Sloan v. State

¶1dissenting.

¶2I respectfully dissent. The substances that were seized with the methamphetamine and identified as byproducts of the drug’s manufacture were not “adulterants” and “dilutants” as defined by statute. Consequently, the appellant could have been properly charged with possession only of a much smaller quantity of methamphetamine, “including any adulterants and dilu-tants.”

¶3Both chemists who testified at trial agreed that the 3,540.4 grams of liquid that were seized at appellant’s arrest contained no more than 1.9 grams of methamphetamine. Another gram of methamphet*295amine in solid form was seized; the total weight of methamphetamine, 2.9 grams, was sufficient to charge the appellant with no more than a second degree felony,1 punishable by two to 20 years imprisonment. Tex.Penal Code Ann. sec. 12.33(a) (Vernon 1974).

¶4The State’s chemist, Henry Forjohn, testified that the liquid seized contained phe-nyl-2-propanone. The defense’s chemist, Art Simon, identified the remaining liquid as phenylacetone and aluminum hydroxide. Phenyl-2-propanone (“P2P”) is another name for phenylacetone, and is identified by the Controlled Substances Act as an “immediate precursor to ... methamphetamine.” Tex.Eev.Civ.Stat.Ann. art. 4476-15, sec. 2.04(f)(2) (effective Sept. 1, 1985). Forjohn testified that P2P is a “reagent,” defined as “something [that] when mixed with another substance combines with that substance to produce a new substance.”

¶5Neither expert testified that P2P or aluminum hydroxide are adulterants or dilutants. Simon testified that those substances are not adulterants or dilutants. Forjohn’s testimony is silent on this particular point. The State’s contention that the jury “reasonably” found the additional substances to be adulterants or dilutants is based on Forjohn’s general definitions of the statutory terms. Forjohn defined “adulterant” as any impurity in a substance, and “dilutant” as a substance that makes another substance weaker.

¶6Simon’s definitions were more specific. He defined “adulterant” as a substance added to a drug with the specific intent of defrauding the consumer into thinking that he or she has purchased the pure drug. He stated that a “diluent,” or “dilutant,” is a “material added to a pharmaceutical with the specific intent of increasing the bulk of the final product.” Thus, P2P and aluminum hydroxide are not adulterants or dilutants, because they are necessary reactive chemicals used to manufacture methamphetamine, as both chemists testified.

¶7The substances were not intended to defraud the consumer or to increase the bulk of the final product.

¶8It is always incumbent on the State to prove every element of the offense beyond a reasonable doubt. Wright v. State, 603 S.W.2d 838, 840 (Tex.Crim.App.1980). There was absolutely no testimony that the additional substances were “adulterants” or “dilutants.” Nor did Forjohn testify that P2P was an impurity, as he defined “adulterant,” or that it was added to make another substance weaker, as he defined “dilutant.” Indeed, he could not have accurately testified to that effect, because the meaning of the statutory terms “adulterants” and “dilutants” does not encompass the constituent reactive chemicals used in the manufacture of drugs.

¶9Although the jury is the exclusive judge of the facts in every criminal trial, “it is bound to receive the law from the court and be governed thereby.” Tex.Code Crim. P.Ann. art. 36.13 (Vernon 1981). Accordingly, it is the role of the court to construe statutory language, and the basic principle of statutory interpretation is to diligently seek the intention of the legislature in enacting the statute in question. Tex.Gov’t Code Ann. sec. 312.005 (Vernon Supp.1987).

¶10In its brief, the State concedes that the terms “adulterant” and “dilutant” are “words of art related to the business of producing controlled substances.” If a statutory term is used as a word of art, the word has the meaning given by experts in the particular subject matter. Id.at sec. 312.002(b).

¶11The terms “adulterant” and “dilutant” are defined in two works by experts in the study of drug abuse. “Adulteration” is defined, in the first work, as “[dilution of a drug with either an inert material to add bulk or some more potent material to create a greater effect.” E. Abel, A Dictionary of Drug Abuse Terms and Terminology 5 (1984). P2P is neither an inert material nor a more potent material added to *296intensify the effect. “Dilutant” is an “[i]nert material used to increase the bulk of an active substance without affecting its activity.” Id. at 48. This definition does not apply to P2P, a reagent.

¶12The second work defines “adulteration” as “[t]he process by which a drug is made impure or inferior by the addition of an improper substance.” R. O’Brien & S. Cohen, The Encyclopedia of Drug Abuse 9 (1984). Within the context of illicit methamphetamine manufacture, P2P is not an “improper substance,” nor is it used to make a drug “impure or inferior.” It is, as mentioned before, a necessary constituent in the manufacture of amphetamine.

¶13The State contends that “adulteration” is sufficiently defined by the Texas Food, Drug and Cosmetic Act to support the conviction. Tex.Rev.Civ.Stat.Ann. art. 4476-5 (Vernon Supp.1987). That Act states: “A drug ... shall be deemed to be adulterated: (a) ... (2)(A) if it has been prepared, packed, or held under insanitary conditions whereby it may have been ... rendered injurious to health_” Id. at sec. 15. The State argues that Simon’s testimony that ingestion of P2P would pose a health risk supports the jury’s implied finding that P2P is an adulterant. But the plain language of the statute requires that an adulterated drug is one that itself is rendered injurious to health by being “held under insanitary conditions.” The State’s strained reading of the Food, Drug and Cosmetics Act does not support its contentions.

¶14The majority cites another section of the Food, Drug and Cosmetics Act, which states that a drug is adulterated “if any substance has been (1) mixed or packed-therewith so as to reduce its quality or strength; or (2) substituted wholly or in part therefor.” Id. at sec. 15(d). There was no testimony that P2P was so “mixed or packed,” or “substituted,” because P2P is a reagent, not a packaging component.

¶15The State contends, and the majority agrees, that the examples of “adulterants” and “dilutants” listed under the definition of “drug paraphernalia,” art. 4476-15, sec. 1.02(14)(F), were not intended by the legislature to be all-inclusive. The section states that “drug paraphernalia” includes, but is not limited to, “a diluent or adulterant, such as quinine hydrochloride, manni-tol, mannite, dextrose, or lactose, used or intended for use in cutting a controlled substance.” Id.

¶16It is clear that the examples given are not an exclusive list of adulterants and dilutants, but it is also clear that, at least in this section, the legislature intended that adulterants and dilutants are substances used or intended for use in cutting a controlled substance. A drug is “cut” when “inert material [is] added ... in order to increase its bulk.” E. Abel, supra, at 43. Simon and Forjohn agreed that P2P is not a cutting agent.

¶17There is no reason to infer that the Legislature intended different meanings in the two sections in which it refers to “adulterants” and “dilutants.” Before September 1, 1981, the Controlled Substances Act made no reference to adulterants, dilu-tants, or diluents. At that time, the definition of paraphernalia was added, with its reference to adulterants and diluents. Tex. H.B. 733, 67th Leg. (1981). Simultaneously, the provisions establishing aggravated offenses were enacted. These provisions refer to adulterants and dilutants. Tex. H.B. 730, 67th Leg. (1981). It is presumed that contemporaneous statutes are actuated by the same policy and imbued with the same spirit, and that they should be read together and harmonized unless their provisions are absolutely repugnant. Ex parte Harrell, 542 S.W.2d 169, 172 (Tex.Crim. App.1976). Accordingly, the use of the terms “adulterants” and “dilutants” in sub-chapter four of the Controlled Substances Act, the section here in controversy, refers to substances used or intended for use in cutting a controlled substance.

¶18The illegal methamphetamine industry has been recognized as a substantial threat to this country’s efforts to control the abuse of narcotics. See Staff of House Select Comm, on Narcotics Abuse and Control, 96th Cong., 2d Sess., Report on Illicit Methamphetamine Laboratories in the Delaware Valley (Comm.Print 1981). *297There is no doubt that control of methamphetamine laboratories is a proper concern of the Controlled Substances Act, but the Act, as written, does not allow the prosecution of methamphetamine manufacture as a possessory offense on the theory that the chemicals used to produce methamphetamine are adulterants or dilutants. Statutes are to be construed according to their meaning at the time of enactment, Kirby Lumber Corp. v. Hardin Indep. School Dish, 351 S.W.2d 310, 312 (Tex.Civ.App.—Waco 1961, writ ref’d n.r.e.), and the history of the Act makes clear that chemicals used in manufacture are not adulterants or dilutants.

¶19The State chose to prosecute the appellant under an inappropriate section of the Controlled Substances Act, although there are other sections that properly applied to his case, and that could have served as a legitimate basis for the sentence imposed. The appellant could have been prosecuted for the manufacture of less than 28 grams of methamphetamine, punishable as a first degree felony. Art. 4476-15, sec. 4.03(b). P2P is itself a controlled substance, id.at sec. 2.04(F)(2), and a conviction for possession of over 28 grams of P2P is punishable by 5 to 99 years imprisonment. Id.at sec. 4.04(d). But the appellant was charged with possession of methamphetamine, and because the evidence established possession of less than 28 grams, he could not have been prosecuted for greater than a second degree felony. Id.at sec. 4.04(b).

¶20Regardless of the sufficiency of the evidence to support a conviction under these other sections of the Act, “the sufficiency of the evidence is measured by the charge that was given." Boozer v. State, 717 S.W.2d 608, 610 (Tex.Crim.App.1984) (emphasis in original). The charge in this case called for a verdict of guilty if the jury found that the appellant “possess[ed] a controlled substance, namely Methamphetamine, weighing at least 400 grams by aggregate weight, including any adulterants and dilutants....” The evidence was insufficient, in my view, to support a guilty verdict based on this charge. Therefore, I dissent.

¶21I would reverse the judgment of the trial court with directions to enter a judgment of acquittal.