                                    NO. 07-06-0163-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                NOVEMBER 15, 2007
                          ______________________________

                                  GEORGE W. SCOTT,

                                                                 Appellant
                                             v.

                                 THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2004-407,601; HON. JIM BOB DARNELL, PRESIDING
                       ______________________________

                                Concurring Opinion
                         _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

       I concur in the majority’s opinion and result except to the extent that it required the

State to prove that the accused intentionally, knowingly, recklessly, or negligently

possessed the anhydrous ammonia under §481.124(a) of the Texas Health and Safety

Code. Furthermore, my disagreement is based upon the following.

       First, possession of anhydrous ammonia is not illegal per se, but it is illegal to

possess or transport it with the intent to manufacture a controlled substance. TEX . HEALTH

& SAFETY CODE ANN . §481.124 (a)(1) (Vernon 2005); see Keehn v. State, No. 02-06-047-
CR, 2007 Tex. App. LEXIS 310 (Tex. App.–Fort Worth 2007, no pet. h.). Therefore, the

possession of anhydrous ammonia becomes illegal when there is the intent to manufacture

a controlled substance. So, the culpable mental state required in this case involved what

was to be done with the anhydrous ammonia once it is possessed, i.e. did he have the

chemical for the purpose of unlawfully manufacturing a controlled substance.

       Next, I admit that the Texas Penal Code, §6.02, mandates that a person does not

commit an offense unless he intentionally, knowingly, recklessly or with criminal negligence

engages in conduct as the definition of the offense requires. But, again, the purpose of the

crime as depicted in the penal code must be considered. As mentioned above, the

conduct forming the gist of the offense here (i.e. the conduct sought to be criminalized by

the legislature) is not simply the possession of anhydrous ammonia but the purpose of the

possessor in having the chemical. Furthermore, the jury charge before us provided the

culpable mental state with which appellant possessed anhydrous ammonia; it alleged he

possessed anhydrous ammonia “with intent to unlawfully manufacture a controlled

substance, to-wit: Methamphetamine. . . .” See Teniente v. State, 533 S.W.2d 805, 806

(Tex. Crim. App. 1976) (holding that the indictment for burglary of a habitation alleged the

culpable mental state with which the appellant entered the habitation; it alleged he entered

the habitation “with the intent to commit theft” and thereby satisfied the requirements of

§6.02 of the penal code).

       Simply put, the mens rea of intentionally, knowingly, recklessly or negligently

possessing the ammonia is logically implicit in the mind set described by the phrase “with

the intent to manufacture a controlled substance.” In having the latter, appellant must have

had the former for he could not intend to use the chemical to make drugs if he did not know

                                             2
he had the chemical. So, the prosecution was not obligated to either allege or prove

whether the accused intentionally, knowingly, recklessly, or negligently possessed the

ammonia to secure conviction under §481.124(a)(1).



                                              Brian Quinn
                                              Chief Justice

Publish.




                                          3
