Engelking v. State

• Decision Date: 20 April 1988
• Docket Number: No. 436-87,436-87
• Citation: 750 S.W.2d 213
• Parties: Donald Wayne ENGELKING, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 213

750 S.W.2d 213

Donald Wayne ENGELKING, Appellant, v. The STATE of Texas, Appellee.

No. 436-87.

Court of Criminal Appeals of Texas,

En Banc.

April 20, 1988.

Stanley G. Schneider, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Winston E. Cochran, Jr. and Lee Coffee, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

DUNCAN, Judge.

Appellant was convicted by a jury of the offense of possession of a controlled substance to-wit: methamphetamine, weighing at least 400 grams aggregate weight, including adulterants and dilutants. Article 4476-15, § 4.04(d)(2), V.A.C.S. Punishment was assessed by the trial court at 45 years confinement in the Texas Department of Corrections. On appeal, the appellant's conviction was affirmed by the First Court of Appeals in a published opinion. Engelking v. State, 727 S.W.2d 694 (Tex.App.--Houston [1st] 1987, pet. granted).

Appellant's petition for discretionary review was granted on two grounds for review. First, whether Article 4476-15, supra, is unconstitutionally void for vagueness due to its failure to define the terms "adulterants" and "dilutants." ¹ Second, whether the evidence was sufficient to support the appellant's conviction for possessing over 400 grams of methamphetamine, including adulterants and dilutants. ²

I. FACTS

The appellant and a codefendant were arrested following the execution of a search warrant which resulted in the discovery of a laboratory designed to produce methamphetamine. Seized pursuant to the search warrant were three separate flasks or containers which contained different forms of methamphetamine. According to the State's witnesses, the first exhibit contained one gram of methamphetamine in crystalized form, and is not relevant to the issues in this case. The second exhibit contained 3,240 grams of liquid, approximately two grams of which was methamphetamine. The third exhibit contained 300 grams of liquid, .3 grams of which was methamphetamine. Nevertheless, the total weight of controlled substances was alleged to weigh 3,540.4 grams, including adulterants and dilutants.

The State called Henry Forjohn, a chemist with the Houston Police Department, to testify as an expert witness on the composition of controlled substances. At issue, was the composition of the liquid solutions in the second and third exhibits. According to Forjohn, each of these exhibits contained a very weak methamphetamine solution of .05% and .1%, respectively. Furthermore, according to Forjohn, an adulterant is any impurity in a substance, while a dilutant is a substance which makes another substance weaker. Moreover, he stated that an adulterant or dilutant is not necessarily a cutting agent. Forjohn described this working definition as his own common definition rather than a definition derived from technical writings.

Evidently, the use of this definition excused the witness from further analyzing the remainder of the solutions accompanying the methamphetamine. Forjohn did not describe the remainder of the contents of either exhibit as an adulterant or dilutant. In addition, Forjohn conceded that he did not know the composition of the remainder of the third exhibit. Although he indicated that phenyl two proponel (P2P) was present in the second exhibit, he did not indicate what percentage or weight of the solution was P2P. Forjohn testified that P2P is not a cutting agent. Instead, P2P is described as a reagent which is "something when mixed with another substance combines with that substance to produce a new substance." Finally, the witness believed that anyone drinking the solutions in the second and third exhibits would become sick.

The appellant called Mr. Arthur A. Simon, a narcotics analyst registered with both the Drug Enforcement Administration and the Texas Department of Public Safety. Simon tested only a sample extracted from the second exhibit which had been provided by the State. He testified that the solution consisted of a small amount of methamphetamine and P2P. He described P2P as a precursor. The second and third exhibits were said to be consistent with the waste product that would be produced during the purification process of methamphetamine. Simon described a dilutant as a material added to a pharmaceutical with a specific intent of increasing the bulk of the final product. An adulterant was described as something that is added to a substance so as to misrepresent what it purports to be with the intent to defraud the user. These working definitions were allegedly based on several different texts. Simon testified that P2P was neither a dilutant nor an adulterant.

II.

In the first ground of error, appellant contends that Article 4476-15, supra, is unconstitutionally void for vagueness due to its failure to define adulterants and dilutants. The court of appeals held that the statute gave ample notice of conduct forbidden in the alleged offense, viz., possession of a controlled substance, methamphetamine. Engelking v. State, supra, at 696. Unfortunately, this does not specifically address the appellant's contentions, wherein the weight of adulterants and dilutants increased the punishment range for possession of methamphetamine from a maximum of twenty years and a $10,000 fine to a maximum of life and a fine not to exceed $100,000.

Appellant contends that Article 4476-15, supra, is void for vagueness in that it provides a criminal penalty for possession of a substance not set out in either the schedule of controlled substances or any penalty group. Clearly, a forbidden act must come within the prohibition of the statute and any doubt as to whether an offense has been committed should be resolved in favor of the accused. Bruner v. State, 463 S.W.2d 205 (Tex.Cr.App.1970).

A penal statute may be void for vagueness when it either forbids or requires 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 application. Ely v. State, 582 S.W.2d 416 (Tex.Cr.App.1979); Ex parte Chernosky, 153 Tex.Cr.R. 52, 217 S.W.2d 673 (1949). More specifically, a statute must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden and the statute may not encourage arbitrary and erratic arrests and convictions. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972).

However, a statute is not unconstitutionally vague merely because the words or terms used are not specifically defined. Ahearn v. State, 588 S.W.2d 327 (Tex.Cr.App.1979); Passmore v. State, 544 S.W.2d 399 (Tex.Cr.App.1977); Powell v. State, 538 S.W.2d 617 (Tex.Cr.App.1976). A statute which is arguably vague may be given constitutional clarity by applying the standard rules of statutory construction. Floyd v. State, 575 S.W.2d 21 (Tex.Cr.App.1978), appeal dis'm, 442 U.S. 907, 99 S.Ct. 2817, 61 L.Ed.2d 272 (1979).

In McGlothlin v. State, 749 S.W.2d 856 (Tex.Cr.App.1988), we held that the terms "adulterant" and "dilutants" are compounds, substances or solutions added to the controlled substance with the intent to increase the bulk or quantity of the final product. Id., at 858-59. Our holding resulted...