           TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-02-00354-CR


                                 Jack Elwood Hooper, Appellant

                                                 v.

                                  The State of Texas, Appellee



        FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
          NO. CR-2001-620, HONORABLE JACK H. ROBISON, JUDGE PRESIDING1



                                          OPINION


               Appellant Jack Elwood Hooper appeals his conviction for possession of a controlled-

substance analogue of more than four hundred grams. See Tex. Health & Safety Code Ann.

' 481.123(b)(2) (West Supp. 2003). In a bench trial, the trial court found appellant guilty of the

offense charged. Appellant Aentered a plea of true@ to the enhancement paragraph of the indictment

alleging a prior felony theft conviction. The trial court assessed appellant=s punishment at fifteen

years= imprisonment. We will affirm the trial court=s judgment.




       1
          The judgment of conviction was signed by Judge Gary Steele, but Judge Jack H. Robison
presided at appellant=s trial.
                                             BACKGROUND

                  Appellant was originally indicted for this offense on March 2, 1995. The first count of

the original indictment alleged that on or about November 17, 1994, appellant:


        knowingly and intentionally possess[ed] a controlled substance analogue, namely,
        dextromethorphan and ephedrine, a substance which is intended in whole or in part for
        human consumption and which is specifically designed to produce an effect substantially
        similar to or greater than the effect of the controlled substance, to wit: 3, 4 methylenedioxy
        methamphetamine in an amount of aggregate weight, including any adulterants and dilutants,
        of more than four hundred grams.


The primary offense was prosecuted under the provisions of section 481.123(b)(2) of the health and safety

code, which were in effect in 1994. See Act of May 18, 1989, 71st Leg., R.S., ch. 678, ' 1, 1989 Tex.

Gen. Laws 2230, 2940 (Tex. Health & Safety Code Ann. ' 481.123(b)(2)).2 On December 5, 2001,

appellant was reindicted while the original 1995 indictment was pending. The reindictment contained a

tolling paragraph alleging that appellant had been indicted on March 2, 1995, for the same offense and that



        2
            The indictment tracks the language of section 481.123(b)(2), which provides:

            (b) For the purposes of this chapter, a controlled substance analogue is considered to
                be a controlled substance listed in Penalty Group 2 if the analogue in whole or in
                part is intended for human consumption and:

                 ....

                 (2) the analogue is specifically designed to produce an effect substantially similar
                     to or greater than the effect of a controlled substance listed in Schedule II or
                     Penalty Group 2.

Tex. Health & Safety Code Ann. ' 481.123(b)(2) (West Supp. 2003).


                                                       2
indictment was pending when the reindictment was returned. The third paragraph of the reindictment

alleged a prior felony theft conviction on September 26, 1991, for enhancement of punishment.




                                                  3
                On May 7, 2002, appellant waived trial by jury and entered a plea of Anot guilty@ to the

primary offense, the only count in the reindictment. Appellant entered pleas of Atrue@ to the tolling

paragraph and to the allegations in the enhancement paragraph. The evidence was presented in the form of

affidavits and stipulations after appellant waived the appearance, confrontation, and cross-examination of

witnesses. In a sworn stipulation, appellant admitted that on November 17, 1994, he knowingly and

intentionally possessed dextromethorphan and ephedrine in an amount of more than four hundred grams.

Appellant also stipulated to the admission of the State=s exhibits. Among the exhibits offered were the

offense report, and news articles from the Associated Press [printed in the Corpus Christi-Caller-Times]

and the Dallas Morning News concerning the increasing use by young people of high doses of

dextromethorphan, a noncontrolled substance, which can produce the effects of the controlled substance

known as Aecstacy.@ Department of Public Safety Chemist Joel Budge stated in his affidavit that the 930

tablets submitted to him were dextromethorphan and ephedrine and were similar in appearance and

designed to produce an effect that was substantially similar to 3, 4 methylenedioxy methamphetamine, which

is ecstasy, and were intended for human consumption. Dr. William Watson, of the University of Texas

Health Science Center at San Antonio, described in his affidavit that the effects on the human body of a

combination of dextromethorphan and ephedrine would be indistinguishable from the effect of ecstasy.

Pharmacist David Zatopek detailed in his affidavit the effects of high doses of dextromethorphan and

ephedrine, and that together they were being abused for their side effects. Hays County Narcotic Task

Force Sergeant Chase Stapp swore in his affidavit that, based upon his experience, dextromethorphan and

ephedrine are packaged together and sold by drug dealers as ecstasy.

                                                    4
               Appellant offered the affidavit of Max Courtney, a forensic chemist, who stated that

dextromethorphan and ephedrine were non-controlled substances and sold to the public over the counter

and often used as a cough suppressant. We observe that 3, 4 methylenedioxy methamphetamine (ecstasy)

was a controlled substance listed in Penalty Group 2 at the time of the charged offense. See Act of May

18, 1989, 71st Leg., R.S., ch. 678, ' 1, 1989 Tex. Gen. Laws 2230, 2928-29 (Tex. Health & Safety

Code Ann. ' 481.103(1), since amended).


                                           DISCUSSION




                                                  5
                Under ABrief of the Argument,@ appellant presents his single point of error as follows: AThe

Statute making it an offense to possess a chemical analogue >specifically designed to produce an effect

substantially similar to a controlled substance= is vague as applied to appellant.@ (Emphasis added.)

However, our review of the record reveals that appellant failed to raise the Aas applied@ issue at the trial

court in any manner. The question first presented is whether appellant=s contention was preserved for

review. See Tex. R. App. P. 33.1(a)(1). As a general rule, trial counsel must object or otherwise preserve

error, even if it is Aincurable@ or Aconstitutional.@ Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App.

1996). Without proper preservation, even constitutional error may be waived. See Wright v. State, 28

S.W.3d 526, 536 (Tex. Crim. App. 2000). Questions, however, about the facial constitutionality of a

statute upon which a defendant=s conviction is based should be addressed even when such issues are raised

for the first time on appeal. See Holberg v. State, 38 S.W.3d 137, 139 n.7 (Tex. Crim. App. 2000);

Rabb v. State, 730 S.W.2d 751, 752 (Tex. Crim. App. 1987); Bryant v. State, 47 S.W.3d 80, 84 (Tex.

App.CWaco 2001, pet. ref=d); 43A George E. Dix & Robert O. Dawson, Texas Practice: Criminal

Practice and Procedure ' 42.253 (2d ed. 2001).

                By contrast, a contention that a statute is unconstitutional as applied to an accused

because of vagueness and uncertainty must be asserted in the trial court or it is waived. See Curry v. State,

910 S.W.2d 490, 496 n.2 (Tex. Crim. App. 1995); Garcia v. State, 887 S.W.2d 846, 861 (Tex. Crim.

App. 1994); State v. West, 20 S.W.3d 867, 873 (Tex. App.CDallas 2000, pet. ref=d); Sullivan v. State,

986 S.W.2d 708, 711 (Tex. App.CDallas 1999, no pet.). In McGowan v. State, the rationale underlying

the foregoing rules was explained. 938 S.W.2d 732, 736 (Tex. App.CHouston [14th Dist.] 1996), aff=d


                                                     6
on other grounds, 975 S.W.2d 621 (Tex. Crim. App. 1998). The McGowan holding has been analyzed

in detail:


               In McGowan v. State, the Fourteenth Court of Appeals concluded that the rationale
         for the basic rule is that an unconstitutional statute affects the jurisdiction or power of the
         courts to render a criminal judgment against the accused, and the lack of this jurisdiction or
         power can be raised at any time. Thus, McGowan reasoned, the rule should be applied
         only to those constitutional challenges that contest the power of the trial court to enter and
         enforce a judgment. A Afacial challenge@ contests this power; a challenge to the statute as
         applied does not, although it raises a possible Adefense@ to conviction pursuant to this
         power. Invoking the categorization of rights in Marin v. State, [851 S.W.2d 275 (Tex.
         Crim. App.1993)], the court reasoned that the right not to be convicted of a Penal Code
         provision vague and overbroad as applied to the facts of the case is a right subject to
         forfeiture by failure to assert it. Thus failure to raise the issue in the trial court means it is not
         preserved for appellate consideration.


43A George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure ' 42.254

(2d ed. 2001); see also McGowan, 938 S.W.2d at 739-41 (op. on reh=g); accord Bader v. State, 15

S.W.3d 599, 603 (Tex. App.CAustin 2000, pet. ref=d); Medina v. State, 986 S.W.2d 733, 735-36 (Tex.

App.CAmarillo 1999, pet. ref=d).

                  Because appellant failed to raise the Aas applied@ issue in the trial court in any fashion, he

has waived any right to review on his point of error to the extent that he challenges the validity of section

481.123(b)(2) solely as applied to him. Furthermore, even had appellant not waived his Aas applied@

contention, he has failed to show that in its operation the statute is unconstitutionally vague as applied to him;

that it may be unconstitutional as to others is not sufficient. Bynum v. State, 767 S.W.2d 764, 774 (Tex.

Crim. App. 1989); Vuong v. State, 830 S.W.2d 929, 941 (Tex. Crim. App. 1992).




                                                           7
                Appellant=s point of error expressly challenges the constitutionality of the statute as applied,

but he did not preserve error. However, in the argument of his brief, appellant cites four cases for general

propositions of law dealing with a Afacial@ challenge to the constitutionality of a statute on the basis of

vagueness. It is obvious that appellant must have reference to that portion of the statute under which

he was convicted, which qualifies a substance analogue as a controlled substance if the analogue is

intended for human consumption and Athe analogue is specifically designed to produce an effect

substantially similar to or greater than the effect of a controlled substance listed in Schedule II or

Penalty Group 2.@ Tex. Health & Safety Code Ann. ' 481.123 (b)(2). Appellant urges that section

481.123(b)(2) is unconstitutionally vague because the statute does not define the words Adesigned@ and

Aeffect.@ Appellant does not tell us of which constitutional provision this statute runs afoul. Because

appellant does not cite any state constitutional provision or claim any greater protection under the

Texas constitution, we presume that appellant only relies on the due process clause of the Fourteenth

Amendment to the United States Constitution. Under the circumstances, we believe it appropriate to

address the Afacial@ challenge to the statute, a claim not required to be raised in the trial court below. See

Rabb, 730 S.W.2d at 752.

                When reviewing the constitutionality of a statute, we presume that the statute is valid and the

legislature has not acted unreasonably or arbitrarily in enacting the statute. Ex parte Granviel, 561

S.W.2d 503, 511 (Tex. Crim. App. 1978); Ex parte Anderson, 902 S.W.2d 695, 698 (Tex.

App.CAustin 1995, pet. ref=d). The burden rests upon the individual challenging the statute to establish its

unconstitutionality. Cotten v. State, 686 S.W.2d 140, 145 (Tex. Crim. App. 1985); Granviel, 561



                                                      8
S.W.2d at 511. This Court must uphold a statute if a reasonable construction can be ascertained which will

render the statute constitutional and carry out the legislative intent. Ely v. State, 582 S.W.2d 416, 419

(Tex. Crim. App. 1979).

                As argued in his brief, appellant seems to challenge the statute as being unconstitutionally

vague on its face.3 Such a challenge will be sustained only if the statute is impermissibly vague in all its

applications. Briggs v. State, 740 S.W.2d 803, 806 (Tex. Crim. App. 1987). A facial challenge to the

constitutionality of a statute imposes a heavy burden because the challenger must establish that no set of

circumstances exists under which the act would be valid. Briggs v. State, 789 S.W.2d 918, 923 (Tex.

Crim. App. 1990); Anderson, 902 S.W.2d at 699.

                In examining a criminal statute for vagueness, the Court considers two factors. First, the

statute must give a person of ordinary intelligence a reasonable opportunity to know an act is prohibited.

See Kolender v. Lawson, 461 U.S. 352, 357 (1983); Grayned v. Rockford, 408 U.S. 104, 108 (1972);

State v. Edmond, 933 S.W.2d 120, 125 (Tex. Crim. App. 1996); Long v. State, 931 S.W.2d 285, 287

(Tex. Crim. App. 1996); State v. Wofford, 34 S.W.3d 671, 678-79 (Tex. App.CAustin 2000, no pet.).

A statutory provision, however, need not be mathematically precise: it need only give fair warning in light of

common understanding and practices. Grayned, 408 U.S. at 110. Second, the statute in question must



        3
        There is no claim of impermissible Aoverbreadth@ or that appellant=s rights under the First
Amendment to the United States Constitution are involved. See Bynum v. State, 767 S.W.2d 769,
712 (Tex. Crim. App. 1989).




                                                      9
provide sufficient notice to law-enforcement personnel to prevent arbitrary or discriminatory enforcement.

Id. at 108-09; Papachristoee v. City of Jacksonville, 405 U.S. 156, 162 (1972). AStatutes without

identifiable standards allow policemen, prosecutors, and juries to pursue their personal predilections.@

Smith v. Gogven, 415 U.S. 566, 575 (1974).

                As noted, appellant urges that the failure to define the words Adesigned@ and Aeffect@

renders section 481.123(b)(2) unconstitutionally vague. A statute, however, is not unconstitutionally vague

merely because it fails to define words or phrases. Engelking v. State, 750 S.W.2d 213, 215 (Tex. Crim.

App. 1988); Ahearn v. State, 588 S.W.2d 327, 338 (Tex. Crim. App. 1979). When words are not

defined in a statute, they are ordinarily given their plain meaning unless the statute clearly shows that they

were used in some other sense. Daniels v. State, 754 S.W.2d 214, 219 (Tex. Crim. App. 1988); Ely,

582 S.W.2d at 419. Words defined in dictionaries with meanings so well known as to be understood by a

person of ordinary intelligence have been held not to be vague and indefinite. Floyd v. State, 575 S.W.2d

21, 23 (Tex. Crim. App. 1978); Anderson, 902 S.W.2d at 700. Statutory words are to be read in context

and construed according to the rules of grammar and common usage. Tex. Gov=t Code Ann. ' 311.011(a)

(West 1988).

                Common definitions of the word Adesign@ include A[t]o conceive; invent; contrive; . . . [t]o

have as a goal or purpose; intent.@ The American Heritage Dictionary of the English Language 357

(William Morris ed., 1973). ADesign@ is synonymous with Aintend,@ Apurpose,@ or Acontemplate.@

Webster=s Third New International Dictionary 611 (Philip Babcock Gove ed., 1986). The word has

also been defined as Aa deliberate undercover project or scheme entertained with discreditable or hostile or


                                                     10
often dishonest, treacherous, sinister, or seductive intent.@ Id. Black=s Law Dictionary defines Adesign@

simply as A[a] plan or scheme@ or A[p]urpose or intention combined with a plan.@ Black=s Law Dictionary

457 (7th ed. 1999). The word Aeffect@ has been defined as A[s]omething brought about by a cause or

agent; result@ and A[t]he way in which something acts upon or influences an object: the effect of a drug on

the nervous system.@ The American Heritage Dictionary of the English Language 415 (William

Morris ed., 1973) (emphasis in original). AEffect@ is also defined as Athat which is produced by an agent or

cause; a result, outcome, or consequence.@ Black=s Law Dictionary 532 (7th ed. 1999).

                 The statute does not clearly show that the words Adesigned@ and Aeffect@ were used in a

sense different from their plain meaning; rather, these words are so well known that, in the context of the

statute, it would be difficult to attribute any other meaning to them. The use of the word Adesigned@ is

precise because, under section 481.123(b)(2), a controlled substance analogue is a drug that does not

naturally occur and therefore must be an agent purposefully created to cause a particular result or Aeffect@

upon consumption. Further, the use of the word Aeffect@ is precise because the statute determines the

particular Aeffect@ to be Asubstantially similar to, or greater than@ that Aof a controlled substance listed in

Schedule II or Penalty Group 2.@ Tex. Health & Safety Code Ann. ' 481.123(b)(2). Given these

common, plain definitions of Adesign@ and Aeffect,@ and given that the statute targets a specific induced

Aeffect,@ we cannot say that the statute fails to give a person of ordinary intelligence a reasonable

opportunity to know what is prohibited. Floyd, 575 S.W.2d at 23. Furthermore, the statute establishes

determinate guidelines for law enforcement. Grayned, 408 U.S. at 108-09. We therefore hold that the




                                                      11
failure to statutorily define Adesigned@ and Aeffect@ in section 481.123(b)(2) does not render that portion of

the controlled substance analogue statute unconstitutionally vague on its face.

                 Appellant further expresses a disdain for controlled substance analogue statutes, and

complains that the Texas statute in question is not like its federal statutory counterpart which is clearer and

more precise. The fact that a state statute does not correspond with its federal counterpart does not render

it unconstitutionally vague. A mere determination that a statute is confusing or difficult to understand is

insufficient to render it unconstitutional. Dahl v. State, 707 S.W.2d 694, 700 (Tex. App.CAustin 1986,

pet. ref=d). A statute is not vague merely because it is imprecise. Texas Dep=t of Pub. Safety v. Chavez,

981 S.W.2d 449, 452 (Tex. App.CFort Worth 1988, no pet.). ACondemned to the use of words, we can

never expect mathematical certainty from our language.@ Grayned, 408 U.S. at 110.

                 Further, we observe that other constitutional attacks upon Texas controlled substances

analogue statutes have been rejected in other contexts. See Robinson v. State, 783 S.W.2d 648 (Tex.

App.CDallas 1990), aff=d, 841 S.W.2d 392 (Tex. Crim. App. 1992); Porter v. State, 806 S.W.2d 316

(Tex. App.CSan Antonio, no pet.); One Thousand Four Hundred Sixty-Two Dollars in U.S. Currency

v. State, 774 S.W.2d 17 (Tex. App.CDallas 1989, writ denied).


                                             CONCLUSION

                 Appellant=s contentions are without merit. The judgment is affirmed.




                                                   __________________________________________

                                                     12
                                              W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: April 24, 2003

Publish




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