Bigley v. State

• Decision Date: 06 May 1992
• Docket Number: No. 3-90-068-CR,3-90-068-CR
• Citation: 831 S.W.2d 409
• Parties: Ervin Allen BIGLEY, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 409

831 S.W.2d 409

Ervin Allen BIGLEY, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 3-90-068-CR.

Court of Appeals of Texas,

Austin.

May 6, 1992.

Rehearing Overruled June 3, 1992.

Discretionary Review Granted

Sept. 23, 1992.

Stephen M. Orr, Orr, Davis & Beaver, Austin, for appellant.

Charles D. Penick, Criminal Dist. Atty., John M. Hawkins, Asst. Criminal Dist. Atty., Bastrop, for State.

Before CARROLL, C.J., and ABOUSSIE and KIDD, JJ.

ON MOTION FOR REHEARING

CARROLL, Chief Justice.

The original opinion in the cause, dated January 8, 1992, is withdrawn and this opinion is substituted in its place.

A jury found Ervin Allen Bigley, Jr. guilty of possession of 400 grams or more

of methamphetamine. See Texas Controlled Substance Act, 1983 Tex.Gen.Laws, ch. 425, § 9, at 2379 (Tex.Rev.Civ.Stat.Ann. art. 4476-15, § 4.04, since repealed and codified at Tex. Health & Safety Code Ann. § 481.115 (Pamph.1992)). After finding Bigley was a repeat offender, the jury assessed punishment at ninety-nine years in the Texas Department of Corrections and a fine of $250,000. See former art. 4476-15, § 4.012. Because of proof problems involving the presence and amount of "adulterants and dilutants" in the methamphetamine, under the latest guidelines from the Court of Criminal Appeals, we find the evidence insufficient to sustain a conviction for the aggravated offense. Rather than order an acquittal, however, we reform the judgment to reflect a conviction for the lesser included offense of possession of twenty-eight grams or more but less than 400 grams of methamphetamine, and remand the cause for reassessment of punishment.

BACKGROUND

On June 29, 1987, the Austin Police Department, acting on a tip from a confidential informant, obtained a warrant to search Bigley's residence in Manor, Texas. As a result of the search, police discovered evidence of a laboratory designed to produce methamphetamine, and seized thirteen containers of methamphetamine in powder and liquid form. The police arrested Bigley, who was later convicted of aggravated possession of over 400 grams of methamphetamine, including adulterants and dilutants.

DISCUSSION

Sufficiency of the Evidence:

In his first and second points of error, appellant argues that the evidence is insufficient to prove he possessed methamphetamine weighing over 400 grams, including adulterants and dilutants. ¹ In a conviction for possession of a controlled substance, the weight of adulterants and dilutants present in a seized substance may be combined with the weight of the controlled substance for the purpose of determining the defendant's punishment. McGlothlin v. State, 749 S.W.2d 856, 858 (Tex.Crim.App.1988). However, the court of criminal appeals has held that the terms "adulterants" and "dilutants" refer specifically to compounds, substances or solutions added to the controlled substance with the intent to increase the bulk or quantity of the final product. Id. at 860. When the State attempts to obtain a conviction for an aggravated offense on the theory that the aggregate weight of the controlled substance (including adulterants and dilutants) is over 400 grams, it must first "prove the existence of any adulterants and dilutants, i.e., compounds, substances, or solutions added to the controlled substance to increase the bulk or quantity of the final product." Reeves v. State, 806 S.W.2d 540, 542 (Tex.Crim.App.1990). It must then show that the controlled substance, including the adulterants and dilutants, if proven to exist, weighs more than 400 grams. See id.; McGlothlin, 749 S.W.2d at 861. It is the State's failure to prove the existence of adulterants and dilutants that is fatal to this conviction on appeal.

During Bigley's trial, the State introduced into evidence thirteen exhibits of methamphetamine seized from Bigley's residence. Sam Bivone, a chemist for the Austin Police Department, testified that he performed chemical analyses on the exhibits and that they all contained methamphetamine. However, Bivone only performed purity analyses on three of the thirteen exhibits. Bivone testified as follows regarding these three exhibits: (1) the State's first exhibit weighed 2.68 grams and contained 78% methamphetamine powder; (2) the State's fifth exhibit weighed 1.2 grams and contained 53% pure methamphetamine powder; (3) the State's tenth exhibit weighed 559.47 grams and contained 69% The court of criminal appeals evaluated similar circumstances in Engelking v. State, 750 S.W.2d 213 (Tex.Crim.App.1988), a methamphetamine possession case in which the State's expert witness was also a police chemist called to testify about the composition of controlled substances. Id. at 214. The chemist defined an "adulterant" as any impurity in a substance and defined a "dilutant" as any substance that makes another substance weaker. Id. at 216. The Engelking court concluded that these broad definitions provided no evidence that the controlled substances seized from the defendant contained any substance intended to increase the bulk or quantity of the final product, as McGlothlin requires. Id. As a result, the Engelking court reversed the judgment of the trial court and remanded with instructions to acquit the defendant of the offense of possession of methamphetamine of over 400 grams. Id.

                methamphetamine powder.  The State thus established that police seized 388.76 grams of pure methamphetamine powder from Bigley's residence.  The aggregate weight of the three exhibits was 563.35 grams.  Bivone testified that the aggregate weight included adulterants and dilutants, and defined adulterants and dilutants as "an impurity from the 100% you want to get."   However, Bivone did not identify the composition of the non-methamphetamine substances in the three exhibits.  To the contrary, Bivone acknowledged on cross examination that the aggregate weight of the controlled substances might also include waste products, water and trash
                

Just as in Engelking, the record in our case lacks any evidence that the balance of the seized substances, absent the actual methamphetamine present, contained any substance intended to increase the bulk or quantity of the final product, methamphetamine. A commonsense interpretation of the record should allow us to conclude that where a chemist identifies an exhibit as consisting of a certain percentage of methamphetamine in a final, powder form, the remainder of the exhibit consists of adulterants or dilutants. In considering whether the aggregate weight of a controlled substance exceeds a certain level, however, the court of criminal appeals cases require inquiry into whether the non-drug portion of the substance is an "adulterant or dilutant." The court of criminal appeals defines "adulterant and dilutant" as any substance added with the intent of increasing the bulk or quantity of the final product. See Reeves v. State, 806 S.W.2d 540, 542 (Tex.Crim.App.1990); Engelking, 750 S.W.2d at 216; McGlothlin, 749 S.W.2d at 860. See also Cawthon v. State, 1992 WL 73489, No. 1170-90 (Tex.Crim.App., April 15, 1992). There is no such evidence before us.

The State did not establish that their exhibits contained "adulterants and dilutants" as defined by the court of criminal appeals. We therefore cannot conclude from the evidence presented at Bigley's trial that the State's exhibits one, five, and ten contain an aggregate weight of methamphetamine, including adulterants and dilutants, that exceeds 400 grams. Because the State did not determine the percentage of methamphetamine within the other ten exhibits, we have no evidence from which to conclude that the methamphetamine content of these exhibits, combined with exhibits one, five, and ten, exceeds 400 grams. We therefore conclude that the evidence in this case is insufficient to support a finding that Bigley possessed methamphetamine in an aggregate weight of over 400 grams.

Admission of Hearsay:

In his third and fourth points of error, Bigley argues that the trial court erroneously admitted a police officer's hearsay testimony about what a confidential informant told the police officer. Bigley contends that this violated his right to confrontation under the Sixth Amendment to the United States Constitution and Texas Constitution Article 1, § 10, and that the admission of this hearsay evidence contributed to his conviction, since it connected him to the residence where the bulk of the illegal drugs, and the drug manufacturing operation, were found.

The police officer testified that a confidential informant told him that the In light of the overwhelming amount of properly admitted evidence, we are convinced beyond a reasonable doubt that this testimony did not contribute to the verdict. "Where there is not a reasonable possibility that improperly admitted evidence has contributed to a defendant's conviction, reversal is not required." Bird v. State, 692 S.W.2d 65, 70 (Tex.Crim.App.1985). See also Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Johnson v. State, 660 S.W.2d 536, 538 (Tex.Crim.App.1983); Vanderbilt v. State, 629 S.W.2d 709 (Tex.Crim.App.1981), cert. denied 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 169; Clemons v. State, 605 S.W.2d 567, 571 (Tex.Crim.App.1980); Tex.R.App.P.Ann. 81(b)(2) (Pamph.1992).

informant had been at the residence and had observed Bigley manufacturing methamphetamine at the residence. Upon Bigley's objection, the prosecution offered that the testimony was admissible to establish probable cause for a search of the residence. We agree with Bigley's contention that this evidence should not have been admitted. "The general rule is that hearsay evidence relating to probable cause is not admissible before the jury, when the issue has not been raised." Soliz v. State, 794 S.W.2d 110, 112-13 (Tex.App.1990, pet. ref'd) (citations omitted). The admission of this evidence will require reversal unless this court determines beyond a reasonable doubt that the...