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Click here for the full text of this decision FACTS:Rhonda Renee Jones and a companion named Benner were sitting inside a vehicle that was parked along a local road. Two deputy sheriffs came upon the vehicle. When the deputies’ vehicle pulled over behind Jones’ parked vehicle, she drove away. The deputies pursued her. Jones slowed down and pulled over as if to stop. The deputies also pulled over. When one of the deputies began to get out of the parked patrol car, Jones again drove away. The deputies again pursued. During the pursuit, the deputies observed several items being thrown from the vehicle. Ultimately, Jones stopped, and the deputies arrested both Jones and Benner. During a search of the vehicle, deputies found a bottle of bleach that contained a large amount of methamphetamine. During the trial, Benner testified for the state and said that he and Jones had been making methamphetamine and were “about three-quarters of the way through” when the deputies had pulled up. He testified about the procedures and materials that they used in making the methamphetamine, and he admitted that he had thrown some of those materials out of the car window during the pursuit. He also testified that he had poured the liquid methamphetamine into a bottle of bleach, because he had panicked and thought that the methamphetamine might be destroyed by the bleach. Benner testified that he had been in a joint venture with Jones to produce methamphetamine. The trial court convicted Jones of possession of 400 or more grams of methamphetamine with intent to deliver. On appeal to the 2nd Court of Appeals, Jones challenged the legal and factual sufficiency of the evidence to prove that she possessed with the intent to deliver a quantity of methamphetamine in an amount of 400 grams or more. In a nutshell, Jones argued that the weight of the drug should not have included the weight of the bleach in which Benner threw the drugs. In addressing Jones’ sufficiency argument, the 2nd Court considered the testimony of both the state- and the defense-sponsored chemists. The weight of a controlled substance, as set out in Texas Health & Safety Code �481.002(5) “includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance.” The 2nd Court concluded that the evidence from the state’s chemist established that the contents of the bleach bottle weighed 2,375.8 grams, and that the top layer was tested and determined to contain methamphetamine. Thus, the 2nd Court found that legally and factually sufficient evidence supported the jury’s finding that Jones possessed 400 grams or more of methamphetamine. The 2nd Court also discussed several factors that could support a finding of intent to deliver, including the quantity of drugs possessed, and concluded that the methamphetamine being manufactured was not for personal use. It thus held that the evidence, when viewed in the light most favorable to the verdict, was legally sufficient to support the jury’s determination beyond a reasonable doubt that Jones intended to deliver the methamphetamine. It likewise held that, when viewed neutrally, the evidence was not so obviously weak or so greatly outweighed by contrary proof that it would not support the finding of guilt beyond a reasonable doubt. Thus, the 2nd Court found that factually sufficient evidence supported the jury’s determination that appellant intended to deliver methamphetamine. HOLDING:Affirmed. The term “controlled substance,” the CCA stated, as defined in the Texas Controlled Substances Act, includes drugs, adulterants and dilutants listed in the act’s schedules and penalty groups, including methamphetamine. Adulterants or dilutants, the CCA noted, means any material that increases the bulk or quantity of a controlled substance, regardless of its effect on the chemical activity of the controlled substance. Finally, the CCA stated that the term “controlled substance,” also includes “the aggregate weight of any mixture, solution, or other substance containing a controlled substance.” Jones, the CCA stated, argued that the two provisions read together, as she contended they must be, “still require proof of the element of quantity beyond a reasonable doubt by establishing that the controlled substance mixed, dissolved or combined in some way with the adulterant or dilutant resulting in a mixture, solution or combination that acted to actually increase the bulk or quantity of the controlled substance regardless of the effect on the chemical activity of the controlled substance.” Jones noted that the Legislature left intact, in the basic definition of “controlled substance” found in Texas Health & Safety Code �481.002(5), the phrase, “includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance.” She suggested that under the provision, the state must prove that the controlled substance actively mixed with, dissolved in, or otherwise combined in some way with the adulterant or dilutant. The CCA noted that in its 2006 opinion Wright v. State, it approved the inclusion of unusable toxic liquid in the aggregate weight of a controlled substance, specifically methamphetamine. Regardless of when, how or why Benner added the bleach, the CCA stated that the weight of the bleach may be used to determine the aggregate weight of the methamphetamine. The CCA also noted testimony from expert witnesses disagreeing on the relationship between the bleach and the methamphetamine, and whether bleach was an adulterant or dilutant. The jury was free to believe or disbelieve, in whole or in part, either or both of the experts, the CCA stated. Thus, the CCA held that the 2nd Court did not err in holding that the bleach was an adulterant or dilutant and therefore including its weight in the alleged weight of the methamphetamine. OPINION:Johnson, J., delivered the opinion of the court in which Keller, P.J., and Meyers, Price, Womack, Keasler and Hervey, JJ., joined. CONCURRENCE:Cochran, J., filed a concurring opinion. “Adhering, as I do, to the [view] . . . that the term ‘adulterants and dilutants’ refers to substances which increase the usable bulk or quantity of a controlled substance or are part of the manufacturing process, I cannot join the majority opinion. “However, the evidence in this case was sufficient to support a finding that the weight of the ‘pure’ liquid methamphetamine, before it was poured into the bottle of bleach, weighed more than 400 grams.” DISSENT:Holcomb, J., dissented without a written opinion.

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