Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Police officers stopped the car driven by Brandon Keith Shaffer for speeding. A subsequent search prompted by a drug-sniffing dog’s alert on something inside the car yielded a partially smoked marijuana cigarette, six cans of lighter fluid, eight lithium batteries and two cases � 12 bottles in each � of “Max Brand” cold pills. Each bottle of 36 pills was sealed. The outside of the bottle stated that each pill contained 60 milligrams of pseudoephedrine. Shaffer was charged with possession of certain chemicals � namely, pseudoephedrine � with the intent to manufacture methamphetamine. At trial, the state claimed Shaffer possessed a chemical precursor to methamphetamine, and relied on the labeling of the Max Brand bottles indicating that the tablets inside contained pseudoephedrine. When the state attempted to introduce the bottles into evidence, Shaffer raised a hearsay objection, which the trial court overruled. Shaffer was convicted, and, after pleading true to an enhancement paragraph, he was sentenced to 50 years in jail plus a $10,000 fine. HOLDING:Affirmed. The court first reviews the factual and legal sufficiency of the evidence, examining Shaffer’s hearsay objection along the way. The court first rejects the state’s contention that Shaffer’s attorney admitted in his closing argument that the substance in the cold pills was in fact pseudoephedrine. The court finds that the attorney’s reference to pseudoephedrine was not a statement that was so clear, definite and unambiguous so as to amount to a judicial admission. The court then rejects Shaffer’s argument that case law requires scientific evidence in order to establish the chemical nature of a substance. The court distinguishes the cases cited by Shaffer because none of them involved substances found in sealed packages. Furthermore, the labeling on the packages reliably established that the pills contained pseudoephedrine. The court disagrees with Shaffer that the mere possession of lithium batteries, starter fluid and Max Brand cold medicine with pseudoephedrine is insufficient to prove beyond a reasonable doubt that Shaffer intended to manufacture methamphetamine. The court notes an officer’s testimony that these ingredients are indeed used to manufacture methamphetamine, also that the particular brand of lighter fluid is preferred by methamphetamine makers because of its low oil content. Finally, the amount of Max Brand cold pills Shaffer possessed � 864 pills in all � was inconsistent with personal use, the officer testified. Giving proper deference to the fact finder’s determinations, the court holds that the evidence is legally and factually sufficient to support a finding of guilt beyond a reasonable doubt. The court next reviews the trial court’s overruling of Shaffer’s hearsay objection. The court agrees that the bottles’ labels are hearsay, but then finds that Texas Rule of Evidence 803(17) makes an exception to the hearsay rule for (“[m] arket quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.” The fact that the cold medicine was contained in bottles that remained unopened indicates that the contents had not been changed since the manufacturer bottled them, the court adds. Finally, the court refuses to review a constitutional challenge to the statute Shaffer was charged under because the argument was raised too late. OPINION:Holman, J.; Holman, Gardner and McCoy, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.