dissenting.
I respectfully dissent. Because no evidence exists in the record that would permit a jury to rationally find that appellant possessed an amount of 400 or more grams of methamphetamine, I would hold that the State failed to prove an essential element of the offense. I would therefore hold that the evidence is legally insufficient to support the conviction. Accordingly, I would sustain appellant’s second issue, reverse the trial court’s judgment, and render a judgment of acquittal.
I agree with the majority’s recitation of the law regarding what constitutes an adulterant or dilutant, but I cannot agree with the majority’s holding that a layer of bleach that is separate and distinct from a layer of methamphetamine constitutes an adulterant or dilutant. See Tex. Health & Safety Code Ann. § 481.002(49) (Vernon Supp.2005); Seals v. State, 187 S.W.3d 417, 419-21 (Tex.Crim.App.2005). Section 481.002(49) of the health and safety code defines an 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.” Tex. Health & Safety Code Ann. § 481.002(49) (emphasis added). The court of criminal appeals recently interpreted this definition to mean that “any substance that is added or mixed with a controlled substance ... may be added to the aggregate weight of the controlled substance as an adulterant or dilu-tant.” Seals, 187 S.W.3d at 419.
Here, the State’s expert, Michelle O’Neal, testified that when she received the liquid for testing, it was in two distinct layers and that she only tested the top layer, which she identified as methamphetamine. She then weighed the entire contents of the bleach bottle and discovered that it weighed 2,375.8 grams. The defense expert testified that he tested only the bottom layer and found that it was bleach.1 The State used O’Neal’s testimony about the total weight of the bleach and liquid methamphetamine to attempt to es*293tablish that appellant possessed 400 or more grams of methamphetamine. But the layer of bleach that lined the bottom of the bleach bottle was separate and distinct from the layer of liquid methamphetamine; the two did not combine.2 Thus, the bleach was not “added to or mixed with” the methamphetamine and did not “increase the bulk or quantity” of the methamphetamine just as a layer of rocks in the bottom of the bottle would not increase the bulk or quantity of the methamphetamine. See Tex. Health & Safety Code Ann. § 481.002(49); Seals, 187 S.W.3d at 419. Surely, if the bottle had contained rocks instead of bleach, the majority would not hold that the rocks were adulterants or dilutants to be included in the total weight of the methamphetamine.3
I would hold that the State failed to put forth any evidence that the weight of the top layer — that which contained the methamphetamine — was 400 grams or greater. Therefore, I would hold that the evidence is legally insufficient to prove that Appellant possessed 400 or more grams of methamphetamine. For the reasons set forth above, I dissent.
. The defense expert did not test the top layer because it had already evaporated at the time that he tested the substance. Using the calculation given to him by O'Neal — although O’Neal did not testify to the weight or volume of the top layer at trial — that there was 250 milliliters of the top layer, the defense expert calculated the total amount of liquid methamphetamine in the container to be less than 146 grams.
. Contrary to the majority’s position, the jury could not infer from the fact that the methamphetamine was poured into the bleach that the two liquids "mixed.” The direct evidence from both the State’s expert and the defense expert was to the contrary. O’Neal testified that she did not know the underlying substance was bleach, but said that because methamphetamine had a lower pH than the substance constituting the bottom layer (which we know was bleach) the methamphetamine would "float” on top of the bottom liquid. Max Courtney, the defense expert, testified that when liquid methamphetamine is poured into bleach "[t]he two substances are not going to mix well, so it's like gasoline and water.” Two substances that do not combine to form a single substance, but instead retain their separate character in two distinct layers cannot be inferred to have "mixed.”
. The majority relies on the court of criminal appeals recent holding in Seals that blood found in a vial mixed with methamphetamine could be considered an adulterant or dilutant, but I would distinguish Seals because the blood and methamphetamine in that case were intermixed with each other, unlike in the present case. See Seals, 187 S.W.3d at 421.