concurring.
Before joining the majority opinion I want to reiterate some of the observations I made in Reeves v. State, 806 S.W.2d 540 (Tex.Crim. App.1990). For the convenience of the reader I will lay out in footnote the germane comments I made in Reeves.1
Although the Controlled Substances Act quoted in Reeves has been recodified in the 1992 Health and Safety Code as Sections 481.103, 481.113 and 481.116, as well as 481.002 (Penalty Group 2; Offense: Manufacture or Delivery of Substance in Penalty Group 2; Offense: Possession of Substance in Penalty Group 2; and Definitions, respectively. See Appendix.), those sections are in all material respects the same as the old sections of the Controlled Substances Act, and thus the observations made today will pertain to current law.
As alluded to in Footnote 5 of Reeves, supra, (see footnote 1 herein) there is a reconciliation necessary between the “material, compound, mixture, or preparation that contains any quantity of [a substance listed in (3) ] of Section 481.103” and the “adulterants or dilutants” language contained in Sees. 481.113 and 481.116. This is time because a controlled substance that is mixed with adulterants and dilutants is per se a material, compound, mixture, or preparation that contains “any quantity” of the controlled substance. So if the State alleges “mixture”, etc. in the indictment (and mixture of course includes adulterants or dilutants), in proving mixture have they not removed for themselves the burden of proving adulterants or dilutants? Preliminarily, I would answer the *114question in the affirmative. I say that because the “adulterants or dilutants” language of Secs. 481.113 and 481.116 refers to the entirety of Section 481.103 which includes numerous substances. By comparison, the “material, compound, mixture, or preparation” language in (3) of that section only pertains to seven substances. A very logical reading of all of these sections together leads to the conclusion that as to the seven substances listed in (3), the legislature intended the any “mixture” language to control and further intended that the “adulterants or dilutants” language control all of the other substances listed. This reading gives effect to both the “adulterants or dilutants” language and the “material, compound, mixture, or preparation” language in the respective sections.
Of course, my musing in footnote 5 of Reeves was dicta, just as I’m sure the musings in this concurring opinion will be so construed. But at least we are moving forward to the time when the issue will be joined and the full Court will be asked to reconcile the “adulterants or dilutants” language with the “material, compound, mixture, or preparation” language. Doubtless, this will come as the State begins using the latter language in charging instruments.
With these observations I join the opinion of the Court.
APPENDIX
§ 481.103. Penalty Group 2
(a) Penalty Group 2 consists of:
(1) any quantity of the following hallucinogenic substances, their salts, isomers, and salts of isomers, unless specifically excepted, if the existence of these salts, isomers, and salts of isomers is possible within the specific chemical designation:
4-bromo-2, 5-dimethoxyamphetamine (some trade or other names: 4-bro-mo-2, 5-dimethoxy-alpha-methylphenethylamine; 4-bromo-2, 5-DMA);
Bufotenine (some trade and other names: 3-(beta- Dimethylaminoethyl)-5-hydroxyindole; 3-(2-dimethylaminoethyl)-5- indolol; N, N-dimethylserotonin; 5-hydroxy-N, N-dimethyltryptamine; mappine);
Diethyltryptamine (some trade and other names: N, N-Diethyltryptamine, DET);
2, 5-dimethoxyamphetamine (some trade or other names: 2, 5-dimethoxy-alpha-methylphenethylamine; 2, 5-DMA);
Dimethyltryptamine (some trade and other names: DMT);
Dronabinol (synthetic) in sesame oil and encapsulated in a soft gelatin capsule in a U.S. Food and Drug Administration approved drug product (some trade or other names for Dronabinol: (a6aR-trans)-6a,7,8,10a-tetrahydro- 6,6,9-trime-thyl-3-pentyl-6H- dibenzo [b,d]pyran-l-ol or (-)-delta-9-(trans)-tetrahydro-cannabinol);
Ethylamine Analog of Phencyclidine (some trade or other names: N-ethyl-1-phenylcyclohexylamine, (1-phenylcyclohexyl) ethylamine, N-(l-phenylcyclo-hexyl) ethylamine, cyclohexamine, PCE);
Ibogaine (some trade or other names: 7-Ethyl-6, 6, beta 7, 8, 9, 10, 12, 13-octahydro-2-methoxy-6, 9-methano-5H-pyrido [1', 2':1, 2] azepino [5, 4-b] indole; tabernanthe iboga.);
Mescaline;
5-methoxy-3, 4-methylenedioxy amphetamine;
4-methoxyamphetamine (some trade or other names: 4-methoxy-alpha-methylphenethylamine; paramethoxyamphetamine; PMA);
1-methyl- 4-phenyl-4-propionoxypiperidine (MPPP, PPMP);
4-methyl-2, 5-dimethoxyamphetamine (some trade and other names: 4-methyl-2, 5-dimethoxy-alpha-methylphenethylamine; “DOM”; “STP”);
3,4-methylenedioxy methamphetamine (MDMA, MDM);
3,4-methylenedioxy amphetamine;
*1153,4-methylenedioxy N-ethylamphetamine (Also known as N-ethyl MDA);
Nabilone (Another name for nabilone: ( + )-trans-3-(l,l-dimethylheptyl)~ 6,6a,7,8,10,10a-hexahydro-l- hydroxy-6,6-dimethyl-9H-dibenzo[b,d]pyran-9-one;
N-ethyl-3-piperidyl benzilate;
N-hydroxy-3,4-methylenedioxyamphetamine (Also known as N-hydroxy MDA);
4-methylaminorex;
N-methyl-3-piperidyl benzilate;
Parahexyl (some trade or other names: 3-Hexyl-l-hydroxy-7, 8, 9, 10-tetrahydro-6, 6, 9-trimethyl-6H-dibenzo [b, d] pyran; Synhexyl);
1-Phenylcyclohexylamine;
1-Piperidinocyclohexanecarbonitrile (PCC);
Psilocin;
Psilocybin;
Pyrrolidine Analog of Phencyclidine (some trade or other names: 1-(1-phenylcyclohexyl)-pyrrolidine, PCPy, PHP);
Tetrahydroeannabinols, other than marihuana, and synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as:
delta-1 cis or trans tetrahydrocannabinol, and their optical isomers;
delta-6 cis or trans tetrahydrocannabinol, and their optical isomers;
delta-3, 4 cis or trans tetrahydrocannabinol, and its optical isomers; compounds of these structures, regardless of numerical designation of
atomic positions, since nomenclature of these substances is not internationally standardized;
Thiophene Analog of Phencyclidine (some trade or other names: 1 — [1—(2— thienyl) cyclohexyl] piperidine; 2-Thienyl Analog of Phencyclidine; TPCP, TCP);
l-[l-(2-thienyl)cyclohexyl]pyrrolidine (some trade or other names: TCPy); and
3,4,5-trimethoxy amphetamine;
(2) Phenylacetone (some trade or other names: Phenyl-2-propanone; P-2-P, Benzymethyl ketone, methyl benzyl ketone); and
(3) unless specifically excepted or unless listed in another Penalty Group, a material, compound, mixture, or preparation that contains any quantity of the following substances having a potential for abuse associated with a depressant or stimulant effect on the central nervous system:
Amphetamine, its salts, optical isomers, and salts of optical isomers;
Etorphine Hydrochloride;
Fenethylline and its salts;
Mecloqualone and its salts;
Methaqualone and its salts;
N-Ethylamphetamine, its salts, optical isomers, and salts of optical isomers; and
N,N-dimethylamphetamine (some trade or other names: N,N,alpha-trime-thylbenzeneethaneamine; N,N,alpha-trimethylphenethylamine), its salts, optical isomers, and salts of optical isomers.
*116(b) For the purposes of Subsection (a)(1) only, the terna “isomer” includes an optical, position, or geometric isomer.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1989, 71st Leg., ch. 1100, § 5.02(n), eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 761, § 2, eff. Sept. 1, 1991.
Historical and Statutory Notes
[[Image here]]
Prior Laws
4.
Acts 1905, 29th Leg., p. 45. Acts 1919, 36th Leg.-, pp. 277, 278. Acts 1919, 36th Leg., 2nd C.S., p. 156. Acts 1931, 42nd Leg., p. 154, ch. 97. Acts 1973, 63rd Leg., p. 995, eh. 399, § 5. Acts 1973, 63rd Leg., p. 1132, ch. 429. Acts 1979, 66th Leg., p. 1286, ch. 598, § 6. Acts 1985, 69th Leg., ch. 227, § 8. Acts 1987, 70th Leg., ch. 666, § 3.
Notes of Decisions
Tetrahydrocannabinol, generally 1
1. Tetrahydrocannabinol, generally
Section listing “Tetrahydrocannabinols other than marijuana and synthetic equivalents” was intended to exclude only marijuana and does not exclude any other substance contained in marijuana or the resinous extractives of cannabis or similar synthetic substances, including synthetic tetrahydrocannabinols, and does not exclude hashish. Ex parte Psaroudis (Cr.App.1974) 508 S.W.2d 390.
In view of federal statute defining marijuana (21 U.S.C.A. § 802) and listing it separate and apart from tetrahydrocannabinols, Congress intended that latter should mean and include only synthetic THC, and that marijuana would include everything containing organic THC, including hashish. Pew v. State (Cr.App.1979) 588 S.W.2d 578.
In state’s controlled substances law, any material, compound, mixture or preparation which contains any amount of the hallucinogenic substance tetrahydrocannabinol, other than in marijuana, is within contemplation of penalty group 2, and thus any preparation that contains organic resin extracted from plant or synthetic THC in whatever form and under whatever name is embraced. Pew v. State (Cr.App.1979) 588 S.W.2d 578.
§ 481.113. Offense: Manufacture or Delivery of Substance in Penalty Group 2
(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally manufactures, delivers, or possesses with intent to manufacture or deliver a controlled substance listed in Penalty Group 2.
(b) An offense under Subsection (a) is a felony of the second degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, less than 28 grams.
(c) A person commits an aggravated offense if the person commits an offense under Subsection (a) and the amount of the controlled substance to which the *117offense applies is, by aggregate weight, including adulterants or dilutants, 28 grams or more.
(d) An offense under Subsection (c) is:
(1) punishable by confinement in the Texas Department of Corrections1 for life or for a term of not more than 99 years or less than 5 years, and a fine not to exceed $50,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 28 grams or more but less than 400 grams; and
(2) punishable by confinement in the Texas Department of Corrections for life or for a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 400 grams or more.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
1. References to the Texas Department of Corrections shall mean the institutional division of the Texas Department of Criminal Justice by Acts 1989, 71st Leg., ch. 785, § 1.19(f).
Historical and Statutory Notes
[[Image here]]
Cross References
Controlled substance analogue, manufacture, delivery or possession, see § 481.123. Exemptions for use in federally approved therapeutic research program, see § 481.111. Expenditure or investment of funds, see § 481.126.
Punishment, second-degree felony, see V.T.C.A Penal Code, § 12.33.
Repeat offenders, punishment, see § 481.107.
Notes of Decisions
Instructions 4
Manufacture, sufficiency of evidence 2
Possession with intent to deliver, sufficiency of evidence 3
Quantity 1
Sufficiency of evidence 2-3 Manufacture 2
Possession with intent to deliver 3
1. Quantity
Amount of controlled substance delivered need not be proved to sustain conviction for lowest punishment class applicable to substance. Stockton v. State (App. 3 Dist.1988) 756 S.W.2d 873.
Entire 220.18 grams of amphetamine sold to undercover officer could be considered in determining whether State proved drug weight of more than 200 but less than 400 grams in prosecution for aggravated delivery of controlled substance, where transaction involved sale on wholesale level of finished product ready to be cut for sale at retail level, even though 24% of weight of substance consisted of by-products of manufacturing process. Herndon v. State (App. 2 Dist.1989) 767 S.W.2d 510, review refused.
Where State attempts to obtain conviction for aggravated offense under theory that aggregate weight of controlled substance sold by defendant, including adulterants or dilutants, is over 28 grams, State first must prove existence of any adulterants and dilutants, and then must show that controlled substance, plus any adulterants or dilutants, if proven to exist, weighs more than 28 grams. Reeves v. State (Cr.App.1990) 806 S.W.2d 640, rehearing on petition for discretionary review denied, certiorari denied 111 S.Ct. 1641, 113 L.Ed.2d 736.
*118Conviction for delivery of more than 28 grams of amphetamine was not sufficiently supported by testimony that, while entire contents of plastic bag weighed 29.76 grams, witness had no opinion as to how much of it was amphetamine, and no other evidence as to identity of other substances in bag; though statute allowed conviction where aggregate weight of controlled substance, including adulterants or dilutants, was over 28 grams, there was no evidence that any nonamphetamine substance in bag was adulterant or dilutant, intended to increase bulk or quantity of product. Reeves v. State (Cr.App. 1990) 806 S.W.2d 540, rehearing on petition for discretionary review denied.
Evidence was not sufficient to support defendant’s conviction for possession of more than 400 grams of pure amphetamine, where pertinent application paragraph of charge would allow any rational trier of fact to conclude that in determining amount of pure amphetamine he could add “adulterants and dilutants,” and term “controlled substance” in statutory definition did not include adulterants and dilutants. Fanis v. State (Cr.App.1990) 811 S.W.2d 577, rehearing on petition for discretionary review denied.
2. Sufficiency of evidence — Manufacture
. Evidence that a laboratory in process of manufacturing amphetamine was found operating on property less than 200 yards from residence which defendant shared with his wife, that large quantities of amphetamine were found inside residence, and that defendant had on his person handwritten notes which employed a chemical formula for manufacturing amphetamine and addresses of two chemical laboratory supply companies was sufficient to connect defendant to illegal manufacture of a controlled substance notwithstanding that legal title to property was in name of defendant’s wife. Pinkston v. State (App. 2 Dist.1984) 681 S.W.2d 893, review refused.
§ 481.116. Offense: Possession of Substance in Penalty Group 2
(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 2, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.
(b) An offense under Subsection (a) is a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than 28 grams.
(c) A person commits an aggravated offense if the person commits an offense under Subsection (a) and the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 28 grams or more.
(d) An offense under Subsection (c) is:
(1) punishable by confinement in the Texas Department of Corrections 1 for life or for a term of not more than 99 years or less than 5 years, and a fíne not to exceed $50,000, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 28 grams or more but less than 400 grams; and
(2) punishable by confinement in the Texas Department of Corrections for life or for a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 400 grams or more.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
1. References to the Texas Department of Corrections shall mean the institutional division of the Texas Department of Criminal Justice by Acts 1989, 71st Leg., ch. 785, § 1.19(f).
Historical and Statutory Notes
[[Image here]]
*119[[Image here]]
Cross References
Controlled substance analogue, possession, see § 481.123.
Exemptions for use in federally approved therapeutic research program, see § 481.111.
Expenditure or investment of funds, see § 481.126.
Punishment, third-degree felony, see V.T.C.A. Penal Code, § 12.34.
Repeat offenders, punishment, see § 481.107.
Notes of Decisions
Affirmative link to defendant 2
Control and knowledge 1
Indictment and information 3
Sentence and punishment 5
Sufficiency of evidence 4
1. Control and knowledge
State failed to show that defendant exercised care, control and management over amphetamine found in laundry hamper in bathroom off master bedroom that defendant occupied with male roommate, as was required to convict defendant of possessing amphetamine; possibility that roommate put amphetamine in hamper was reasonably consistent with all evidence upon which State relied to prove its circumstantial case. McCarty v. State (App. 2 Dist.1990) 788 S.W.2d 213, review dismissed 820 S.W.2d 795.
2. Affirmative link to defendant
Although accused was merely a passenger in nonowned automobile, in trunk of which police found four containers of amphetamine, accused was sufficiently linked with the contraband so as to warrant conviction on possession offense where odor of amphetamines solution emanating from the vehicle and occupants was strong enough for accused to be aware of its presence, there was no lock on the trunk and access thereto was gained by use of screwdriver, jacket found nearest accused contained drug paraphernalia, accused was apparently intoxicated by use of a substance other than an alcohol beverage and accused had a past record of dealing with controlled substances. Durham v. State (App. 2 Dist.1986) 701 S.W.2d 951, review refused.
Smell of ether that permeated driver’s vehicle and clothing, along with driver’s ducking down in vicinity of drug when confronted by officer, were sufficient affirmative links to sustain driver’s conviction of possession of less than 28 grams of amphetamine, found underneath driver,’s seat of automobile. Soto v. State (App. 2 Dist.1991) 810 S.W.2d 861, review refused.
3. Indictment and information
Information charging defendant with unlawful possession of amphetamine was not defective because it failed to allege that amphetamine was not a preparation for use in the nose and unfit for internal use. Meadowes v. State (Cr.App.1963) 368 S.W.2d 203.
Where drug methaqualone was not named as dangerous drug under then effective statute, nor did indictment allege any facts showing why me-thaqualone was in fact a dangerous drag, indictment under which defendant was convicted of unlawfully possessing a dangerous drug was void and, since trial court did not have jurisdiction, such judgment was subject to collateral attack. Ex parte Howeth (Cr.App.1980) 609 S.W.2d 540.
Variance between allegation in the purport clause that petitioner had unlawfully acquired a controlled substance, namely Amphetamine and the tenor clause showing that the forged prescription was for Biphetamine did not cause the indictment to be fundamentally defective. Ex parte Holbrook (Cr.App.1980) 609 S.W.2d 541.
Indictment charging that petitioner fraudulently attempted to obtain possession of Preludin, which was not expressly listed in schedules and penalty groups of Controlled Substances Act, was fundamentally defective for reason that indictment failed to allege facts which needed to be proved about Preludin which made it a controlled substance. Id.
Indictment, in language of Controlled Substances Act, specifying “amphetamine” as the controlled substance possessed is sufficient to include isomers and salts and is not subject to being quashed for failure to apprise the accused of the type of substances possessed. Durham v. State (App. 2 Dist.1986) 701 S.W.2d 951, review refused.
WHITE, Judge, dissenting.
For the reasons I set out in my majority opinion on original submission, Dowling v. State, No. 107-89 (Tex.Cr.App., March 27, 1991), I respectfully dissent to the majority’s decision to reverse the judgment of the trial court and render an acquittal for appellant.
I believe the majority opinion overlooks the unique nature of the statute which proscribes the manufacture of amphetamine, TEX.REV.CIV.STAT.ANN. Art. 4476.15, § 4.031 (repealed). As I stated on original submission, “The (Controlled Substances) Act shows a clear legislative intent to punish a person for possession of the pure form of amphetamine. There is also a clear intent to prohibit the possession of “any material, compound, mixture, or preparation” containing the amphetamine.... The language of the Act clearly intends for the substances in which the amphetamine is discovered to be *120counted towards the weight of the controlled substance by the use of the words “any material, compound, mixture, or preparation which contains any quantity of ... amphetamine.” Art. 4476.15 § 2.04(e) (repealed).
In the majority’s rush to reverse and acquit appellant, they have imposed an unrealistic and impractical requirement upon the State to prove, separately, the individual weights of both the controlled substance and the adulterants and dilutants, or the immediate precursors. As I stated also on original submission, the Controlled Substances Act was written so that
“The relevant weight for calculating the punishment should include the medium in which the amphetamine is found. The relevant weight is that of “any material, compound, mixture, or preparation which contains any quantity of the ... amphetamine.” Sec. 2.04(e), supra. The language cannot be reasonably construed as referring to anything other than the weight of both the controlled substance and the mixture or substance in which it is found. It is not possible to construe the language of the Controlled Substances Act to make the penalty turn on the net weight of the drug rather than the gross weight of the drug and the mixture in which it is found.” (emphasis applied in original).
See also Art. 4476.15 § 4.031(a), (c), and (d).
“The clear language of § 4.031 shows the intent of the Legislature to include substances not yet ready for street sales, i.e., “... the amount of the controlled substance ... with intent to manufacture.” Furthermore, “by aggregate weight” is by definition the entire quantity of something.... In the instant case, this Court is not dealing with a final product and a possession conviction, but instead, the seized liquid was still in the manufacturing process and the conviction is for manufacturing a controlled substance, namely amphetamine. Therefore, the issue is whether or not the precursor substances are to be included in the weight when assessing punishment.”
For these reasons, I would hold that the evidence in the instant case was sufficient to prove appellant manufactured over 400 grams of amphetamine as alleged in the indictment. I dissent to the majority’s decision to decide otherwise.
McCORHICK, P.J., joins this dissent.. Although neither appellant nor the State raises the point in their arguments, we are aware that the manufacture or delivery of the controlled substance "amphetamine” in particular poses additional considerations because of the way in which amphetamine is listed in the Controlled Substances Act. Section 1.02(4) defines "controlled substance” as "a drug, substance, or immediate precursor listed in Schedules I through V or Penalty Groups 1 through 4 of this Act.” Section 4.02(c) covers Penalty Group 2 controlled substances and lists as prohibited "... a material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a depressant or stimulant effect on the central nervous system: Amphetamine, its salts, optical isomers, and salts of optical isomers; ...” Section 4.02(c) (emphasis added).
From the wording of this provision, the "controlled substance” prohibited may be: a) a material, compound, mixture, or preparation which contains any amount of a listed substance (e.g., amphetamine); or b) the listed substance in its "pure” form, since a "material” could consist of 100 percent of the listed substance. The distinction becomes important when the State seeks conviction for an aggravated offense under Sec. 4.031(c).
Where a material, compound, mixture, or preparation contains some quantity of a listed controlled substance, e.g., amphetamine, the "controlled substance” is that material, according to the statute. Section 4.02(c)(3). In that case, if the weight of the material is over 28 grams, then the aggravating element of Sec. 4.031(c) is met. On the other hand, the State may seek conviction under Sec. 4.031(c) for possessing, manufacturing, or delivering the "pure” substance, e.g., “pure” amphetamine. In that case, as we discussed previously, the State must prove either that the amount of the pure amphetamine weighs more than 28 grams or that the amount of pure amphetamine, plus any adulterants or dilutants, if proven to exist, weighs more than 28 grams.
The evidence in this case did show that appellant delivered a "material, compound, mixture, or preparation” containing some amount of amphetamine, and that the material weighed more than 28 grams. However, the charge to the jury did not allow a conviction under that theory, nor was appellant ever indicted under such an allegation. Reeves, 806 S.W.2d at 545, fn. 5.
. As the crime occurred in 1983, the version of the Texas Controlled Substances Act in effect at that time is controlling in this case.