Smith v. State

• Decision Date: 28 September 1987
• Docket Number: No. 05-86-00865-CR,05-86-00865-CR
• Citation: Smith v. State, 737 S.W.2d 933 (Tex. App. 1987)
• Parties: James Edison SMITH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 933

737 S.W.2d 933

James Edison SMITH, Appellant, v. The STATE of Texas, Appellee.

No. 05-86-00865-CR.

Court of Appeals of Texas Dallas.

Sept. 28, 1987.

Robert T. Baskett, Dallas, for appellant.

Gary A. Moore, Dallas, for appellee.

Before STEPHENS, HECHT and THOMAS, JJ.

HECHT, Justice.

The trial court found James Edison Smith guilty of possession with intent to deliver cocaine, a controlled substance, and sentenced him to 30 years' imprisonment. For reasons that follow, we affirm the trial court's judgment.

I

Smith first complains that the trial court erroneously admitted evidence seized under a search warrant obtained upon false information. The search warrant was issued upon information from a confidential informant recited in a police officer's affidavit. The statement in the affidavit that Smith says is false is:

the informant has given information on prior occasions in the past involving drug trafficking in Dallas County, and on each and every occasion said confidential informant has proven to be true, reliable, and correct.

When the informant gave the police officer information about Smith, it was the first time he had ever given police information. At that same time, however, he also told the officer about two other known drug dealers and their activities, which the officer verified. Smith argues that "prior occasions in the past" means separate conversations at discrete intervals prior to the occasion Smith was discussed. The words themselves cannot be so strictly limited. The statement in the affidavit was literally true: on two occasions, one as to one drug dealer and the second as to another drug dealer, both in the same conversation in the past, prior to the officer's making the affidavit, the informant gave information involving drug trafficking in Dallas County, and on both those occasions the informant proved to be true, reliable, and correct. Moreover, the statement also fulfilled the necessary purpose of showing the informant's reliability.

The search warrant was properly issued. It follows that the evidence seized under the warrant was properly admitted. Smith's first point of error is therefore overruled.

II

Smith was convicted of possessing, with intent to deliver, a powdery substance that weighed a total of 1331.09 grams, of which only 349.51 grams was pure cocaine. Although Smith was thus found in possession of less than 400 grams of pure controlled substance, he was sentenced under section 4.03(d)(3) of the Texas Controlled Substances Act ¹ for possession with intent to deliver a controlled substance with an "aggregate weight, including any adulterants or dilutants, [of] 400 grams or more." In his second point of error Smith contends that he should have been punished only for the pure controlled substance, and not the total substance, he possessed. Smith argues that section 4.03(d)(3) is unconstitutional because it sets a range of punishment based upon the aggregate weight of controlled substance and other material. Inasmuch as section 4.03(d)(3) is part of a uniform statutory scheme that sets punishment ranges based upon the aggregate weight of the controlled substance "including adulterants or dilutants", Smith's argument in effect challenges the constitutionality of the punishment scheme of the entire Act.

The range of punishment for the offense of possession with intent to deliver a controlled substance depends upon the type of substance and its "aggregate weight, including any adulterants or dilutants". ² If the substance is listed in Penalty Group 1, as cocaine is, ³ the offense is a first degree felony. ⁴ If the aggregate weight of the substance, including adulterants or dilutants, is 28 grams or more, the offense is aggravated. ⁵ The range of punishment for the offense is: ⁶

In each case aggregate weight includes any adulterants or dilutants.

Smith appears to make three separate arguments as to why this statutory punishment scheme in general, and section 4.03(d)(3) in particular, are unconstitutional.

A

First, Smith argues that the Act is unconstitutionally vague because it does not define "adulterants" and "dilutants". A statute is unconstitutionally vague if it either "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute," or "encourages arbitrary and erratic arrests and convictions." Cotton v. State, 686 S.W.2d 140, 141 (Tex.Crim.App.1985). Smith does not claim, and we find no basis to conclude, that the use of the words "adulterants" and "dilutants" in the Act encourages arbitrary and erratic arrests and convictions. The remaining question, then, is whether the Act gives fair notice of the conduct it forbids.

Whether the Act gives fair notice of its prohibitions depends upon whether the meanings of the words in question can reasonably be ascertained by persons of ordinary intelligence. Words in statutes are to be given any special meanings they have acquired, whether by legislative definition or technical usage. Tex. Gov't Code Ann. § 311.011(b) (Vernon Supp.1987). Common words not defined by statute are given their ordinary meanings. Tex. Gov't Code Ann. § 311.011(a) (Vernon Supp.1987); Big H Auto Auction, Inc. v. Saenz Motors, 665 S.W.2d 756, 758 (Tex.1984); Morter v. State, 551 S.W.2d 715, 718 (Tex.Crim.App.1977); Wade v. City of Garland, 671 S.W.2d 657, 659 (Tex.App.--Dallas 1984, writ dism'd).

The meanings of "adulterant" and "dilutant" are simple and clear. The Act itself suggests their meanings when it defines "drug paraphernalia" to include:

a diluent ⁷ or adulterant, such as quinine hydrochloride, mannitol, mannite, dextrose, or lactose, used or intended for use in cutting a controlled substance.... ⁸

To "cut" means to "reduce the concentration or strength of". Webster's Third New International Dictionary 560 (1981). Thus, the Act indicates that an "adulterant" or "dilutant" is something used to reduce the concentration or strength of a controlled substance. This indication is consistent with the dictionary definition of "adulterant"--something which reduces the purity of a substance--and "dilutant"--something which reduces the concentration of a substance. Id. at 30, 633; see McGlothlin v. State, 705 S.W.2d 851, 864 (Tex.App.--Fort Worth 1986, pet. granted). The special meanings the words have acquired are the same as their ordinary meanings. See Engelking v. State, 727 S.W.2d 694, 699-700 (Tex.App.--Houston [1st Dist.] 1987, pet. granted) (Levy, J., dissenting).

Smith argues that the Act is vague because it does not require that adulterants or dilutants actually be mixed with a controlled substance to be considered as part of its aggregate weight. The Act sets the punishment range based upon "the amount of the controlled substance possessed ..., by aggregate weight, including any adulterants or dilutants." "Including" plainly means "mixed with". See Webster's, supra, at 1143. The Act does not suggest that adulterants or dilutants kept separate from a controlled substance can be included in the aggregate weight of the controlled substance for purposes of determining punishment. ⁹

In light of the unambiguous meanings of "adulterant" and "dilutant", the Act sets the range of punishment based upon the aggregate weight of the substance possessed, including anything which reduces its purity or concentration. This is fair notice to persons of ordinary intelligence. See Engelking v. State, 727 S.W.2d 694, 696 (Tex.App.--Houston [1st Dist.] 1987, pet. granted). Consequently, we conclude that the use of the words "adulterants" and "dilutants" in the Act does not make it unconstitutionally vague.

B

Smith's brief may also argue, albeit vaguely, that the Act violates constitutional due process and equal protection requirements by basing ranges of punishment upon aggregate weights of controlled substances that include adulterants and dilutants. In the interest of justice we address these issues as well.

Constitutional due process and equal protection both require that there be a rational basis for the punishment classifications set by the Legislature in the Act. United States ex rel. Daneff v. Henderson, 501 F.2d 1180, 1183 (2d Cir.1974). The Legislature has considerable leeway to enact laws that appear to affect similarly situated people differently. Clark v. State, 665 S.W.2d 476, 480 (Tex.Crim.App.1984).

Certainly, the Legislature could rationally conclude that possession of greater amounts of controlled substances should be punished more severely than possession of lesser amounts. The greater the amount of illicit drugs possessed, the more likely use is widespread and delivery to others is intended, and the greater the harm to society. Daneff, 501 F.2d at 1184.

The Legislature could also consider the fact that illicit drugs are generally marketed in a diluted state and punish possession of such drugs as sold, rather than in their pure state. According to the evidence of this case, cocaine sold on the street is usually only 20%-50% pure. It is not irrational to set the same range of punishment for possession of 400 grams of 30% pure cocaine and possession of 400 grams of 40% pure cocaine.

The State cannot be expected to make gradations and differentiations and draw distinctions and degrees so fine as to treat all violators with the precision of a computer.

Id.

Smith nevertheless argues that hypothetically under the Act, a person convicted of possession with intent to deliver a microscopic amount of a controlled substance mixed with 400 grams of some other material could not be sentenced to less than 15 years' imprisonment, while a person convicted of possession with intent to deliver 27 grams of the pure drug could be sentenced to as little as 5 years' imprisonment. Moreover, a person sentenced to more than 10 years' imprisonment is not eligible for probation. Tex.Code Crim.Proc. art. 42.12, §§ 3, 3a (Vernon Supp.1987). Smith argues that such a result would be highly...