
    Steven SANCHEZ, Appellant v. The STATE of Texas.
    No. PD-0094-08.
    Court of Criminal Appeals of Texas.
    Jan. 28, 2009.
    
      Lance C. Hamm, Houston, for Appellant.
    Jessica A. Caird, Assistant District Atty., Houston, Jeffrey L. Van Horn, State’s Atty., Austin, for State.
   OPINION

HERVEY, J.,

delivered the opinion of the Court

in which KELLER, P.J., MEYERS, PRICE, WOMACK, KEASLER, HOLCOMB and COCHRAN, JJ., joined.

Appellant was convicted of the Class B misdemeanor offense of possession of less than 28 grams of a Penalty Group 4 controlled substance (codeine). We granted discretionary review to address the legal sufficiency of the evidence to support an element of this offense.

Section 481.105(1) of the Texas Health and Safety Code (also known as the Texas Controlled Substances Act), in relevant part, defines a Penalty Group 4 controlled substance as a substance containing “not more than 200 milligrams of codeine per 100 milliliters or per 100 grams” and “one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer on the compound, mixture, or preparation valuable medicinal qualities other than those possessed by the narcotic drug alone.” (Emphasis supplied). The record in this case reflects that appellant was a passenger in a car that was stopped by a police officer (Hobbs), who eventually seized a plastic baby bottle from under the seat where appellant had been sitting. The officer testified at appellant’s trial that the baby bottle contained a thick, red, liquid substance with a “medici-ney” smell that the officer believed was “liquid codeine.”

A chemist (Chu), who tested the liquid substance in the baby bottle, testified that the total weight of the substance was less than 28 grams and that the substance was “[m]ost likely ... cough syrups” containing less than “200 milligrams per 100 mil” of codeine (a narcotic) and a nonnarcotic ingredient named Promethazine. Chu testified that Promethazine is a “typical medicine” that “on its own has a valuable medicinal quality” as a cough suppressant that is usually added to cough syrups. Chu also testified that he did not quantify the amount of Promethazine that was in the substance.

Q. [STATE]: What about Prometha-zine?
A. [CHU]: Promethazine is a typical medicine that is being prescribed by the physicians for the typical cough in patients.
Usually you can see the contents in this bottle it is a liquid. It is like a syrup material. Most likely which we call cough syrups and cough syrups contain four compounds which is sugar, glucose, alcohols, which is ethanol, Promethazine and codeines. Usually the cough syrups, the concentration of codeine will last [sic] 200 milligrams per 100 mil.
Q. [DEFENSE]: Mr. Chu, were you able to determine the amount of Prome-thazine that was in the bottle?
A. No, in the laboratory we don’t perform quantifications on the Prometha-zine as well as codeine.
Q. Since you don’t have enough information to quantify how much Prometha-zine was in that solution, you cannot testify to the jury and tell them whether or not the Promethazine had a valuable medicinal quality, can you?
A. Yes. Promethazine has been identified in this syrup.
Q. And Promethazine on its own has a valuable medicinal quality, doesn’t it?
A. It has.
⅝ ⅜ *
Q. Do you know what is the purpose of Promethazine?
A. Usually it is added to cough syrups to ease the (unintelligible) and anti-inflammatory.
Q. And as a doctor when you prescribe cough syrup, the reason that you are prescribing that either can be to suppress the cough and have the respiratory functions of an individual not be inflamed. Is that right?
A. For medical purpose?
Q. Yes, sir, medical purpose. My question, though, sir, is you know that that is what Promethazine is prescribed for, correct?
A. Yes.

The court of appeals decided that the evidence is legally insufficient to support the elemental finding that the Prometha-zine “was in sufficient proportion to confer on the [substance] valuable medicinal qualities,” because Chu failed to quantify the amount of Promethazine in the substance. The court of appeals’ opinion states:

The State was required to prove, as one of the elements of the offense, that the nonnarcotic active medicinal ingredient was in sufficient proportion to confer on the mixture valuable medicinal qualities other than those possessed by the codeine alone. Chu testified repeatedly that he was not able to quantify the Promethazine in the substance. Without such quantification, his testimony does no more than establish the mere presence of Promethazine. Thus the State has failed its burden to prove that Promethazine was in the mixture in sufficient proportion to confer on the mixture valuable medicinal qualities other than those possessed by the codeine alone.

We exercised our discretion to review this decision. The grounds upon which we granted review state:

1. Is the State required to prove the numerical concentration of the nonnarcotic ingredient in a Penalty Group Four codeine mixture under Health and Safety Code section 481.105(1) to establish that it is “in sufficient proportion to confer” on the mixture valuable medicinal qualities other than those possessed by the codeine alone?
2. Did the Court of Appeals err in holding that the State presented legally insufficient evidence that appellant possessed a Penalty Group Four codeine mixture because the chemist did not assign a numerical concentration to the nonnarcotic ingredient despite his testimony that the syrup contained codeine and Promethazine, the Promethazine possessed valuable medicinal qualities apart from the codeine as an anti-inflammatory and a cough suppressant, and Promethazine is a dangerous drug prescribed by physicians?

The State argues that the court of appeals improperly held that only a quantification of the nonnarcotic ingredient, Pro-methazine, could meet the “in sufficient proportion to confer on the [substance] valuable medicinal qualities” element of Section 481.105(1). The State argues:

The jury could have reasonably inferred that the Promethazine was in sufficient proportion to confer on the compound valuable medicinal qualities apart from the codeine because the Promethazine had such qualities “on its own[.]” [Chu] described the substance in the baby bottle as a basic cough syrup, and he explained the medicinal purpose of the Promethazine in it. [Footnote omitted]. The jury rationally inferred from his testimony that the Promethazine was in sufficient proportion to perform its intended function in the basic cough syrup. [Footnote omitted]. The State met its burden of proving the Promethazine was “in sufficient proportion to confer on the compound, mixture and preparation valuable medicinal qualities other than those possessed by the narcotic drug alone[.]”

We agree. The officer (Hobbs) who seized the baby bottle testified that the thick, red, liquid substance in the bottle had a “mediciney” smell. The chemist (Chu) testified that this substance contained codeine (“less than 200 milligrams [of codeine] per 100 mil.”) and Prometha-zine, which, according to Chu, “on its own has a valuable medicinal quality” as a nonnarcotic cough-suppressant compound that is usually found in cough syrups or cough medicines. A jury could rationally find that the Promethazine (whatever its quantity in the substance) was “in sufficient proportion to confer on the [substance] valuable medicinal qualities.” Chu’s testimony did not, as the court of appeals decided, establish just the mere presence of Promethazine. Rather, Chu’s testimony established the presence of Promethazine that “on its own has a valuable medicinal quality.” Evidence that the Promethazine in the substance “on its own has a valuable medicinal quality” is sufficient to support a finding that it was “in sufficient proportion to confer on the [substance] valuable medicinal qualities.” Under these circumstances, the State was not required to quantify the Promethazine in the substance.

We also note that Chu did not testify that a failure to quantify the Promethazine in the substance made him unable to say whether the Promethazine conferred “valuable medicinal qualities” on the substance. We also disagree with the suggestion in the court of appeals’ opinion that quantifying the Promethazine might have, standing alone, been sufficient to prove the “in sufficient proportion to confer on the [substance] valuable medicinal qualities” element of the offense. The amount of Promethazine in the substance, standing alone, would not have established that it conferred valuable medicinal qualities on the substance. This would have established just the mere presence of Prome-thazine in the substance.

The judgment of the court of appeals is reversed, and the case is remanded there for further proceedings.

KELLER, P.J., filed a concurring opinion in which WOMACK, HOLCOMB and COCHRAN, JJ., joined.

JOHNSON, J., filed a concurring opinion in which HOLCOMB and COCHRAN, JJ., joined.

KELLER, P.J.,

filed a concurring opinion in which WOMACK, HOLCOMB, and COCHRAN, JJ., joined.

The legislature has decided to punish possession of cough medicine with codeine less severely than possession of codeine alone. They accomplished this by making possession of codeine mixed with certain cough medicine ingredients, such as pro-methazine, a Penalty Group 4 offense, and making possession of codeine alone a Penalty Group 1 offense. Codeine is defined in Penalty Group 1 as “Codeine not listed in Penalty Group ... 4.”

Appellant was charged -with possession of codeine mixed with promethazine. Appellant’s sufficiency challenge essentially amounts to a claim that the State proved that he possessed codeine, but failed to prove that it was in the proper amount of cough medicine. The court of appeals agreed that there was a failure of proof and found that this failure of proof entitled appellant to an acquittal. I agree with the Court that there was sufficient evidence to show the proper proportion of promethazine, but there is another problem with appellant’s argument.

The problem is that, in the absence of cough medicine in the proper proportion, appellant would be guilty of a greater offense — i.e., possession of codeine under Penalty Group l. Essentially, one element of the Penalty Group 1 offense negates a mitigating factor — namely, the status of belonging to Penalty Group 4. This Court has sometimes conceived of the relationship between the offenses of murder and voluntary manslaughter in a similar manner. Murder was seen as containing an implied element of lack of sudden passion. Voluntary manslaughter, which required sudden passion, was considered to be a lesser-included offense of murder under the “proof of the same or less ... facts” test found in article 37.09(1), though we later rejected that position in favor of lesser-included status based on a lesser culpable mental state under article 37.09(3).

The controlled substances statute supports more compellingly the position that the offenses under consideration here are greater and lesser-included because the element that negates the mitigating factor need not be implied — -it is expressly contained in the statutory language. So, under the test set out in article 37.09(1), possession of cough medicine with codeine is a lesser-included offense of possession of codeine.

This Court has struggled with the analytically similar situation of a defendant who seeks an acquittal on the basis that the evidence is insufficient to show the sudden passion element of voluntary manslaughter, even though the implication of his argument is that he is guilty of the greater offense of murder. When first confronted with this type of claim, this Court rejected the argument, holding that “[pjroof of a greater offense [murder] will sustain a conviction for a lesser included offense.” In Bradley v. State, this Court decided that sudden passion was, for at least some purposes, an “extra” element not included in murder and thus, the absence of evidence of sudden passion could result in an acquittal despite the fact that such a holding placed the court “in the ludicrous position of acquitting a defendant when there is sufficient evidence in the record that he is guilty of murder.” But the Court later retracted that holding in Moore, deciding that voluntary manslaughter was indeed a lesser-included offense of murder.

The court of appeals engaged in the same fruitless struggle with the same absurd results as we faced in resolving Moore, but here we have explicit statutory language that supports even more strongly a holding that would deny the defendant a legal-sufficiency acquittal. I agree with Justice Gaultney’s comment in Dudley v. State, with regard to the very statute before us, that we should deny relief because “[b]ottom line, [the defendant’s] point on appeal is that he may have been guilty of a greater offense than that for which he was convicted.”

With these comments, I join the Court’s opinion.

CONCURRING OPINION

JOHNSON, J.,

filed a concurring opinion in which HOLCOMB and COCHRAN, JJ., joined.

Therapeutic level — With most medications, you need a certain level of drug in your bloodstream to obtain the desired effect. Some medications are harmful if the level rises too high and do not work if the levels are too low. Monitoring the amount of the drug found in your blood allows your health care provider to make sure the drug levels are within an effective range.

The statute at issue here requires, in a codeine mixture, the presence of a nonnarcotic active ingredient in a sufficient proportion to confer on the mixture in question “valuable medicinal qualities other than those possessed by the narcotic drug alone.” Translated from the English, the statute requires that the mixture have enough of the non-narcotic active ingredient that the non-narcotic is at a therapeutic level. If the mixture contains codeine, but not enough non-narcotic active ingredient to confer a medicinal quality, then the exception does not apply and the penalty group changes, and the penalty range increases — possibly from a Class B misdemeanor to a first-degree felony, depending on the amount of codeine.

In this case, because the chemist testified that the mixture weighed less than 28 grams, the penalty range could have increased only to a Class A misdemeanor (Texas Health and Safety Code § 481.104(4)), or to a first-degree felony if the promethazine had been entirely absent (Texas Health and Safety Code § 481.102(3)(A)(codeine not listed in Penalty Group 8 or 4)). There may be instances in which a defendant may very much want to know the level of the non-narcotic active ingredient. If the state charges a first-degree felony, the defendant may seek a charge on Class B misdemeanor because of the presence of a non-narcotic active ingredient in a sufficient proportion to confer on the mixture in question “valuable medicinal qualities other than those possessed by the narcotic drug alone.” In such a case, the failure of the state to prove that the proportion of the non-narcotic was insufficient to confer such medicinal qualities might entitle the defendant to an instruction on the lesser-included offense.

I agree that, while the state proved the presence of promethazine, it did not prove the element of the offense that requires a therapeutic level of promethazine, but in this case, that failure accrued to the benefit of the appellant. The presence of pro-methazine saved appellant from a felony penalty range. If the chemist had, in fact, ascertained the proportion of prometha-zine, it may have been too small to satisfy the statute and thereby enable the state to seek a greater punishment.

I join the judgment of the Court. 
      
      . See Tex Health & Safety Code Ann. §§ 481.105(1), 481.118(a),(b), (Vernon 2003).
     
      
      . See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (legal-sufficiency appellate standard of evidentiary review requires the reviewing court to view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt).
     
      
      . Section 481.105(1) states:
      Penalty Group 4 consists of:
      (1) a compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs that includes one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer on the compound, mixture, or preparation valuable medicinal qualities other than those possessed by the narcotic drug alone: not more than 200 milligrams of codeine per 100 milliliters or per 100 grams....
     
      
      . See Dudley v. State, 58 S.W.3d 296, 299-301 (Tex.App.-Beaumont 2001, no pet.) (deciding that similar chemist testimony was legally sufficient “with regard to the qualitative concentration of codeine in relation to the other active nonnarcotic medicinal ingredient” for purposes of possession of Penalty Group 4 codeine).
     
      
      . See Sanchez v. State, 264 S.W.3d 132 (Tex.App.-Houston [1st Dist.], 2007).
     
      
      . Id.
      
     
      
      . It appears that appellant possessed a codeine-based cough medicine or syrup without a valid prescription. See § 481.118(a) (making it an offense for a person to knowingly or intentionally possess a Penalty Group 4 controlled substance "unless the person obtained the substance directly from or under a valid prescription or order from a practitioner acting in the course of practice”); http://www.d rugs.com/cdi/promethazine-codeine-syr-up.html (describing a Promethazine/Codeine cough syrup used for treating cough and other respiratory symptoms caused by allergies or the common cold); http://en.wikipedia.org/ wiki/Promethazine (“Promethazine is sometimes used as a recreational drug in conjunction with codeine in prescription cough syrup.”).
     
      
      . For example, testimony from Chu that the substance contained "200 milligrams per 100 mil.” of Promethazine would not have, by itself, proved that the Promethazine was "in sufficient proportion to confer on the [substance] valuable medicinal qualities."
     
      
      . Tex Health & Safety Code § 481.105(1).
     
      
      . ⅜§ 481.102(3)(A).
     
      
      . Sanchez v. State, 264 S.W.3d 132 (Tex.App.Houston [1st Dist.] 2007).
     
      
      . Tex. Health & Safety Code §§ 481.115, 481.118.
     
      
      . Moore v. State, 969 S.W.2d 4, 9 (Tex.Crim.App.1998) (citing Tex.Code Crim. Proc. art. 37.09(1)); art. 37.09(1) provides that an offense is a lesser-included offense if “it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.”
     
      
      . Moore, 969 S.W.2d at 9-10.
     
      
      . Daniel v. State, 668 S.W.2d 390, 394 (Tex.Crim.App.1984); see also Jefcoat v. State, 644 S.W.2d 719, 725 (Tex.Crim.App.1982).
     
      
      . 688 S.W.2d 847 853, 853 n. 13 (Tex.Crim.App.1985).
     
      
      . 969 S.W.2d at 9-10
     
      
      . 58 S.W.3d 296, 302 (Tex.App.-Beaumont 2001).
     
      
      . http://www.umm.edu/ency/article/003430. htm (University of Maryland Medical Center); lit tp://www.scripps.org/articles/3156-therapeutic-drug-levels (Scripps Health-San Diego).
     