“When the State alleges, but fails to prove, the codeine mixture the defendant possessed contains a sufficient proportion of another medicine to be medicinal, should he be acquitted?”
Police found Biggers in possession of “lean,” a drink containing codeine and cough syrup without a prescription. He was charged with possession of Penalty Group 4 codeine, the lowest tier. Penalty Group 4 requires a maximum concentration of codeine and that the nonnarcotic active medicinal ingredient be “in sufficient proportion” to give the mixture “valuable medicinal qualities” beyond what the codeine does. At trial, the State’s analyst testified that the mixture Biggers possessed contained both codeine and promethazine, another medicinal ingredient common in cough syrup. The analyst did not quantify their concentrations or know whether the promethazine was in sufficient proportion to make the mixture medicinal without the codeine. She assumed it did. Biggers was convicted.
On appeal, Biggers argued the evidence was insufficient to prove the concentration and proportion that Penalty Group 4 requires. The court of appeals agreed and acquitted Biggers.
The State argues that the failure to prove that the promethazine was in sufficient proportion to be medicinal does not mean Biggers is innocent; it means that he may have possessed a more potent mixture, resulting in a more serious crime. The Controlled Substance Act criminalizes all levels of codeine possession without a prescription. It makes Penalty Group 4 the lowest tier. The next tier, Penalty Group 3 codeine, requires a higher codeine concentration and that the active ingredient be at therapeutic levels. Penalty Group 1 codeine, on the other hand, is defined as codeine that is not listed in Penalty Group 3 or 4. See Tex. Health & Safety Code § 481.102(3), 481.104(a)(4), and 481.105(1). In Miles v. State, the Court of Criminal Appeals held that where the State alleges Penalty Group 1 codeine, it has the burden to negate Penalty Group 4, i.e., prove the mixture had an insufficient proportion of the other active ingredient to be medicinal. 357 S.W.3d 629 (Tex. Crim. App. 2011). The State argues, based on how the Penalty Groups for codeine are structured and defined, that even when the evidence fails to distinguish between Penalty Group 1 codeine and Penalty Group 4 codeine, the State has proven codeine possession beyond a reasonable doubt, and no more is required to sustain a conviction for the lowest tier.