Opinion
No. 05-03-01105-CR.
Opinion issued April 1, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 296th District Court, Collin County, Texas, Trial Court Cause No. 296-81127-02. Reversed and Remanded.
Before Justices JAMES, BRIDGES, and LANG-MIERS.
OPINION
Ronald Clyde Seals appeals his conviction for possession of a controlled substance, namely methamphetamine, in an amount more than one gram but less than four grams. A jury found appellant guilty and two enhancement paragraphs true, and the jury assessed punishment at confinement for twenty-five years. Appellant raises two issues on appeal contending: (1) the evidence was legally insufficient because the State failed to prove the weight of the seized substance was at least one gram; and (2) he received ineffective assistance of counsel. We reverse the judgment of the trial court. Plano police officers Michelle Sanders and David Waddell were investigating an anonymous tip that methamphetamine was being manufactured at appellant's apartment. The officers went to appellant's apartment to perform a "knock-and-talk." They found no evidence of manufacturing, but while there, Sanders found a tin containing needles, syringes, and a vial of a "bloody, dark liquid." One of the syringes contained a brownish-colored liquid, and Sanders squirted its contents into another container. According to Chris Youngkin, a criminalist with the Texas Department of Public Safety Crime Laboratory, the contents from the syringe had a net weight of 0.05 grams and contained methamphetamine. The contents of the vial had a net weight of 1.50 grams; it also contained methamphetamine. Youngkin stated nicotinamide-vitamin B-was detected in the sample from the vial; he said it was a common adulterant or dilutant. Youngkin testified it looked like blood was in the vial as well. However, Youngkin did not determine how much of the sample from the vial was methamphetamine, nicotinamide, blood, or any other substance. Appellant admitted to possessing less than one gram of methamphetamine. He said he possessed the syringe, the vial, and their contents, but he stated the vial contained waste. According to appellant, when he used methamphetamine, he would inject two-tenths of one gram, using scales he possessed to assure he used the desired amount. He said when he would try to inject himself but was unsuccessful, he would inject "a little bit" in his arm, then blood would enter the syringe. When that would occur, he would squirt what could not be used into the vial. Appellant said the vial contained "mostly" blood and only a trace of methamphetamine. He stated the contents of the vial "would be more blood than anything" because of what happened when he tried to inject it. Both detectives testified that blood is neither an adulterant or dilutant. Youngkin testified that an adulterant or dilutant is something added to a controlled substance to give it bulk; he stated anything could be an adulterant or dilutant. When asked for examples, he stated, "B-12, blood, dirt. I mean I don't know." The court's charge to the jury allowed the jury to convict appellant of either possession of methamphetamine in an amount of one gram or more but less than four grams or the lesser offense of possession of less than one gram. The jury convicted appellant of possession of a controlled substance in an amount greater than one gram but less than four grams. The jury found two enhancement paragraphs true. Appellant was assessed punishment of confinement for twenty five years, the minimum punishment for a third-degree felony with two enhancements. See Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2004). In his first issue on appeal, appellant contends the evidence is legally insufficient to support his conviction. He argues blood is neither an adulterant nor a dilutant and that the seized substance in the vial contained blood. Consequently, he asserts, the State did not prove the weight of the controlled substance was more than one gram. In a legal sufficiency review, this Court must examine 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). If, based on all of the evidence, a rational jury would necessarily entertain a reasonable doubt, we must reverse and order a judgment of acquittal. Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim. App. 2003). For conviction of the greater offense, the State was required to prove, beyond a reasonable doubt, that the methamphetamine appellant possessed was "by aggregate weight, including adulterants or dilutants, one gram or more. . . ." Tex. Health Safety Code Ann. § 481.115(c) (Vernon 2003). 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." Id. § 481.002(49) (Vernon Supp. 2004). 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. For example, if a defendant discards residue of cocaine in a pile of ashes, the ashes are not an adulterant or dilutant. Naturally, if the State weighed the entire pile of ashes, including the trace of cocaine on the top, the weight of the residue plus the ashes would be an increase from the weight of the cocaine by itself. However, the residue is not being used with the ashes. Logic dictates that the weight of the ashes should not be included in determining the quantity of cocaine possessed for purposes of a conviction under the health and safety code. Likewise, when methamphetamine is being injected with a syringe, and blood inadvertently enters the syringe, we cannot conclude that blood should be included in determining the aggregate weight of the controlled substance. The jury was provided no other explanation for the blood in the vial, no weight of the substance in the vial minus the blood, and no evidence the blood was mixed with the methamphetamine as the result of anything other than appellant's explanation. It was the State's burden to prove beyond a reasonable doubt appellant possessed more than one gram of methamphetamine. By excluding the weight of any blood in the vial, we cannot conclude the State met its burden. In these particular circumstances, had the jury known the blood should not be considered as part of the aggregate weight, we conclude the jury would have entertained a reasonable doubt as to whether appellant had possessed methamphetamine in an amount of one gram or more. See Swearingen, 101 S.W.3d at 95. Accordingly, we conclude the evidence was legally insufficient to support appellant's conviction. We resolve his first issue in his favor. Due to our resolution of the first issue, we need not address appellant's second issue. See Tex.R.App.P. 47.1. We reverse the judgment of conviction for possession of a controlled substance in an amount more than one gram but less than four grams. However, appellant admitted that he possessed methamphetamine in an amount less than one gram, and the jury was charged with the lesser offense. Accordingly, we render judgment of conviction of that lesser offense. See Collier v. State, 999 S.W.2d 779, 782 (Tex.Crim.App. 1999). We remand for a new punishment hearing on the revised conviction.