Anthony Carter v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
Nos. 07-18-00043-CR
ANTHONY CARTER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court
Lubbock County, Texas
Trial Court No. 2017-413-558, Honorable John J. McClendon, III, Presiding
May 14, 2019
OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Anthony 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.
Void Indictment
Though 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.
The 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.
Here, 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
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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).1 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.
Penalty 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
1 Funny that the statute defines the weight in terms of ounces and pounds (i.e., the American way
of measuring weight) while the indictment refers to grams. That is inconsequential, though, given the ability
to convert grams into ounces, and 400 or more grams equals 14 or more ounces.
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“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).
Sufficiency of the Evidence
Next, 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.
The 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
standard here.
Again, 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
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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).
Proof Chilly Willy Was a Controlled Substance
Penalty Group 2-A described in § 481.1031 encapsulates materials, compounds,
mixtures, and the like containing any quantity of natural or synthetic chemical substances
“listed by name in this subsection or contained within one of the structural classes defined
in this subsection.” TEX. HEALTH & SAFETY CODE ANN. § 481.1031(b). Subparagraph (5)
of (b) describes one such “structural class” as “any compound containing a core
component substituted at the 1-position to any extent, and substituted at the 3-position
with a link component attached to a group A component.”2 Id. § 481.1031(b). While
neither “Chilly Willy” nor “fluoro-ADB” were alluded to in § 481.1031(b)(5), the State’s
expert nonetheless described fluoro-ADB as having various ingredients within its category
of core, link, and group A components. That is, the core component found in “fluoro-ADB”
was “indazole,” according to the forensic chemist, while its link and group A components
2 The terms “core component,” “group A component,” and “link component” were and are defined
through a litany of various chemicals. See TEX. HEALTH & SAFETY CODE ANN. § 481.1031(a)(1)–(3)
(specifying the respective chemicals within each component).
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were “carboxamide” and “methoxy dimethyl oxobutane,” respectively.3 These chemicals
were found per “gas chromatography mass spectrometry,” he continued. The prosecutor
asked the forensic chemist, “So if we put all of those together . . . . We see the portions
of fluoro-ADB that are relevant to this; is that correct?” The chemist answered, “Correct.
. . . [B]ased off of those three combinations, that’s why it is able to be controlled under
the structural class with how the law is currently written.” Sadly, the chemist was not
asked to clarify the latter statement. This is of import because § 481.1031(b)(5) speaks
in terms of certain chemicals having a specific placement within the molecular structure
of an illegal compound.
That is, criminal statutes outside the Penal Code must be strictly construed. State
v. Cortez, 543 S.W.3d 198, 206 (Tex. Crim. App. 2018). Being within the Health and
Safety Code, § 481.1031(b)(5) is one such statute outside the Penal Code necessitating
strict construction. Per its terms, a compound within its scope is one “containing a core
component, [i.e., indazole], substituted at the 1-position to any extent, and substituted
at the 3-position with a link component [i.e., carboxamide] attached to a group A
component [i.e., methoxy dimethyl oxobutane].” (Emphasis added). If one is to heed the
actual wording of (b)(5), it is not enough that the chemicals are found in a compound.
That is, guilt requires more than merely utilizing a bygone means of ordering from a
Chinese menu, i.e., one item from column A and two from column B.4 Simply pulling
“indazole” from the core component column, “methoxy dimethyl oxobutane” from the
3“Indazole” is named within the statutory category of “core component,” id. § 481.1031(a)(1), while
“carboxamide” is listed as a “link component,” id. § 481.1031(a)(3), and “methoxy dimethyl oxobutane” as
a “group A component.” Id. § 481.1031(a)(2).
4 Barry Popik, “One from column A, one from column B” (Chinese menu ordering), THE BIG APPLE
(Dec. 20, 2007) https://www.barrypopik.com/index.php/new_york_city/entry/one_from_column_a_one
from_column_b_chinese_menu_ordering (discussing the origins of what became known as the “Chinese
menu” system).
6
group A column, and “carboxamide” from the link column gets the State nowhere.
Instead, each item must be located on the plate in a certain way for the ultimate “meal” to
be 非法 (i.e., illegal). To conclude otherwise would be to ignore the legislature’s wording,
and that we cannot do. So, construing the statute strictly leads us to hold that the State
must prove the respective components or chemicals were located or attached as
expressed in the statute.
Neither the forensic chemist nor any other witness expressly said that the pivotal
compounds in “fluoro-ADB” were in the “positions” or “attached” as directed by
§ 481.1031(b)(5). Instead, the expert opined that “based off of those three combinations,
that’s why [fluoro-ADB] is able to be controlled under the structural class with how the law
is currently written.” Whether this was his way of confirming that the chemicals indazole,
carboxamide, and methoxy dimethyl oxobutane had the requisite placement or
attachments is a bit unclear. Nonetheless, the standard of review obligates us to look at
all the evidence and construe it in the light most favorable to the verdict or prosecution.
See Johnson, 560 S.W.3d at 226. In abiding by that standard, we encounter where, prior
to voicing his opinion, the expert described how the legislature had recently changed the
law in attempting to criminalize synthetic marijuana. While doing so, he uttered several
informative statements. They were as follows: 1) “[O]ne of the recent additions to the law
is instead of listing each substance by name, we now actually classify a synthetic
compound by the structure”; 2) “[T]here are a whole bunch of different combinations
of structures, and depending on what kinds of groups create that molecule, it’s
classified by different subsections in the law”; 3) Fluoro-ADB fell within structural class
§ 481.1031(b)(5); 4) “From a chemist’s perspective, really, and as a forensic chemist,
we’re looking at how the structure relates to the law”; 5) “[S]o we are looking at different
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parts of the compound to see if it falls within that particular subsection” of the statute; 6)
“[S]ince we are looking at the structural class, now we are actually looking at the
structure itself and seeing if that falls within a particular combination of groups”; 7) “I
do know structurally [fluoro-ADB] is under the 2-A”; 8) The law “classifies three different
parts of the molecule”; 8) from “a forensic aspect, I can at least tell you that [fluoro-ADB
is] the indazole ring group, and then also I have tried to make it easier on all of us by
showing how the indazole actually fits in with the structure”; and 9) “[B]ased off of those
three combinations [of indazole, methoxy dimethyl oxobutane, and carboxamide], that’s
why it is able to be controlled under the structural class with how the law is currently
written.” (Emphasis added). To that we add his answer of “Correct” when asked, “And
that’s what makes a compound, the place where the molecules are stuck, correct?” and
his statement that “but it’s where the fluorine is actually attached to a particular carbon”
when asked whether a different form of fluoro-ADB would be a controlled substance under
§ 481.1031(b)(5). (Emphasis added).
Finally, the tenor of the defense counsel’s own argument and questions shed some
light. During his cross-examination of the expert, he was attempting to point out that lay
people would be unable to know if a compound he had was controlled under
§ 481.1031(b)(5). In doing so, he uttered, “Well, if I don’t know that I’m charged with 5-
fluoro ADB-PINACA, I can’t go and look and see in the statute and go, ‘Wait a minute,
that NH2 component,’ and I guess it’s the first position, or whatever . . . .” (Emphasis
added). Admittedly, his comments were and are not competent evidence. Yet, they,
along with the expert’s testimony we cited, illustrate context. That context describes
ongoing discussion about molecular structures of compounds within § 481.1031(b)(5)
and the positioning of particular chemicals within that structure. In the expert so
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describing about molecules, structural classes, structures, the structural class described
in § 481.1031(b)(5), and the core, link, and group A components of fluoro-ADB, a rational
fact-finder could reasonably interpret his ultimate opinion about why fluoro-ADB “is able
to be controlled under the structural class with how the law is currently written” as meaning
the core, link, and group A components at bar were in the positions and had the
attachments required by § 481.1031(b)(5).
Simply put, we reached the end despite the length of the route taken and the fog
covering its path. The State presented sufficient evidence to permit the jury to rationally
conclude, beyond reasonable doubt, that fluoro-ADB was a controlled substance within
the scope of § 481.103(b)(5).
Proof of Mens Rea
Next, we turn to the sufficiency of the evidence purporting to establish that
appellant knowingly sold the substance controlled under § 481.1031(b)(5). In questioning
the tenor of the State’s proof here, appellant alludes to the United States Supreme Court
opinion in McFadden v. United States, __ U.S.__, 135 S. Ct. 2298, 192 L. Ed. 2d 260
(2015), and its discussion of how to prove culpability under a comparable federal statute.
The court observed that the “knowledge requirement” may be satisfied in either of two
ways. McFadden, 135 S. Ct. at 2304. The prosecutor may show “the defendant” 1) knew
“he possessed a substance listed on the schedules, even if he did not know which
substance it was” or 2) knew “the identity of the substance he possessed.” Id. An
example of the former would include, according to the Court, “a defendant whose role in
a larger drug organization is to distribute a white powder to customers. The defendant
may know that the white powder is listed on the schedules even if he does not know
precisely what substance it is.” Id. We apply this mode here, at appellant’s invitation.
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The seizure culminating in appellant’s prosecution occurred around May 1, 2017.
About four months earlier, in January of 2017, law enforcement officers had executed a
search warrant upon one of appellant’s stores. Packets being sold there and having
names such as “Chilly Willy,” “Ripped,” “Mary Jane,” and “Brain Freeze” were confiscated.
More importantly, an officer assisting in the search and seizure informed appellant at that
time that “the synthetic that he was selling was illegal to sell.” Yet, he continued to sell
them over the ensuing months.
Additionally, on the face of some packets were images depicting what one could
interpret as the potential effects of ingesting their contents. For instance, the “Chilly Willy”
packet carried a person with long hair, sunglasses, and medallions sitting crossed-legged,
with two fingers up in the form of a peace sign and smoking a self-rolled cigarette.5 The
5
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words “chronic hypnotic” could be read next to the sitting gentleman. Much like a picture
painting 1000 words, the visage could be viewed as suggesting that one who consumed
the product would be “chilled-out” in a manner purportedly resulting from smoking
marijuana.
Another packet, “Ripped,” had an image of a banana with legs, hands, face, a
wide-opened, smiling mouth, and bulging eyes.6 Those eyes just happened to be
bloodshot. So too were the banana’s hands raised upward. Viewing the depiction as a
whole evinces an object engaged in a highly animated state of being. And, of course,
there was the packet labelled “Mary Jane.” The Spanish translation for that name
happened to be “Maria Juana” or, in its abbreviated version, “marijuana.”7
6
7 Along with these packets, the officers also found actual marijuana.
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In short, appellant was told of the illegal nature of the substances. Furthermore,
those substances were packaged in a way that suggested their purposes and effects.
That data was more than some evidence allowing a rational jury to conclude, beyond
reasonable doubt, that appellant knew “Chilly Willy” was a synthetic substance the
legislature intended to outlaw under Penalty Group 2-A. He may not have known the
specific compounds it contained and which were within Penalty Group 2-A, but per
McFadden, that knowledge is unnecessary. The evidence was enough to prove he
possessed a substance listed on the schedules, even if he did not know which substance
it was. We overrule appellant’s issue.
Expert Witness
Next, we address appellant’s issue regarding whether the trial court erred in
allowing the State’s forensic chemist to testify about the fluoro-ADB being a controlled
substance. Allegedly, he “was not qualified to testify about synthetic substances” since
he “had virtually no formal education, experience, or training on synthetic substances.”
So, allegedly, the “trial court abused its discretion when it certified him as an expert.” We
overrule the issue.
A trial court’s decision concerning whether a witness is qualified to voice an expert
opinion is reviewed under the standard of abused discretion. Wolfe v. State, 509 S.W.3d
325, 335 (Tex. Crim. App. 2017). That standard bars us from interfering with the decision
if it falls within the zone of reasonable disagreement. Id.
Next, qualifying a witness as an expert normally implicates a two-step procedure.
Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). First, it must be shown that
the witness has a sufficient background in a particular field, which background
encompasses the matter on which the witness is to give an opinion. Id. (quoting Broders
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v. Heise, 924 S.W.2d 148 (Tex. 1996)). The second step gauges the relationship between
the subject matter at issue and the expert’s familiarity with it; that is, it must be shown that
the expert’s background is “tailored to the specific area of expertise in which the expert
desires to testify.” Id. at 133.
Here, appellant attacked the expert’s qualification due to a lack of “formal
academic instruction, on-the-job training, or experience with synthetic substances” and
the witness’s unfamiliarity with how to “create” or make the fluoro-ADB or other synthetic
controlled substances. Yet, the topic on which the chemist was asked to speak was not
how those who engaged in the drug trade made their drugs. How synthetic drugs were
made actually had little to do with the burden being addressed by the State. Indeed, the
manner by which appellant attempts to attack the expert brings to mind a scene from “The
Big Bang Theory.”
Leonard’s car is about to break down. He asks his highly educated scientist friends
riding with him if “anybody [knew] anything about the internal combustion engine.” Having
doctorates in physics and astrophysics or master’s in engineering, they responded with,
“Of course,” “Very basic,” and “[It’s] 19th-century technology.” When asked whether
“anybody [knew] how to fix an internal combustion engine,” the replies were “No” and “No,
not a clue.”8 The relevant topic there was how to fix a car engine, not the physics behind
or design of an internal combustion engine.
Here, we do not deal with a car motor but, rather, § 481.1031(b)(5). To meet its
requirements, the State was obligated to prove that the synthetic drug in question
consisted of certain chemicals and those chemicals held certain molecular positions
8 The Big Bang Theory - Combustion Engine, YOUTUBE, https://youtu.be/i9en6AcVkBo (last visited
May 7, 2019).
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within the compound they composed. In other words, the pertinent subject matter
concerned the molecular structure of the synthetic, the chemicals comprising that
structure, and their locations within the molecule in relation to each other. So, whether
the witness knew how to make the drug in question was really unimportant. Instead, the
witness had to be skilled or trained in the fields of identifying the chemical composition of
substances and the molecular structures of the chemicals identified therein. The witness
utilized by the State to do that had a bachelor’s degree in forensic chemistry and
criminalistics, a master’s degree in forensic science, and four months of intensive training
with the Department of Public Safety in “controlled substance analysis.” In short, he was
a forensic chemist who conducted controlled substance and blood alcohol analysis. As
such, one of his primary duties was “tak[ing] unknown substances and figur[ing] out what
they [were],” that is, identifying the chemical composition of substances. He apparently
worked in that field with the Department of Public Safety for about four years and testified
on the topics of blood and controlled substance analysis about 20 times. So too had he
conducted “thousands of testing[s] for all sorts of different drugs.” Whether the
substances undergoing analysis were synthetically created mattered little because the
manner in which they were tested differed little from the analysis of non-synthetic
controlled substances. As he testified, “it’s just like any other drug”: “[W]hen it comes to
detecting a drug, it’s the same whether it’s meth, cocaine, heroin, any other drug.” More
importantly, appellant has cited us to nothing that suggests the analysis is different.
Just as Leonard may have needed someone who knew how to take apart and fix
a carburetor, the State needed someone who could take apart a drug and determine its
chemical composition, irrespective of whether the drug was naturally occurring or cooked
up by a human being. And, the foregoing evidence about the education, training, and
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experience of the forensic chemist under attack illustrated that he had the requisite
capability to undertake the job assigned him. At the very least, the trial court’s
determination that he had such training and skill in the relevant topic was not outside the
zone of reasonable disagreement.
Excessive Sentence
Through his final issue, appellant asserts that “[s]entencing [him] to ninety years in
prison for this offense [was] excessive, cruel, and unusual, in violation of the Eighth
Amendment of the United States Constitution.” As we recently reiterated in Anderson v.
State, No. 07-17-00421-CR, 2019 Tex. App. LEXIS 2261, at *10 (Tex. App.—Amarillo
Mar. 22, 2019, pet. filed) (mem. op., not designated for publication), a complaint about
punishment being excessive or cruel and unusual must be preserved for review. That is
normally done by a defendant complaining of the sentence when pronounced at trial or,
if there was no opportunity to object, complaining through a motion for new trial. Id. at
*10–11. The record before us discloses that appellant did neither. Consequently,
whether his sentence was unconstitutionally excessive or cruel and unusual was not
preserved for review, and the issue is overruled.
We affirm the trial court’s judgment. So too do we deny, as moot, appellant’s
motion to strike from the appellate record a molecular diagram of fluoro-ADB used as
demonstrative evidence at trial; whether it could or could not be considered in assessing
the sufficiency of the evidence was a matter that we found irrelevant to the disposition of
the appeal.
Brian Quinn
Chief Justice
Publish.
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