Dowling v. State

CONCURRING OPINION ON REHEARING ON COURT’S OWN MOTION ON APPELLANTS PETITION FOR DISCRETIONARY REVIEW

[Filed June 29, 1994]

CLINTON, Judge,

concurring.

The indictment in this cause alleged in each of three counts that appellant did “intentionally and knowingly manufacture and possess with intent to manufacture and deliver [stated amount] of a controlled substance, to-wit: Amphetamine.”1 The trial court authorized the jury to convict if it found that appellant did “intentionally or knowingly manufacture a controlled substance, to-wit: Amphetamine, by aggregate weight, including any adulterant or dilutants, of more than 100 grams.”2

I

A

The Texas Controlled Substances Act was originally enacted twenty years ago. Acts 1973, 63rd Leg., Ch. 429, p. 1132 (H.B. 447), effective August 27, 1973. The original bill tracked a model controlled substances act submitted to the states by a Federal agency; the latter in turn followed the format and contained provisions drawn from the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, which the Legislature dubbed the “Federal Controlled Substances Act.” The Uniform Controlled Substances Act, 9 Uniform Laws Annotated, Master Edition, and the federal scheme classified all *129substances to be controlled into schedules for both regulatory and penal purposes according to authoritatively determined relevant factors, inter alia actual or relative potential for abuse, rather than amount involved; there were no “penalty groups,” as such. See 21 U.S.C.A. § 801, et seq., particularly §§ 812 and 841(a)(1). Our Legislature chose another format, however. See Ex parte Wilson, 588 S.W.2d 905 (Tex.Cr.App.1979) (Clinton, J., concurring and dissenting, at 911-912); Ex parte Tipton, 617 S.W.2d 262 (Tex.Cr.App.1981) (Clinton, J., concurring, at 264, n. 2).

The Legislature did take from the “Federal Controlled Substances Act” and the Uniform Act certain language used to classify separately, by group, named controlled substances according to their nature or effect, viz:

“any material, compound, mixture, or preparation which contains any quantity of the following [e.g., hallucinogenic substances, substances having a potential for abuse associated with a stimulant effect on the central nervous system, substances having a potential for abuse associated with a depressant effect on the central nervous system, et cetera].”

H.B. 447 §§ 2.03(d), 2.04(d) & 2.05(d), at 1137-39. Section 4.02 of the original act prescribed criminal classifications in order to establish penalties for “violation of a provision of this Act,” according to “penalty groups” of controlled substances. Id. H.B. 447, at 1148.3 More particularly, in Penalty Group 3, § 4.02(d)(1) lists under that description: “(A) amphetamine, its salts, optical isomers, and salts of its optical isomers.” Id., at 1151.

Section 4.03(a) [with § 4.04(a)] defined certain offenses violative of the Act, in terms that a person “knowingly or intentionally manufactures, delivers, or possesses with intent to manufacture or deliver [or possesses] a controlled substance listed in Penalty Groups 1, 2, 3, or 4.” Subsection (b) then matched a substance in a particular penalty group with a prescribed degree of felony or class of misdemeanor; thus, for example, an offense involving amphetamine was a felony of the third degree, except that “simple” possession was a Class A misdemeanor.

In 1974 Baneroft-Whitney published three volumes of Texas Annotated Penal Statutes With Forms (Branch’s 3rd Ed.), acknowledging “the participation of the Texas District and County Attorneys Association in the preparation of this work.” 1 Branch’s at vi. In 1978 it published Volume Four in the same format of “helpful features,” e.g., explanatory comments, checklists of elements necessary to establish an offense, suggested form of charging instruments and suggested jury charges.

Explained at the outset is that in subchap-ter 4 ai'e found

“penalty groups, of which there are four, dealing] with controlled substances.... When a person is charged with an illegal act relating to a controlled substance, the seriousness of the offense and the severity of the punishment is dependent upon which penalty group the controlled substance is found. In this regard, there are five major OFFENSES defined in the Texas Controlled Substances Act. These are: § 4.03, Unlawful Manufacture or Delivery of Controlled Substances; 4.04, Unlawful Possession of a Controlled Sub-stance_ [T]he punishment for a violation depends on which penalty group the drug in question is found.”

Id., at 3.

Following the text of §§ 4.03 and 4.04 are checklists of elements, forms of charging instruments and forms of charges pertinent to each respective offense. None includes a theory of prosecution for “any material, compound, mixture or preparation of any quantity of the following substances!.]” Instead, each specifies “a controlled substance” and the “name of controlled substance.” Id., at 92-93, 154-155.

*130Where, as here, the offense alleged is manufacture of amphetamine, the suggested operative part of an indictment is simple and straightforward, viz:

“[named defendant] did then and there knowingly and intentionally manufacture a controlled substance, namely: [amphetamine].”

Id., at 94. Because amphetamine is a named controlled substance that is specifically listed in only one penalty group, there was no reason to allege more about its “criminal classification.” See and compare Benoit v. State, 561 S.W.2d 810, at 814-815 (Tex.Cr.App.1977); Ex parte Wilson, 588 S.W.2d 905, at 908-909 (Tex.Cr.App.1979); see also Taylor v. State, 610 S.W.2d 471, at 478-479 (Tex.Cr.App.1980).

Likewise, preliminary and application paragraphs in the jury charge are direct and to the point, viz:

“Our law provides that a person commits an offense if he knowingly or intentionally manufactures a controlled substance.
Our law further provides that [amphetamine] is a controlled substance.
Now if you find from the evidence beyond a reasonable doubt that the [named defendant] ... did knowingly or intentionally manufacture a controlled substance, namely [amphetamine], then you will find the defendant guilty as charged, but if you do not so believe, or if you have reasonable doubt thereof, you will acquit the defendant.”

Id., at 95-96. Accord: Texas Criminal Pattern Jury Charges (State Bar of Texas 1974), CPJC (CS) § 4.03, at 731-732.

Six years later the Legislature revised both schedules and penalty groups to change the classification of certain controlled substances and to add others, leaving amphetamine in Penalty Group 3; it did not, however, amend definitions of offenses. Acts 1979, 66th Leg., Ch. 598, p. 1278 (S.B. 322), effective August 27, 1979.

B

In its next session the Legislature adapted the concept of “aggravated offenses” to the Texas Controlled Substances Act, as part of a “declared war on crime, especially drug related crime.” Wendorf, The War on Crime: 19S1 Legislation, 33 Tex.Tech.L.Rev. 765. As the Court notes, “It made no change in content to ‘criminal classification’ by penalty groups.” Slip Opinion, at 3.

Obviously reacting to adverse decisions denying applicability of penal code provisions denouncing preparatory offenses to alleged “attempts” to commit substance offenses under the Act, e.g., Brown v. State, 568 S.W.2d 137 (Tex.Cr.App.1978), and Moore v. State, 545 S.W.2d 140, at 142 (Tex.Cr.App.1976), the Legislature corrected the situation con-formably with newly provided “aggravated offenses,” viz:

“See. 4.011. The provisions of Title 4, Penal Code, apply to Section 4.052 [Illegal Investment] and offenses designated as aggravated offenses under Subchapter 4 of this Act, 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.”

See Wendorf, supra, at 779. See now V.T.C.A. Health & Safety Code § 481.108.

Contemporaneously with the 1981 legislation revamping, inter alia, definitions of certain existing offenses to provide punishment according to “aggregate weight, including adulterants and dilutants,” Acts 1981, 67th Leg., Ch. 268, p. 696 (H.B. 730), effective September 1, 1981, the Legislature defined “drug paraphernalia” to include, inter alia, “a diluent or adulterant” as defined, and extensively amended § 4.07 to proscribe several offenses involving “drug paraphernalia.” Acts 1981, 67th Leg., Ch. 277, p. 742 (H.B. 733), effective September 1, 1981.

After H.B. 730 was held unconstitutional, the Legislature revised, codified and reenacted many substantive and procedural laws previously enacted separately, without modifying penalty groups, however. Majority Opinion, at 107. Later it separately added and classified substances in schedules and *131penalty groups, this time without modifying existing offenses as previously defined. Id., at 107-108.4

II

A

So far as reasonably diligent research reveals, not until the opinion on original submission in this very cause was it ever held by this Court that the theory of prosecution at issue is viable. But see and compare conceded dicta in Reeves v. State, 806 S.W.2d 540, at 545, n. 5 (Tex.Cr.App.1990).

Keeping in mind that Y.T.C.A. Penal Code, Title 1, § 1.03(a) dictates, “Conduct does not constitute and offense unless it is defined as an offense by statute [et cetera];” that id., § 1.03, 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 Act does not provide otherwise; that, indeed, since 1981 the Act has expressly incorporated by reference Title 4, Penal Code, to make “preparatory offenses” such as “attempts” apply to aggravated offenses proscribed in subchapter 4 of the Act, we focus on statutory provisions defining the offense and other germane provisions implicated by the facts of the instant cause. Practice Commentary to § 1.03; see, e.g., Childress v. State, 784 S.W.2d 361, at 362 (Tex.Cr.App.1990); Gutierrez v. State, 628 S.W.2d 57, at 61 (Tex.Cr.App.1980).

B

This case was tried and appellant was convicted on the theory that he “did intentionally and knowingly manufacture a controlled substance, to-wit: Amphetamine, by aggregate weight, including any adulterants and dilutants, of more than 400 grams as set forth in the indictment.” Tr. 12 and 54.

The DPS chemist described the stuff the prosecution claimed and the court of appeals found to be “amphetamine,” viz:

“[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. * * ⅝ [T]hat 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.”

Dowling v. State, supra, at 2, 3 (words in parenthesis from 3 S.F. 270).5 The chemist *132further explained that after amphetamine is extracted, distilled or separated and then “powdered out,” the “remaining chemicals and liquids” left in the flask would be “just waste material” Id., at 282.

“ ‘Controlled substance’ means a drug, substance, or immediate precursor listed in Schedules I through V and Penalty Groups 1 through 4 of this Act.” § 1.02(5).

“Amphetamine” along with other substances is listed in Penalty Group 3, viz:

“Penalty Group 3. Penalty Group 3 shall include the following controlled substances:
(1) Any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a stimulant effect on the central nervous system:
(A) Amphetamine ...”

§ 4.02(d)(1)(A).

Proscribed conduct involving amphetamine is defined as an offense or an aggravated offense only in §§ 4.032(a) and (e) [manufactures, delivers or possesses with intent et cetera ], and 4.042(a) and (c) [possesses], respectively. Thus, as pertinent here, “a person commits an offense if he knowingly or intentionally manufactures ... a controlled substance listed in Penalty Group 3;” “a person commits an aggravated offense if he commits an offense under Subsection (a) of this section and the amount of the controlled substance manufactured ... is, by aggregate weight, including any adulterants or dilu-tants, 200 grams or more.”

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, and includes any packaging or repackaging of the substance or labeling or relabeling of its container[.]” § 1.02(16).6

III

A

On rehearing the majority said that “the legislature intended to prohibit the possession, delivery, or manufacture of materials, compounds, mixtures, or preparations containing amphetamine,” and noted the dicta in Reeves v. State, supra; accordingly the majority held that the indictment “must allege that the accused possessed, delivered, or manufactured a material, compound, mixture, or preparation if the State is to proceed under such theory.” Opinion, at 109: Upon further examination of germane provisions of the Act and after considerable reflection, we should be persuaded that the Act does not authorize such an alternative form of prosecution — certainly not on the facts of this case — not withstanding the “reaffirmation” of the original prior holding with “slight modification” followed by much complicated dicta about an “entity” theory in the present Majority Opinion, at 124-125, 125, 126-127.

Again, one who manufactures “a controlled substance listed in Penalty Group 3” commits an aggravated offense “if the amount of the controlled substance manufactured ... is, by aggregate weight, including any adulterants or dilutants, 200 grams or more.” § 4.032(a) and (c).

*133From the beginning the Legislature defined “controlled substance” as a “drug, substance or immediate precursor listed in [schedules and penalty groups],” and it determined that the “substances listed in [schedules and penalty groups] shall be controlled substances.” § 1.02(5) and § 2.01.

Indeed, it expressly explained the “nomenclature,” viz:

“The controlled substances listed or to be listed in the schedules in Schedules I, II, III, IV, and V and Penalty Groups 1, 2, 3, and 4 are included by whatever official, common, usual, chemical, or trade name they may be designated.”

§ 2.02. Then in designating particular substances included in each schedule and penalty group, the Legislature took care to identify each “listed” controlled substance by name, even when classified in a group or sub-group according to general description, prescribed effect, commonality of relevant factors or otherwise. See Schedules, §§ 2.03-2.08; Authority to Control, § 2.09; Schedule Tests, §§ 2.10-2.14; and Criminal Classification, § 4.02; Ex parte Tipton, supra (Clinton, J., concurring) (§ 2.02 identifies controlled substance according to name by which designated in penalty group list).7

We should now hold that amphetamine is eo nomine a controlled substance. The descriptive statutory language merely justifies the Legislature in its classification of amphetamine by listing it as a controlled substance in Penalty Group 3 under § 4.02(d)(1). The descriptive language does not prescribe any element of an offense involving amphetamine and need not be alleged or proved; thus it is redundant and, as this record clearly reflects, to allege it will confuse the real issues in a “manufacturing” case. Accordingly, it follows that alleging such descriptive language in a charging instrument does not properly state an aggravated offense under § 4.03-2(a), (e) and (d)(2).

B

On reheating the majority also said that if the phrase is alleged in the indictment, proof of the “aggregate weight” of a controlled substance must show “the weight of the named substance” and any proven “material, compound, mixture, or preparation containing the substance.” Opinion, at 124.8 Of course, the phrase is not alleged here and, as we determined ante, is not a viable theory of prosecution under the applicable statute.

The State through its district attorney and the State Prosecuting Attorney, respectively, stoutly maintain that the weight of the “entire solution” or “entire mixture” containing any quantity of “amphetamine base” should and must be taken into account in determining “aggregate weight” of the substance. State’s Brief on Order Granting Rehearing;9 *134State’s Brief in Response to Order Granting Rehearing, passim.10

With deference, prosecutors advancing that theory should read again the proscription of “Preparatory Offenses” in § 4.011, then study Baxter v. State, 718 S.W.2d 28 (Tex.App. — Eastland 1986), PDR refused; Martin v. State, 727 S.W.2d 820 (Tex.App.— Fort Worth 1987), no PDR history; Lindley v. State, 736 S.W.2d 267 (Tex.App. — Fort Worth 1987), PDR refused, and replicate the “attempt” theory of prosecution for attempted manufacture of methamphetamine so successfully pursued by district attorneys of Stephens County and Wise County, respectively, to gain punishments of fifty years confinement and $25,000 fine, Baxter, at 28, and 30-31; seventy-five years confinement and $250,000 fine, Martin, at 821, and 822; seventy-five years confinement and $75,000 fine, Bindley, at 269.

Those cases effectuate the plain legislative intent to differentiate “attempted manufac*135ture” and “manufacture” of an aggravated amount of certain controlled substances such as amphetamine, as well as methamphetamine, yet punish the former “attempted offense” within the same range as the latter “completed” one.

Carefully considered, the statutes proscribing “Unlawful Manufacture” of controlled substance contemplate a finished product. The offense is committed when one “manufactures” a controlled substance; punishment is graded by the amount of the controlled substance “manufactured” The terms connote a completed product of the manufacturing process. Goff v. State, 777 S.W.2d 418 (Tex.Cr.App.1989) (that 15.2 grams of methamphetamine [suspended for “purification” in ether and acetone solution for total weight of 4.9 pounds] “had been completed through the manufacturing process” sufficient to show appellant “manufactured ” only 15.2 grams — not more than 400 grams, as alleged — of methamphetamine; neither ether nor acetone is “adulterant” or “dilutant”). See Conner v. State, 757 S.W.2d 806 (Tex.App. — Tyler 1988) (evidence of glass jar containing 1,984 grams of liquid consisting of only 2% methamphetamine, baggie containing 210.5 grams of material consisting of only 47% methamphetamine, second baggie containing 5.2 grams of material estimated to consist of 50% methamphetamine — aggregating about 140 grams of “poor” methamphetamine because by-products therein lowered purity of drug — insufficient to prove manufacture of more than 400 grams of methamphetamine in that no evidence substances other than methamphetamine were “adulterants or dilutants” intended to increase the bulk of the final product). Id., at 808.11

Accordingly, we ought to hold that in a prosecution for manufacture of amphetamine the State may not prove the aggregate weight alleged by claiming the entire weight of the “solution” as a “material, compound, mixture or preparation,” containing a quantity of “amphetamine base.” Because it had not been extracted, distilled or separated from “unused” or “unchanged” precursor chemicals and by-products in the flask, we should further hold under the facts of this cause that “amphetamine base” is not a finished product of the manufacturing process.

IV

A

In all likelihood, had the State charged Goff with attempted manufacture of methamphetamine it would have achieved a conviction and assessment of stiff punishment in Gregg County, instead of the judgment of acquittal this Court ordered in Goff, supra, at 421.

In a prosecution under the “attempt” theory the State is permitted to adduce opinion and expert testimony supporting the proposition that continuation of manufacturing process without interruption could have produced the maximum amount of amphetamine alleged. Compare testimony in Baxter v. State, supra, at 30-31, and Martin v. State, supra, at 822, and Conner v. State, supra, at 808, with absence of any such evidence in Goff, at 420 and n. 2. Moreover, an expert witness might be allowed to estimate the likely percentage of “pure” amphetamine in the finished product, and explain how then adding adulterants and dilutants to “cut” the finished product would increase its “aggregate weight,” so that an even greater amount would be available for wholesale distribution and, in turn, after being “cut” again, for retail delivery and sale. In sum, the prosecution may easily gain more punishment and penalty by presenting “probabilities” than by straining to expand “reality.”12

*136B

Therefore, for reasons developed in this opinion, I concur in the judgment of the Court reversing the judgment of the court of appeals and remanding the cause to the trial court for entry of an acquittal — without further ado.13

. Texas Controlled Substances Act effective in September 1983 is the "Act” applicable here.

All emphasis throughout this opinion is mine unless otherwise indicated. Also, because the preliminary statement and Part I of the opinion of the Court reproduces substantial portions of my proposed opinion for the Court, to avoid as much redundancy as reasonably feasible here I will provide in context that which it pretermits where appropriate.

. Regarding the allegation that appellant "possessed with intent to manufacture [amphetamine],” I have not found any case explaining how one could possess amphetamine with intent to manufacture amphetamine. Cf. Blackmon v. State, 786 S.W.2d 467, at 469 (Tex.App. — Houston [1st] 1990), PDR refused (questioning propriety of such pleading when offense shown is possession of final product). More broadly stated, I have not discovered any suggestion in opinion or literature that any controlled substance could be possessed with intent to manufacture by means of chemical synthesis the same controlled substance. The only exceptional situation coming to our attention is found in cases from other jurisdictions where the offense may be committed under the state law when one possesses a “marihuana” plant with intent to manufacture marihuana by harvesting the plant and reducing its leaves to smokeable material. Of course, in Texas marihuana is not listed as a "controlled substance” in any penalty group, and is excepted from the definition of “manufacture.” Cf. § 1.02(5) and (16).

. Except for Penalty Group 1, id., (b), many a group or subgroup is described at the outset as including "any material, compound, mixture, or preparation" which contains (or containing) any quantity (or limited quantities) of the following ... substances (or narcotic drugs)_ See Peally Group 2, id., (c), at 1151; Penalty Group 3(1), (3), (5), (6), (7) and (8), id., (d), at 1151-1153; Penalty Group 4, id., (e), at 1153.

. Consistent separate legislative treatment of "criminal classification” by penally groups on the one hand and "definitions of offense” on the other, tracked in Part I, ante, demonstrates that the essential connection between the two is, as it always has been, that the former lists by name the controlled substance the latter only alludes to in defining an offense. That is the reason the Court held in certain situations the charging instrument must identify the specific penalty group listing the offense alleged, or if not listed, be otherwise described as it is in a penalty group. See, e.g., Benoit v. State, Ex parte Wilson and Taylor v. State, all supra.

Moreover, we know from this cause, companion causes and others before the Court that grand juries have not and are not indicting, and judges have not and are not charging jurors, on a prosecutorial theory based on the "material, compound, mixture or preparation” language in any penalty group. The offense has been alleged and the jury charged either by stating forbidden conduct involving a named controlled substance or, since the concept of aggravated offenses was adopted, by so stating and then alleging the aggravated weight, with or without “adulterants and dilutants.” See, e.g., McGlothlin v. State, 749 S.W.2d 856 (Tex.Cr.App.1988) (concurring opinion of Clinton, J., cases cited at note 1); see also Thompson v. State, 885 S.W.2d 136 (Tex.Cr.App. Nos. 1992). See also suggested forms for charging instruments and jury charges in such helpful works as McCormick & Blackwell, Texas Criminal Forms and Trial Manual, Chapter 23, 7 Texas Practice 153, and Chapter 111, 8 Texas Practice 738, respectively, and McClung, Jury Charges for Texas Criminal Practice (Revised Edition 1983) 228-231; Id., (Revised Edition 1992) 213-219.

. The State through its district attorney says:

"During the manufacturing, or 'cooking' process, numerous precursor chemicals are combined, and heated. Over a period of several hours, the precursor chemicals combine (by chemical synthesis), and are ‘washed,’ or separated in a process involving water, to make *132amphetamine oil, which is later 'powdered' to make the final product.... Adulterants and dilutants are not present, unless one adheres to the theory that the more precursors added, the greater the amount of dope, in which case the precursors actually add to the bulk of the finished product. Precursor chemicals are a necessary part of the manufacturing process, and in the course of the manufacturing process, precursor chemicals become a part of the final product. Because precursor chemicals and byproducts are always present during any given stage of the actual manufacturing process, it seems unlikely that there will ever be 100% pure amphetamine (or other controlled substance) when the controlled substance is seized before manufacture is completed."

State’s Brief, at 4-5.

. The trial court instructed the juty that "manufacture” meant "the production, preparation or processing of the controlled substance either directly or indirectly by means of chemical synthesis.” Tr. 53. So far as this record and similar cases show, amphetamine is produced “independently " by means of chemical synthesis.

. The Court has uniformly held that a charging instrument asserting offending conduct involving a purported substance "not specifically named in a penalty group” fails "to allege an offense against the State," unless the substance is otherwise "described in a penalty group.” Ex parte Tipton, supra, and cases cited therein. Nothing in the Act as amended in 1981 and thereafter denigrates that rule for pleading an offense.

. On original submission in testing sufficiency of the evidence the majority opinion stated that “the clear language [of § 4.032] 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.' ”

One problem with that adumbrated quote is the second ellipsis omits the word "possessed " immediately preceding "with intent to manufacture.” See § 4.032(b), (c) and (d)(1) and (2). Although initially alleged in the indictment, apparently the State abandoned the allegation, for the court instructed the jury only on "manufacture.” We have already questioned the validity of asserting such an offense involving amphetamine. See note 2, ante. In any event, the alleged offense, "possesses with intent to manufacture,” is no longer in the case.

.The essence of reasoning of the district attorney is:

"Manufacturing a controlled substance is very different from possessing or delivering a controlled substance, and that difference should be major factor when considering what constitutes the aggregate weight of the substance. Again, possession and delivery cases most often deal with finished product, while manufacturing cases do not. Therefore, there should be a distinction made between finished product which has clearly been ‘cut’ to increase the bulk of the product for sale on the street, and unfinished product which has been seized by law enforcement officers before the manufacturing process has been completed. With respect to solutions or mixtures which are in the process of being manufactured, the *134entire solution should be considered as part of the aggregate weight of the product. This should be the case regardless of the state of manufacture the mixture is in when the process is interrupted by law enforcement. If the precursor chemicals have only been ‘cooking’ for a short period of time, then the quantity of ‘pure’ controlled substances is going to be very small. The rest of the mixture will be precursor chemicals and byproducts of the manufacturing process. Surely the Legislature did not intend to count only the portion of the mixture which is 'pure,' controlled substances; if that were the case, then the drug manufacturers could, in fact, ‘get lucky,' depending upon when the laboratory was seized by law enforcement officers.”

Id.., at 5-6 (first emphasis in original). As we demonstrate post, however, what the Legislature intended in such circumstances is that drug manufacturers be charged with and convicted of "attempted manufacture" of amphetamine, and thereby suffer the same sanctions as if they had ultimately produced an aggravated amount of amphetamine. Thus they could "get lucky” only when a prosecution is pursued on the flawed notion that weight of "entire solution” or "entire mixture” of chemicals still being "cooked” should be considered “as part of the aggregate weight of the product" — a “product” not yet “manufactured.”

. Much like the original opinion, the State Prosecuting Attorney reads the Act to support a similar proposition, viz:

“An examination of the language of [the Act] demonstrates a plain legislative intent to criminalize .the possession, manufacture, or delivery of any 'material, compound, mixture, or preparation which contains any quantity of amphetamine.' Under the terms of the Act, the ‘controlled substance' is not amphetamine. Rather, the ‘controlled substance' is the mixture which contains any quantity of amphetamine.”

Brief, at 3 (emphasis in original). In extensively developing that thesis, he alludes to certain provisions in the Uniform Controlled Substances Act of 1970 from which the Legislature drew its definition of "controlled substance" and the phrase “material, compound, mixture, or preparation;” reviewing decisions from other jurisdictions the State Prosecuting Attorney argues that every one is "grounded upon the principle that the [language in the phrase] defines offenses and penalties in terms of the weight of the mixture containing a controlled substance,” and he finally comes to a rather innovative conclusion, viz:

"... Section 4.032 defines the offense in terms of the 'aggregate weight of the material, compound, mixture, or preparation which contains any quantity of amphetamine.’ The additional phrase 'including adulterants or dilutants' does not subtract from Section 4.032's definition of the offense. Therefore, in a prosecution for manufacture of amphetamine under Section 4.032(a), (c) and (d)(2), the aggregate weight alleged may be proved by showing the weight of the 'material, compound, mixture, or preparation’ containing a quantity of amphetamine base, without also showing such matter is, or contains, identified adulterant or dilutants.”

Id., at 36 (emphasis in original).

In fact, not only did the Uniform Act declare offenses in relation to perceived danger to society in the nature of the conduct, without at all quantifying it according amount or weight of the substance (as the Legislature did in 1981), cf. § 4.01, 9 ULA Part II, at 91, but it also cautioned that our own Act "departs from the official text [of the Uniform Act] in such a manner that the various instances of substitution, omission and additional matter cannot be clearly indicated by statutory notes.” Id., at 7.

Moreover, in fact, none of the decisions from other jurisdiction concerned a "manufacturing scenario;” every one dealt with some other offense involving a finished product, i.e., possession, possession with intent to distribute, delivery (trafficking), or a sale. Indeed, the oldest cited case construes a 1963 New York law which differentiated penalties: possession of a "pure” drug was a Class A misdemeanor, but a "mixture” was Class A through D felony depending on the total amount — the governing notion being that certain substances are "generally marketed in a diluted or impure state.” United States ex rel. Daneffv. Henderson, 501 F.2d 1180, at 1184 (CA2 1974). Several of the decisions summarized by the State Prosecuting Attorney relied at least in part on such rationale. See also Chapman v. United States, 500 U.S. 453, at 460, 111 S.Ct. 1919, at 1925, 114 L.Ed.2d 524 (1991).

. Compare Blackmon v. State, 786 S.W.2d 467, at 471-473 (Tex.App. — Houston [1st] 1990), PDR refused (particular evidence found in methamphetamine lab, i.e., bag with 71.703 grams methamphetamine (exhibit 37) and jar/bag of powder containing 146.5 grams of methamphetamine (77.645 grams) and the balance an adulterant (granulated sugar) proved "possession with intent to manufacture at least 200 grams [of methamphetamine], as alleged," although the court of appeals recognized "clearer” charging instrument would have alleged simply did "possess methamphetamine” and strongly recommended State amend form indictment "to give such notice,” id., at 469).

. The concept of "aggravated offenses” implemented effective September 1, 1981, necessarily introduced the determinative feature of assaying "aggravated weight, including adulterants and *136dilutants,” of the listed controlled substance "manufactured, delivered or possessed [with requisite intent].” Under prior statutes, indictment, evidence and jury charge focused on identity of the listed substance as alleged; its composition, content and weight were not legally implicated or consequential, although in practice parties might argue their bearing on punishment. Therefore, judicial decisions under prior statutes concerning "manufacturing" have no particular precedential value today. See, e.g., Gish v. State, 606 S.W.2d 883, at 886-887 (Tex.Cr.App.1980); see also Fronatt v. State, 630 S.W.2d 703, at 704 (Tex.App. — Houston [1st] 1981), PDR refused, and Berryhill v. State, 630 S.W.2d 812, at 813— 814 (Tex.App. — Houston [1st] 1982), no PDR history (companion cases arising from same September 17, 1979 scenario).

. In Part VI of its opinion the majority renders an advisory opinion regarding the reach and application of its "entity” theory under a 1989 legislative enactment. Id., at 127-128. Because we have so often proclaimed that this Court will not issue an advisory opinion, I disassociate myself from this one.