Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 137th District Court Lubbock County, Texas
Trial Court No. 2017-413-558, Honorable John J. McClendon,
QUINN, C.J., and PIRTLE and PARKER, JJ.
Quinn Chief Justice
Carter (appellant) appeals his conviction for possessing a
controlled substance with intent to deliver and his 90-year
prison sentence. He operated several smoke shops from which
he sold, among other products, an item called "Chilly
Willy" which contained the compound fluoro-ADB. Though
fluoro-ADB was not expressly named as a controlled substance
by Texas statute, several components of it allegedly were
within Penalty Group 2-A of § 481.1031(b) of the Texas
Health and Safety Code. Four issues pend for our review.
After considering each, we affirm.
not the first issue mentioned by appellant, we address it
first. He contends that the indictment was void because it
did not allege an offense. It purportedly failed to allege an
offense because, through it, the State accused "Anthony
Carter" of "knowingly possess[ing], with intent to
deliver, 'Chilly Willy; 2g Chronic Hypnotic' which
contains a compound controlled in Penalty Group 2-A, Chapter
481.1031(b)(5) of the Texas Health and Safety Code, to wit:
fluoro-ADB, by aggregate weight including adulterants and
dilutants 400 grams or more." As previously mentioned,
fluoro-ADB was not expressly named as a controlled substance
in that statutory provision. Because it was not, appellant
believed the indictment failed to vest the trial court with
subject-matter jurisdiction, which rendered the conviction
void. We overrule the issue.
sufficiency of an indictment is a question of law. State
v. Zuniga, 512 S.W.3d 902, 906 (Tex. Crim. App. 2017).
Additionally, whether a charging instrument is sufficient and
avers an offense depends on whether the statements therein
"are clear enough that one can identify the offense
alleged." Teal v. State, 230 S.W.3d 172, 180
(Tex. Crim. App. 2007). In other words, we must assess if
"the trial court (and appellate courts who gives
deference to the trial court's assessment) and the
defendant [can] identify what penal code provision is alleged
and [whether] that . . . provision [is] one that vests
jurisdiction in the trial court." Id. If the
answer is yes, then the indictment is sufficient to vest the
trial court with subject-matter jurisdiction. Id. If
not, then the conviction is void for want of jurisdiction.
the indictment identified 1) the name of the accused and 2)
the crime or offense of which he was accused. The former was
"Anthony Carter," our appellant. The latter was
"knowingly possess[ing]" 400 or more grams of a
"compound controlled in Penalty Group 2-A [of] Chapter
481.1031(b)(5) of the Texas Health and Safety Code."
Furthermore, possessing a controlled substance within that
penalty group in a quantity having an aggregate weight of 400
or more grams was and is a felony. See Tex. Health
& Safety Code Ann. § 481.1161 (b)(3) (West 2017)
(stating that the offense is a state jail felony if the
amount is, by aggregate weight, including adulterants and
dilutants, five pounds or less but more than four
ounces). Appellant being identified as the accused
and being told of the criminal statute he violated satisfied
the requirements of Zuniga. So, the indictment was
sufficient to vest the district court with subject-matter
jurisdiction over the proceeding. See Kirkpatrick v.
State, 279 S.W.3d 324, 329 (Tex. Crim. App. 2009)
(finding that the indictment sufficiently alleged an offense
within the district court's jurisdiction because it was
returned in a felony court and on its face disclosed the name
of the offense and the penal code provision assigned it).
And, that the indictment failed to mention the particular
compound or chemical within the litany of compounds and
chemicals itemized within § 481.1031 (b)(5) does not
alter our decision.
Group 2-A encompasses "materials, compounds, mixtures,
or preparations" containing certain specified natural or
synthetic chemical substances listed within § 481.1031
(b). See Tex. Health & Safety Code Ann. §
481.1031 (b)(1)-(8) (West Supp. 2018) (naming the natural or
synthetic chemical substances comprising the materials,
compounds, mixtures, or preparations). If appellant were
confused about or questioned whether "fluoro-ADB"
or the chemicals comprising it fell within the category of
prohibited materials, compounds, mixtures, or preparations,
he could and should have objected to the indictment before
trial. See Kirkpatrick, 279 S.W.3d at 329 (stating
that "if [Kirkpatrick] had confusion about whether the
State did, or intended to, charge her with a felony, she
could have, and should have, objected to the defective
indictment before the date of trial"). Because appellant
did not do so, he waived his complaint. See Herrera v.
State, No. 06-18-00111-CR, 2019 Tex.App. LEXIS 3018, at
*2-3 (Tex. App.- Texarkana Apr. 15, 2019, no pet. h.) (mem.
op., not designated for publication) (so holding when
addressing a similar contention also involving fluoro-ADB).
of the Evidence
appellant questions the sufficiency of the evidence
underlying his conviction. His attack is directed at whether
the State proved 1) he knowingly sold a controlled substance
listed in § 481.1031(b)(5) and 2) the substance he was
convicted of possessing fell within that provision. We
overrule both issues.
pertinent standard of review is explained in Johnson v.
State, 560 S.W.3d 224, 226 (Tex. Crim. App. 2018). We
refer the parties to that opinion and forgo reiterating the
the controlled substance appellant allegedly possessed fell
within § 481.1031(b)(5) of Penalty Group 2-A of the
Texas Health and Safety Code. Per § 481.113 of the same
Code, a person commits an offense if he "knowingly
manufactures, delivers, or possesses with intent to deliver a
controlled substance listed in . . . Penalty Group . . .
2-A." Tex. Health & Safety Code Ann. §
481.113(a) (West 2017). Therefore, securing a conviction
under that statute obligated the State to prove not only that
the substance in question was within § 481.1031(b)(5)
but also that the accused (appellant) knew it was a substance
within that provision. See White v. State, 509
S.W.3d 307, 309 (Tex. Crim. App. 2017) (involving a Penalty
Group 1 controlled substance and stating that "[t]his is
a nature-of-conduct offense, and the statute expressly
assigns culpable mental states to the nature of the conduct:
A defendant must be aware that he is delivering a Penalty
Group 1 substance to be guilty"); Blackman v.
State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011)
(stating that to prove "the
unlawful-possession-of-a-controlled-substance element of the
charged offense in this case, the State was required to prove
that: 1) appellant exercised control, management, or care
over the three kilograms of cocaine; and 2) appellant knew
that this was cocaine"). We first address if the State
proved that the item possessed by appellant was a controlled
substance under § 481.1031(b)(5).
Chilly Willy Was a ...