# Wright, Tina Marie, AKA Nagel, Tina Marie

> Court of Criminal Appeals of Texas · September 20, 2006

URL: https://www.frixlaw.com/law-library/cases/2937500

## Case

- **Court:** Court of Criminal Appeals of Texas
- **Decided:** September 20, 2006
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0513-05
TINA MARIE WRIGHT A/K/A TINA MARIE NAGEL, Appellant
v.
THE STATE OF TEXAS
ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE ELEVENTH COURT OF APPEALS
TAYLOR COUNTY
Meyers, J., delivered the opinion of the Court, in which Keller , P.J. , and
Price , Womack , Johnson , Keasler , Hervey , and Cochran , JJ . join. Holcomb , J ., filed
a dissenting opinion.
O P I N I O N
In 2001, a jury convicted Appellant of possession of methamphetamine of less than
400 grams but more than 200 grams, and the trial court sentenced her to imprisonment for
life in the Texas Department of Criminal Justice - Correctional Institutions Division. At
the time of her conviction, the definition of a controlled substance was: "[A] substance,
including a drug, an adulterant, a dilutant, an immediate precursor, listed in Schedules I
through V or Penalty Groups 1, 1-A, or 2 through 4. The term includes the aggregate
weight of any mixture, solution, or other substance containing a controlled substance."
Tex. Health & Safety Code § 481.002(5) (Vernon Supp. 2000). (1) Appellant appealed
her conviction, claiming that the evidence was insufficient to prove that the aggregate
weight of the substance possessed was more than 200 grams and that § 481.002(5) was
unconstitutional in failing to give notice that unusable, toxic liquids were included in the
weight of a controlled substance.
The Eleventh Court of Appeals affirmed Appellant's conviction in an unpublished
opinion, (2) which, we concluded on review, did not adequately address her arguments.
Wright v. State , No. 811-03, 2003 WL 22909085 (Tex. Crim. App. Dec. 10, 2003) (not
designated for publication). We vacated the judgment and remanded the case for further
consideration of Appellant's claims. We specifically directed the court to conduct a
statutory-construction analysis of § 481.002(5) as part of Appellant's sufficiency
challenge, and to undertake an analysis of her constitutional claims. On remand, the court
of appeals again affirmed Appellant's conviction. Wright v. State , No. 11-02-00006-CR,
2005 Tex. App. LEXIS 377 (Tex. App.-Eastland Jan. 20, 2005) (not designated for
publication). We granted Appellant's petition for discretionary review. She claims that
the court of appeals did not comply with our previous order by failing to determine
whether the definition of the term "controlled substance" in § 481.002(5) leads to an
absurd result the legislature could not have intended.
We agree that the court of appeals did not undertake a sufficient statutory-construction analysis under Boykin v. State , 818 S.W.2d 782 (Tex. Crim. App. 1991).
Therefore, we will resolve the issues that Appellant has presented for review.
FACTS
During a search of Appellant's house, conducted in conjunction with the arrest of
her husband on an outstanding warrant, police officers found in an open closet a clear
glass jar filled with a cloudy liquid. When the officers inquired as to the contents of the
glass jar, Appellant replied that it contained "liquid with dope in it." Appellant was
placed under arrest, and the officers searched her and discovered a white powder in her
pants pocket. Appellant's husband then led the officers to the attic, which housed several
items used in the manufacture of methamphetamine, including an Everclear bottle which
he admitted was being used as a pill soak and several boxes of suphedrine pills. Initially,
Appellant was charged only with the possession of methamphetamine found on her
person, which consisted of 0.73 grams of a gummy, powdery substance containing
methamphetamine. After the lab results determined that there were traces of
methamphetamine on the items in the attic, she was charged with possession in the
amount of more than 400 grams.
As the court of appeals detailed in its most recent opinion, the record shows that
the search of appellant's residence produced the following: a glass jar containing 305.62
grams of liquid; an Everclear bottle containing 1,210 grams of liquid and powder; coffee
filters containing a trace amount of methamphetamine; and paper towels containing 15.92
grams of a brown, powdery substance identified as "bones," the substance discarded after
methamphetamine has been extracted. Wright , 2005 Tex. App. LEXIS 377 , at *4-5.
At the trial, the State's expert, Eddie Lee Dickie of the Department of Public
Safety in Abilene, testified that although he had not tested the solution in the glass jar to
determine what percentage was methamphetamine, its purity was clearly weak.
Appellant's chemist, Thomas Ekis of Forensic Consultant Services, testified that the glass
jar contained only about 0.05% methamphetamine by concentration, or only 0.1528 grams
of pure methamphetamine, which was probably residue from the drug's production. He
explained that the remaining substance in the glass jar was a toxic hydrocarbon solution,
such as gasoline or Coleman fuel.
With regard to the Everclear bottle, Dickie said it appeared to be a pill soak, even
though it tested positive for methamphetamine, which is not normal for pill soaks. Ekis
testified that the contents of the Everclear bottle contained 0.003% methamphetamine by
concentration, or only 0.036 grams pure methamphetamine, probably as a result of being
tainted by the drug. He said that the Everclear bottle contained mostly ethyl alcohol,
commonly used to clean or extract the precursor. He also testified that the "bones" in the
paper towel contained 0.001 percent methamphetamine, which would have yielded
0.00015 grams of actual methamphetamine.
Ekis testified that the total of the amount of methamphetamine on the items in the
attic and the amount in Appellant's pocket was 0.918 grams. However, he also admitted
that if "controlled substance" was defined as the aggregate weight of a mixture or
solution containing a controlled substance, then the exhibits contained over 1,500 grams
of the controlled substance methamphetamine. The jury convicted Appellant of the
lesser-included offense of possession of more than 200 grams and less than 400 grams of
a controlled substance. COURT OF APPEALS
In its original opinion affirming Appellant's conviction, the court of appeals
concluded that "[t]he State's expert supplied the proof that appellant possessed a
controlled substance which had an aggregate weight of more than 200 grams." Wright ,
2003 Tex. App. LEXIS 2865 , at *4. On review, we concluded that the court of appeals
should have addressed Appellant's argument that interpreting the statute to include
unusable, toxic liquids in determining the weight of the controlled substance was an
absurd result the legislature could not have intended. Wright , 2003 WL 22909085 , citing
Boykin , 818 S.W.2d 782 . We explained that a statutory construction analysis was a "key
component" of Appellant's legal and factual sufficiency challenges and instructed it to
reconsider these points of error. On remand, the court of appeals held for the second time
that the evidence in the case was both legally and factually sufficient to support the jury's
judgment of conviction. The court resolved the issue by saying, "Testimony showing that
a mixture, solution, or other substance contains a controlled substance is sufficient to
support a conviction for possession of that controlled substance in an amount equal to the
aggregate weight of the mixture or solution." Wright , 2005 Tex. App. LEXIS 377 , at *7.
ISSUE GRANTED
We granted Appellant's second petition for discretionary review on the following
ground:
The Court of Appeals erred by its failure to address the issue of the weight
of methamphetamine determination as ordered by the Court of Criminal
Appeals; whether to include in the weight of the controlled substance
unusable, toxic liquids was an absurd result the legislature could not have
intended; which proper review would have shown that the evidence was
both legally and factually insufficient to support a finding of possession of
more than 200 grams and less than 400 grams of methamphetamine.
ANALYSIS
We explained in Boykin that courts must interpret an unambiguous statute literally,
unless doing so would lead to an absurd result that the legislature could not have
intended. By beginning with the plain language of a statute to interpret its meaning,
courts "seek to effectuate the 'collective' intent or purpose of the legislators who enacted
the legislation." Boykin , 818 S.W.2d at 785 (citing Camacho v. State , 765 S.W.2d 431
(Tex. Crim. App. 1989)). However, if a literal reading of the statute would lead to an
absurd result, there is an exception to the plain meaning rule. We established in Boykin :
If the plain language of a statute would lead to absurd results, or if the
language is not plain but rather ambiguous, then and only then, out of
absolute necessity, is it constitutionally permissible for a court to consider,
in arriving at a sensible interpretation, such extratextual factors as executive
or administrative interpretations of the statute or legislative history.
818 S.W.2d at 785-86 .
The court of appeals undertook the first part of a statutory construction analysis by
discerning and applying the plain meaning of § 481.002(5). Relying on our decision in
Melton v. State , (3) it concluded that the experts' testimony-that the solution or mixture in
the glass jar and the mixture or solution in the Everclear bottle contained
methamphetamine, and that the weight of each mixture or solution was over 200
grams-was sufficient to sustain Appellant's conviction for possession of more than 200
grams under § 481.002(5). Wright , 2005 Tex. App. LEXIS 377 , at *7. (4) However, the
question that we instructed the court of appeals to answer requires it to go beyond the
plain language of § 481.002(5) to determine whether this language produces an absurd
result, namely Appellant's conviction for possession of more than 200 grams of
methamphetamine in the instant case. The court of appeals did not undertake this next
step in its statutory construction analysis.
In her briefs to the court of appeals and this Court, Appellant contends that the
"absolute absurdity" of equating possession of a minute amount of methamphetamine in
an unmarketable and unusable liquid with possession of over 200 grams of actual
methamphetamine ready for delivery is "patently obvious." She analogizes the result to
determining that a 10,000 gallon swimming pool that contains one drop of
methamphetamine yields 10,000 gallons of methamphetamine for the purposes of
possession and conviction. On the other hand, the State submits that the statute's
inclusion of manufacturing by-products in establishing the aggregate weight of a
controlled substance is not absurd, given that a different construction would punish drug
manufacturers less severely than the drug dealers.
Because the court of appeals failed to conduct a key component of Appellant's
statutory construction analysis, we will consider whether, given the facts of the instant
case, Appellant's conviction for over 200 grams is an absurd result that the legislature
could not have intended. In Seals v. State , 187 S.W.3d 417 (Tex. Crim. App. 2005), (5) we
reversed the lower court's decision that blood mixed with methamphetamine in a vial and
syringe could not be included in the aggregate weight of the drug to convict appellant for
a greater amount of methamphetamine under § 481.002(5), and held that the definition of
adulterants and dilutants in § 481.005(49) did not lead to an absurd result that the
legislature could not have intended. In that case, the blood became mixed with the drug
when the methamphetamine was injected, so the contents of the vial were leftover after
the drug had been used. We stated that "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 dilutant."
Seals , 187 S.W3d at 420. The case before us is even more straightforward because the
toxic liquid mixed with the methamphetamine in this case is a necessary part of the
manufacturing process. If it is not absurd to define adulterant and dilutant as including
waste product left over after the drug is used, then it clearly is not absurd to include
byproducts necessary to the manufacturing process in that definition. We uphold our
decision in Seals and conclude that it does not lead to an absurd result to include the
unusable toxic liquids in the aggregate weight of the controlled substance.
CONCLUSION
Although the court of appeals failed to fully consider Appellant's statutory
construction challenge, the court properly determined that under the plain language of §
481.002(5), evidence indicating that the mixture contained a controlled substance was
sufficient to support the conviction for possession in an amount equal to the aggregate
weight of the mixture. The court of appeals is affirmed.
Meyers, J.
Delivered: September 20, 2006
Publish
1. After the commission of Appellant's offense, the legislature amended § 481.005(2) by
excluding an immediate precursor from the definition. 2001 Tex. Gen. Laws 1188 . Otherwise,
the provision has remained substantively the same.
2.
Wright v. State , No. 11-02-00006-CR, 2003 Tex. App. LEXIS 2865 (Tex. App.-Eastland
Apr. 3, 2003) (not designated for publication).
3. 120 S.W.3d 339, 343-44 (Tex. Crim. App. 2003) (holding that it was reasonable for the
jury to infer that the 35 to 40 rocks composed a mixture of crack cocaine, even if some of the
rocks did not contain any cocaine, and that the State had to prove only that the aggregate weight
of the controlled substance mixture, including adulterants and dilutants, equaled the alleged
minimum weight). The court of appeals also cited
Dowling v. State , 885 S.W.2d 103, 127 (Tex.
Crim. App. 1994) (op. on reh'g on court's motion), for the proposition that the 1989 amendments
to the Texas Controlled Substances Act would produce the result in Appellant's case, and Ingram
v. State , 124 S.W.3d 672, 675 (Tex. App.-Eastland 2003, no pet.), which quoted the 2000 version
of § 481.005(2).
4. Even the defense expert at trial acknowledged that under the language of § 481.005(2),
the entire mixture or solution containing the methamphetamine would be included in determining
the weight of the methamphetamine.
5. Our opinion in
Seals was handed down after the court of appeals had decided the case
before us.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2937500. Public record. Not legal advice.