850 S.W.2d 640, 642 (Tex.App.-San Antonio 1993), rev’d on other grounds, 887 S.W.2d 27 (Tex.Crim.App.1994); see also Curtis v. State, 548 S.W.2d 57, 59 (Tex.Crim.App.1977) (although an experienced narcotics officer may identify marihuana, he may not testify that a powdered substance is heroin).
An expert’s opinion may be based upon sufficient relevant facts, but those facts must be either within his personal knowledge, or assumed from common or judicial knowledge, or established by evidence. Nejnaoui v. State, 44 S.W.3d 111, 118 (Tex.App.-Houston [14th Dist.] 2001, pet. filed). Our Court of Criminal Appeals has spoken several times recently on expert testimony and its value as evidence. In Jordan v. State, 928 S.W.2d 550, 554-55 (Tex.Crim.App.1996)(footnote omitted), the court stated:
While Rule 702 involves the dual inquiry of relevance and reliability, the Supreme Court emphasized that the “overarching subject” of Rule 702 is the scientific validity of the evidence at issue. [Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-95, 113 S.Ct. 2786, 2797, 125 L.Ed.2d 469]. In sorting the untested or invalid theories from those that are grounded in “good” science, trial judges are called upon to serve as “gatekeepers.” Id. 509 U.S. at 595-99, 113 S.Ct. at 2798-99. With respect to the relevance consideration, the Court pointed to Rule 702’s requirement that the expert’s testimony “assist the trier of fact to understand the evidence or to determine a fact in issue.” Id. 509 U.S. at 589-93, 113 S.Ct. at 2795-96. Expert testimony that does not relate to a fact in issue is not helpful. This consideration is what the Supreme Court referred to as the “fit” requirement. That is, the proffered testimony must be “ ‘sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.’ ” Id. 509 U.S. at 591-93, 113 S.Ct. at 2796 (quoting United States v. Downing, 753 F.2d 1224, 1242 (3rd Cir.1985)).
In line with this Court and the United States Supreme Court, the Texas Supreme Court recently held that under Texas Rule of Civil Evidence 702, the proponent of expert testimony must show that it is relevant to the issues in the case and is based on a reliable scientific foundation. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (1995). The Court emphasized the role of trial courts in scrutinizing “proffered evidence for its scientific reliability when it is based upon novel scientific theories, sometimes referred to as ‘junk science.’ ” Id. at 554.
The focus of the courts in Kelly [v. State, 824 S.W.2d 568], Daubert, and Robinson, was on assessing the scientific reliability of the evidence at issue, rather than its relevance. As discussed at length in those cases, reliability depends upon whether the evidence has its basis in sound scientific methodology. This demands a certain technical showing. Accordingly, it is upon the reliability inquiry that trial courts can weed out testimony pertaining to so-called “junk science.” Id. It is largely to this end that trial judges are called upon to serve as “gatekeepers.” Daubert, supra. While “junk science” or otherwise inadequately tested scientific theories might be shown to relate to the facts of a case and to that extent be of assistance to the jury, *304it will not have a sufficiently sound scientific basis to be reliable.
928 S.W.2d at 554-55.
Later in Hartman v. State, 946 S.W.2d 60, 62-63 (Tex.Crim.App.1997)(footnote omitted), the court said:
Nowhere in Kelly did we limit the two-pronged standard to novel scientific evidence. The Supreme Court in Daubert directly addressed the issue in a footnote, stating “[a]lthough the Frye decision itself focused exclusively on ‘novel’ scientific techniques, we do not read the requirements of Rule 702 to apply specifically or exclusively to unconventional evidence.” Daubert, 509 U.S. at 593 n. 11, 113 S.Ct. at 2796 n. 11. The Supreme Court noted that “under the Rules, the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Id. at 589, 113 S.Ct. at 2795 (emphasis added). We likewise see no value in having a different standard of admissibility for novel scientific evidence. The problems presented in determining whether or not a particular type of evidence would be considered “novel” are daunting enough to reject application of a dual standard. Moreover, we observe that the factors and criteria set forth in Kelly as bearing upon the reliability of proffered scientific evidence are adequate measure for assuring that “novel” scientific evidence which is “junk science” is excluded. These factors “address the soundness of the underlying scientific theory and technique.” Jordan v. State, 928 S.W.2d 550, 554 (Tex.Crim.App.1996). This is the linchpin of Rule 702:
[Rjeliability depends upon whether the evidence has its basis in sound scientific methodology. This demands a certain technical showing. Accordingly, it is upon the reliability inquiry that trial courts can weed out testimony pertaining to so-called “junk science.” Id. It is largely to this end that trial judges are called upon to serve as “gatekeepers.” Daubert, supra. While “junk science” or otherwise inadequately tested scientific theories might be shown to relate to the facts of a case and to that extent be of assistance to the jury, it will not have a sufficiently sound scientific basis to be reliable.
Id. at 555.
The standard adopted by this Court in Kelly applies to all scientific evidence offered under Rule 702. The court of appeals erred in applying a standard different than that set forth in Kelly.
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946 S.W.2d at 62-63.
The Courts have been consistent; there must be facts underlying the expert’s opinion or it is “no evidence.” Simply because an expert says it ... “don’t make it so!”8 It was, in my view, necessary for the chemist to actually test the substance for *305-321its concentration. Since she admitted she did not do so, her opinion concerning the concentration equals “no evidence.” Therefore, the state did not prove the codeine possessed by Dudley was penalty group 4 codeine and failed to prove an essential element of the indictment. Consequently, the evidence is legally insufficient and this court should reverse and acquit. Gollihar v.. State, 46 S.W.3d 243, 245 (Tex.Crim.App.2001) (citing Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)).
. Consider this language from Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 712-13 (Tex.1997)(footnote omitted):
Justice Gonzalez, in writing for the Court, gave rather colorful examples of unreliable scientific evidence in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995), when he said that even an expert with a degree should not be able to testify that the world is flat, that the moon is made of green cheese, or that the Earth is the center of the solar system. If for some reason such testimony were admitted in a trial without objection, would a reviewing court be obliged to accept it as some evidence? The answer is no. In concluding that this testimony is scientifically unreliable and therefore no evidence, however, a court necessarily looks beyond what the expert said. Reliability is determined by looking at numerous factors including those set forth in Robinson and Daubert. The testimony of an expert is generally opinion testimony. Whether it rises to the level of *305-321evidence is determined under our rules of evidence, including Rule 702, which requires courts to determine if the opinion testimony will assist the jury in deciding a fact issue. While Rule 702 deals with the admissibility of evidence, it offers substantive guidelines in determining if the expert testimony is some evidence of probative value.
Similarly, to say that the expert’s testimony is some evidence under our standard of review simply because the expert testified that the underlying technique or methodology supporting his or her opinion is generally accepted by the scientific community is putting the cart before the horse. As we said in Robinson, an expert’s bald assur-anee of validity is not enough. 923 S.W.2d at 559 (quoting Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1316 (9th Cir., 1995) (on remand) (holding that expert’s assertion of validity is not enough; there must be objective, independent validation of the expert’s methodology), cert. denied, 516 U.S. 869, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995)).
The view that courts should not look beyond an averment by the expert that the data underlying his or her opinion are the type of data on which experts reasonably rely has likewise been rejected by other courts. The underlying data should be independently evaluated in determining if the opinion itself is reliable....