Seals, Ronald Clyde

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

---

NO. PD-0678-04

---

RONALD CLYDE SEALS, Appellant

v.

THE STATE OF TEXAS

---

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIFTH COURT OF APPEALS

COLLIN COUNTY

---

Cochran, J., filed a dissenting opinion in which Johnson and Holcomb, JJ., joined.

O P I N I O N

I respectfully dissent. I think that the court of appeals got it exactly right. ⁽¹⁾ "Common sense often makes good law." ⁽²⁾ The evidence in this case showed that the blood-methamphetamine mixture in the vial found by appellant's bed is "waste" product. It is not a mixture in which adulterants or dilutants have increased the bulk of the controlled substance.

I think that the "plain language" of the statute is clear: only those adulterants and dilutants which increase the bulk of the controlled substance before their distribution, sale, or consumption are part of the gross weight of the controlled substance. Controlled substance detritus or left-overs may still exist after a person has used a controlled substance. The weight of any controlled substance detritus counts, but the medium in which the detritus is found is clearly not an adulterant or dilutant which increases the bulk of the controlled substance.

Chapter 481 of the Texas Health and Safety Code sets out the Texas Controlled Substances Act. This act provides higher penalties and longer sentences for those who manufacture, distribute, or possess a larger quantity of drugs. ⁽³⁾ The gravamen of the offense is the quantity of the usable drug, not its purity. ⁽⁴⁾ The federal Anti-Drug Abuse Act and the pertinent sentencing guidelines are structured in a similar manner. ⁽⁵⁾ As the Supreme Court has noted, "Congress adopted a 'market-oriented' approach to punishing drug trafficking, under which the total quantity of what is distributed, rather than the pure drug involved, is used to determine the length of the sentence." ⁽⁶⁾

Under the market approach, the penalties for drug trafficking are "graduated according to the weight of the drugs in whatever form they [are] found-cut or uncut, pure or impure, ready for wholesale or ready for distribution at the retail level." ⁽⁷⁾ The Supreme Court explained that "Congress clearly intended the dilutant, cutting agent, or carrier medium to be included in the weight of those drugs for sentencing purposes. Inactive ingredients are combined with pure heroin or cocaine, and the mixture is then sold to consumers as a heavily diluted form of the drug." ⁽⁸⁾

The Texas Legislature, like Congress, was concerned with consumable drug mixtures, mixtures that will or have reached citizens on the streets. ⁽⁹⁾ Thus, the entire weight of drug mixtures which are usable in the chain of distribution are considered in determining the offense level. ⁽¹⁰⁾ How do we know that the Texas Legislature has implemented a market-based approach toward drug crimes? We look at the plain language of the statute. The weight of a drug consists of: (1) the controlled substance itself; and (2) any adulterants or dilutants. Adultants and dilutants are any material "that increases the bulk or quantity of a controlled substance." ⁽¹¹⁾ If, in fact, the Legislature did not care whether a substance had the effect of increasing the wholesale or retail bulk of the drug, it would not have added this requirement. It would simply have said that the weight of a drug consists of (1) the controlled substance itself; and (2) any material with which the drug is mixed or in which the drug is found, which would inevitably include even the wrapping material, the waste product, and any toxic remains. ⁽¹²⁾ There must have been a reason why the Legislature used language that the material must be one that increases the bulk of the drug itself. That clear reason is that the Legislature wanted to punish drug traffickers and users based upon the weight of the usable or salable product. ⁽¹³⁾ As further proof the legislative plain language meaning of dilutants and adulterants, Section 481.002(17)(F) includes, as drug paraphernalia,

a dilutant or adulterant, such as quinine, hydrochloride, mannitol, inositol, nicotinamide, dextrose, lactose, or absorbent, blotter-type materials, 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. ⁽¹⁴⁾

Although this statutory list does not purport to be exhaustive, all of the substances listed are cutting agents or agents used to facilitate the delivery or use of drugs. ⁽¹⁵⁾ They may diminish the strength or efficacy of the drug, but they do not pollute it or make it unusable or unmarketable.

It would be irrational, however, to consider unusable, unmarketable, toxic, or waste material as an adulterant or dilutant that increases the bulk of the controlled substance. ⁽¹⁶⁾ By definition, the waste product is what is left over after the drug has been manufactured, delivered, or consumed. It is function, not form, that counts. An adulterant or dilutant functions as an aid to drug distribution or use, not as a dangerous deterrent to a drug's consumption.

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. Both police officers testified that blood is not an adulterant or dilutant. Both officers testified that blood does not increase the bulk or quantity of methamphetamine. ⁽¹⁷⁾ Their opinions are eminently reasonable. And I am unaware of any "real-life" case or example in which someone's blood is mixed with methamphetamine prior to its distribution or use. To do so would create a serious health hazard: Hepatitis B and HIV/AIDS are but two reasonably foreseeable results. ⁽¹⁸⁾ It is also reasonably common knowledge that coagulated blood in one's veins causes fatal embolisms. Indeed, were Jonathon Swift still with us, a new "Modest Proposal" ⁽¹⁹⁾ might be to legalize all illicit drugs, but require them to be mixed with someone's blood before being sold and distributed. That might put a swift end to drug trafficking and users alike.

In this case, appellant testified that the bedside vial contained some of his own blood because he had attempted to inject methamphetamine, but was unable to find a vein and blood backed up into the syringe. He stated that he discarded the blood into the vial. As the court of appeals noted, "[t]he jury was provided no other explanation for the blood in the vial," ⁽²⁰⁾ and it could think of no other rational explanation. Neither can I.

The State argues that the mere fact that appellant still had the vial is evidence that he must have considered the bloody mixture of some use. Well, if one considers a used, wadded up Kleenex lying on the bedside table of some value-just as this bloody vial was lying beside used and clean syringes on the bedside table-perhaps that is within the realm of possibility. But just barely.

The State also argues that because appellant kept drug scales next to the tin container, "a rational jury could have determined that Seals placed everything he needed to use methamphetamine in and around that kit-clear evidence that he was keeping the vial and contents for future use." Perhaps so, if he wanted to commit suicide-death by injection with toxic, coagulated blood. Finally, the State argues that because appellant failed to tell the police officers at the scene that the vial "was filled with unusable waste product," it must have been usable. I cannot follow this logic.

However, if one does follow the State's legal logic, then the following scenarios would lead to the equally absurd results:

• The defendant swallows a hit of LSD as his Thanksgiving Day dessert. He promptly vomits up his entire Thanksgiving Day dinner. The weight of the Thanksgiving dinner is included as an adulterant and dilutant;



• The defendant appears for a urine drug test; his product is prodigious. It includes a trace amount of methamphetamine. The weight of the urine is included as an adulterant and dilutant.

One federal court has satirically noted the following examples: When the police race into a defendant's home, and he is in the process of flushing a rock of cocaine down the toilet, all of the water in the toilet bowl is included in the weight calculation; when a defendant is arrested for growing marijuana in his back yard, all of the plowed-under soil in the backyard is included because it still contains traces of marijuana roots, shoots, and leaves in it. ⁽²¹⁾ The Dallas court of appeals in this case used an apt example of a defendant discarding cocaine residue in a pile of ashes; under the State's logic, the entire pile of ashes (six inches high or twenty feet high) would constitute an "adulterant or dilutant." ⁽²²⁾ Oh, surely not!

The issue in all of these examples is simple: Does the Texas Controlled Substances Act "require that the weight of an unusable portion of a mixture, which makes the drugs uningestible and unmarketable, be included in the overall weight calculation?" Like so many federal courts, ⁽²³⁾ I think not.

It simply defies common sense (and perhaps the federal constitution) ⁽²⁴⁾ to think that if appellant had possessed slightly less than one gram of injectable methamphetamine, he should be sentenced to a state jail felony, but if he unsuccessfully tried to inject that drug into his veins and his blood backed up into the syringe, mixing three grams of his blood with the methamphetamine, he may be sentenced to a third degree felony. He may be criminally inept, but that is not a felony. Normally, courts "do not interpret a statute in a manner that will lead to a foolish or absurd result when another alternative is available." ⁽²⁵⁾ We should not do so this time, particularly if doing so raises constitutional concerns.

I must respectfully dissent.

Cochran, J.

Filed: November 16, 2005

Publish

1.

Seals v. State, No. 05-03-01105-CR, 2004 Tex. App. LEXIS 2925 (Tex. App. - Dallas, April 1, 2004) (not designated for publication). In its opinion, the court of appeals stated,

The facts peculiar to the present case present us with the issue of whether blood that becomes mixed with methamphetamine when the methamphetamine is being injected is an adulterant or dilutant under the health and safety code. As a matter of logic, we conclude it is not. An adulterant or dilutant increases the bulk or quantity of the controlled substance. But we cannot stretch that definition to encompass every instance of a controlled substance being mixed with another substance, particularly after the controlled substance has been used.

Id. at *5.

2.

Peak v. United States, 353 U.S. 43, 46 (1957).

3.

See Tex. Health & Safety Code §§ 481.112 - 481.122 (defining offenses and setting out penalties depending upon type and quantity of drug).

4.

See McGlothin v. State, 749 S.W.2d 856, 859-61 (Tex. Crim. App. 1988) (judicially defining adulterants and dilutants before Legislature enacted statutory definition; noting that such materials "cut" a controlled substance and that Legislature intended to "broaden the offender's potential liability beyond the weight of the pure controlled substance" to include "cutting" agents which increase the bulk or quantity of the final product); Smith v. State, 737 S.W.2d 933, 937 (Tex. App. - Dallas 1987, pet.ref'd) (noting that definition of drug paraphernalia includes dilutants and adulterants which are used or intended for use "in cutting a controlled substance" and holding that Legislature could rationally "conclude that possession of greater amounts of controlled substances should be punished more severely than possession of lesser amounts. The greater the amount of illicit drugs possessed, the more likely use is widespread and delivery to others is intended, and the greater harm to society"). In 1994, the Legislature modified the holding in McGlothin and a later case, Cawthon v. State, 849 S.W.2d 346, 349 (Tex. Crim. App. 1992), to the extent that these cases required proof of: (1) the specific substance that was a dilutant or adulterant; (2) the relative amounts of dilutant or adulterant within a given mixture; or (3) intent that an adulterant or dilutant was added to increase the bulk of the drug. See Isassi v. State, 91 S.W.3d 807, 810 (Tex. App. - El Paso 2002, pet. ref'd). By enacting the statutory definition of "adulterant or dilutant," in its current wording, these three judicially-enforced prongs were eliminated. Tex. Health & Safety Code § 481.002(49) (eff. Sept. 1, 1994).

5.

See generally Chapman v. United States, 500 U.S. 453 (1991) (discussing congressional purpose in enacting federal drug sentencing provisions based upon weight of drugs combined with cutting agents and carrier mediums).

6.

Id. at 461 (holding that the weight of the blotter paper used as the distribution medium for LSD is included in the weight of the drug for sentencing purposes). After the Chapman opinion, the Federal Sentencing Guidelines were amended to exclude the weight of the blotter paper for purposes of a mandatory minimum sentence. See 1995 U.S. Sentencing Guidelines Manual § 2D1.1, Amendment 488. Nonetheless, in Neal v. United States, 516 U.S. 284, 296 (1996), the Supreme Court held that the controlling statute, 21 U.S.C. § 841(b)(1), required a sentencing court to take into account the actual weight of the blotter paper with its absorbed LSD, even though the guidelines required a different method of calculating the weight of an LSD mixture or substance.

7.

Chapman, 500 U.S. at 460; see also United States v. Stewart, 361 F.3d 373, 377-78 (7^th Cir. 2004) (applying market-oriented approach and holding that only usable or consumable mixtures or substances can be included in drug quantity); United States v. Johnson, 999 F.2d 1192, 1196 (7^th Cir. 1993) (stating that when a jar containing waste water and traces of cocaine was found by officers in a "crack house," the weight of the waste water did not serve as a dilutant, cutting agent, or carrier medium; "the waste water does not in any way increase the amount of drug available at the retail level. The liquid, with just a trace of cocaine base, is merely a by-product of the manufacturing process with no use or market value. The waste water is not ready for distribution at the wholesale or retail level because it will never be distributed at all. Under a market-oriented approach, when the mixture is not ingestible and therefore not marketable, there is no rational basis to a sentence based on the entire weight of a useless mixture") (footnote omitted); United States v. Rolande-Gabriel, 938 F.2d 1231, 1237 (11^th Cir. 1991) (noting that "[t]he entire weight of drug mixtures which are usable in the chain of distribution should be considered in determining a defendant's sentence").

8.

Chapman, 500 U.S. at 460.

9.

Id. at 466; McGlothin, 749 S.W.2d at 860-61.

10.

McGlothin, 749 S.W.2d at 861; see Rolande-Gabriel, 938 F.2d at 1237.

11. Tex. Health & Safety Code § 481.002(49) (emphasis added).

12. Alternatively, it could have used the same language as in the federal statute defining drug offenses (as opposed to the language in the sentencing guidelines): manufacture, distribution, or possession of "a mixture or substance containing a detectable amount of" the illicit drug. 21 U.S.C. § 841(b).

13.

See McGlothin, 749 S.W.2d at 860-61.

14. Tex. Health & Safety Code § 481.002(17)(F) (emphasis added). Normally, all parts of an act are construed together and the meaning of statutory terms within a single act remain the same when used throughout that act.

See, e.g., Texas Dept. of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002) ("In ascertaining a term's meaning, courts look primarily to how that term is used throughout the statute as a whole. Statutory terms should be interpreted consistently in every part of an act") (citations omitted); see also Int'l Truck & Engine Corp. v. Bray, 372 F.3d 717, 723 (5^th Cir. 2004) ("Texas courts must interpret statutory terms consistently"); Brown v. Darden, 121 Tex. 495, 500, 50 S.W.2d 261, 263 (Tex. 1932) ("Whenever a legislature has used a word in a statute in one sense and with one meaning, and subsequently uses the same word in legislating on the same subject-matter, it will be understood as using it in the same sense, unless there be something in the context or the nature of things to indicate that it intended a different meaning thereby.") (citations omitted); Guthery v. Taylor, 112 S.W.3d 715, 721-22 (Tex. App.-Houston [14^th Dist.] 2003, no pet.) ("when construing a statutory word or phrase, a court may take into consideration the meaning of the same or similar language used elsewhere in the act or in another act of similar nature. When the same or a similar term is used in the same connection in different statutes, the term will be given the same meaning in one as in the other, unless there is something to indicate that a different meaning was intended.") (citations omitted).

I am at a loss to understand why, when the term "adulterant or dilutant" is used in the drug paraphernalia statute it means substances "used or intended to be used to increase the amount or weight of or to transfer a controlled substance," it is limited to materials that assist in the distribution, transfer, and use of a controlled substance, but when materials are found with a controlled substance, that same term, in the same statutory act, includes toxic waste products that no one would use to increase the amount or weight of a controlled substance. As Alice in Wonderland was wont to say, "Curiouser and curiouser."

15.

See McGlothin, 749 S.W.2d at 860-61.

16.

See, e.g., United States v. Rolande-Gabriel, 938 F.2d 1231, 1237 (11^th Cir. 1991) (irrational to consider entire weight of cocaine mixture that was obviously unusable while mixed with liquid waste material); United States v. Acosta, 963 F.2d 551, 554-55 (2d Cir. 1992) (evidence was that cocaine was dissolved in creme liqueur for importation; "under a market-oriented approach, when the mixture is not ingestible (and therefore not marketable), there is no reason to base a sentence on the entire weight of a useless mixture"); United States v. Rodriguez, 975 F.2d 999, 1007 (3d Cir. 1992) (excluding weight of unusable and toxic boric acid from packages containing boric acid and a thin layer of cocaine); United States v. Robins, 967 F.2d 1387, 1389 (9th Cir. 1992) (excluding weight of cornmeal combined with cocaine; cornmeal was not a "tool of the trade" or a cutting agent, and it did not facilitate the distribution of the cocaine); United States v. Brinton, 139 F.3d 718, 722 (9^th Cir. 1998) (2,401 grams of unmarketable and toxic waste product containing some usable methamphetamine could not be included in total weight of controlled substance for sentencing purposes; only the usable methamphetamine should be used in calculating sentence); United States v. Ochoa-Heredia, 125 F. Supp. 2d 892, 927 (N.D. Iowa 2001) (when 26.2 grams of methamphetamine was mixed with 3,000 grams of toxic freon "waste," only the weight of the methamphetamine could be considered; court concluded that "unusable, unmarketable, or toxic mediums containing methamphetamine should be excluded from calculation of the weight of the methamphetamine for purposes of determining mandatory minimum sentences").

17. A criminalist testified that he frequently found blood in used syringes along with contraband, but he expressed no opinion as to what possible use such blood might be in the manufacture, delivery, or use of any contraband.

18. It is common knowledge that both Hepatitis B and HIV/AIDS can be spread by blood-to-blood contact.

19.

See Jonathon Swift, A Modest Proposal For Preventing the Children of Poor People in Ireland From Being a Burden to Their Parents or Country, and For Making Them Beneficial to the Public (1729) (satirical essay suggesting that the Irish should eat their own children).

20.

Seals, 2004 Tex. App. LEXIS at *6.

21.

See United States v. Johnson, 999 F.2d 1192, 1196 (setting out both the toilet bowl example and the plowed-marijuana fields hypothetical as leading to "absurd and irrational results contrary to congressional intent").

22.

Seals, 2004 Tex. App. LEXIS 2925 at *5-6.

23.

See United States v. Acosta, 963 F.2d 551, 553 (2d Cir. 1992) (concluding that "the creme liqueur must be separated from the cocaine before the cocaine may be distributed, it is not unreasonable to consider the liquid waste as the functional equivalent of packaging materials . . . which quite clearly is not to be included in the weight calculation"); Chapman, Stewart, Rolande-Gabriel, Johnson, Brinton, Rodriguez, Robins, Ochoa-Heredia, supra. Though the vast majority of federal courts have followed a "market oriented" approach to drug weight, not all have done so. See, e.g., United States v. Mahecha-Onofre, 936 F.2d 623, 624-26 (1st. Cir. 1991) (when defendant was found in possession of two suitcases that were manufactured of an acrylic material into which 2.5 kilograms of cocaine were chemically bonded, the court held that the entire weight of the suitcases, less the weight of the metal components, was the appropriate sentencing consideration under U.S.S.G. § 2D1.1 and 21 U.S.C. § 841(b)(1)(A)); United States v. Restrepo-Contreras, 942 F.2d 96, 99 (1st Cir. 1991) (entire weight of statues made of beeswax-cocaine mixture included for calculation of base offense level); United States v. Walker, 960 F.2d 409, 412 (5^th Cir. 1992) (entire weight of substance, most of which was waste, that contained a detectable amount of methamphetamine could be used to calculate defendants' base offense levels for sentencing); compare United States v. Palacios-Molina, 7 F.3d 49, 53 (5^th Cir. 1993) (distinguishing Walker which dealt with byproducts of methamphetamine manufacturing process from instant case in which bottle of sangria was used to conceal cocaine; holding that sangria did not increase bulk of cocaine and would not be part of the retail or wholesale distribution of cocaine, thus liquid sangria was not adulterant or dilutant for sentencing purposes).

24. Appellant, as the prevailing party in the lower court, did not challenge the constitutionality of this statute, and thus we need not address that issue in today's case.

25.

Dallas Morning News Co. v. Board of Trustees, 861 S.W.2d 532, 535 (Tex. 1993).