IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0309-20
DARREN LAMONT BIGGERS, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SEVENTH COURT OF APPEALS
COOKE COUNTY
KELLER, P.J., filed a dissenting opinion.
The legislature has decided that possession of codeine in cough syrup without a prescription
should be penalized less harshly than possession of codeine that is not in cough syrup. Possession
of codeine is a penalty group 4 substance when it is combined with another medicine, the other
medicine is present in a proportion sufficient to confer valuable medicinal qualities (beyond those
conferred by codeine alone), and the codeine does not exceed a certain proportion of the mixture.
If the other medicine is not present in a sufficient proportion to confer valuable medicinal qualities,
then codeine is in a higher penalty group—penalty group 1—and its possession is a greater offense.
BIGGERS DISSENT — 2
So the other medicine being present in a sufficient proportion is a mitigating fact that lowers the
degree of the offense. What happens when the record does not contain enough information from
which to rationally conclude that the mitigating fact is true or false? That is, what happens if the
record shows that the codeine is mixed with another medicine but does not show whether or not the
other medicine is present in a sufficient proportion to confer valuable medicinal qualities? I would
affirm the conviction for the charged offense, possession of codeine in penalty group 4. A majority
of the members of the Court came to that conclusion in Sanchez v. State,1 the Court has never said
otherwise until now, and the Sanchez conclusion makes sense in light of the statutory scheme.
1. A majority of judges in Sanchez concluded that the State need not prove the
“medicinal qualities” mitigating fact to support a conviction for the penalty
group 4 offense.
In Sanchez, the chemist testified that promethazine was present in the codeine mixture but
did not testify as to the actual concentration.2 The Court, however, concluded that the jury could
have rationally inferred from the record that the promethazine was present in a sufficient amount to
confer valuable medicinal qualities and that it was not necessary for the expert to quantify the
concentration.3 Two concurring opinions concluded that the State did not have to show
concentration or valuable medicinal qualities, and the two of them combined garnered the votes of
five judges.4 Judge Johnson did not agree with the Court’s conclusion that the State had proven
1
275 S.W.3d 901 (Tex. Crim. App. 2009).
2
Id. at 903-05.
3
Id. at 904-05.
4
Id. at 905-07 (Keller, P.J., concurring, joined by Womack, Holcomb, and Cochran, JJ.),
907-08 (Johnson, J., concurring, joined by Holcomb and Cochran, JJ.).
BIGGERS DISSENT — 3
valuable medicinal qualities, but she concluded that it did not matter because “that failure accrued
to the benefit of the appellant” in that it “saved appellant from a felony penalty range.”5 She
commented that if the chemist had “ascertained the proportion of promethazine, it may have been
too small to satisfy the statute and thereby enable the state to seek a greater punishment.”6 My
concurrence agreed with the Court that valuable medicinal qualities had been established, but I also
concluded that it did not matter—because the bottom line was that the defendant’s complaint was
that “he may have been guilty of a greater offense than that for which he was convicted.”7 I
emphasized that the proportion of the non-codeine medicine was a mitigating factor that the State
was explicitly required to negate to prove the penalty group 1 offense and reasoned that this made
the penalty group 4 offense a lesser-included offense of the penalty group 1 offense.8 I analogized
to the old voluntary manslaughter offense with its sudden passion mitigating element and argued that
this sort of mitigating element must be disproven by the State for the greater offense (at least if
raised) but need not be proven for the lesser offense.9 I pointed out that the view was more strongly
supported in the codeine situation because negating penalty group 4 status was an explicit
requirement of the penalty group 1 offense.10
2. The majority view articulated in the concurring opinions in Sanchez should
5
Id. at 907-08 (Johnson, J., concurring).
6
Id. at 908.
7
Id. at 906-07 (Keller, P.J., concurring).
8
Id. at 906.
9
Id. at 906-07.
10
Id. at 907.
BIGGERS DISSENT — 4
be viewed as binding precedent.
We have stated that a “‘fractured decision’ is a judgment by an appellate court that has no
majority opinion.”11 A fractured decision is binding authority “if, and to the extent that, a majority
holding can be ascertained from the various opinions in the case.”12 This is true “[e]ven if the
rationales seem disparate, if a majority of the judges agree on a particular narrow ground for or rule
of decision.”13 We have never said that a fractured decision with a holding cannot coexist with a
majority opinion with a holding, and there is no logical reason to conclude that they cannot coexist.
3. The Miles case does not conflict with the view of the majority of the judges in
Sanchez that the State need not prove the mitigating facts to support a
conviction for a penalty group 4 offense.
In Miles v. State, there was ambiguity with respect to what codeine offense the defendant was
charged with.14 The Court concluded that Appellant was charged with possession of codeine in
penalty group 1.15 The Court further concluded that proving its penalty group 1 charge required the
State to prove that the substance was not in penalty group 3 or 4.16 And the Court concluded that the
State failed to do that because the record did not establish that promethazine “was or was not in
recognized therapeutic amounts or in sufficient proportion to confer on the compound valuable
11
Unkart v. State, 400 S.W.3d 94, 100 (Tex. Crim. App. 2013).
12
Id.
13
Id. at 100-01.
14
357 S.W.3d 629, 631-33 (Tex. Crim. App. 2011).
15
Id. at 636-37.
16
Id. at 637.
BIGGERS DISSENT — 5
medicinal qualities.”17
The Court did not say that the record would be insufficient to support a conviction for
possession of penalty group 4 codeine.18 The Court rendered an acquittal,19 but at the time, we had
not decided Bowen v. State, which authorized reformation to a lesser-included offense even when
the lesser-included offense was not submitted or requested.20 In my dissent, I suggested that the
Court wait until Bowen was decided, but the Court chose not to do so, and its decision to acquit
without considering the lesser-included offense was supported by the caselaw at the time.21 I
disagreed with the Court’s conclusion that Appellant was charged with possessing codeine in penalty
group 1 and contended that he was, instead, charged with possession of codeine in penalty group 3
or 4.22 I based my conclusion on a caption in the indictment that read “PG 3/4,”23 but the Court was
not convinced.24 My dissent did not disagree with the Court’s conclusion about what was required
to prove a penalty group1 offense—that the State had to prove that the codeine did not fall within
penalty group 3 or 4 due to the concentration of the codeine or due to the non-codeine medicine not
17
Id. at 637-38.
18
See id. at 630-38.
19
Id. at 638.
20
See Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012).
21
See Miles, 357 S.W.3d at 645 n.18 (Keller, P.J., dissenting).
22
Id. at 643-44.
23
Id.
24
Id. at 637 (Court’s op.).
BIGGERS DISSENT — 6
being present in sufficient proportion to confer valuable medicinal qualities.25
I went on to conclude that the evidence was sufficient to show a penalty group 4 offense in
response to Judge Cochran’s concurring opinion suggesting otherwise.26 Judge Cochran had joined
my concurring opinion in Sanchez, but in Miles she stated that she agreed with only the proposition
that no specific proportion need be proven, and Judge Johnson, by joining Judge Cochran, apparently
had rethought her position.27 But Judge Cochran’s concurring opinion in Miles garnered only three
votes, and her statements in that opinion could not retroactively cancel her vote in a majority holding
in an earlier case. The view expressed in my Sanchez concurrence was not limited to saying that
proportion need not be quantified, nor was the view expressed in Judge Johnson’s concurrence. Both
concurrences clearly staked out the position that the State, to prove a penalty group 4 offense, did
not need to prove that the non-codeine medicine was in a sufficient proportion to confer valuable
medicinal qualities.
4. Even if only persuasive, the five-judge view of the concurring opinions in
Sanchez should be accepted.
Even if the five-judge view expressed in the Sanchez concurrences is only persuasive
authority, there are good reasons to accept that view. The statute listing penalty group 1 substances
lists “Codeine not listed in Penalty Group 3 or 4.”28 The penalty group 4 statute specifies that
codeine is a penalty group 4 substance if another medicine is mixed with the codeine in sufficient
25
See id. at passim.
26
Id. at 644-45 (Keller, P.J., dissenting).
27
See id. at 642 n.12 (Cocrhan, J., concurring).
28
TEX. HEALTH & SAFETY CODE § 481.102(3)(A).
BIGGERS DISSENT — 7
proportion to confer valuable medicinal qualities and the codeine does not exceed a certain
proportion of the mixture (200 mg/100 ml or 200 mg/100 g).29 Thus, assuming the same amount of
the total mixture,30 the only difference between a penalty group 1 codeine possession offense and a
penalty group 4 codeine possession offense is the presence or absence of the mitigating facts that
cause codeine to fall within penalty group 4.
To be clear, there are two mitigating facts required for penalty group 4 status, even though
only one of those is at issue here: (1) the presence of the other medicine in sufficient proportion to
confer valuable medicinal qualities, and (2) codeine not exceeding a certain proportion of the
mixture. If the first mitigating fact is absent, then codeine is a penalty group 1 substance. If only
the second mitigating fact is absent, then codeine is a penalty group 1 or 3 substance depending on
the proportion of codeine in the mixture.31
We should not overlook the second mitigating fact of codeine concentration. I can see no
justification in the structure of the relevant statutes for treating the two mitigating facts differently.
If the State has to prove the first for a penalty group 4 substance, then it will also have to prove the
second. What happens if the State offers evidence of the presence of promethazine in sufficient
proportion to confer valuable medicinal qualities but fails to offer any evidence of the actual
proportion of codeine in the mixture, other than that there was some? The statute says nothing about
quantifying the non-codeine medicine, but it does specify quantifying the codeine proportion of the
29
TEX. HEALTH & SAFETY CODE § 481.105(1).
30
Offenses under both penalty groups can differ by the amount of the substance possessed,
including adulterants and dilutants. See TEX. HEALTH & SAFETY CODE §§ 481.115, 481.118.
31
See TEX. HEALTH & SAFETY CODE §§ 481.104(4), 481.105(1).
BIGGERS DISSENT — 8
mixture. Under the Court’s rationale today, such a defendant would have to be acquitted entirely,
even though we would know that he had to have possessed a proportion of codeine that was at least
a penalty group 4 substance (but could be more than that). Although perhaps less obvious, the same
is true of the first mitigating factor—the proportion of non-codeine medicine—if the record is
unclear about whether that proportion was sufficient to confer valuable medicinal qualities, we still
know that the codeine would at least be a penalty group 4 substance, though it might be a higher
penalty group.
This situation is analogous to the old voluntary manslaughter statute, which contained all the
elements of murder plus the mitigating element of sudden passion arising from an adequate cause.32
In Moore v. State, we held that voluntary manslaughter was in fact a lesser-included offense of
murder due to having a lesser culpable mental state.33 In doing so, we overruled a prior case that
held the evidence to be insufficient to support a conviction for voluntary manslaughter because
sudden passion had not been proven.34 That prior case, Bradley v. State, viewed the situation much
as the Court views the present case: “The State had the burden to disprove sudden passion beyond
a reasonable doubt to convict for murder, and the burden to prove the existence of sudden passion
beyond a reasonable doubt to convict for voluntary manslaughter.”35 Moore rejected that view in
the voluntary-manslaughter context, and we should do so here.
32
See TEX. PENAL CODE § 19.04(a) (West 1992). For brevity and ease of reference, I
sometimes refer to the mitigating element by the label “sudden passion.”
33
969 S.W.2d 4, 9-10 (Tex. Crim. App. 1998).
34
Id. at 10 (overruling plurality opinion in Bradley v. State, 688 S.W.2d 847 (Tex. Crim.
App.1985)).
35
Id. at 9 (discussing Bradley).
BIGGERS DISSENT — 9
Although Moore did not adopt the reasoning of the even earlier case of Braudrick v. State,36
the reasoning in that earlier case applies more strongly to the present case than to the
murder/voluntary manslaughter situation. In Braudrick, the Court concluded that the negation of the
“sudden passion” element of voluntary manslaughter was an implied element of murder.37 So, in the
Court’s view, voluntary manslaughter was a lesser-included offense of murder because it differed
only by lacking an element of murder—it lacked murder’s implied element of not having “sudden
passion.”38 The Court further concluded that “[t]he distinguishing feature between murder and
voluntary manslaughter is not a fact that must be proven beyond a reasonable doubt to establish
voluntary manslaughter.”39 The Court further held that, if the issue is raised, it must be disproven
to establish murder, and “a reasonable doubt on the issue requires acquittal on the murder charge and
allows conviction only for voluntary manslaughter.”40
A possible hole in the court’s reasoning in Braudrick was the idea of having an implied
element. Moore perhaps implicitly criticized Braudrick by referring to the notion “that murder had
an unwritten, implied element of lack of sudden passion.”41 But in the present case, we do not have
an “implied element” problem. Penalty group 1 codeine is explicitly defined as codeine that does
not fall within penalty group 3 or 4. So, under Braudrick’s reasoning, possession of penalty group
36
572 S.W.2d 709 (Tex. Crim. App. 1978).
37
See id. at 710.
38
Id.
39
Id. at 711.
40
Id.
41
969 S.W.2d at 9.
BIGGERS DISSENT — 10
4 codeine lacks an element contained in possession of penalty group 1 codeine—it lacks the penalty
group 1 element of not being in penalty group 4 (because it is in penalty group 4). Analytically, the
penalty group 4 offense is a lesser-included offense of the penalty group 1 offense because it differs
only by having fewer elements.42 And under Braudrick’s reasoning, because the mitigating
characteristics is what makes it a lesser included offense, the mitigating characteristics of penalty
group 4 codeine do not have to be proven beyond a reasonable doubt to convict on a penalty group
4 offense, but they must be disproven beyond a reasonable doubt to convict on a penalty group 1
offense.
Braudrick’s conclusion about what has to be proven in this sort of lesser-included offense
situation seems to follow from other generally accepted principles of law. Legally, a lesser-included
offense is included within the proof of the charged offense, which is why the first prong of the test
for obtaining a lesser-included offense is that it “be included within the proof necessary to establish
the greater offense for which the defendant is on trial.”43 We have said elsewhere that, “Proof of a
greater offense will sustain a conviction for a lesser included offense.”44 So establishing the greater
offense of possession of penalty group 1 codeine would necessarily establish the lesser-included
offense of possession of penalty group 4 codeine.
Moreover, it is a standard jury instruction that if the jury has a reasonable doubt as to whether
42
See TEX. CODE CRIM. PROC. art. 37.09(1). It might also be possible to characterize
possession of penalty group 4 codeine as a lesser included offense on the basis that it differs from
the greater offense “only in respect that a less serious injury or risk of injury to the same . . . public
interest suffices to establish its commission.” See id. art. 37.09(2).
43
See Grey v. State, 269 S.W.3d 785, 788 (Tex. Crim. App. 2008).
44
Daniel v. State, 668 S.W.2d 390, 394 (Tex. Crim. App. 1984).
BIGGERS DISSENT — 11
the defendant is guilty of the charged offense or of the lesser-included offense, “then [it] must
resolve that doubt in the defendant’s favor and find him guilty of the lesser offense.”45 That
proposition of law applies here. Depending on the proportions of codeine and promethazine, the
substance falls either within penalty group 1, 3, or 4. There does not exist a “no-man’s land” where
someone can possess a combination of codeine and promethazine and it not fall within one of those
three penalty groups. At worst, the record lacks clarity about which of the three penalty groups the
State has proven. Under those circumstances the evidence should be upheld as sufficient on the
lowest grade offense—possession of penalty group 4 codeine.
Of course, the State has to prove that the substance lacks the mitigating characteristics of
penalty group 4 codeine in order to obtain a conviction for penalty group 1 codeine. As the Court
explains, the State has not done this. So the State cannot obtain a conviction for penalty group 1
codeine. But Appellant was convicted of possessing penalty group 4 codeine and the evidence is
sufficient to support that conviction. Because the Court holds otherwise, I respectfully dissent.
Filed: September 22, 2021
Publish
45
See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009).