holding that where jury instruction improperly expands upon the allegations in the indictment, reviewing court should dis regard expansive language in measuring sufficiency of the evidence
How later courts described this case
- holding that where jury instruction improperly expands upon the allegations in the indictment, reviewing court should dis regard expansive language in measuring sufficiency of the evidence
- detailing the history of indictment dismissals pre-Studer: "Some other defects of substance, in addition to a missing element, that were recognized prior to the 1985 amendments included failure to allege date of offense, culpable mental state, victim's name, enhancement allegations, amount of a controlled substance, and manner and means of committing the offense where it is the manner and means that renders the act criminal."
- first citing Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990); then citing State v. Oliver, 808 S.W.2d 492 , 493–94 (Tex. Crim. App. 1991) (holding that an indictment which failed to allege a culpable mental state was still an “indictment” conferring jurisdiction, and the defect was waived); and then citing Rodriguez v. State, 799 S.W.2d 301 , 302–03 (Tex. Crim. App. 1990) (same)
- addressing whether an indictment is facially incomplete and analyzing the sufficiency of the evidence in relation to that indictment
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Malik v. State, 1997 Tex. Crim. App. LEXIS 60 (1997)
887 S.W.2d 49, 57 (Tex. Crim. App. 1994), overruled on other grounds by Malik v. State, 953 S.W.2d 234, 239
The opinion
DISSENTING OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW
McCORMICK, Presiding Judge,
dissenting.
Appellant was charged with delivery of amphetamine weighing between 28 and 400 grams. The indictment did not include any language about adulterants and dilutants. However, the jurors were instructed that they could use the weight of adulterants and dilutants in calculating the weight of the controlled substance for which appellant was responsible. Appellant objected to the charge on that ground. On appeal he challenged both the correctness of the jury charge and the sufficiency of the evidence.
Viewed in the light most favorable to the verdict, the evidence at trial is summarized in the following statements. See Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). Undercover police officers purchased a quantity of amphetamine from appellant for $2,000. When buyers like the undercover officer purchase amphetamine from either wholesalers or street-level retailers, it has been cut at least once and often twice to dilute its strength and increase the quantity of the substance. The powder delivered by appellant weighed 59.32 grams, of which 31% (or 18.38 grams) was pure amphetamine. The pure powder had been “cut” with nicotinamide, another name for vitamin B-12; nicotinamide is a common cutting agent. The 59.32 grams was the total weight of the powder including any adulterants, dilutants and the amphetamine.
Relying on this Court’s decisions in Reeves v. State, 806 S.W.2d 540 (Tex.Cr.App.1990), cert. denied, 499 U.S. 984 , 111 S.Ct. 1641 , 113 L.Ed.2d 736 (1991), and Farris v. State, 811 S.W.2d 577 (Tex.Cr.App.1990), the Court of Appeals held in an unpublished opinion that the jury charge should have required the State to prove the pure amount of drugs over 28 grams. Fisher v. State, No. 02-89-269-CR (Tex.App.—Fort Worth, delivered August 6,1991). However, rather than reverse for a new trial in light of this error in the charge, the court said it was compelled by *62 Reeves and Farris to judge sufficiency against the theory that should have been submitted to the jury — a theory restricted to a pure amount of amphetamine in excess of 28 grams. The court then awarded an acquittal since the pure amphetamine weighed less than that. The Court of Appeals did not address whether the evidence would have been sufficient had the appellate court, like the jury, considered the weight of adulterants and dilutants.
In light of Reeves , the jury charge should not have included an instruction on adulterants and dilutants. The defendant was clearly entitled to a new trial since he challenged the instructions on this ground.
However, this error should not cause an acquittal. The evidence was sufficient under the instructions the jury was told to use in deciding the case, and that is the theory to which the sufficiency test of Jackson v. Virginia, supra, should be applied. Given the chemist’s testimony that the pure drug had been cut with vitamin B-12 and the undercover officer’s testimony that amphetamine was usually cut once or twice, often with vitamin B-12, to dilute the strength and increase the quantity of the powder, a rational trier of fact could easily have concluded that there was in excess of 28 grams of pure amphetamine mixed with the adulterants and dilutants.
Since the evidence was in fact sufficient to convict under the charge as submitted, the acquittal is improper. Therefore, I respectfully dissent.
WHITE, J., joins.