Engelking v. State

OPINION

DUGGAN, Justice.

A jury found the appellant guilty of possession of a controlled substance, methamphetamine, weighing at least 400 grams including adulterants and dilutants. The trial court assessed punishment at 45 years confinement. The appellant asserts 10 points of error.

On October 15, 1984, based on information that drugs were located at a certain address, officers of the Houston Police Department began surveillance of a residence and a detached outbuilding. After the officers detected a chemical odor attributed to methamphetamine production, they obtained a warrant for the search of the outbuilding and the arrest of the appellant and his co-defendant, Aaron Lambert Sloan. The appellant was arrested in the outbuilding holding a jug of clear liquid and standing over a large triple neck flask of brown liquid. During a search of the outbuilding, police confiscated some 3,540.4 grams of substances containing a lesser amount of methamphetamine and one gram of methamphetamine in crystalized form. *696Co-defendant Sloan was arrested several miles away at a car dealership sales lot.

In his first point of error, the appellant urges that Tex.Rev.Civ.Stat.Ann. art. 4476-15 (Vernon Supp.1987), the Controlled Substances Act, is unconstitutionally void for vagueness due to its failure to define and/or mention adulterants and dilutants or diluents in the schedules for penalty groups.1

Statutes are vested with a presumption of validity, and we must construe them in such a way as to uphold their constitutionality. Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App.1979). In the absence of special definitions, statutory language under attack as vague can be measured by common understanding and practices, or construed in a sense generally understood. Id. To be unconstitutionally void for vagueness, a statute must either forbid or require the doing of an act in terms so vague that men of common intelligence must guess as to its meaning and differ as to its applications, Ely, 582 S.W.2d at 419; Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972), or it must allow the possibility of arbitrary and discriminatory enforcement. Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974).

We find that the statute gives ample notice of the conduct forbidden in the alleged offense, viz., possession of a controlled substance, methamphetamine. The appellant’s first point of error is overruled.

In three related points of error, the appellant challenges the sufficiency of the evidence to support his conviction. We must review the evidence in the light most favorable to the verdict to determine if a rational trier of fact could have found the essential elements of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Chambers v. State, 711 S.W.2d 240 (Tex.Crim.App.1986).

The State had the burden of proving that the appellant intentionally or knowingly possessed a controlled substance, namely methamphetamine, in an amount weighing at least 400 grams by aggregate weight, including any adulterants and dilutants. See Tex.Rev.Civ.Stat.Ann. art. 4476-15, secs. 4.04(a); 4.04(d)(2); 4.02(b)(6).

In point of error two, the appellant asserts that the evidence is insufficient to show that he knew that the solutions he possessed contained methamphetamine.

The record reflects that Houston Police officers began surveillance of the residence and the outbuilding at around 2:00 a.m. At approximately 2:30 a.m., the appellant and his co-defendant were seen leaving the outbuilding and entering the house. The men returned to the outbuilding at approximately 6:00 a.m. Sometime later, the co-defendant returned to the house and was next seen leaving in his car around 7:30 a.m. At about 10:30 a.m., the officers entered the outbuilding and arrested the appellant.

During the surveillance and while the appellant was inside the building, the officers heard noises and smelled an odor that they associated with methamphetamine production. The odor emanated from the outbuilding and reached them some 30 to 50 feet away. When the appellant was arrested, he was holding and standing over flasks of liquids. A search of the outbuilding produced containers of solutions containing methamphetamine and substances that were by-products of an intermediate stage in the manufacture of methamphet-amines, as well as equipment and raw materials typically used for that purpose. The work occurred in the early morning hours and in secrecy. Officers positively *697identified the appellant as one of the two men seen leaving and reentering the outbuilding during the early morning hours at a time when the odor of methamphetamine production permeated the area, and they identified him again in the courtroom.

We find the evidence sufficient to enable a rational factfinder to conclude that the appellant had the intent and knowledge to find him guilty of the charged offense. The appellant’s second point of error is overruled.

In his third point of error, the appellant complains that the State’s proof is insufficient to show that he adulterated or diluted the methamphetamine in his possession. The State’s indictment alleged that the appellant intentionally and knowingly possessed a controlled substance of 400 grams in aggregate weight including adulterants and dilutants. It did not allege that the appellant intentionally and knowingly adulterated or diluted the controlled substance; thus, the State is not required to prove such conduct. Furthermore, the evidence clearly supports the conclusion that the appellant was responsible for the solutions introduced into evidence. Accordingly, we overrule the appellant’s third point of error.

In his fourth point of error, the appellant claims that the evidence is insufficient to show that he possessed 400 grams aggregate weight of a controlled substance. The appellant does not deny that the overall quantity of substances confiscated exceeds the amount alleged in the indictment, but claims that the other substances identified were neither an “adulterant” nor a “dilu-tant,” as defined by Tex.Rev.Civ.Stat.Ann. art. 4476-15.

In addition to methamphetamine, the State’s chemist testified that he found phe-nyl-2-propanone (“P2P”), “meth oil,” and other components. A chemist for the defense found, in addition to P2P, a material “consistent with aluminum hydroxide,” as well as "wastewater from a clean-up of methamphetamine oil.”

Neither “adulterant” nor “dilutant” is defined in article 4476-15, and although some examples are listed under the definition of “drug paraphernalia,” Tex.Rev.Giv. Stat.Ann. art. 4476-15, see. 1.02(14)(F), we do not find that the legislature intended this list to be all-inclusive. See McGlothin v. State, 705 S.W.2d 851 (Tex.App.—Fort Worth 1986, no pet.).

A “diluent” and a “dilutant” are functional equivalents. Webster’s New Collegiate Dictionary (1981). The chemist for the defense testified that a diluent is something added to a primary substance to increase its bulk, and the State’s chemist stated that a dilutant would make a substance weaker. Under public health statutes, a drug is adulterated “if any substance has been (1) mixed or packed therewith so as to reduce its quality or strength; or (2) substituted wholly or in part therefor.” Tex.Rev.Civ.Stat.Ann. art. 4476-5, sec. 15(d) (Vernon Supp.1987).

We note as well that “ ‘controlled substance’ means a drug, substance, or its immediate precursor....” Tex.Rev.Civ. Stat.Ann. art. 4476-15, sec. 1.02(4) (emphasis added). “Immediate precursor” is defined as “a substance ... which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance_” Tex.Rev.Civ.Stat.Ann. art. 4476-15, sec. 1.02(18). Both chemists testified that P2P was used to manufacture methamphetamine.

We conclude that the evidence was such that a rational jury could find that the appellant possessed the requisite methamphetamine in 400 grams aggregate weight, including adulterants and dilutants, and we overrule the appellant’s fourth point of error.

In points of error five through eight, the appellant complains that the trial court erred in overruling his objections to the prosecutor’s improper arguments, which he asserts urged the jury to ignore its oath and find the appellant guilty of criminal conduct not alleged in the indictment. The complained of remarks referred to the presence of a methamphetamine lab, the manufacture of methamphetamine, which was not alleged as an offense, and the prosecu*698tor’s congratulations to officers for doing a good job in closing down a methamphetamine lab.

Proper jury argument is confined to four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) response to argument of opposing counsel; and (4) a plea for law enforcement. Todd v. State, 598 S.W.2d 286, 296-97 (Tex.Crim.App.1980). To constitute reversible error, improper argument must, in light of the record as a whole, be either extreme or manifestly improper, violate a mandatory statute, or inject new facts that are harmful to the accused. Dickinson v. State, 685 S.W.2d 320, 322 (Tex.Crim.App.1984).

In each instance, we find that the arguments violated no statute, injected no new facts, and were neither extreme nor manifestly improper, but fell within the parameters of permitted argument as reasonable deductions from the evidence. Denison v. State, 651 S.W.2d 754, 761 (Tex.Crim.App.1983).

The appellant’s points of error five through eight are overruled.

In points of error nine and ten, the appellant maintains that the trial court erred in failing to charge the jury on his definition of “adulterants” and “dilutants” or “dilu-ents.”

The appellant sought two charges derived from the definition of “drug paraphernalia,” which defines a diluent or an adulterant as “quinine hydrochloride, mannitol, mannite, dextrose, or lactose, used or intended for use in cutting a controlled substance.” Tex.Rev.Civ.Stat. Ann. art. 4476-15, sec. 1.02(14)(F). Expert witnesses testified that the particular chemicals, listed in sec. 1.02 and in one of the appellant’s requested charges, were not identified in the confiscated contraband. This requested definition, therefore, would not aid the jury in deciding the fact issues. Guerrero v. State, 487 S.W.2d 729 (Tex.Crim.App.1972). This is also not a case where either the evidence of an affirmative defense or a direct statutory definition required the court to submit either of the appellant’s definitions. Sanders v. State, 707 S.W.2d 78, 81 (Tex.Crim.App.1986); Penry v. State, 691 S.W.2d 636, 653-654 (Tex.Crim.App.1985). The trial court properly refused the requested charge, and the appellant’s ninth and tenth points of error are overruled.

The judgment is affirmed.

LEVY, J., dissenting.

. Article 4476-15, sec. 4.04 provides in relevant part that if

(a) ... a person commits an offense if he knowingly or intentionally possesses a controlled substance in Penalty Group 1 ...
(c) ... and the amount of the controlled substance possessed is by aggregate weight, including any adulterants or dilutants 28 grams or more ...
[the offense would be] (d)(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 any adulterants or dilu-tants, 400 grams or more.