concurring.
Since the seminal opinion in McGlothlin v. State, 749 S.W.2d 856 (Tex.Cr.App.1988), this court has addressed recurring problems created by what the late Judge Duncan characterized as “a part of a complex statutory *110scheme designed to prohibit the manufacture and possession of a wide variety of controlled substanees[, necessitating] expert testimony to properly present and prove a criminal violation of the Act.” Id., at 859.1
Keeping in mind that V.T.C.A. Penal Code, Title 1, § 1.03(a) dictates, “Conduct does not constitute an offense unless it is defined as an offense by statute [et cetera];” that id., § 1.03(b), inter alia, makes provisions of Title 1 (2 and 3) applicable to “offenses defined by other laws, unless the statute defining the offense provides otherwise;” that the Texas Controlled Substances Act does not provide otherwise, we must focus on statutory provisions defining germane offenses. Practice Commentary; see, e.g., Childress v. State, 784 S.W.2d 361, at 362 (Tex.Cr.App.1990), and Gutierrez v. State, 628 S.W.2d 57, at 61 (Tex.Cr.App.1980). If correct, Part I of the majority opinion is dispositive, and all else is dicta.
Like McGlothlin this cause is governed by the 1983 version of the Act, in which offending conduct involving amphetamine is defined as an offense or aggravated offense only in §§ 4.032(a) and (e), and 4.042(a) and (c), respectively. In combination both definitions of an offense read in pertinent part, viz:
“[A] person commits an offense if he knowingly or intentionally [manufactures, delivers, possesses with intent to manufacture or deliver or possesses] a controlled substance listed in Penalty Group 3[.]” ■
Similarly, both definitions of an aggravated offense read:
“A person commits an aggravated offense if the person commits an offense under Subsection (a) of this section and the amount of the controlled substance [manufactured, delivered, or possessed with intent to manufacture or deliver or possessed] is, by aggregate weight, including any adulterants or dilutants, 200 grams or more.”2
Here again then are two issues of first impression, viz: Do the statutory provisions reveal a legislative intent, first, to take into *111account the weight of an “immediate precursor” in determining the amount of the controlled substance “by aggregate weight, including any adulterants or dilutants;” second, must the charging instrument allege presence of an “immediate precursor” in the controlled substance in question.
According to the court of appeals the DPS chemist described the stuff the State alleged to be amphetamine as follows:
“[The 5000 milliliter flask of dark liquid] contained 704.89 grams of amphetamine, including adulterants and dilutants.... [T]he solution in the flask contained 76.20 grams of amphetamine base; that the remainder of the solution was reaction mixture containing bi-products [sic] of the manufacturing process and (some) unused precursors (, unchanged precursors); and that the amphetamine in the liquid had not been extracted, distilled or separated from the other substances. * * * * [TJhat the solution in the flask was not ready for distribution as amphetamine; and that the amphetamine had not been extracted, distilled or separated from the other substances in the flask.”
Slip opinion, at 2, 3 (material in parenthesis from 3 S.F. 270).
An “immediate precursor” listed in a schedule and penalty group is in and of itself a prohibited controlled substance. Act 1983, § 1.02(5).
An “immediate precursor” is a “substance” which is authoritatively found to be and designated as being “a principal compound commonly used or produced primarily for use, and which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substanee[.]” Id., § 1.02(15).3
Possessing a listed “immediate precursor” with intent to manufacture another controlled substance is a penal offense and may be prosecuted as such, punishment depending on its “aggregate weight, including any adulterants of dilutants.” Id., §§ 4.03(a), 4.031(a) and 4.032(a), Act 1983.4
To “manufacture” means the production, preparation, compounding, conversion or processing of a controlled substance (other than marihuana), “either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis[.]” Id., § 1.02(16). See generally Moffett v. State, supra, at n. 1.
From the testimony of the DPS chemist in this and other causes, one surmises that in a chemical synthesis an “immediate precursor” is combined and united with one or more other chemical elements in a “cooking” process involving water to produce amphetamine, that ultimately must be distilled or separated from the aqueous solution before it is final product, leaving in the solution only useless by-products and perhaps some unused, unchanged precursor (which experts hold is neither an adulterant nor dilutant). See, e.g., McGlothlin, supra, at 857; Engelking, supra, at 214-215; Farris, supra, at 580. It appears that the final product is “wet” *112amphetamine that still must “dry out” to become a powdery substance. See Reeves, supra, at 541.
In the course of that completed process, then, an “immediate precursor” loses its separate identity in forming the whole of the manufactured controlled substance. Thus its “weight” has been incorporated into and becomes an inseparable part of the final product. In that circumstance, therefore, there is no basis for alleging the separate weight of any such precursor for it has been “used up” in the manufacturing process.5
Also implicated is a “criminal classification,” i.e., § 4.02(d)(1)(A); unlike the opinion below and of the majority, Part III, at 108-109, I do not see it as a viable theory of prosecution.6
While I agree the evidence is insufficient, for reasons given ante I cannot accept the rationale in Part II of the majority opinion, and its consequences mentioned elsewhere; nor am I persuaded that the “material, compound, mixture or preparation” theory developed in Part III is tenable under the Act, much less applicable under-the facts of this cause showing the manufacturing process was aborted long before there was any final product.7 Thus I concur only in the judgment of the Court.
. Although indicted and tried as a "possession" case under former article 4476-15, §§ 4.02(d)(1)(A) and 4.042(d)(2) (Acts 1979, 66th Leg. Ch. 598, p. 1278, § 6, at 1289 (Penalty Group 3), and Acts 1983, 68th Leg., Ch. 425, § 11, at 2383 (Possession Offenses in Penalty Group 3), effective August 29, 1983, McGlothlin is actually a common "manufacturing” scenario under former article 4474-15, § 4.032(d)(2) (Acts 1983, supra, § 9, at 2377-2378).
The "possession” offense was committed on or about November 30, 1983. But as the affidavit for search warrant alleged and the facts proved demonstrate, defendant was “cooking” amphetamine in a "lab” in his barn, the greatest amount by far being in a flask containing a batch of "mostly water" under a thin organic layer harboring some amphetamine. McGlothlin v. State, 705 S.W.2d 851, at 856, 864 (Tex.App. — Fort Worth 1986); see also McGlothlin, supra, at 857.
Contemporaneously, the Court similarly decided two companion "possession” cases in a laboratory setting. Engelking v. State, 750 S.W.2d 213 (Tex.Cr.App.1988), and Sloan v. State, 750 S.W.2d 788 (Tex.Cr.App.1988), followed soon by Farris v. State, 811 S.W.2d 577 (Tex.Cr.App.1990) ("various materials used in manufacturing amphetamine," "white powder” and two containers of liquid along with amphetamine); see also Cawthon v. State, 849 S.W.2d 346 (Tex.Cr.App.1992).
Reeves v. State, 806 S.W.2d 540 (Tex.Cr.App.1990), however, was prosecuted under former article 4476-15, § 4.031(a) and (c) (1985 amendment elevating amphetamine to Penalty Group 2); it involved delivery of amphetamine in a small bag of "white wet powdery type substance,” although there is no indication it came from a "lab” on the premises.
The judgments above were reversed for entry of a judgment of acquittal, essentially due to a failure below to understand and appreciate the pivotal significance of the clause "the amount of the controlled substance ,.. by aggregate weight, including any adulterants or dilutants [.]” See Smith v. State, 737 S.W.2d 933, 937-938 (Tex.App. — Dallas 1987) PDR refused. None presented a question of the role of "immediate precursor” that the majority addresses here. Majority opinion, Part II, at 107-108.
(All emphasis here and throughout this opinion is mine unless otherwise noted.)
. A § 4.032(a) offense is a third degree felony "if the amount of the substance manufactured, delivered, or possessed with intent to manufacture or deliver is, by aggregate weight, including any adulterants or dilutants, less than 200 grams.” § 4.032(b)
A § 4.042(a) offense is a Class A misdemeanor "if the amount of the controlled substance possessed is, by aggregate weight, including any adulterants and dilutants, less than 200 grams.” § 4.042(b).
By using of the past tense in each instance, the Legislature manifested that amphetamine, as the controlled substance in question, must be an end product of the manufacturing process, and thus susceptible to being delivered and possessed.
. For example, we are given to understand that phenylacetic acid is an ingredient used to make phenylacetone, which in turn is a direct precursor to amphetamine and methamphetamine. See Thompson v. State, 885 S.W.2d 136, 137 (Tex.Cr.App. Nos. 1153-90 and 1154-90, delivered this day). Indeed, listed as a controlled substance is "Phenylacetone [when possessed with methylamine with intent to manufacture methamphetamine]." Act 1983, Schedule II, § 2.04(d); Penalty Group 1, § 4.02(b)(8). In Act 1985, however, it is listed alone in Schedule II, § 2.04(f)(2); Penalty Group 2, § 4.02(c)(2). See now V.T.C.A. Texas Health & Safety Code, Schedule II, § 481.033(5); Penalty Group 2, § 481.103(a)(2).
. As matter of fact the indictment in this cause alleged, inter alia that appellant did then and there intentionally and knowingly "manufacture and possess with intent to manufacture and deliver more than 400 grams of a controlled substance, to-wit Amphetamine.” Granted it did not allege possession of "phenylacetone” as an "immediate precursor,” and given the facts of this case, one is left to wonder just how the grand jury expected the prosecution to prove that appellant possessed amphetamine "with intent to manufacture” amphetamine. Notably, the trial court did not authorize the jury to convict on that theory. See majority opinion, at 107. Had it been alleged, however, the State might well have secured a conviction for possession of phe-nylacetone with intent to manufacture amphetamine with equally serious punishment, depending, of course, on the amount of phenylacetone.
. The majority comes to the same conclusion, opinion, at 107-108; but only upon analyzing the stated definition of “controlled substance” in the 1983 Act, § 1.02(5), viz; " 'Controlled substance’ means a drug, substance or immediate precursor listed....” Regardless, not only are "drug” and “immediate precursor" identified by distinct definitions, § 1.02(14) and (§ 1.02(15), but also each as well as "substance” is criminally classified separately throughout § 4.02.
On the other hand, whether an "unused” immediate precursor may be extracted in bulk from the aqueous solution or, for that matter, has not yet been included in the manufacturing process, it is still a controlled substance itself and, as pointed out ante, at 107, possessing it is a penal offense and may be prosecuted as such. In that event, of course, the immediate precursor must be identified in the charging instrument. Again, an "immediate precursor” is something other than an adulterant or dilutant.
. Based mainly on testimony from the DPS chemist the court of appeals concluded the evidence was sufficient to prove manufacture of amphetamine over 400 grams under § 4.02(c)(3), viz:
“Clearly, the 704.89 grams of solution in the flask was a compound, mixture or preparation containing a quantity of amphetamine. Contrary to the'rationale of McGlothlin that Penalty Groups 1 and 2 include only the prohibited controlled substance, Section 4.02(c)(3) clearly states that as to amphetamine, not only the prohibited controlled substance, but also '[a]ny material, compound, mixture, or preparation which contains any quantity’ of amphetamine is included in Penalty Groups 2. Cf. McGloth-lin at 860-861.”
Slip opinion, at 3 (emphasis in original).
Alas, the court of appeals overlooked that McGlothlin was decided under the Act extant in 1983, when amphetamine was in Penalty Group 3. See note 1, ante. Nonetheless, then § 4.02(d)(1) also included "(A) Amphetamine” under "Any material, compound, mixture, or preparation” et cetera.
However, § 4.02 merely sets up “criminal classifications " of controlled substances, without defining offenses or fixing punishments; whereas only §§ 4.03-4.043 prescribe respective offenses and attached penalties in terms of "aggregate weight [of the controlled substance itself], including any adulterants or dilutants.” Compare V.T.C.A. Texas Health Si Safety Code, § 481.101, 481.102-481.105 and §§ 481.112-481.118. Thus portions of "material, compound, mixture or preparation” are not figured in "aggravated weight" of the final product unless they are proven to be "adulterants or dilutants” introduced during the process of manufacture or added thereafter to "cut" it. McGlothlin, supra, note 8, and related text at 860-861 (no evidence that water was intended "to increase the bulk or quantity of the final product”); Engelking, supra, at 216; Reeves, supra, at 544; Farris, supra, at 580; see also Cawthon, supra, 849 S.W.2d at 347; cf. Blackmon v. State, 786 S.W.2d 467, at 470-473 (Tex.App. — Houston [1st] 1990), PDR refused) (crushed granulated sugar used to "cut” methamphetamine to increase bulk).
Thus a defined offense is related to a "penalty group” merely to identify the classification of the particular controlled substance for purposes of assessing punishment — that which is prescribed in the same section defining the offense, according to its aggregate weight. The aggregate weight of any material, compound, mixture, or preparation containing any quantity of a listed controlled substance, here amphetamine, is the combined weights of the manufactured substance and adulterants or dilutants whether retained in or later added to "cut” the final product. §§ 1.02(5) and (29)(F); 4.02(d)(1)(A); 4.032(a) and (b), or (c) and (d); 4.042(a) and (b), or (c) and (d).
.From a "common 'manufacturing' scenario,” ante, 106, n. 1, many foregoing cases indicate that practitioners are having difficulty analyzing operative facts to determine the appropriate aggravated offense denounced by the Texas Controlled Substances Act. Charging instruments *113allege criminal conduct pertaining to amphetamine ranging from simple “possession,” "possession with intent to manufacture” to actual “manufacture,” yet both prosecution and defense overlook that the facts reveal no more than suspects in or around a "lab” engaged in the process of "manufacturing" what is expected will turn out to be, but as the chemist here explained is not, a product "ready for distribution as amphetamine.” In short, there is no "manufactured" amphetamine in the "cooking” flask.
However, since Acts 1981, 67th Leg., Ch. 268, p. 697, § 2, the Legislature has provided a proper way to deal with that situation, viz:
"The provisions of Title 4, Penal Code, apply to ... offenses designated as aggravated offenses under subchapter 4 of this section, except that the punishment for a preparatory offense is the same as the punishment prescribed for the offense that was the object of the preparatory offense.”
Former § 4.011; now Health and Safety Code, § 481.108; cf. Baxter v. State, 718 S.W.2d 28, at 31-32 (Tex.App. — Eastland 1986) PDR refused (attempted aggravated manufacture of methamphetamine).