OPINION
Beaumont police found Brandon Linn Dudley sitting in a car in possession of a styrofoam cup. When police sniffed the contents of the cup the smell of cough syrup was present. Laboratory testing later confirmed the presence of codeine in the liquid mixture contained in the cup. Dudley was indicted for possession of codeine as listed under Penalty Group 1 in the Health and Safety Code, in an amount of “four hundred (400) grams and more.” See Tex. Health & Safety Code Ann. � 481.115(a), (f) (Vernon Supp. 2001). Prior to trial, the State moved to amend the indictment to charge Dudley with the entirely separate offense of possession of codeine as listed under Penalty Group 4 of the Health and Safety Code, in an amount of “four hundred (400) grams and more.” See Tex. Health & Safety Code Ann. � 481.118(a), (e) (Vernon Supp. 2001). However, the jury convicted Dudley of having committed the lesser included offense of possession of codeine as listed in Penalty Group 4, in an amount of “200 grams or more but less than 400 grams.”
Dudley presents us with two appellate issues, the first of which complains of legally insufficient evidence contained in the record to support his conviction. Specifically, Dudley does not contest the sufficiency of the State’s evidence regarding the quantity of the codeine found in the liquid mixture contained in the styrofoam cup, but does contest the legal sufficiency of the State’s proof regarding the quality of the codeine found in the liquid mixture, as defined in Penalty Group 4. In other words, as we appreciate Dudley’s appellate complaint, the definition of “codeine” as set out in Penalty Group 4, as opposed to the definition of “codeine” as set out in any of the other penalty groups, IS the controlled substance the State alleged he unlawfully possessed. As such, the State was required to prove Dudley possessed codeine as specifically defined in Penalty Group 4, because each penalty group set out in the Health and Safety Code contain entirely distinct and separate lists of contraband, each with its own distinct chemical make-up. While two or more penalty groups may include the same generic controlled substance, distinctions arise, for penalty group purposes, when a controlled substance is defined in one penalty group in its “pure” form, while defined in other penalty groups based upon certain other distinct qualitative properties.
