                                          NO. 07-07-0204-CR

                                    IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                PANEL E

                                          AUGUST 12, 2008

                                ______________________________


                             RICKY DON HENDERSON, APPELLANT

                                                     v.

                                THE STATE OF TEXAS, APPELLEE


                             _________________________________

                 FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;

                     NO. 07-02-6355; HON. HAROLD PHELAN, PRESIDING

                               _______________________________

Before CAMPBELL and HANCOCK, JJ. and BOYD, S.J.1

        Presenting one point of alleged error, appellant Ricky Don Henderson seeks

reversal of his conviction for possession of certain chemicals with the intent to manufacture

a controlled substance.2           The punishment was assessed by the jury at fifty years

confinement in the Institutional Division of the Department of Criminal Justice. In his point,

appellant argues that the trial court erred in failing to charge the jury on possession of a


        1
        John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignm ent. Tex. Gov’t Code
Ann. §75.002(a)(1) (Vernon 2008).

        2
            Tex. Health and Safety Code Ann. §481.124 (a)(2) (Vernon Supp. 2007)
controlled substance, which, he contends, was a lesser-included offense under the State’s

evidence. Disagreeing that error is shown, we affirm the judgment of the trial court.

       The record reflects that a Department of Public Safety (DPS) trooper arrested

appellant for eluding or evading a police officer after appellant failed to stop his vehicle

when signaled to do so after an alleged speeding violation. A search of appellant’s vehicle

produced, inter alia, four empty boxes of over-the-counter medications containing

pseudoephedrine,      a   full   box   of   an       over-the-counter   medication   containing

pseudoephedrine, a silver spoon with white residue, another spoon , a Q-tip, a paper towel,

small plastic bags, a straw, two syringe caps, a Pyrex dish containing a “red-pinkish”

residue, two glass jars containing a residue, aquarium air pumps, starter fluid, lighter fluid,

a lithium battery, coffee filters, a funnel, tubing, digital scales containing a white residue,

ammonium sulfate fertilizer, and rock salt. A DPS laboratory analysis indicated the white

residue on the spoon and inside the two jars was methamphetamine. Also, the laboratory

analysis showed the residue on the Pyrex dish was pseudoephedrine. The collective

weight of the methamphetamine residue found on the spoon and jars approximated 0.05

grams.

       An offense is a lesser-included offense if:

       (1) it is established by proof of the same or less than all the facts required to
       establish the commission of the offense charged;

       (2) it differs from the offense charged only in the respect that a less serious
       injury or risk of injury to the same person, property, or public interest suffices
       to establish its commission;

       (3) it differs from the offense charged only in the respect that a less culpable
       mental state suffices to establish its commission; or


                                                 2
       (4) it consists of an attempt to commit the offense charged or an otherwise
       included offense.


Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006).

       To be entitled to a lesser-included offense charge, a defendant must meet a two-

pronged test.   First, the lesser-included offense must be included within the proof

necessary to establish the charged offense, and second, the record must contain some

evidence that if the defendant is guilty, he is only guilty of the lesser-included offense.

Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993); Royster v. State, 622

S.W.2d 442, 446 (Tex. Crim. App. 1981). Credibility of the evidence and whether it

conflicts with other evidence is not to be considered in making the determination whether

the jury should be charged with a lesser-included offense. Paz v. State, 44 S.W.3d 98,

100 (Tex. App.–Houston [14th Dist.] 2001, pet. ref’d, untimely filed).

       The first prong of the Rousseau test requires that we compare the elements of the

offense alleged in the charging instrument with the elements of the potential lesser-

included offense. Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). To prove

unlawful possession of a controlled substance, the State must prove: 1) the accused

exercised control, management, or care over the substance; and 2) the accused knew the

matter possessed was contraband. Poindexter v. State, 153 S.W. 3d 402, 405 (Tex. Crim.

App. 2005).

       On the other hand, to prove unlawful possession of a chemical precursor with intent

to manufacture methamphetamine, the evidence must show that: 1) the accused, 2) with

intent to unlawfully manufacture a controlled substance (methamphetamine), 3) possessed



                                             3
or transported, 4) a chemical precursor (pseudoephedrine).3 Tex. Health & Safety Code

Ann. §481.124 (a)(2) (Vernon Supp. 2007).

        An offense cannot be a lesser-included offense if it requires proof of an additional

element not required for the greater offense. See Walker v. State, 761 S.W.2d 572, 575

(Tex. App.–San Antonio 1988, pet. dism’d). Here, the indicted offense and the offense of

possession of a controlled substance, on their face, constitute two separate statutory

offenses as each requires proof of a fact not required by the other. To commit the offense

for which appellant was indicted, it was not necessary that the State prove appellant

knowingly possessed a controlled substance inasmuch as a chemical precursor is not a

controlled substance.4 The offense of possession of a controlled substance does not

require proof of an intent to manufacture a controlled substance.                        That being so,

possession of a controlled substance is not a lesser-included offense in the underlying

prosecution, and the trial court did not err in refusing to charge on it.

        Appellant’s point of error is overruled, and the judgment of the trial court is affirmed.



                                                          John T. Boyd
                                                          Senior Justice
Do not publish.




        3
        “Chem ical precusor” inter alia m eans pseudoephedrine.         Tex. Health & Safety Code Ann.
§481.002(51)(O) (Vernon Supp. 2007).

        4
        “Controlled substance” m eans a substance, including a drug, an adulterant, and a dilutant, listed in
Schedules I through V or Penalty Groups 1, 1-A, or 2 through 4.” Tex. Health & Safety Code Ann. §481.002(5)
(Vernon Supp. 2007).

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