Wright v. State
201 S.W.3d 765
Tex. Crim. App.
2006
Check Treatment

*1 argue not Although State fore. in the Court applicable 24 was that Section so. obligation no do it had Appeals, preserve required was The State successful anything because was Therefore, the decision trial court. reversed, case and this Appeals Court to reconsid- instructions is remanded light provision. of that er it Toro, Christi, for Corpus Del Hector Tina Marie Tina WRIGHT a/k/a Appellant. Nagel, Appellant Marie Horn, Jeffrey L. Van First Assistant Austin, for Atty., State’s State. of Texas. STATE

OPINION No. PD-0513-05. KEASLER, J., delivered the a unanimous Court. Texas. Court Criminal placed years’ proba- Pena on three was 20, Sept. tion for marihuana on March later, years April 2000. Two on and an the State moved revoke appre- issued. Pena was arrest warrant 9, 2003, five months September

hended on expired. term He probationary

after his un- year jail in a after

received one state the State

successfully contending diligence in execut-

failed to exercise due Ap- The Court of

ing the arrest warrant. argument and

peals agreed with Pena’s disagree and reverse

reversed. We judgment. Appeals’s

Court of 42.12, Article Section

The amendment to by the Texas enacted Its effective to this case. applies 18, 2003, applies and it to all June

date was or after

hearings commencing on

date, a defendant regardless of whether community be- supervision placed

766 4.

through The term aggre- includes the mixture, gate weight solution, or other a controlled Safety substance.” Tex. Health & Code 481.002(5) (Vernon § Supp.2000).1 Appel- conviction, appealed lant her claiming prove evidence was insufficient to pos- the substance sessed was more than 200 and that 481.002(5) § failing was unconstitutional in give notice that were included in the weight of a controlled substance. Eleventh Court of affirmed

Appellant’s conviction in an unpublished which, opinion,2 review, we concluded on Brown, Abilene, Stan for Appellant. did not adequately address her arguments. State, 811-03, Wright v. No. 2003 WL Dyer, Patricia K. Atty., Asst. District 2003) Dec.10, (Tex.Crim.App. Abilene, Paul, Atty., Matthew State’s Aus- (not designated publication). va We tin, for State. judgment cated the and remanded the case for further consideration of Appellant’s OPINION claims. specifically We directed the court MEYERS, J., delivered the to conduct a statutory-construction analy Court, KELLER, P.J., in which 481.002(5) sis of part as PRICE, WOMACK, JOHNSON, sufficiency challenge, and to an undertake KEASLER, HERVEY, COCHRAN, analysis of her constitutional claims. On JJ., join. remand, appeals again af Appellant convicted Wright firmed conviction. v. State, 11-02-00006-CR, of less No. 2005 WL (Tex. than 400 grams, but more than 200 Tex.App. LEXIS 377 2005) (not and the trial court sentenced im- App.-Eastland her to designat Jan. prisonment Depart- for life the Texas publication). granted Appel ed for ment of Criminal Justice —Correctional In- petition discretionary lant’s review. stitutions Division. At the time of her She claims that the court of conviction, the definition of a controlled not comply previous by with our order substance, including substance was: failing “[A] to determine whether the definition adulterant, drug, dilutant, an an immedi- of the term “controlled substance” in 481.002(5) precursor, ate listed in Schedules leads to an absurd result the 1, 1-A, through Penalty Groups 2 legislature V could not have intended. offense, 11-02-00006-CR, Appellant's Wright 1. After the commission No. amended ex- (Tex. Tex.App. WL LEXIS 2865 cluding precursor an immediate from the 3, 2003) (not App.-Eastland Apr. designated definition. 2001 Tex. Gen. Laws 1188. Oth- publication). erwise, provision has remained substan- tively the same. *2, Tex.App. at did 2005 WL that the court of agree 377, at *4-5. LEXIS statutory-con- not undertake sufficient Boykin v. analysis under struction trial, expert, Eddie the State’s At the (Tex.Crim.App.1991). 818 S.W.2d of Public Department Dickie of the Lee *3 Therefore, that we will resolve issues although Abilene, that testified Safety in presented for review. Appellant has glass in the the solution he had not tested was percentage what

jar to determine FACTS clearly purity its was methamphetamine, chemist, Ekis Thomas Appellant’s weak. house, During a search Services, testified of Forensic Consultant conjunction in with the arrest of conducted jar only about glass contained that warrant, outstanding on an her husband concentration, by methamphetamine 0.05% open found in an closet police officers methamphet- grams pure only 0.1528 liquid. glass jar cloudy filled with a clear amine, from probably residue which was con- inquired the officers as to the When explained that drug’s He production. jar, Appellant replied glass tents of the jar glass remaining substance “liquid dope with in it.” that it contained solution, such as hydrocarbon was a toxic arrest, and the Appellant placed was fuel. gasoline or Coleman her and discovered a officers searched pants pocket. Appel- powder bottle, white her the Everclear regard to With soak, lant’s husband then led the officers pill to be a appeared Dickie said it attic, items used in which housed several for metham- positive it tested though in- methamphetamine, the manufacture of pill not normal for which is phetamine, cluding an which he ad- Everclear bottle contents of testified that the soaks. Ekis being pill mitted was used as a soak and 0.003% bottle contained the Everclear Initial- suphedrine pills. concentration, several boxes of by methamphetamine ly, Appellant charged only was with the methamphetamine, only grams pure 0.036 possession methamphetamine found by being tainted probably as a result grams person, her which consisted 0.73 bot- that the Everclear drug. He said gummy, powdery containing alcohol, of a com- mostly ethyl tle contained methamphetamine. After the lab results precur- or extract the monly used to clean that traces of determined there were “bones” testified that the sor. He also on the items in the at- methamphetamine percent 0.001 contained paper towel tic, charged she was would have methamphetamine, which grams. amount of more than 400 grams of actual metham- yielded 0.00015 phetamine. in its As the court of detailed the total of Ekis testified opinion, the record shows

most recent items on the pro- amount of residence the search attic and the amount glass jar containing following: duced the However, he also grams. 0.918 pocket an Everclear bottle was grams liquid; 305.62 1,210 that if “controlled substance” grams liquid pow- admitted mix- weight of a aggregate as the der; containing a trace defined coffee filters containing a controlled paper ture or solution methamphetamine; brown, substance, contained over then the exhibits grams of a containing 15.92 towels “bones,” 1,500 the controlled substance grams of identified as powdery substance jury convicted discarded after metham- the substance offense of the lesser-included Wright, Appellant has been extracted. possession of grams more than 200 methamphetamine determination as or- less than 400 of a controlled sub- dered the Court of Appeals; Criminal stance. whether to include liq- uids was an absurd the legislature

COURT OF APPEALS intended; proper could not have original its opinion affirming Appel review would have shown that the evi- conviction, lant’s con dence was both in- factually cluded that expert supplied “[t]he State’s finding posses- sufficient to proof appellant possessed a con sion of more than 200 and less trolled aggregate substance which had an *4 than grams 400 weight of grams.” more than 200 Wright, 221357, *1, 2005 Tex.App. WL at 2865, review, LEXIS at *4. On we conclud ANALYSIS ed that the appeals court of should have explained Boykin that courts Appellant’s argument addressed that inter interpret unambiguous must an lit statute preting the statute to include erally, unless doing so would lead to an in determining weight the absurd result that the legislature could not the controlled substance was an absurd By have intended. beginning with the

result legislature the could in not have plain language interpret of a statute to its tended. Wright, 2003 WL citing meaning, courts “seek to effectuate the Boykin, 818 explained S.W.2d 782. We purpose ‘collective’intent or legisla the statutory that a analysis construction tors legislation.” Boykin, who enacted the “key a component” Appellant’s legal and (citing at S.W.2d Camacho v. factual sufficiency challenges and instruct it 765 S.W.2d 431 (Tex.Crim.App. ed to reconsider points these of error. 1989)). remand, However, On appeals reading the court of if a literal held of the the second time result, that the evidence in the statute would to an lead absurd case was both factually suffi exception plain there is an meaning jury’s cient to judgment the rule. in Boykin: We established conviction. The court resolved the issue If the plain language of a statute would by saying, “Testimony showing that a mix results, lead to if absurd the ture, solution, or other substance contains plain is not ambiguous, but rather then sup controlled substance is sufficient to then, only necessity, out of absolute port a possession conviction for of that it constitutionally permissible for a controlled in an equal consider, arriving court to at a sensi- the of the mixture or interpretation, ble such extratextual fac- *2, Wright, solution.” 2005 WL at tors as executive or administrative inter- 2005 Tex.App. LEXIS at *7. of the pretations legislative statute or history.

ISSUE GRANTED 818 S.W.2d at 785-86. granted petition second for discretionary following review on the The court of appeals undertook the first ground: part of statutory analysis by construction discerning applying plain meaning

The Court of erred its fail- 481.002(5). ure to Relying address the issue of the of of our decision hand, submits that Melton v. State3 it concluded that other State experts’ testimony by- solution manufacturing inclusion of statute’s —that jar in the and mixture or glass mixture products establishing aggregate contained solution Everclear bottle substance is not weight of controlled methamphetamine, and that absurd, that a different construction given mixture each or solution was over manufacturers less se- punish drug grams Appel sufficient to sustain —was verely than the dealers. of more lant’s conviction failed to Because 481.002(5). grams than key component conduct *2, Wright, 2005 at Tex. WL statutory analysis, will construction we However, App. LEXIS at *7.4 whether, given the facts question that court of we instructed the case, Appellant’s instant conviction requires go beyond to answer absurd over 200 is an plain language to deter not have could intended. an language produces mine whether this (Tex. result, 187 S.W.3d 417 namely Appellant’s absurd convic Crim.App.2005),5 reversed the lower we tion for of more than 200 *5 methamphetamine case. court’s decision that blood mixed with instant court of appeals methamphetamine syringe The did not undertake in a vial and step statutory this next in its construction in the aggregate could not be included analysis. appellant the drug to convict amount un greater methamphetamine In her to the court of and appeals briefs 481.002(5), that der and held the defini Court, Appellant this that the contends and in tion adulterants dilutants absurdity” “absolute of equating posses- to an not lead absurd sion of a amount of methamphet- minute that the could not have in an amine unmarketable and unusable case, blood intended. that the became liquid of over the the drug mixed with when metham methamphetamine ready actual for deliv- injected, so the contents of ery is “patently analogizes obvious.” She were after the had the vial leftover 10,000 determining the result that a that literal been used. stated “The gallon that swimming pool contains one 10,000 yields meaning legislature’s of the adulterant drop methamphetamine any gallons of dilutant definition is that methamphetamine pur- for the poses and conviction. On the that is added to or mixed with controlled State, (Tex.Crim.App. (Tex.App.-East 3. 120 S.W.3d 343-44 S.W.3d 2003) (holding the pet.), quoted that it was reasonable for no land the composed to infer the 35 to 40 481.005(2). that rocks §of version cocaine, a mixture of crack if some of cocaine, rocks did contain the expert at trial 4. Even the defense acknowl- prove only that State had edged aggregate weight 481.005(2), the entire mixture or solution mixture, dilutants, including adulterants and methamphetamine would be equaled alleged weight). minimum determining in of the included Dowling court of also cited 1994) (Tex.Crim.App. 885 S.W.2d motion), reh’g prop (op. on on court’s af- Our in Seals was handed down osition that to the Tex amendments had decided the case ter produce as Controlled Act Substances us. before case, Ingram v. the result in substance, when, regardless how, actually that she possessed had less than added, why that may substance was be gram one of methamphetamine, with most aggregate weight added to the of the con of tiny having been dissolved trolled substance as an adulterant or dilu- several hundred liquid. toxic Seals, tant.” 187 S.W.3d at 420. The case Court, This citing its decision in Seals v. before us is even straightforward more (Tex.Crim.App. 187 S.W.3d 417 liquid because the toxic mixed with the 2005), now affirms conviction this case is a neces theory on the that “it is not [to] absurd sary part manufacturing process. of the If define adulterant including and dilutant as it is not absurd define adulterant and ... byproducts necessary to the manufac dilutant including product as waste left turing process.” used, clearly over after the it then that, I persuaded am with our decision byproducts is not absurd to include neces and, now, case, in Seals our decision this sary to manufacturing process in that we wandering are far afield from what the definition. uphold our decision in Legislature pun- had mind in terms of Seals and conclude that it does not lead to ishing drug offenders. to think continue an absurd result to include the unusable that the got right: dissent Chapter 481 of the Texas Health and controlled substance. Safety Code sets out the Texas Con- trolled Act. This act provides Substances CONCLUSION higher penalties longer sentences Although the court of appeals failed to manufacture, distribute, for those who fully statutory con- *6 possess or larger quantity drugs. a of struction challenge, properly the court de- gravamen The of the offense is the termined that plain language under the quantity of drug, puri- the usable not its 481.002(5), indicating that evidence ty. Anti-Drug The federal Abuse Act mixture contained a controlled substance pertinent sentencing and the guidelines was sufficient support to the conviction for are structured in a similar manner. As equal in an amount ag- Supreme [United States] Court not- gregate weight of the mixture. court The ed, “Congress adopted a ‘market-orient- is affirmed. approach punishing ed’ drug traffick- ing, quantity under which the total HOLCOMB, J., dissenting filed a distributed, pure what is rather than the opinion. involved, drug is used to determine the HOLCOMB, J., dissenting filed a length of the sentences.” opinion. approach, pen- Under the market respectfully I I dissent. would hold that drug trafficking “graduat- alties are the evidence adduced at trial according weight drugs ed insufficient to her con- they whatever form found—cut [are] viction. uncut, or pure impure, ready or majority opinion As the explains, ready wholesale or for distribution at appellant guilty found of the first-degree- Supreme the retail level.” The Court felony offense of of metham explained “Congress clearly intend- dilutant, the amount of 200 or ed the cutting agent, or carrier than grams, though weight more but less medium to be included in the drugs sentencing purposes. the evidence adduced at her trial showed those left after the what is over product is ingredients are combined with Inactive delivered, manufactured, cocaine, drug has been pure or and the mixture heroin form, function, It is not or heavily as a consumed. is then sold consumers dilutant An adulterant or that counts. drug.” form of the diluted to drug as an aid distribution functions Congress, Legislature, like The Texas use, ato dangerous as a deterrent not drug with consumable was concerned drug’s consumption. mixtures, mixtures or have that will Thus, citizens on the streets. reached 423-426 v. 187 S.W.3d at weight drug the entire mixtures (Cochran, J., dissenting) orig- (emphasis which are usable the chain distribu- omitted). inal; footnotes and citations determining tion are considered respectfully dissent. How we know that the offense level. do implemented has Legislature Texas drug approach

market-based toward look at the plain

crimes? We drug statute. (1) the of:

consists (2)

itself; any adulterants dilu- dilutants are tants. Adulterants and Individually Roy HERNANDEZ, any material “that the bulk or increases Roofing, Hernandez d/b/a ” If, quantity a controlled substance. Appellee, Appellant and fact, care the effect of whether substance had increasing the wholesale or retail bulk of LAUTENSACK, Appellee Philip it would added this drug, not have Appellant. It have requirement. simply said No. 2-05-085-CV. (1) that the of a consists of (2) itself; the controlled substance Texas, Court material Fort Worth. *7 found, or in which mixed April 2006. inevitably which would include even the material, Aug. Rehearing Overruled product, wrapping the waste any toxic There must remains. why have been reason material

used must be increases

one that the bulk Legisla- clear

itself. The reason is punish drug traffickers

ture wanted upon weight of the

and users based product. or salable

usable ... be irrational

It would toxic,

unusable, unmarketable, or waste or dilutant as an adulterant

material increases bulk of the controlled definition, By the waste

substance.