September 22, 2021, the Texas Court of Criminal Appeals released its decision in Biggers v. State. The case centered on a relatively convoluted group of statutes concerning the possession of codeine and codeine mixtures. The decision in that case brought a win for Biggers (rare), and good case law concerning drug cases (equally rare.)

Specifically at issue in Biggers were the statues concerning the possession of codeine and codeine mixtures in the Texas Health and Safety Code. As previously discussed, drug charges in Texas are charged by weight and by the Penalty Group the alleged controlled substance belongs to. Penalty Group 1 represents those substances punished most harshly (heroin, fentanyl, methamphetamine, etc.) whereas substances in Penalty Group 4 carry less severed punishment (codeine cough syrup, for example.)

Codeine can be charged in either Penalty Group 1, 3, or 4. For codeine in Penalty Group 4, the codeine must be mixed with one or more non-narcotic medicinal ingredients (e.g. promethazine) at a mixture level of not more than 200 milligrams of codeine per 100 milliliters or per grams. For Penalty Group 3, the level of mixture is increased to not more than 1.8 grams of codeine per 100 millimeters or not more than 90 milligrams per dosage unit. This would be, for example, prescription codeine/promethazine cough syrup in liquid or in pill form. Penalty Group 1 includes all other codeine or mixtures not found in Groups 3 or 4.


In Biggers, Daren Biggers was charged with possession of codeine within Penalty Group 4 (in the form of codeine cough syrup mixed with Sprite, or, “lean”) in an amount over 400 grams, a First Degree Felony offense. During trial, the State called a chemist to testify about the mixture. The chemist testified that the substance “smelled like cough syrup” and contained “an unspecified amount of codeine and promethazine.” Problem was, the chemist was never asked by the State to quantify the amount of codeine and promethazine in the mixture. Additionally, the chemist failed to testify about whether this combination had valuable medicinal qualities other than those possessed by codeine alone. Biggers was convicted and was sentenced to 40 years in prison.

Biggers appealed arguing there was insufficient evidence to convict him, insofar as the State failed to establish an essential element of the offense—the level of concentration of the codeine—and that he should be acquitted. The State argued its failure to prove the level of concentration meant Biggers should be convicted of a higher level of offense: possession of codeine under Penalty Group 1 (i.e. codeine not contained in Penalty Group 3 or 4.) Essentially, the State argued it had “failed” upwards, and had actually proven a higher charge.

The Court of Criminal Appeals did exactly what you might expect (if you logically reasoned out the above): it found that, because the State had offered insufficient evidence to prove possession of codeine within Penalty Group 4 (the chemist never testified about the level of mixture/concentration—an essential element of possession in Penalty Group 4), it cannot rationally be said that Biggers possessed codeine within Penalty Group 1. To put it another way, failing to prove the codeine was within Penalty Group 4 cannot be taken to mean that the substance was codeine within Penalty Group 1. To put it even more simply, failing to prove an animal is a horse does not mean the animal is an elephant; it could, in fact, be a horse (and that insufficient proof was offered that it was a horse), or it could another animal entirely. Given the above, the Court of Criminal Appeals rendered a judgment of acquittal for Biggers on the charge.

The State argued that this logic of Biggers, adopted by the Court, was “absurd.” The Court of Criminal Appeals disagreed: “When the State brings a defendant to trial for possession of a specific penalty group (where that penalty group requires a specific quantity and proportion analysis), fails to ensure that proper testing is conducted, and fails to provide testimony to the jury as to the specific quantity and proportion analysis as required by statute, and then turns to the Court to invent a creative way to uphold the conviction, perhaps this scenario borders on absurdity.” Ouch.