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Nichols v. State

Possession of each individual substance within the same penalty group constitutes a different statutory offense.

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AFFIRMED in part, REMANDED and REVERSED in part

OPINION

Kendell Glen Nichols was convicted of possession of: (1) marijuana in an amount of four ounces or more but under five pounds (cause number 2-97-235); and (2) methamphetamine in an amount of four grams or more but under two hundred grams (cause number 2-97-236). The trial court assessed punishment at two years confinement and a $10,000 fine (probated), and twenty years confinement and a $10,000 fine, respectively. On appeal, Nichols asserts seven points of error; among other things, he argues the trial court erred by allowing the State to amend the indictment in cause number 2-97-236, which originally charged him with possession of cocaine, to possession of methamphetamine. For the reasons set forth below, we affirm the trial court’s judgment in cause number 2-97-235. However, because possession of cocaine and possession of methamphetamine constitute two separate statutory offenses, we conclude the trial court erred in allowing the State to amend the indictment in cause number 2-97-236 over Nichols’s objection. Thus we reverse the trial court’s judgment in cause number 2-97-236 and remand that case for further proceedings.

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