Close Menu

Court Of Criminal Appeals Tosses Drug Conviction Due To State’s Botching Of The Evidence

Jackson & Pearland Lawyer > Blog > Drug Crime > Court Of Criminal Appeals Tosses Drug Conviction Due To State’s Botching Of The Evidence

Court Of Criminal Appeals Tosses Drug Conviction Due To State’s Botching Of The Evidence


Texas has very complex drug laws. Basically, state law divides all controlled substances into different penalty groups. Penalty Group 1 is the most serious group and results in longer sentences than substances in the lower groups.

On top of that, a given substance may fall within a different penalty group based on its use or concentration. For example, when codeine–a common opiate–is mixed with nonnarcotic ingredients in certain concentrations, it is classified as either a Penalty Group 3 or Penalty Group 4 controlled substance. But any other use of codeine is considered Penalty Group 1.

Prosecutors Failed to Prove How Much Codeine was Present in “Purple-like Substance”

If this sounds confusing to you, it has also proved challenging for the courts. The Texas Court of Criminal Appeals (CCA) recently offered some clarification. In Biggers v. State, a police informant was sent to purchase some methamphetamine from the defendant. When the police later detained the defendant, they found a “Sprite bottle with a white Styrofoam cup,” both of which were filled with a “purple-type substance.”

The defendant admitted to police that the substance was a mixture of soda and codeine. Prosecutors later charged the defendant with possession of a Penalty Group 4 controlled substance. This refers to a mixture that contains no more than 200 milligrams of codeine per 100 grams (or 100 milliliters) and also contains an active “non-narcotic” ingredient with “valuable medicinal quantities,” other than those provided by the codeine.

At trial, the prosecution called a chemist to testify as to the specific nature of the substance found in the bottle and the Styrofoam cup. The chemist said both items likely contained cough syrup and contained “an unspecified amount of codeine and promethazine,” the latter of which is a non-narcotic ingredient with medicinal properties. The chemist admitted, however, that she was never asked to quantify the precise concentration amounts of either.

A jury convicted the defendant of possession of a Penalty Group 4 controlled substance. The CCA ordered an acquittal, however, holding that the prosecution failed to prove the exact concentration of codeine and that the presence of the promethazine was not sufficient to “convey on the mixture valuable medicinal qualities other than those possessed by the codeine alone.”

The prosecution tried to argue that even if the evidence failed to support a conviction for possession of a Penalty Group 4 controlled substance, it did support finding the defendant guilty of the more serious offense of possessing a Penalty Group 1 substance. How so? As noted above, Penalty Group 1 includes any use of codeine not covered by either Penalty Groups 3 or 4.

The CCA did not buy this reasoning. While acknowledging the statutes were “confusing” on this point, the Court said a Penalty Group 1 conviction required proof “beyond a reasonable doubt” that the codeine did not fall within Penalty Groups 3 or 4. The prosecution failed to prove that. More to the point, the prosecution’s failure to order proper chemical testing made it impossible for the jury to conclude which penalty group the substance found in the defendant’s possession belonged to. The CCA said it would not reward the state for its botching of this prosecution.

Contact Texas Criminal Defense Attorney Keith B. French Today

Drug cases often fall apart because the prosecution fails to prove some critical element of their case. This is why it is crucial to work with an experienced Pearland drug crimes lawyer. Contact the offices of Keith B. French Law, PLLC, today to schedule a free consultation with a member of our criminal defense team.


Facebook Twitter LinkedIn

© 2021 - 2024 Keith B. French Law, PLLC. All rights reserved.
Powered by Matador Solutions