*1 allegations pertaining punishment
phase of trial. his J.,
MEYERS, participating. Clyde SEALS, Appellant,
Ronald
The STATE of Texas.
No. PD-0678-04. Texas,
Court of Criminal Appeals of
En banc.
Nov.
I. Facts appellant posses- The was indicted for amount sion than four gram more than one less trial, During officers grams. police that, investigat- they testified while were tip appellant that the was manufac- ing a turing methamphetamine, discovered syringe and a vial that were later found a methamphetamine. to contain The State’s the contents of criminalist testified weighed grams 0.05 syringe grams. weighed of a vial 1.50 contents that, in addition to criminalist said The nico- methamphetamine, the vial contained (vitamin B3)1 blood. The tinamide say much of the criminalist did not how came from each of the grams vial’s 1.50 three substances. Frisco, for Ronald Ramage, Sharon Clyde Seals. possessing less appellant The admitted methamphetamine. He gram than a Gonzalez, McKinney, Matthew Manuel mostly contained testified that the vial Paul, Austin, Atty., State’s State. appellant, According to the blood waste. squirt blood and trace the vial was used he methamphetamine when amounts of successfully inject was unable to OPINION into his arm. PRICE, J., opinion delivered jury convicted the as appellant The Court, KELLER, P.J., in which finding in the indictment. After charged KEASLER, MEYERS, WOMACK, true, paragraphs the two enhancement HERVEY, JJ., joined. years’ punishment jury assessed posses- convicted of appellant was imprisonment. gram but less than sion of more than one com- appeal, appellant direct methamphetamine. On di- On grams four legally plained thаt the evidence was appellant complained that appeal, rect support the conviction sufficient with the blood found mixed gram than one possession of more ag- included in the improperly amine was argued He that blood methamphetamine. weight as an adulterant dilu- gregate and that not an adulterant or dilutant held that the tant. The court of been in the vial should have an adulterant or dilu- the blood could not be blood weight of aggregate included in the because the court of tant. will reverse Because the State controlled substance. by looking beyond plain appeals erred portion of the vial was of did not show what legislature’s definition meaning оf the blood, there insufficient argued, he was adulterant or dilutant. additive. commonly as controlled is a substance 1. Nicotinamide evidence to show that the weight knowingly of the must show that the defendant substance, blood, minus the intentionally possessed a controlled sub- greater than gram.2 one stance.6 A controlled substance is defined “a including drug, an adul- The court appeals agreed with the terant, dilutant, I and a listed in Schedule *3 appellant’s contention that the blood could through Penalty 1-A, Groups V or or 2 not be considered an adulterant or dilu- through 4.”7 A controlled tant. The court cited the correct standard aggregate weight any cludes the of mix- addressing legal sufficiency for the of the turе, solution, or other substance contain- that, evidence.3 Then it held as a matter ing a controlled substance.8 logic, an adulterant or dilutant cannot every According Safety include substance that to the Health is mixed with substance, Code, a particularly controlled one in- an adulterant or dilutant is defined troduced after “any the controlled substance material that or increases the bulk substance, quantity has been used.4 The court of a regard- reversed the controlled conviction, found appellant guilty activity less of its effect on the chemical the lesser-included offense controlled substance.”9 must de- We gram less than one of methamphetamine, termine whether the blood contained appellant’s and remanded the case for a vial punish- new adulterant or dilu- tant, ment hearing.5 weight which could be included with that of the found granted We review to determine wheth- mixed in the same vial. er, circumstances, in the appellant’s court of appeals correctly held that blood interpret When we a statute we cannot be considered an adulterant or dilu- seek to effectuate the collective intent or tant for a possession offense under the purpose legislators who enacted the Texas Controlled Substances Act. We shall legislation.10 Boy- Under our decision reverse. kin, interpret we must an unambiguous literally, doing statute unless so lеad would
II.
Analysis
Law and
to an absurd
legislature
result
To convict a defendant
posses
possibly
could not
If
have intended.11
sion of a controlled
reading
the State
literal
of the statute leads to an
State,
05-03-01105-CR,
2. We have
longer
held that the State is
slip op.
no
4. Seals v.
No.
required
(Tex.
App.-Dallas,
show what amount of a
at
2004 WL
de-
1, 2004) (not
Apr.
designated
pub-
substance and
livered
what amount of an
lication).
up
purposes
dilutant make
a mixture for
possession of a controlled substance. Melton
slip op.,
5. Id.
at 5.
State,
(Tex.Crim.App.
120 S.W.3d
2003).
481.116(1).
§
Tex. Health Safety
Code
307, 319,
Virginia,
3. See Jackson v.
481.002(5).
443 U.S.
Safety
7. Tex Health &
Code
(1979) (holding
99 S.Ct.
tion to effectuate the intent of the language legislative definition is clear and ture.12 “Where statute language Cawthon. similar un- unambiguous, Legislature must be But, clause, in the first expressed, to mean what it has derstood conspicuously requirement left out and it is not for the courts to add or prove to increase State intent subtract from such statute.”13 of the controlled sub- bulk legislature replaced stance. The sub- “[a addressed terms adulterant added with the intent to increase stance] by the dilutant before defined were prod- the final the bulk State, In held legislature. Cawthon v. we *4 uct,” “any that with material increases dilutant in that to include adulterant or quantity or the controlled the bulk sub- sub- aggregate the of a controlled 16 Also, clause of stance.” the second the stance, four ele- prove the State must definition, of its legislative “regardless ef- (1) illegal identity ments: the of the named activity,”17 directly fect on the chemical (2) substance, that remainder the added second element. A eliminates Cawthon’s (adulterants dilutants) not affected or has plain reading legislature’s of the adulter- activity illegal named the chemical of the definition, compared ant or dilutant when (adulter- (3) substance, that the remainder elements, Cawthon’s indicates that dilutants) to the named ants or was added legislature the intended to abolish Caw- to in- illegal substance with the intent are limits on what con- thon’s substances or of the final quantity crease the bulk to be or dilutants. sidered adulterants (4) illegal the the product, substance, including or di- say adulterants application cannot that the the second consequence meaning produces lutants.14 As literal the definition elements, required third legislature the State was absurd results that the could identify alleged or dilu- to may to adulterant nоt have intended. lead instanc- es, that it not affect the where appellant’s, tant show did similar activity illegal of the that is not intention- chemical a substance that it was the bulk the bulk or ally added to increase added increase of the product. or final of a controlled substance is nevertheless penalty. to increase a defendant’s used Cawthon, the Following our decision amendment, enactment of the 1994 The added the for adulter- legislature definition Cawthon, requirements in without the indi- literal ants and dilutants cited above. The legislature that intended this cates meaning legislature’s of the consequence. any substance dilutant definition is that perform The court of did not that is added to or mixеd with a controlled Instead, when, how, analysis of Boykin the definition. regardless of added, could not may legislature it concluded why that substance was substances, of the con- have meant to include certain aggregate weight added to the 15. Ibid. 12. Id. at 785-86. Id. at 785. 481.002(49). Tex. Health State,
14. Cawthon Ibid. (Tex.Crim.App.1992). such as the legislature’s phrases blood this within the omission of the definition distribution, sale, of adulterant or dilutant. The consumption”; “before court of appeals by failing erred to consid- products”; “waste and “salable or usable meaning legislature’s er the literal weight”? only interpretation definition. permitted under the seminal rule of statu- tory presume construction: We
In support of the court of appeals’s opin-
legislature meant
ion,
what
said.
that,
appellant alleges
despite
plain meaning of
legislature’s
defini-
An inspection
legislature’s
defini-
tion,
possibly
could not
have
tion of adulterant and dilutant
within
meant
include the blood found mixed
para-
context of the
possession
in the vial. The
(as
phernalia
to the definition in
opposed
appellant contends that to read the defini-
context of
of a controlled
tion that broadly
illogical.
would be
Such
substance) is instructive here. An adulter-
reading
would allow the State to increase
ant or
drug paraphernalia
dilutant that is
punishments by including
only is defined as
substances,
blood,
like
adulterant,
a dilutant or
manufacturing
quinine
such as
transportation pro-
mannitol,
hydrochloride,
inositol,
cess but instead are unintentionally added
nicoti-
*5
following
But,
a drug’s
namide, dextrose,
use.
lactose,
absorbent,
we have
or
said, when the statute is clear and unam-
material,
blotter-type
is used or
biguous, we must take
legislature
at its
intended to be used to increase the
It
word.
is not for us to add or subtract
amount or
or to
transfer
from such a statute.18
controlled
regardless
whether the dilutant or adulterant di-
might argue
One
legislature
efficacy
minishes the
the controlled
meant to include as an adulterant or dilu-
substance.21
only
tant
materials that increase the bulk
or quantity of the controlled substance be-
remarkably
This definition is
similar to the
distribution, sale, or consumption and
fore
definition of adulterants and dilutants that
legislature
meant to exclude waste
Cawthon,
we used in McGlothlin and
most
materials or materials that do not increase
likely because we used this definition
aas
the bulk or
of salable or usable
guide.
legislature explicitly
eschewed
weight. But these are not the words that
the use of this definition for adulterants
actually used. The draft-
and
in
possession
dilutants
the context of
ers of the definition
easily
could have
of a controlled substance.22
terms,
cluded
these
but
did not.
The definition of adulterants or
point,
More to the
the drafters could have
drug paraphernalia only
left
dilutants as
the definition that this
is dis
Court used in
Cawthon,20
McGlothlin v. State19
tinct from the definition in the context of
and
substance,
which would have
achieved the same re-
of a controlled
which
sult.
message
glean
What
are we to
from
require any
does not
demonstration that
Boykin,
the substance was to be waste we intended liberty increase amount of con- at to add them to the used to definition. might speculate on trolled substance. We III. Conclusion difference,
the reason we need look, further rule no than another of statu- in appeals construing The court of erred tory give construction: endeavor to We the terms adulterant and Be- dilutant. statute, which effect whole includes cause the blood this case came within phrase, possible.23 dilutant, if If we each word definition interpret to in the were both definitions legally support evidence was sufficient to manner, give to we would have effect judgment same jury’s verdict. The present that are not one defini- reversed, words court of and the case tion or we would have to subtract words to that consider remanded court to present that are in the other. remaining point appellant’s of error. WOMACK, J., concurring filed a appreciate need P.J., KELLER, opinion, in which public policy. concern for rational It is not MEYERS, J., joined. however, place judiciary, our within the construe a statute based on our notions of J., COCHRAN, filed dissenting good rational makes com what is or what opinion, in which JOHNSON mon sense. is left to us effectuate JJ., HOLCOMB, joined. purpose leg the collective intent or WOMACK, J., opinion, concurring legislation, islators who enacted the which MEYERS, KELLER, P.J., J., interpret unambiguous means that we joined. literally, doing so lead statute unless would *6 join opinion. I legislature an absurd that the Court’s This Court’s to result statutory possibly could not have intended.24 Be ill-considered definitions of * to term or dilutants” led cause the did include such “adulterants distribution, sale, Legislature’s ill-consid phrases as “before enactment of ered in its session. сonsumption”; weight”; or usable definition next Of “salable State, (Tex. "organic layer” an that was "distinct and Nguyen 1999). layer Crim.App. This seemed to contain observable.” substance, and most of the controlled expert said less than defendant’s it contained Boykin, 818 at 785. S.W.2d grams amphetamine. The court of held * this court was even worse we What did than prove to that the insufficient evidence State, today. say In McGlothlin grams possession of of more than offense (Tex.Cr.App.1988), S.W.2d the court amphetamine because "the record contains drugs concluded "that within the field and intended no evidence that the water was to substances, 'adulterants’ ‘dilu- and prod- the final increase the bulk substances, compounds, tants’ are or solu- Id.., uct.” at 861. added to tions the controlled substance Cawthon, later, years this court In four si- product. the intent to increase the bulk multaneously that "sets Or, said McGlothlin forth product of the with- increase only definition of adulterants dilu- affecting activity.” Having its violat- out thus Court,” recognized by this tants grammar ed rules of as well as the rules construction, more to the definition: an adulter- there was statutory applied the court its something also containing ant or dilutant must be "mostly wa- definition to flask activity of agreed only not affected the chemical expert "a "has ter” that the State's had State, illegal Cawthon v. insignificant named substance.” amount” of con- residual 1992). it, (Tex.Cr.App. top 348-49 substancе in on of which floated S.W.2d trolled in-, course, it, authority this Court had no cutor to do and the constitutions do not vent a definition that forbid it. was not based on the
meaning statutory language, while COCHRAN, J., dissenting, in which Seventy-third Legislature every had HOLCOMB, JJ., joined JOHNSON and authority to enact put a definition that end to I writing respectfully this Court’s adventure in dissent. I think that the ' : exactly right.1 statutes. court of it appeals got good “Common sense often makes law.”2 agree duty I that we to interpret have in The evidence this case showed apply according definition to its mixture in the blood-methamphetamine language, Only which is clear. obli- our by appellant’s vial found bed is “waste” gations uphold the constitutions could in product. is not a mixture which duty. оverride that There is no constitu- adulterants or have dilutants increased question my tional this view. bulk of the controlled substance. definition statutory may But the be so “plain language” I think that the as to invite prob- inclusive constitutional only statute is clear: those adulterants and lems. which increase the bulk of the dilutants For example, rarity suspects is no controlled substance their distribu- before to attempt to flush controlled substances tion, sale, consumption part are reason, down the toilet. For that officers gross weight of the controlled substance. who executing a search warrant fre- detritus or left-overs Controlled substance quently assign person one to secure the may person still еxist has used a after bathroom immediately. I would hate to controlled substance. The see this Court forced to hold the statute counts, controlled substance detritus unconstitutional prosecutor when a tried to the medium in which the detritus is found include all the water the toilet bowl clearly not an adulterant or dilutant part of the controlled substance. the bulk of the controlled increases substance. prosecutor
But a
might. This case is
today
before us
prosecutor
because a
tried
Chapter 481 of the Texas Health and
appellant’s
include the
part
blood as
Code sets out the Texas Controlled
*7
the controlled substance.
higher
Whether that is
Act.
act provides
Substancеs
This
what the statute
question
penalties
longer
should allow is a
and
sentences for those
legislature.
that,
manufacture, distribute,
for the
I agree
possess
as it who
a
or
now,
stands
prose-
larger quantity
drugs.3-
gravamen
the statute
allow a
of
does
The
State,
05-03-01105-CR,
being
1. Seals v.
No.
2004
instance
a controlled substance
of
1, 2004)
(Tex.App.-Dallas, April
WL 639678
particularly
mixed with-another
(not designated
publication).
opin-
for
In its
after the controlled substance has been
ion,
stated,
the
of
court
.
used.
peculiar
present
The facts
to the
case
Id. at *5.
present us with the issue of whether blood
States,
that becomes mixed
43, 46,
2. Peak v. United
353 U.S.
77
being
amine when the
is
613,
(1957).
S.Ct.
drug,
its
the sentence.”6
pertinent
Act
sen-
Drug Abuse
penal-
approach,
Under the market
are structured in a simi-
tencing guidelines
drug trafficking
“graduated
ties for
Supreme
has
lar manner.5 As the
Court
drugs in
according
weight
of the
noted, “Congress adopted a ‘market-ori-
un-
form
found-cut or
[are]
whatever
punishing drug
traffick-
approach
еnted’
cut,
ready for wholesale or
pure
impure,
quantity of what
ing, under which the total
distributed,
ready for
at the retail level.”7
pure drug
rather
than the
distribution
is
856,
State,
for LSD is included in the
749 S.W.2d
bution
4. See McGlothlin v.
medium
(Tex.Crim.App.1988) (judicially
drug
sentencing purposes).
defin-
weight
859-61
Legisla-
ing adulterants and dilutants before
opinion,
Chapman
the Federal Sen-
After
definition;
statutory
noting
ture
that
enacted
tencing
to exclude
Guidelines were amended
“cut” a controlled substance
such materials
weight
paper
purposes of
of the blotter
Legislature
and that
intended to "broaden
mandatory
1995
a
minimum sentence. See
potential
liability beyond the
offender’s
2D1.1,
Sentencing
U.S.
Guidelines Manual
pure
substance” to
Nonethelеss,
in Neal v.
Amendment 488.
"cutting” agents
increase the
include
296,
States,
284,
116 S.Ct.
United
516 U.S.
product)';
bulk or
of the final
Smith
763,
(1996),
Supreme
The Texas
like
al must
one that increases the bulk of
drug
was concerned with consumable
mix-
drug
itself. That clear reason is that
tures, mixtures that
orwill
have reached
Legislature
punish drug
wanted to
Thus,
citizens on
streets.9
the entire
upon
traffickers and users based
drug
mixtures which are usable
product.13
of the usable or salable
in
chain of
considered
distribution are
proof
legislаtive plain
As further
lan-
determining
in
the offense level.10 How do
guage
of dilutants and
meaning
adulter-
Legislature
we
that the Texas
has
know
481.002(17)(F)
ants,
includes,
Section
as
implemented a
to-
approach
market-based
drug paraphernalia,
drug
ward
plain
crimes? We look at the
adulterant,
a
language
quinine,
of the statute. The
of a
dilutant or
such as
(1)
mannitol, inositol,
hydrochloride,
drug consists of:
the controlled sub-
nicoti-
(2)
absorbent,
itself;
namide, dextrose, lactose,
any
stance
adulterants or
materials,
blotter-type
dilutants. Adultants and dilutants are
is used or
material
be used
quan-
“that increases the bulk or
intended to
to increase
If,
tity
a controlled
amount or
or to
a
substance.”11
transfer
fact,
Lеgislature
regardless
did not
whether
care
a
dilutant or
di-
increasing
substance had the effect of
whether the
drug,
efficacy
wholesale
retail bulk of the
minishes the
of the controlled
requirement.
would not have added this
substance.14
481.002(17)(F)
determining
should be considered in
a
defen-
Safety
14.
&
Tex. Health
Code
sentence”).
added).
(emphasis
Normally,
parts
dant’s
all
of an
together
meaning
act are construed
Chapman,
8.
Although this
list does
exhaustive,
port to be
all
the substances
counts. An adulterant or dilutant func-
cutting agents
agents
are
used to
listed
use,
drug
an aid to
distribution or
tions as
delivery
drugs.15
facilitate the
use
drug’s
to a
dangerous
not as a
deterrent
efficacy
They may
strength
diminish the
consumption.
not
it or
drug,
pollute
do
any
In this
there
no evidence of
it
or unmarketable.
make unusable
bloody
illicit use of the
mixture
the vial
irrational, however,
con-
It would be
methamphetamine
traces of
contained
unusable, unmarketable,
toxic, or
sider
testified that
police
it. Both
officers.
or dilutant
waste material as
blood is not an adulterant or dilutant.
controlled
increases the bulk
Both officers testified that blood does not
definitiоn,
By
substance.16
waste
the bulk or
of metham-
increase
is what is left over after the
product
manufactured, delivered,
eminently
phetamine.17
opinions
or eon-
Their
has been
importation;
things
liqueur
"under mar-
context or the nature of
to indicate that
creme
(ci-
thereby.")
meaning
approach, when the mixture is
it intended a different
ket-oriented
omitted);
(and
marketable),
Guthery
Taylor,
ingestible
tations
112
not
therefore not
715,
(Tex.App.-Houston
721-22
[14th
S.W.3d
base a sentence on the
there is no reason to
2003,
("when construing
pet.)
mixture");
no
a stat-
Dist.]
entire
of a useless
United
may
utory
phrase,
999,
(3d
word or
a court
take into
Rodriguez,
F.2d
States v.
meaning
of the same or
consideration
Cir.1992) (excluding weight of unusable and
language
act or
similar
used elsewhere in the
containing
packages
acid from
toxic boric
act
When the
in another
of similar nature.
cocaine);
layer
boric acid and a thin
Unit-
same
same or a similar term is used in the
Robins,
(9th
ed States v.
967 F.2d
statutes,
will
connection in different
the term
Cir.1992) (excluding weight
com-
of cornmeal
meaning
given
in one as in the
the same
cocaine;
a "tool
bined with
cornmeal was not
other,
something
unless there is
to indicate
cutting agent,
of the trade” or a
and it did not
(ci-
intended.”)
meaning
that a different
was
cocaine);
facilitate the distribution of the
omitted).
tations
Brinton,
United States v.
139 F.3d
why, when the
I am at a loss to understand
(9th Cir.1998) (2,401 grams of unmarketable
term "adulterant or dilutant" is used in thе
containing
product
and toxic waste
some usa-
drug paraphernalia
statute it means sub-
methamphetamine could
be included
ble
intended to be used to in-
stances "used or
in total
of controlled substance for
weight of or to transfer
crease the amount or
sentencing
only
purposes;
the usable meth-
substance,”
to mate-
a controlled
limited
calculating
amphetamine should be used in
distribution, transfer,
that assist in the
rials
Ochoa-Heredia,
sentence);
United States
but when
and use of
2001)
(N.D.Iowa
F.Supp.2d
sub-
materials are found with
controlled'
(when
methamphetamine
grams of
26.2
stance,
term,
statutory
in the same
that same
3,000 grams of
freon
mixed with
toxic
act,
products that no one
includes tоxic waste
"waste,” only
use to
the amount or
would
increase
considered; court concluded
amine could be
As Alice in Won-
of a controlled substance.
unmarketable,
“unusable,
or toxic medi-
say,
cu-
was wont to
"Curiouser and
derland
containing methamphetamine should be
ums
riouser.”
weight of the
calculation of the
excluded from
purposes of determin-
McGlothlin,
The State also
ap-
because
included because
still contains traces of
pellant
roots, shoots,
kept drug
marijuana
scales next to the tin
in it.21
and leaves
(1729) (satirical
knowledge
Hepati-
essay suggesting
18. It is common
that both
the Public
children).
spread by
tis B and
can be
blood-
that the Irish should eat their own
HIV/AIDS
to-blood contact.
Seals,
428 up mixing into syringe,
The Dallas court of this case blood backed apt example an of a defendant dis- three blood metham- grams of his with the ashes; in a carding pile cocaine residue of may a third phetamine, he be sentenced to logic, under the of pile State’s entire in- degree felony. may criminally He be (six twenty high high) ashes inches feet ept, felony. Normally, but that is not an “adulterant dilu- would constitute in a interpret courts “do not a statute 22 Oh, surely tant.” not! to manner that will lead a foolish absurd result another is avail- when alternative examples The issue in all of these time, not able.”25 should do so this simple: Does the Texas Controlled Sub- particularly doing if so constitutional Act raises “require weight stances of mixture, portion unusable of a concerns. uningestible makes the and unmar- drugs I respectfully must dissent.
ketablе, be in the included overall many calculation?” Like so federal
courts,231 think not. (and simply sense per- defies common constitution)24 think
haps federal to
that if less appellant possessed slightly had injectable gram
than one
amine, he should be sentenced to a state
jail felony, unsuccessfully but if tried to he
inject into his veins his 841(b)(1)(A)); Restrepo- leading hypothetical to “absurd and irra- United States v. 96, Contreras, (1st Cir.1991) (en- congressional contrary results F.2d tional 942 99 tent”). tire of statues made of beeswax-co- base caine included calculation of mixture Walker, level); 960 United States v. Seals, offense 22. 2004 639678 at *1-2. WL (5th Cir.1992) (entire weight of F.2d waste, most which was Acosta, United 23. See States v. F.2d contained a detectable amount of metham- (2d Cir.1992) (concluding that "the phetamine defen- could be used to calculate liqueur separated be from the creme must sentencing); offense dants’ base levels for may be cocaine before the cocaine distribut- Palacios-Molina, compare United States ed, it is not to consider the unreasonable (5th Cir.1993) (distinguishing F.3d equivalent liquid waste as the functional by-products dealt of meth- Walker which packaging quite clearly materials ... which amphetamine manufacturing process from in- calculation”); to be included sangría stant which bottle was used case in Johnson, Stewart, Rolande-Gabriel, Chapman, cocaine; holding sangría did conceal Ochoa-Heredia, Brinton, Robins, Rodriguez, and would not not increase bulk of cocaine Though majority supra. federal the vast part the retail or wholesale distribution ap- have a "market oriented” courts followed cocaine, liquid sangría adulter- was not thus proach drug weight, not all have done so. sentencing purposes). ant or dilutant See, Mahecha-Onofre, e.g., United States v. (1st. Cir.1991) (when 624-26 prevailing party in the as the Appellant, of two defendant was found court, challenge the constitu- lower did not acryl- that were manufactured of an suitcases statute, we need not tionality and thus of this kilograms 2.5 of co- ic material into which today's case. address that issue in bonded, chemically were court held caine suitcases, that the entire less Morning v. Board Trus- components, ap- News Co. weight of the was the Dallas metal tees, (Tex.App.-Dallas sentencing propriate consideration under 1993). U.S.C. U.S.S.G. 2D1.1