Seals v. State

187 S.W.3d 417, 2005 Tex. Crim. App. LEXIS 1966, 2005 WL 3058041

• Court: Court of Criminal Appeals of Texas
• Decided: November 16, 2005
• Docket: PD-0678-04
• Status: Published

Opinions

OPINION

PRICE, J.,

delivered the opinion of the Court,

in which KELLER, P.J., MEYERS, WOMACK, KEASLER, and HERVEY, JJ., joined.

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 dilu-tant. The court of appeals held that the blood could not be an adulterant or dilu-tant. We will reverse because the court of appeals erred by looking beyond the plain meaning of the legislature’s definition of adulterant or dilutant.

I. Facts

The appellant was indicted for possession of methamphetamine in an amount more than one gram but less than four grams. During the trial, police officers testified that, while they were investigating a tip that the appellant was manufacturing methamphetamine, they discovered a syringe and a vial that were later found to contain methamphetamine. 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 nico-tinamide (vitamin B3)¹ 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.

The jury convicted the appellant as charged in the indictment. After finding the two enhancement paragraphs true, the jury assessed a punishment of 25 years’ imprisonment.

On direct appeal, the appellant complained that the evidence was legally insufficient to support the conviction for possession of more than one gram of methamphetamine. He argued that blood is not an adulterant or dilutant and that the blood in the vial should not have been included in the aggregate weight of the controlled substance. Because the State did not show what portion of the vial was blood, he argued, there was insufficient evidence to show that the weight of the controlled substance, minus the blood, was greater than one gram.²

The court of appeals agreed with the appellant’s contention that the blood could not be considered an adulterant or dilu-tant. The court cited the correct standard for addressing the legal sufficiency of the evidence.³ Then it held that, as a matter of logic, an adulterant or dilutant cannot include every substance that is mixed with a controlled substance, particularly one introduced after the controlled substance has been used.⁴ The court reversed the conviction, found the appellant guilty of the lesser-included offense of possession of less than one gram of methamphetamine, and remanded the case for a new punishment hearing.⁵

We granted review to determine whether, in the appellant’s circumstances, the court of appeals correctly held that blood cannot be considered an adulterant or dilu-tant for a possession offense under the Texas Controlled Substances Act. We shall reverse.

II. Law and Analysis

To convict a defendant for possession of a controlled substance, the State must show that the defendant knowingly or intentionally possessed a controlled substance.⁶ A controlled substance is defined as “a substance, including a drug, an adulterant, and a dilutant, listed in Schedule I through V or Penalty Groups 1, 1-A, or 2 through 4.”⁷ A controlled substance includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance.⁸

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.”⁹ We must determine whether the blood contained in the appellant’s vial was an adulterant or dilu-tant, the weight of which could be included with that of the methamphetamine found mixed in the same vial.

When we interpret a statute we seek to effectuate the collective intent or purpose of the legislators who enacted the legislation.¹⁰ Under our decision in Boy-kin, we must interpret an unambiguous statute literally, unless doing so would lead to an absurd result that the legislature could not possibly have intended.¹¹ If a literal reading of the statute leads to an absurd result, we resort to extratextual factors to arrive at a sensible interpretation to effectuate the intent of the legislature.¹² “Where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute.”¹³

We addressed the terms adulterant and dilutant before they were defined by the legislature. In Cawthon v. State, we 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.¹⁴ As a consequence of the second and third elements, the State was required to identify the alleged adulterant or dilu-tant 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.

Following our decision in Cawthon, the legislature added the definition for adulterants and dilutants cited above. The literal meaning of the legislature’s adulterant and dilutant definition is that any substance that is added to or mixed with a controlled substance, regardless of when, how, or why that substance was added, may be added to the aggregate weight of the controlled substance as an adulterant or dilu-tant.

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,” ¹⁵ with “any material that increases the bulk or quantity of the controlled substance.” ¹⁶ Also, the second clause of the legislative definition, “regardless of its effect on the chemical activity,”¹⁷ 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 Caw-thon’s limits on what substances are considered to be adulterants or dilutants.

We 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 did not perform the Boykin analysis of the definition. Instead, it 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.

In support of the court of appeals’s opinion, the appellant alleges that, despite the plain meaning of the legislature’s definition, the legislature could not possibly have meant to include the blood found mixed with methamphetamine in the vial. The appellant contends that to read the definition that broadly would be illogical. Such a reading would allow the State to increase punishments by including the weight of substances, like blood, that are not used in the manufacturing or transportation process but instead are unintentionally added following a drug’s use. But, as we have said, when the statute is clear and unambiguous, we must take the legislature at its word. It is not for us to add or subtract from such a statute.¹⁸

One might argue that the legislature meant to include as an adulterant or dilu-tant only materials that increase the bulk or quantity of the controlled substance before distribution, sale, or consumption and that the legislature meant to exclude waste materials or materials that do not increase the bulk or quantity of salable or usable weight. But these are not the words that the legislature actually used. The drafters of the definition could have easily included these terms, but they did not. More to the point, the drafters could have left the definition that this Court used in McGlothlin v. State¹⁹ and Cawthon,20 which would have achieved the same result. What message are we to glean from the legislature’s omission of the phrases “before distribution, sale, or consumption”; “waste products”; and “salable or usable weight”? The only interpretation that is permitted under the seminal rule of statutory construction: We presume that the legislature meant what it said.

An inspection of the legislature’s definition of adulterant and dilutant within the context of the possession of drug paraphernalia (as opposed to the definition in the context of possession of a controlled substance) is instructive here. An adulterant or dilutant that is drug paraphernalia only is defined as

a dilutant or adulterant, such as quinine hydrochloride, mannitol, inositol, nicoti-namide, dextrose, lactose, or absorbent, blotter-type material, that is used or intended to be used to increase the amount or weight of or to transfer a controlled substance regardless of whether the dilutant or adulterant diminishes the efficacy of the controlled substance.21

This definition is remarkably similar to the definition of adulterants and dilutants that we used in McGlothlin and Cawthon, most likely because we used this definition as a guide. The legislature explicitly eschewed the use of this definition for adulterants and dilutants in the context of possession of a controlled substance.²²

The definition of adulterants or dilutants as drug paraphernalia only is distinct from the definition in the context of possession of a controlled substance, which does not require any demonstration that the substance was used or intended to be used to increase the amount of the controlled substance. We might speculate on the reason for the difference, but we need look, no further than another rule of statutory construction: We endeavor to give effect to the whole statute, which includes each word and phrase, if possible.²³ If we were to interpret both definitions in the same manner, we would have to give effect to words that are not present in one definition or we would have to subtract words that are present in the other.

We appreciate the need and the concern for rational public policy. 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.²⁴ 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.

III. Conclusion

The court of appeals erred in construing the terms adulterant and dilutant. Because the blood in this case came within the definition of adulterant or dilutant, the evidence was legally sufficient to support the jury’s verdict. 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.

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.

1 . Nicotinamide is a substance commonly used as a controlled substance additive.

2 . We have held that the State is no longer required to show what amount of a controlled substance and what amount of an adulterant or dilutant make up a mixture for purposes of possession of a controlled substance. Melton v. State, 120 S.W.3d 339, 344 (Tex.Crim.App.2003).

3 . See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (holding that, when conducting a legal sufficiency review, the reviewing court should view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt).

4 . Seals v. State, No. 05-03-01105-CR, slip op. at 4, 2004 WL 639678 (Tex. App.-Dallas, delivered Apr. 1, 2004) (not designated for publication).

5 . Id. slip op., at 5.

6 . Tex. Health & Safety Code § 481.116(1).

7 . Tex Health & Safety Code § 481.002(5).

8 . Ibid.

9 . Tex. Health & Safety Code § 481.002(49).

10 . Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim.App.1991).

¹¹

12 . Id. at 785-86.

13 . Id. at 785.

14 . Cawthon v. State, 849 S.W.2d 346, 349 (Tex.Crim.App.1992).

¹⁵

¹⁶

¹⁷

18 . Boykin, 818 S.W.2d at 785.

19 . 749 S.W.2d 856, 860 (Tex.Crim.App.1988).

20 . 849 S.W.2d at 348-49.

21 . Tex. Health & Safety Code § 481.002(17)(F).

22 . See Tex. Health & Safety Code § 481.002(49) (" 'Adulterant or dilutant’ 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.”).

23 . Nguyen v. State, 1 S.W.3d 694, 696 (Tex.Crim.App. 1999).

²⁴

* What this court did was even worse than we say today. In McGlothlin v. State, 749 S.W.2d 856, 858 (Tex.Cr.App.1988), the court concluded "that within the field of drugs and controlled substances, 'adulterants’ and ‘dilu-tants’ are compounds, substances, or solutions added to the controlled substance with the intent to increase the bulk of the product. Or, increase the quantity of the product without affecting its activity.” Having thus violated the rules of grammar as well as the rules of statutory construction, the court applied its definition to a flask containing "mostly water” that the State's expert agreed had only "a residual and insignificant amount” of controlled substance in it, on top of which floated an "organic layer” that was "distinct and observable.” This layer seemed to contain most of the controlled substance, and the defendant’s expert said it contained less than 400 grams of amphetamine. The court held that the evidence was insufficient to prove the offense of possession of more than 400 grams of amphetamine because "the record contains no evidence that the water was intended to increase the bulk or quantity of the final product.” Id.., at 861.

In Cawthon, four years later, this court simultaneously said that McGlothlin "sets forth the only definition of adulterants and dilu-tants recognized by this Court,” and that there was more to the definition: an adulterant or dilutant also must be something that "has not affected the chemical activity of the named illegal substance.” Cawthon v. State, 849 S.W.2d 346, 348-49 (Tex.Cr.App. 1992).