dissenting.
Today, we are presented with the following question of first impression: In eases alleging an aggravated offense of possession of a controlled substance where the alleged controlled substance is separately packaged, must the State scientifically analyze a sufficient number of the packages to establish the aggravated amount?1 Believing the question should be answered in the affirmative, I respectfully dissent.
I.
Following a raid on an alleged “trap house,” Dallas police officers seized 64 plastic baggies, each containing two or three individual “rocks” of a substance suspected to be cocaine. A field “spot test” conducted on a portion of the contents suggested the substance was cocaine.2 The baggies were then submitted to a State forensic drug chemist who testified that the total weight of the contents of the 64 baggies was 36.2 grams. The chemist scientifically tested the contents of three of the 54 baggies. On the contents of one baggie the chemist conducted a spot test, a gas chromatograph test, and a mass spectrometry test which revealed cocaine, ninety-nine percent pure. On the contents of the two other baggies, the chemist conducted a spot test and a gas chromatograph test which revealed cocaine, in both baggies, ninety-nine percent pure.3 The cocaine scientifically tested weighed less than 28 grams. From her visual observation of the similar texture and coloring of the contents in the other baggies, as well as the similar packaging, the chemist speculated that the untested baggies also contained cocaine. However, she admitted it was possible the untested baggies did not contain cocaine because their contents were not scientifically analyzed. Appellant was convicted of possession with the intent to deliver a controlled substance weighing at least 28 but less than 200 grams.4 Tex.Health & Safety Code Ann. § 481.112(c).
It is true that in reviewing the sufficiency of the evidence, we must determine whether, after reviewing the evidence in the light most favorable to the prosecution, any trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 2788-2789, 61 L.Ed.2d 660 (1979); Langston v. State, 856 S.W.2d 718, 721 (Tex.Cr.App.1993); and, Reeves v. State, 806 *729S.W.2d 540, 543 (Tex.Cr.App.1990). When faced with a challenge to the sufficiency of the evidence, we must insure that the State “has proven beyond a reasonable doubt each and every element of the alleged crime and not just [provided] a plausible explanation for the crime.”5 Butler v. State, 769 S.W.2d 234, 237 (Tex.Cr.App.1989), overruled on other grounds; Geesa v. State, 820 S.W.2d 154, 161 (Tex.Cr.App.1991); Wright v. State, 603 S.W.2d 838, 840 (Tex.Cr.App.1980); and, Tex.Penal Code Ann. § 2.01. See also, In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). Just as our role is not to become the “thirteenth juror,” reweighing the evidence and substituting our own opinion for that of the jury, Wilson v. State, 863 S.W.2d 59, 65 (Tex.Cr.App.1993), so to, we must not allow our deference to the verdict to relieve the State of its burden of proving every element of the crime. To do so would render us a rubber stamp and abrogate our Constitutionally mandated responsibilities.
II.
A.
In Thorpe v. State, 831 S.W.2d 548 (Tex. App. — Austin 1992, no pet.), the Austin Court of Appeals addressed an issue similar to the issue presented in the instant case. Thorpe was convicted of aggravated possession of cocaine and, on appeal, contended the evidence was insufficient to prove he possessed at least 28 grams of cocaine, including adulterants and dilutants. Id., 831 S.W.2d at 549. The Court of Appeals recited the facts as follows:
At trial the State introduced into evidence four exhibits that police officers had seized at appellant’s apartment and that the State’s chemist had tested for the presence of controlled substances. Two of the tested exhibits, numbers 6 and 7, contained no controlled substances; however, the other two exhibits, numbers 4 and 5 tested positively for cocaine.
Exhibit number 4 included 101 small zip-locked bags, each of which contained a solid granular substance. The State’s chemist tested 10 of these 101 small bags and found that the substance in each of the 10 small bags contained cocaine. The combined weight of all 101 small bags was 16.93 grams; however, there was no evidence as to the weight of the 10 small bags that the State’s chemist tested. Exhibit number 5 consisted of a single bag containing two large chunks of solid material. The State’s chemist determined that these chunks contained cocaine. The weight of exhibit number 5 was 27.00 grams; therefore, the aggregate weight of both exhibits 4 and 5 was 43.93 grams.
Ibid.
The State also presented testimony by the chemist who tested the baggies. While the chemist assumed the total weight of the “rocks” in the 91 untested baggies included adulterants and dilutants, he apparently did not determine the identity of the substances comprising the untested rocks.
Relying upon our decisions in Cawthon v. State, 849 S.W.2d 346, 348-349 (Tex.Cr.App. 1992); and Reeves v. State, 806 S.W.2d 540,6 the Court held the evidence was insufficient to prove aggravated possession:
Obviously, the State presented sufficient evidence of the identity of the named illegal substance; exhibits 4 and 5 contained at least some cocaine. However, there is no evidence that the remainder of the substance was adulterants and dilutants. The State’s chemist testified only that exhibits 4 and 5 could include adulterants. Under the teaching of Reeves and Caw-*730thon, this is not sufficient “Absent facts to show that the remainder of the material consisted of substances intended to increase the bulk or quantity of the final product, [crack cocaine], it cannot be said that the remainder was an adulterant or dilutant.” Reeves, 806 S.W.2d at 544 (emphasis added). Even if we assume, therefore, that the State’s evidence was sufficient to establish that exhibits 4 and 5 “contained” cocaine and adulterants and dilutants, there was absolutely no evidence that was all the exhibits contained. Thus, no rational juror could determine beyond a reasonable doubt that of the 43.93 grams of substance seized in appellant’s apartment, at least 28 grams was cocaine plus adulterants and dilutants; based on the evidence presented, it could have been more or it could have been less.
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Our conclusion also finds support in the Court of Criminal Appeals’ analysis in Reeves and Cawthon. In Reeves the State’s expert testified that the entire contents of a bag containing amphetamine weighed 29.76 grams. However, he also stated that he did not determine the weight of the amphetamine in the bag or the nature or weight of the other substances in the tab. The Court of Criminal Appeals held that the evidence was insufficient to prove delivery of more than 28 grams of amphetamine. Reeves, 806 S.W.2d at 543-45. In the present case, the State’s expert testified that the entire contents of two exhibits containing cocaine weighed 43.93 grams. However, there was no testimony as to the weight of the cocaine in the exhibits, nor was there testimony as to the identity or weight of the other substances in the exhibits.
Thorpe, 831 S.W.2d at 551 (emphasis in original).
B.
The Court of Appeals’ reasoning in Thorpe is applicable to the instant case. Thorpe essentially holds that in cases alleging an aggravated offense of possession of a controlled substance, the State must conclusively prove through scientific testing that the alleged controlled substance, along with its adulterants and dilutants, exist in an amount sufficient to raise the offense to an aggravated level. Id, 831 S.W.2d at 548. The holding in Thorpe is sound and should be adopted by this Court.
In the instant case, the scientific testing conclusively proved the presence of cocaine. However, the amount tested was less than 28 grams. Therefore, absent conclusive proof through scientific testing that the untested baggies contain a sufficient amount of cocaine to elevate the weight to at least 28 grams, the State has failed to prove an element of the offense.
III.
In his concurring opinion, Judge Clinton relies on foreign jurisdictions to arrive at the same holding as in Thorpe, i.e., where separate packages or containers of suspected drugs have been seized, a sample of each bag or container must be conclusively tested in order to prove that it contains a controlled substance. Concurring op., pp. 726-727. See also, People v. Young, 220 Ill.App.3d 488, 163 Ill.Dec. 290, 296, 581 N.E.2d 241, 247 (1st Dist.1991); People v. Miller, 218 Ill.App.3d 668, 161 Ill.Dec. 419, 421, 578 N.E.2d 1065, 1067 (1st Dist.1991); People v. Maiden, 210 Ill.App.3d 390, 155 Ill.Dec. 120, 125-127, 569 N.E.2d 120, 125-127 (1st Dist.1991); Campbell v. State, 563 So.2d 202, 202 (Fla.App. 3rd Dist.1990); and, Ross v. State, 528 So.2d 1237, 1241 (Fla.App. 3rd Dist.1988). Thus, Judge Clinton correctly concludes the random sampUng of the contents of the baggies was clearly insufficient to identify the substances in aU of the baggies. Concurring op., pp. 726-727.
However, I beheve Judge Clinton’s reb-anee upon circumstantial evidence to prove the contents of the untested baggies is misplaced and raises questions as to the purpose of his concurring opinion. Judge CUnton contends that evidence such as the circumstances of the seizure, the simüar texture and color of the substances, the simüar packaging of the contents of the baggies, and the fact that the contents of some of the baggies tested positive for cocaine, permits the inference that the remaining untested baggies *731also contain cocaine.7 Concurring op., p. 727. This reasoning is deeply flawed; if one can not infer that the untested baggies contain cocaine from the baggies that do contain cocaine, then why may one infer that the untested baggies contain cocaine from the fact that they were found in a crack house?
Although the circumstantial evidence noted by Judge Clinton is highly probative of appellant’s intent to possess the alleged controlled substance, see, Branch v. State, 599 S.W.2d 324, 325-326 (Tex.Cr.App.1979), I do not believe that evidence concurrently proves the identity of the substances because such evidence is qualitatively distinct. Consider an example: a defendant who possesses a substance knowing it to be cocaine is guilty of possession of a controlled substance. Martin v. State, 753 S.W.2d 384, 387 (Tex.Cr. App.1988). By contrast, a defendant who possesses a substance, believing it to be cocaine, but which is actually baking soda, is not guilty of possession of a controlled substance, even if he behaves in a manner consistent with one who actually possess cocaine. In both situations, the defendant’s intent is evident from circumstantial evidence.8 However, the defendant’s criminal liability is entirely contingent on the identity of the substance.
As we noted in Stewart v. State, 718 S.W.2d 286, 289 (Tex.Cr.App.1986), the identity of a controlled substance is generally determined through chemical analysis. See e.g., Garcia v. State, 473 S.W.2d 488, 490 (Tex.Cr.App.1971); and, Aguero v. State, 164 Tex.Crim. 265, 298 S.W.2d 822, 824 (1957). Similarly, Thorpe and the cases from foreign jurisdictions make clear that without scientific testing we cannot be certain that the contents of separate packages or containers are identical. Consequently, circumstantial evidence may not be relied upon to prove the identity of the alleged controlled substance,
IV.
In light of the foregoing, I would hold that when the alleged controlled substance is separately packaged, the State must scientifically analyze a sufficient number of the packages to establish the aggravated amount. Without such a holding the State is relieved of its burden of proving each element of the offense.
With these comments, I respectfully dissent.
OVERSTREET, J., joins this opinion.. With a glib nonchalance ill suited to the importance of the issue presented, the plurality avoids discussing this question. Nor does the plurality discuss how either our courts of appeals or the courts of foreign jurisdictions have answered this question. The bench and bar and the people of this State deserve more from a court of last resort. Such an exceedingly poor attempt to address this pressing issue serves only to undermine this Court's future efforts to resolve important issues.
.The officer who conducted the spot test testified that while the test indicates that a drug might he present in the tested substance, the test "is not conclusive.” The chemist who sampled the contents of some of the baggies also described the spot test as "a presumptive test used to determine what might be present in a substance."
. The chemist conducted a spot test on two of the remaining baggies. Although the results of that test suggested the presence of cocaine, a spot test is not conclusive. See, n. 2, supra.
. The indictment alleged, in pertinent part, that appellant possessed:
... with intent to deliver, a controlled substance, namely: COCAINE, in an amount by aggregate weight including any adulterants or dilutants of 28 grams or more but less than 200 grams....
. All emphasis is supplied unless otherwise indicated.
. In Cawthon, 849 S.W.2d at 348-349, and, Reeves, 806 S.W.2d at 542-543, we held that for aggravated drug cases where the State contends the weight of the controlled substances includes adulterants or dilutants, the State must prove not only the existence of an illegal substance but also that the remaining substance constitutes an adulterant or dilutant as defined in McGlothlin v. State, 749 S.W.2d 856 (Tex.Cr.App.1988).
In McGlothlin, 749 S.W.2d 856, 860, we defined "adulterants” and "dilutants" as those substances specifically added to a controlled substance with the intent to increase the bulk or quantity of the final product and which do not affect the chemical activity of the controlled substance.
. The reliability of circumstantial evidence, rather than scientific testing, to prove the identity of an alleged controlled substance is undermined by the Legislature’s recognition that it is not uncommon for a substance to be offered as a controlled substance, appear to be a controlled substance, but in reality, be an innocuous substance. To address such a situation, the Legislature enacted Tex.Health & Safety Code Ann. § 482.002(a), which prohibits the delivery of a “simulated controlled substance.”
Further, bearing in mind the requirements from Cawthon, supra and Reeves, supra, that in an aggravated drug case, the State both identify the alleged controlled substance and the nature of the adulterant and/or dilutant, it is readily apparent that the only sufficient means of meeting the State’s burden of proof is through chemically analyzing the substances in each baggie.
. Undoubtedly, a defendant who intends to sell an innocuous substance which he either mistakenly believes to be cocaine, or knowingly misrepresents as cocaine, behaves the same as a defendant intending to sell what he knows to actually be cocaine. See, n. 5, supra. The Health and Safety Code includes as considerations of whether an innocuous substance is represented as a controlled substance: the substance’s packaging, the substance’s physical appearance, and price of the substance. Tex.Health & Safety Code Ann. § 482.003.