X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:The appellant was convicted of possession of more than one gram but less than four grams of methamphetamine. On direct appeal, the appellant complained that blood found mixed with the methamphetamine was improperly included in the aggregate weight as an adulterant or dilutant. The court of appeals held that the blood could not be an adulterant or dilutant. HOLDING:The judgment of the court of appeals is reversed, and the case is remanded to that court to consider the appellant’s remaining point of error. According to the Health and Safety Code, an adulterant or dilutant is defined as “any material that increases the bulk or quantity of a controlled substance, regardless of its effect on the chemical activity of the controlled substance.” Texas Health & Safety Code �481.002(49). This court addressed the terms adulterant and dilutant before they were defined by the Legislature. In Cawthon v. State, 849 S.W.2d 346 (Tex. Crim. App. 1992), the court held that to include an adulterant or dilutant in the aggregate weight of a controlled substance, the state must prove four elements: 1. the identity of the named illegal substance, 2. that the added remainder (adulterants or dilutants) has not affected the chemical activity of the named illegal substance, 3. that the remainder (adulterants or dilutants) was added to the named illegal substance with the intent to increase the bulk or quantity of the final product, and 4. the weight of the illegal substance, including any adulterants or dilutants. As a consequence of the second and third elements, the state was required to identify the alleged adulterant or dilutant to show that it did not affect the chemical activity of the illegal substance and that it was added to increase the bulk or quantity of the final product. The language of the legislative definition is similar to the language in Cawthon. But, in the first clause, the Legislature conspicuously left out the requirement that the state prove intent to increase the bulk or quantity of the controlled substance. The Legislature replaced “[a substance] added with the intent to increase the bulk or quantity of the final product,” with “any material that increases the bulk or quantity of the controlled substance.” Also, the second clause of the legislative definition, “regardless of its effect on the chemical activity,” directly eliminates Cawthon’s second element. A plain reading of the Legislature’s adulterant or dilutant definition, when compared with Cawthon’s elements, indicates that the Legislature intended to abolish Cawthon’s limits on what substances are considered to be adulterants or dilutants. The court cannot say that application of the literal meaning of the definition produces absurd results that the Legislature could not have intended. It may lead to instances, similar to the appellant’s, where the weight of a substance that is not intentionally added to increase the bulk or quantity of a controlled substance is nevertheless used to increase a defendant’s penalty. The enactment of the 1994 amendment, without the requirements in Cawthon, indicates that the Legislature intended this consequence. The court of appeals concluded that the Legislature could not have meant to include certain substances, such as the blood in this case, within the definition of adulterant or dilutant. The court of appeals erred by failing to consider the literal meaning of the Legislature’s definition. “It is not our place within the judiciary, however, to construe a statute based on our notions of what is rational or what makes good common sense. It is left to us to effectuate the collective intent or purpose of the legislators who enacted the legislation, which means that we interpret an unambiguous statute literally, unless doing so would lead to an absurd result that the legislature could not possibly have intended. Because the legislature did not include such phrases as”before distribution, sale, or consumption’;”salable or usable weight’; or”excluding waste products,’ we are not at liberty to add them to the definition.” OPINION:Price, J., delivered the opinion of the court, in which Keller, P.J., Meyers, Womack, Keasler, and Hervey, JJ., joined. Womack, J., filed a concurring opinion, in which Keller, P.J., and Meyers, J., joined. Cochran, J., filed a dissenting opinion, in which Johnson and Holcomb, JJ., joined. CONCURRENCE:Womack, J., filed a concurring opinion, in which Keller, P.J., and Meyers, J., joined. “There is no constitutional question in this case, in my view. But the statutory definition may be so inclusive as to invite constitutional problems. “For example, it is no rarity for suspects to attempt to flush controlled substances down the toilet. For that reason, officers who are executing a search warrant frequently assign one person to secure the bathroom immediately. I would hate to see this Court forced to hold the statute unconstitutional when a prosecutor tried to include all the water in the toilet bowl as part of the controlled substance.” DISSENT:Cochran, J. “I respectfully dissent. I think that the court of appeals got it exactly right. ‘Common sense often makes good law.’ The evidence in this case showed that the blood-methamphetamine mixture in the vial found by appellant’s bed is ‘waste’ product. It is not a mixture in which adulterants or dilutants have increased the bulk of the controlled substance. “I think that the ‘plain language’ of the statute is clear: only those adulterants and dilutants which increase the bulk of the controlled substance before their distribution, sale, or consumption are part of the gross weight of the controlled substance. Controlled substance detritus or left-overs may still exist after a person has used a controlled substance. The weight of any controlled substance detritus counts, but the medium in which the detritus is found is clearly not an adulterant or dilutant which increases the bulk of the controlled substance.”

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

Benefits of a Digital Membership:

  • Free access to 1 article* 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 © 2021 ALM Media Properties, LLC. All Rights Reserved.