Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 11/13/2015 3:35:47 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-14-00901-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 11/13/2015 3:35:47 PM CHRISTOPHER PRINE CLERK
N O . 01-14-00901-CR I N T HE C OURT OF A PPEALS F OR THE F IRST D ISTRICT OF T EXAS T RAVIS L AMB
Appellant
v . THE S TATE OF T EXAS Appellee
On Appeal from Cause No. 1394200 From the 351st Judicial District Court of Harris County, Texas M OTION FOR R EHEARING , O R IN THE LTERNATIVE , M OTION TO P UBLISH I. T HE PRESENCE OF ADULTERANTS OR DILUTANTS CANNOT BE USED ESTABLISH
THE PRESENCE OF A CONTROLLED SUBSTANCE AT ABOVE - TRACE LEVELS A. The Controlled Substance Act and the definitions of “controlled substance” and “adulterants and dilutants”
The Controlled Substances Act defines “adulterant or dilutant” 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 .” T EX . H EALTH &
S AFETY ODE § 481.002(49). The Controlled Substance Act defines “controlled
substance” as:
“ a substance , including a drug, an adulterant, and a dilutant, listed in Schedules I through V or Penalty Groups 1, 1-A, or 2 through 4 . The term includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance.” *2 T EX . H EALTH & S AFETY C ODE § 481.002(5). While not the model of clarity, a fair
reading of Section 481.002(5) requires that “controlled substance” must be listed in a
schedule or penalty group. In the context of Appellant’s case, the State must prove
Appellant “possesse[d] a controlled substance listed in Penalty Group 1 ” and that
“the amount of the controlled substance possessed is, by aggregate weight,
including adulterants or dilutants , one gram or more but less than four grams.”
T EX . H EALTH & S AFETY C ODE § 481.115(a, c).
In the context of Section 481.115, an “adulterant or dilutant” does not exist without outside of the presence of a controlled substance in penalty group 1. T EX .
H EALTH & S AFETY C ODE § 481.002(49); T EX . H EALTH & S AFETY C ODE § 481.115(a,
c). To use the quantity of “adulterant or dilutant” present in the evidence is to create a
circular definition: an “adulterant or dilutant” is defined as a material mixed with a
controlled substance, which would then be defined as any “adulterant or dilutant”
mixed with a controlled substance. Such a definition is “completely circular and
explains nothing.” See e.g. Nationwide Mut. Ins. Co. v. Darden , 503 U.S. 318, 323 (U.S.
1992). But ultimately, this circular definition is the one applied to Appellant’s case
Even accepting the merits of Appellant's reasoning, he cannot prevail. Regardless of the amount of cocaine present in the substance, it was present, and it was mixed with “adulterants and dilutants.” See T EX . H EALTH & S AFETY ODE NN . § 481.002(49) (defining “adulterants and dilutants”). Regardless of whether the amount of cocaine by itself would have constituted a trace amount, with the adulterants and dilutants, it was visible and weighed 1.77 grams. See Melton , 120 S.W.3d at 344 (holding State has to prove only that aggregate weight of controlled substance mixture, including adulterants and dilutants, equals alleged *3 minimum weight). Accordingly, there was sufficient evidence for the jury to determine that Appellant possessed more than one gram and less than four grams of cocaine. See id . This is not a trace amount. See Shults , 575 S.W.2d at 30 (defining trace amount to be quantity of substance possessed so small that it cannot be quantitatively measured).
Lamb v. State , 01-14-00901-CR, 2015 WL 6933120, at *3 (Tex. App.—Houston [1st
Dist.] Nov. 10, 2015, no. pet. h.). While Appellant readily concedes that the quantity
of “adulterants and dilutants” present in the crystalline substance can be qualitatively
measured, the amount of cocaine, without the presence of which there would be no
“adulterants or dilutants” or crime at all, is a trace amount which could not be
established by sensitive laboratory devices operating under normal conditions.
B. Nothing in Seals suggests that the aggregate weight of a mixture can be used to determine whether or not a controlled substance is only present in trace amounts
The Seals court resolved the issues of the aggregate weight of the blood waste mixture and the presence of methamphetamine within the mixture independently.
The Court noted that there was an unmeasured amount of methamphetamine in the
blood waste mixture:
The State's criminalist testified that the contents of the syringe weighed 0.05 grams and the contents of a vial weighed 1.50 grams. The criminalist said that, in addition to methamphetamine, the vial contained nicotinamide (vitamin B3) and blood. The criminalist did not say how much of the vial's 1.50 grams came from each of the three substances. The appellant admitted possessing less than a gram of methamphetamine. He testified that the vial contained mostly blood waste. According to the appellant, the vial was used to squirt blood and trace amounts of methamphetamine when he was unable to successfully inject the drug into his arm.
Seals v. State , 187 S.W.3d 417, 418 (Tex. Crim. App. 2005). The dissenting opinion
explicitly noted that there was only a trace amount of methamphetamine in the blood
waste mixture: “In this case, there is no evidence of any illicit use of the bloody
mixture in the vial with traces of methamphetamine contained in it.” Seals v. State , 187
S.W.3d 417, 426 (Tex. Crim. App. 2005) (J. Cochran, dissenting). Seals does not seem
to treat the presence of methamphetamine in the blood as anything more than a trace
amount of a controlled substance.
C. This Court’s holding sets a dangerous policy This Court’s holding that “[r]egardless of whether the amount of cocaine by itself would have constituted a trace amount, with the adulterants and dilutants, it was
visible and weighed 1.77 grams” pushes the interpretation of the Controlled
Substance Act further down a dangerous and slippery slope. Imagine this scenario: a
law-abiding baker works in a local bakery. By the end of the baker’s shift, her apron
has a few noticeable splotches of flour. The baker throws the apron in the back of her
car and rushes home. A police officer pulls the baker over for speeding 5 miles over
the speed limit, notices the flour residue on the apron, suspects the visible residue to
be cocaine, arrests the baker for possession of a controlled substance, and seizes the
apron for testing. The laboratory technician carefully scrapes the flour off the apron
and weighs 1.77 grams of flour. The laboratory technician runs four sensitive
laboratory tests, none of which detect the presence of any controlled substance. The
laboratory technician concentrates the sample, and runs a second battery of tests and
detects cocaine. The cocaine is an environmental contaminant or is residue spread to
the baker when she handled customer’s cash. How does the baker vindicate her
innocence?
Under the typical “affirmative links” analysis as would be applied by this Court given the visible quantity of flour found in the baker’s case, it is highly likely that the
innocent baker would be found guilty. It would be enough for the State to show that
the apron was in the baker’s physical possession, the baker was present when the
search was conducted, the flour was in plain view, the baker owned her car where the
flour was found, and the car is enclosed. See Evans v. State , 202 S.W.3d 158, 162-163
(Tex. Crim. App. 2006) (providing an in-depth explanation of Texas’s affirmative links
doctrine). Under the stricter King standard, the mere possession of an immeasurable,
invisible amount of cocaine would not support a conclusion that the baker was guilty.
King v. State , 895 S.W.2d 701, 703 (Tex. Crim. App. 1995) (“when the quantity of a
substance possessed is so small that it cannot be measured, there must be evidence
other than mere possession to prove that the defendant knew the substance in his
possession was a controlled substance”).
As a rose by any other name would smell as sweet, calling the “cocaine” in this case anything other than low-concentration, trace evidence does not change its nature.
The scientific techniques employed in this case like gas chromatography / mass
spectroscopy can detect substances at stunningly low levels. But what the scientific
techniques cannot do is explain to a jury the significance of a finding. In Appellant’s
case, the laboratory technician’s rather obtuse testimony about contamination did no
more than confuse the jury about the significance of the detection of cocaine at such
low levels within the crystalline substance. (4 R.R. at 77-79). While laboratory
procedures may be crafted to prevent cross-transfer and contamination of evidence,
such rigorous procedures are exceedingly unlikely adhered to by ordinary citizens or
patrol officers (who often handle both controlled substances and evidence). The law
must not merely seek to punish the guilty, it must seek to safeguard the innocent. See
Stone v. Powell , 428 U.S. 465, 494 (1976) (All courts “have a constitutional obligation to
safeguard personal liberties.”). In order to safeguard the innocent from punishment
for the accidental or unwitting possession of trace amounts of narcotics, this Court
must treat the narcotics as trace evidence whether present as invisible residue or
whether mixed with a “crystalline substance” which does not somehow externally
alert the possessor that the “crystalline substance” may contain cocaine.
II. T HIS OURT SHOULD HAVE ADDRESSED PPELLANT ’ S DUE PROCESS
ARGUMENT
A. An argument to the sufficiency of the evidence is a due process argument The doctrine of sufficiency of the evidence is carved directly from the Due Process Clause. It has long been held that “[t]he Due Process Clause protects the
accused against conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged.” In re Winship , 397
U.S. 358, 364 (1970). However, the Supreme Court struggled over how to ensure a
defendant’s due process protection against conviction on less than proof beyond a
reasonable doubt was appropriately vindicated on appeal. The sufficiency standard set
forth in Jackson “suppl[ies] a workable [and] predictable standard for determining
whether the due process command of Winship has been honored.” Jackson v. Virginia ,
443 U.S. 307, 320 (1979). When setting forth the standard for sufficiency of the
evidence, the Jackson court explicitly balanced the factfinding power of the jury with
the due process rights of the defendant: “[t]he criterion thus impinges upon ‘jury’
discretion only to the extent necessary to guarantee the fundamental protection of due
process of law.” Id. at 319. Applying syllogistic reasoning, Appellant raised the issue of
sufficiency of the evidence, sufficiency of the evidence is a doctrine carved from due
process protections, therefore Appellant asserted his due process rights on appeal.
B. An argument to the sufficiency of the evidence is an argument that the evidence supporting a conviction is of inadequate quality In Brooks , the Court of Criminal Appeals explained that sufficiency of the evidence is synonymous with the quality of the evidence:
Legal sufficiency of the evidence is a test of adequacy, not mere quantity. Sufficient evidence is “such evidence, in character, weight, or amount, as will legally justify the judicial or official action demanded.” Black's Law Dictionary 1285 (5th ed.1979). In criminal cases, only that evidence which is sufficient in character, weight, and amount to justify a factfinder in concluding that every element of the offense has been proven beyond a reasonable doubt is adequate to support a conviction. […]
As Justice Harlan explained in his Winship concurrence, although the phrases “preponderance of the evidence” and “proof beyond a *8 reasonable doubt” are quantitatively imprecise, they do communicate to the finder of fact different notions concerning the degree of confidence he is expected to have in the correctness of his factual conclusions. Justice Harlan noted that “[t]he preponderance test has been criticized, justifiably in my view, when it is read as asking the trier of fact to weigh in some objective sense the quantity of evidence submitted by each side rather than asking him to decide what he believes most probably happened.” Indeed, that is precisely why the standard of proof and review in criminal cases has been expressed, not by the quantity of evidence produced or how it might be weighed when viewed neutrally, but rather by the quality of the evidence and the level of certainty it engenders in the factfinder's mind.
Legal sufficiency of the evidence in a criminal proceeding may be divided into two zones: evidence of such sufficient strength, character, and credibility to engender certainty beyond a reasonable doubt in the reasonable factfinder's mind and evidence that lacks that strength. Appellate review of a jury's verdict of criminal conviction focuses solely on that “either-or” character of evidentiary sufficiency because a defendant is entitled to an acquittal if the evidence lacks that strength.
Brooks v. State , 323 S.W.3d 893, 917-918 (Tex. Crim. App. 2010) (citations omitted).
Once again, applying the same syllogistic reasoning used above, Appellant raised the
issue of sufficiency of the evidence, sufficiency of the evidence measures the quality
of the evidence before the appellate court, therefore Appellant asserted that the
quality of the evidence supporting Appellant’s conviction was inadequate.
C. The Court should not have distinguished between challenging the sufficiency of the evidence and challenging the quality of the evidence This Court did not fully address Appellant’s sufficiency argument, holding that Appellant’s arguments under the due process clause were not part of Appellant’s
primary brief:
In his reply brief, Appellant argues that due process requirements put limits on what constitutes an adulterant or dilutant and on the quality of *9 evidence that will support a conviction for possession of a controlled substance. Appellant's due process arguments were not raised in his primary brief. An appellant cannot raise issues raised for the first time in a reply brief. See Tex. R. App. P. 38.3 (limiting reply brief to addressing matters raised in appellee's brief); Barrios v. State, 27 S.W.3d 313, 322 (Tex.App.—Houston [1st Dist.] 2000, pet. ref'd) (rejecting review of argument raised for first time in reply brief).
Lamb v. State , 01-14-00901-CR, 2015 WL 6933120 at *4 (Tex. App.—Houston [1st
Dist.] Nov. 10, 2015, no. pet. h.). By distinguishing between Appellant’s sufficiency
argument and the due process argument, the Court seems to make a distinction
between doctrines which are identical in the context of a sufficiency analysis. Section
I(D) of Appellant’s brief focused on the lack of evidence that would suggest anyone
in Appellant’s shoes could or should believe that the crystalline substance contained
cocaine and that even using sensitive laboratory techniques, it was impossible to
detect any illicit drugs within the crystalline substance. Section I(E) of Appellant’s
brief focused on the reasons why the judicial interpretation of Texas’s Controlled
Substances Act, as it currently stands, is ultimately unworkable and unconstitutional.
Appellant argued that the Appellate Courts must draw a firmer line to distinguish
between the possession of narcotics and the innocent possession of narcotics residues
as well as to ensure the fairness and rationality of the definition of adulterant or
dilutant. Appellant believes addressing the quality of the evidence in this case in light
of Appellant’s due process protections is necessary for a full and fair resolution of
Appellant’s case.
P RAYER Appellant prays that this Court reconsider and withdraw its opinion in 01-14- 00901-CR. In the alternative, Appellant prays that this Court publishes the opinion
Appellant’s case.
Respectfully submitted, LEXANDER B UNIN Chief Public Defender Harris County Texas /s/ Nicolas Hughes N ICOLAS H UGHES Assistant Public Defender Harris County Texas 1201 Franklin Street, 13 th Floor Houston Texas 77002 (713) 368-0016 (713) 386-9278 fax TBA No. 24059981 nicolas.hughes@pdo.hctx.net ERTIFICATE OF S ERVICE I certify that a copy of this Appellant’s Motion for Rehearing / Motion to Publish Brief (Lamb) has been served upon the Harris County District Attorney's Office −
Appellate Section, on November 13, 2015, by electronic service.
/s/ Nicolas Hughes N ICOLAS H UGHES Assistant Public Defender *11 ERTIFICATE OF C OMPLIANCE This document complies with the typeface requirements of T EX . R. A PP . P. 9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the page
and word count limitations of T EX . R. A PP . P. 9.4(i), if applicable, because it contains
2,460 words excluding portions not to be counted under T EX . R. PP . P. 9.4(i)(1).
/s/ Nicolas Hughes N ICOLAS H UGHES Assistant Public Defender