                                                                                          ACCEPTED
                                                                                      01-14-00901-CR
                                                                           FIRST COURT OF APPEALS
                                                                                   HOUSTON, TEXAS
                                                                                 5/29/2015 3:27:39 PM
                                                                                CHRISTOPHER PRINE
                                                                                               CLERK

                             NO. 01-14-00901-CR
                        IN THE COURT OF APPEALS
                                                                     FILED IN
                     FOR THE FIRST DISTRICT OF TEXAS          1st COURT OF APPEALS
                                                                  HOUSTON, TEXAS
                                                              5/29/2015 3:27:39 PM
                                TRAVIS LAMB                   CHRISTOPHER A. PRINE
                                  Appellant                           Clerk

                                       v.
                            THE STATE OF TEXAS
                                    Appellee

                    On Appeal from Cause No. 1394200
         From the 351st Judicial District Court of Harris County, Texas

                             APPELLANT’S BRIEF



Oral Argument Requested                          ALEXANDER BUNIN
                                                 Chief Public Defender
                                                 Harris County, Texas

                                                 NICOLAS HUGHES
                                                 Assistant Public Defender
                                                 Harris County, Texas
                                                 TBN: 24059981
                                                 1201 Franklin St., 13th Floor
                                                 Houston, Texas 77002
                                                 Phone: (713) 368-0016
                                                 Fax: (713) 437-4316
                                                 nicolas.hughes@pdo.hctx.net




                                                 ATTORNEY FOR APPELLANT
                     IDENTITY OF PARTIES AND ATTORNEYS


APPELLANT:                                TRAVIS LAMB


TRIAL PROSECUTOR:                         KRISTIN ASSAD
                                          Assistant District Attorney
                                          Harris County, Texas
                                          1201 Franklin Street, 6th Floor
                                          Houston, Texas 77002


ATTORNEY AT TRIAL:                        KEITH LARSON
                                          Attorney at Law
                                          2855 Mangum Road, Suite A-559
                                          Houston, Texas 77092-7493


JUDGE AT TRIAL:                           HON. MARK KENT ELLIS
                                          351st District Court
                                          Harris County, Texas
                                          1201 Franklin Street, 14th floor
                                          Houston, Texas 77002


ATTORNEY ON APPEAL:                       NICOLAS HUGHES
                                          Assistant Public Defender
                                          Harris County, Texas
                                          1201 Franklin St., 13th Floor
                                          Houston, Texas 77002




                                     ii
                                                   TABLE OF CONTENTS

IDENTITY OF PARTIES AND ATTORNEYS ............................................................................. ii

TABLE OF CONTENTS ............................................................................................................ iii

INDEX OF AUTHORITIES ........................................................................................................ v

STATEMENT OF THE CASE ..................................................................................................... 1

STATEMENT REGARDING ORAL ARGUMENT ...................................................................... 1

ISSUE PRESENTED ................................................................................................................... 1

STATEMENT OF FACTS............................................................................................................ 1

SUMMARY OF ARGUMENT ...................................................................................................... 3

ARGUMENT .............................................................................................................................. 5

          I. Issue One: There is insufficient evidence that Travis Lamb knowingly
          possessed the cocaine purported detected in the crystalline substance ............... 5

                     A. The elements and proof required to support a conviction for
                     possession of a substance in penalty group 1, ≥ 1 gram and < 4 grams
                     (cocaine) ............................................................................................................ 5

                     B. Standard of review ...................................................................................... 6

                     C. The portions of the record relevant to the determination of whether
                     Travis Lamb knew the substance in his possession was cocaine .............. 7

                               1. The observations of the police officers ........................................ 7

                               2. Travis Lamb’s contemporaneous statement about the nature of

                               the crystalline substance ...................................................................... 8

                               3. Analyst Noyola’s testimony about the crystalline substance ...... 8




                                                                    iii
                     D. Analysis ..................................................................................................... 14

                                1. Analyst Noyola’s conclusions are insufficient to support a

                                conviction for possession of substance in penalty group 1, ≥ 1 g.

                                and < 4 g (cocaine) ............................................................................ 14

                                2. There is no evidence which proves that Travis Lamb

                                intentionally or knowingly possessed cocaine ................................... 15

                     E. The current legal standards employed in drug possession cases are
                     unworkable ..................................................................................................... 22

                                1. A law that makes criminals out of us all ..................................... 22

                                2. There is no minimum amount of a controlled substance

                                required for conviction under Section 481.115 of the Health and

                                Safety Code and anything mixed with the controlled substance

                                can be considered an “adulterant or dilutant”................................ 23

                                3. Ignorance is bliss: why a little bit of knowledge is a bad thing

                                under Section 481.115 of the Health and Safety Code ................. 24

                                4. A new rule must be crafted .......................................................... 27

PRAYER .................................................................................................................................. 28

CERTIFICATE OF SERVICE .................................................................................................... 29

CERTIFICATE OF COMPLIANCE ........................................................................................... 29

APPENDIX .............................................................................................................................. 30



                                                                    iv
                                           INDEX OF AUTHORITIES

Federal Cases

Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997) ........................................................................ 15

Jackson v. Virginia, 443 U.S. 307 (1979) ................................................................................ 6

Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) ....................................................... 27

United States v. Stevens, 559 U.S. 460 (2010) ........................................................................ 28

United States v. U.S. Currency, $30, 060.00, 39 F.3d 1039 (9th Cir. 1994) ........................ 25

State Cases

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) .................................................. 20

Chavez v. State, 769 S.W.2d 284 (Tex. App.-Houston [1st Dist.] 1989) .......................... 16

City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009) ............................................... 15

Curtis v. State, 548 S.W.2d 57 (Tex. Crim. App. 1977)................................................ 19, 20

Daniels v. State, 853 S.W.2d 749 (Tex. App.−Houston [1st Dist.] 1993, no pet.).......... 23

Deshong v. State, 625 S.W.2d 327 (Tex. Crim. App. 1981) .................................................. 6

Joseph v. State, 897 S.W.2d 374 (Tex. Crim. App. 1995) ........................................22, 23, 27

King v. State, 895 S.W.2d 701 (Tex. Crim. App. 1995) ...............................................passim

Seals v. State, 187 S.W.3d 417 (Tex. Crim. App. 2005) ..............................................passim

Shults v. State, 575 S.W.2d 29 (Tex. Crim. App. 1979) ................................................ 17, 21

Whitelaw v. State, 29 S.W.3d 129 (Tex. Crim. App. 2000) ................................................. 28

State Statutes

TEX. CODE CRIM. PROC. ANN., art. 38.35 (2011) ....................................................... 14, 20

TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2011). ...........................22, 24, 28


                                                            v
TEX. PENAL CODE ANN. § 6.03 (West 2011) .................................................................... 26

Other Authorities

Christian G. Daughton, Illicit Drugs: Contaminants in the Environment and Utility in Forensic
 Epidemiology, 210 REV. OF ENVIRON. CONTAMINATION AND TOXICOLOGY 59 (2011)
 ....................................................................................................................................... 26, 27

David Biello, Cocaine Contaminates Majority of U.S. Currency, SCIENTIFIC AMERICAN
 (August 16, 2009) .............................................................................................................. 21

Drug Fact Sheet: Bath Salts or Designer Cathinones, DEA available at http://www.dea.gov/
 druginfo/drug_data_sheets/Bath_Salts.pdf .................................................................. 15

Eric Lavins, Cannabis (Marijuana) Contamination of United States and Foreign Paper Currency,
 28 J. ANALYTICAL TOXICOLOGY 439 (2004) .................................................................. 25

Henry C. Lee, Forensic Science and the Law, 25 CONN. L. REV. 1117 (1993) .............. 10, 12

Jill Gallus, Synthetic Cocaine Sold As Legal Substitute To Real Drug, KVIA (Jun. 26, 2012)
   ............................................................................................................................................. 16

Karen Miotto, et al.,Clinical and pharmacological aspects of bath salt use: A review of the
 literature and case reports, 132 DRUG ALCOHOL DEPEND. 1 (2013) ................................ 16

Lab 5: Gas Chromatography/Mass Spectrometry (GC/MS), U.C. Davis available at
 http://chemwiki.ucdavis.edu/Wikitexts/
 UC_Davis/UCD_Chem_115_Lab_Manual/Lab_5%3A_Gas_Chromatography_Ma
 ss_Spectrometry_%28GSMS%29 ................................................................................... 11

P.E. Stackelerg et al., Persistence of pharmaceutical compounds and other organic wastewater
  contaminants in a conventional drinking-water-treatment plant, 324 SCIENCE OF THE TOTAL
  ENVIRONMENT 99 (2004) ................................................................................................ 26

Rapid Testing Methods of Drugs of Abuse, UNITED NATIONS OFFICE ON DRUGS AND
 CRIME (1994)........................................................................................................................ 9

Recommended methods for the Identification and Analysis of Cocaine in Seized Materials, UNITED
 NATIONS OFFICE ON DRUGS AND CRIME (March 2012) .......................... 10, 11, 13, 18

Richard Sleeman et al., Drugs on Money, 72 ANALYTICAL CHEM. 397 (2000)................. 21

Synthetic 'Bath Salts' An Evolving Problem For DEA, NPR (Jun. 30, 2012) ....................... 16


                                                                       vi
                              STATEMENT OF THE CASE

       Travis Lamb was arrested for possession of substance in penalty group 1 , ≥ 1

g. and < 4 g (methamphetamine) on July 11, 2013 and was indicted for possession of

substance in penalty group 1 , ≥ 1 g. and < 4 g (cocaine) on September 26, 2013.

(C.R. at 6, 14). On October 28, 2014, Travis Lamb was convicted of possession of

substance in penalty group 1 , ≥ 1 g. and < 4 g (cocaine) after a jury trial and was

sentenced to 35 years in prison. (C.R. at 76). Travis Lamb appeals from the conviction

in his case.

                    STATEMENT REGARDING ORAL ARGUMENT

       Oral argument is necessary to help explain why a laboratory analysts’s

testimony that laboratory tests “tested positive” for a controlled substance cannot

support a conviction without foundational support and to explain the unintended and

unconsidered consequences of allowing convictions for trace amounts of drugs, and

how trace amounts of drugs combine with “adulterants and dilutants” in everyday life.

                                  ISSUE PRESENTED

There is insufficient evidence that Travis Lamb knowingly possessed the cocaine

purported detected in the crystalline substance

                                STATEMENT OF FACTS

       On June 10, 2013, Officers Perez and Gallegos saw a truck turn left from

Hartsville Road onto Donegal Way. (4 R.R. at 10-11). According to the officers, the

driver of the truck failed to signal the left turn. (4 R.R. at 11). The officers turned on

                                            1
their overhead lights and pulled the truck over. (4. R.R. at 11). Inside the truck were

Travis Lamb, the driver, and his wife Katrissa Lamb. (3 R.R. at 29-30; 4 R.R. at 13-

14). Officer Perez asked Mr. Lamb for his driver’s license and proof of insurance. (4

R.R. at 12-13). When Officer Perez realized that Travis Lamb did not have a driver’s

license, Officer Perez placed Mr. Lamb under arrest and placed him in the patrol car.

(4 R.R. at 13, 16).

       After Travis Lamb was arrested, officers determined that Mr. Lamb’s

passenger, Katrissa Lamb, did not have a valid license. (4 R.R. at 14). At this point,

officers decided to tow the truck and performed a slapdash search for contraband

which the officers deemed an inventory search. (4 R.R. at 15). During the search of

the truck, Officers found a small plastic bag of crystalline substance which resembled

methamphetamine in the driver’s side door panel. (3 R.R. at 19-20; 4 R.R. at 32-34).

The officers took the crystalline substance back to the patrol car in order to perform a

presumptive field test for methamphetamine. (3 R.R. at 20; 4 R.R. at 33-34).

According to both officers, Travis Lamb overheard the conversation about the

crystalline substance between the officers from inside the patrol car and said, “[i]t's

not meth, it's bath salts.” (4 R.R. at 17, 40). According to the officers, the crystalline

substance returned “a positive result for meth.” (4 R.R. at 16). Mr. Lamb was booked

on charges of possession of methamphetamine and the crystalline substance was

submitted to a narcotics control center. (4 R.R. at 23, 35).



                                            2
       The analyst assigned to test the crystalline substance, Angelica Noyola, weighed

the substance and then performed several tests on the substance. In order, Analyst

Noyola performed a presumptive chemical test (negative), an ultraviolet/visible

spectrophotometry test (negative), a fourier transform infrared spectroscopy (no

acceptable match), and a gas chromatography / mass spectrometry (negative). (4 R.R.

at 63-65). Analyst Noyola concentrated the sample and performed a second round of

tests. (4 R.R. at 65). Analyst Noyola performed a second gas chromatography test,

which indicated that the substance “contains cocaine,” and performed thin layer

chromatography, which presumptively indicated the presence of cocaine. (4 R.R. at

65-66). Upon receipt of the lab report, Travis Lamb was ultimately indicted and

convicted of possession of substance in penalty group 1, ≥ 1 g. and < 4 g (cocaine).

(C.R. at 14, 75).

                              SUMMARY OF ARGUMENT

       The arc of this case is confusing and takes an unexpected turn. Police officers

believed the crystalline substance involved this case to be methamphetamine, Travis

Lamb believed the crystalline substance in this case to be “bath salts,” and Analyst

Noyola conceded that the crystalline substance was not powder or crack-cocaine and

that the substance did not test positive for controlled substances on four separate

tests. Though nothing indicated that the crystalline substance contained a controlled

substance at this point, Analyst Noyola concentrated the crystalline substance and

unexpectedly detected cocaine in the sample. There is no evidence that the cocaine

                                           3
detected in the sample was anything more than a trace amount of cocaine, and there is

no evidence to prove that the defendant could or should have known that the

substance in his possession contained cocaine. No reasonable person would have seen

the irregular, translucent white crystals involved in this case and thought, “surely, this

is cocaine.”

      Additionally, the State failed to provide any of the foundational data supporting

Analyst Noyola’s conclusion that the crystalline substance contained cocaine. For

example, the State should have offered the chromatograms and the mass spectra for

the sample and the library standards, which would serve as the basis of laboratory

analysis. The testimony of a laboratory analyst is necessary to support a conviction for

possession of any crystalline substance which cannot be simply visually distinguished

from other chemicals. Analyst Noyola’s testimony, by itself the bare assertions of an

expert (ipse dixit) and without evidentiary value, fails to supply the necessary

confirmation of the nature of the substance analyzed in this case.

      Finally, even if this Court can look beyond the evidentiary problems in this

case, this Court should address problems inherent in the interpretation of Section

481.115 of the Texas Health & Safety Code. The way the current law is drafted, a

person who knows that some item or substance that the person possesses is

contaminated with a trace amount controlled substance, that person is guilty of an

offense, regardless whether that contamination is intentional, unwanted, or the result

of forces beyond the person’s control. Furthermore, the entire bulk of the

                                            4
contaminated substance (for example, a glass of water) may be aggregated and used to

inflate a person’s punishment. This Court should address the problems inherent with

permitting a person’s conviction for an invisible, unmeasurable amount of controlled

substance and then inflating that offense by deeming whatever medium the controlled

substance is found within an “adulterant or dilutant.” Travis Lamb’s conviction

should not stand merely because of the unforeseen detection of cocaine from the

sample in this case.

                                   ARGUMENT

I. ISSUE ONE: There is insufficient evidence that Travis Lamb knowingly

possessed the cocaine purported detected in the crystalline substance

      A. The elements and proof required to support a conviction for

      possession of a substance in penalty group 1, ≥ 1 gram and < 4 grams

      (cocaine)

      The standard of proof required for conviction of possession of a drug

designated as penalty group 1 within the Texas Controlled Substances Act varies

depending on several factors:

      In order to establish the unlawful possession of a controlled substance,
      the State must prove two elements: (1) that the accused exercised care,
      control and management over the contraband, and (2) that the accused
      knew that the matter possessed was contraband.
                                        […]
      When the accused is not in exclusive possession of the place where the
      substance is found, it cannot be concluded that the accused had
      knowledge of and control over the contraband unless there are


                                         5
      additional independent facts and circumstances which affirmatively link
      the accused to the contraband.

Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981). Additionally:

      [W]hen the quantity of a substance possessed is so small that it cannot
      be measured, there must be evidence other than mere possession to
      prove that the defendant knew the substance in his possession was a
      controlled substance. Therefore, the State must prove, through other
      evidence, that appellant had knowledge that the substance in his
      possession was cocaine.

King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).

      B. Standard of review

      The standard of review for the sufficiency of the evidence supporting for a

conviction for possession of a drug within penalty group 1 is the Jackson v. Virginia

standard. King v. State, 895 S.W.2d at 703. Under that standard,

      [T]he critical inquiry on review of the sufficiency of the evidence to
      support a criminal conviction must be not simply to determine whether
      the jury was properly instructed, but to determine whether the record
      evidence could reasonably support a finding of guilt beyond a reasonable
      doubt. But this inquiry does not require a court to ask itself whether it
      believes that the evidence at the trial established guilt beyond a
      reasonable doubt. Instead, the relevant question is whether, after viewing
      the evidence in the light most favorable to the prosecution, any rational
      trier of fact could have found the essential elements of the crime beyond
      a reasonable doubt. This familiar standard gives full play to the
      responsibility of the trier of fact fairly to resolve conflicts in the
      testimony, to weigh the evidence, and to draw reasonable inferences
      from basic facts to ultimate facts. Once a defendant has been found
      guilty of the crime charged, the factfinder's role as weigher of the
      evidence is preserved through a legal conclusion that upon judicial
      review all of the evidence is to be considered in the light most favorable
      to the prosecution.

Jackson v. Virginia, 443 U.S. 307, 318–319 (1979) (citations omitted).

                                            6
       C. The portions of the record relevant to the determination of whether

       Travis Lamb knew the substance in his possession was cocaine

              1. The observations of the police officers

       Q. (By the prosecution) What did that substance look like?
       A. (By Officer Perez)It was a white crystal powder, crystallized powder.
       Q. Based on your experience as a police officer on the Gang Task Force,
       what did that substance look like to you?
       A. To me, I believed it to be meth.
       Q. And did you or your partner conduct what's called a field test?
       A. Yes, my partner conducted the field test.
       Q. What were the results of those -- of that field test?
       A. We got a positive result for meth.
       Q. And what does that mean to you?
       A. It means -- to me it means with what I have available, that it
       determines that it is, in fact, meth.
       Q. And did you also field-test it for cocaine?
       A. I did not.

(4 R.R. at 15-16).

       Q. (By the prosecution)And after the search was concluded, did you
       then make a decision about what field test to use for this substance?
       A. (By Officer Gallegos) Yes. Throughout my inventory, I kept care,
       custody, and control of the substance. Then I met with my partner and
       we determined what we believed the substance was and which test that
       we would use.
                                          […]
       Q. Based on your experience, what did the substance look like to you?
       A. Due to its crystal formation, we believed it to be methamphetamine.
       Q. And then what field test did you use?
       A. We used the meth tester.
       Q. Did the test come back positive or negative?
       A. Came back positive.
       Q. Once you got a positive field test for a controlled substance, did you
       then conclude your field test?
       A. Yes.
       Q. Did you test the substance for another controlled substance, for
       example, cocaine?

                                          7
       A. No, ma'am, I didn't.

(4 R.R. at 33-34).

              2. Travis Lamb’s contemporaneous statement about the nature of

              the crystalline substance

       According to both officers, when Travis Lamb realized that the officers had

seized the crystalline substance and were testing the substance, Travis Lamb stated

“It's not meth, it's bath salts.” (4 R.R. at 17, 40). Officer Perez testified that bath salts

were synthetic drugs that had been available for public sale at gas stations and smoke

shops, but had been since been banned as illegal (4 R.R. at 17, 26).

              3. Analyst Noyola’s testimony about the crystalline substance

                     a. The physical properties of the crystalline substance

       Analyst Noyola provided limited testimony about the physical properties of the

crystalline substance. On the lab report, Analyst Noyola described the evidence as a

“crystalline substance” and noted a weight of 1.77 grams. (7 R.R. at State’s Exhibit 5).

During testimony, Analyst Noyola repeatedly described the evidence as a “crystalline

substance.” (4 R.R. at 60-61, 63, 65-66, 71-72). Analyst Noyola explained,

       Q. (By the prosecution) Is cocaine -- does cocaine come in a powder
       form?
       A. (By Analyst Noyola) Cocaine can come in different forms. It can
       come in a powder form. I've seen it in a liquid form. I've seen it in a
       chunk substance, or commonly known as crack cocaine. It can come in
       any form. If there's a bunch of adulterants and dilutants, it will probably
       take the form of the adulterants and dilutants.
       Q. What do you mean by that?


                                             8
       A. That, you know, for example, I've seen cocaine in water, in liquid. So
       the adulterants could be the liquid because it's adding to the cocaine
       weight.
       Q. And in this case, a crystalline substance, you're saying that cocaine
       can take the appearance of the adulterants and dilutants?
       A. Not cocaine, the compound, but other adulterants and dilutants can
       interfere. We normally see cocaine in powder or in chunk, but like I
       stated, I've seen it in other forms as well. I've seen it in liquid, I've seen it
       in gooey, sticky forms or substances.

(4 R.R. at 75-76).

                     b. The first series of chemical analyses performed on the

                     crystalline substance

                             i. Marquis Reagent

       Analyst Noyola performed a series of laboratory tests on the crystalline

substance. Analyst Noyola first performed a Marquis Reagent test, a presumptive

chemical test which can indicate the presence of amphetamine compounds. (4 R.R. at

63). The Marquis Reagent test is designed to detect amphetamines (like

methamphetamine), but should not test positive for cocaine. Rapid Testing Methods of

Drugs of Abuse, UNITED NATIONS OFFICE ON DRUGS               AND   CRIME 42-45 (1994). The

Marquis Reagent test “came back negative.” (4 R.R. at 63). There is no record-based

explanation of why the police claimed that the substance field-tested positive for

methamphetamine but why the laboratory analysis did not.

                             ii. Spectrometry (UV-Vis, FTIR)

       Analyst Noyola then performed a second test using an UV spectrophotometer.

(4 R.R. at 64). Broadly speaking, spectroscopy is the study of the interaction of

                                              9
electromagnetic radiation, such a light, ultraviolet radiation, or infrared radiation, and

its interaction with matter. See Henry C. Lee, Forensic Science and the Law, 25 CONN. L.

REV. 1117, 1120 n. 9 (1993). UV-Vis spectroscopy can help identify an unknown

substance by determining the absorption of different wavelengths of ultraviolet and

visible (light) radiation by molecular bonds in the substance. Id. Cocaine shows

characteristic absorption peaks when tested by UV-Vis Spectroscopy. Recommended

methods for the Identification and Analysis of Cocaine in Seized Materials, UNITED NATIONS

OFFICE   ON   DRUGS AND CRIME 35 (March 2012). According to Analyst Noyola, the

ultraviolet/visible spectrophotometer results “were negative [for any controlled

substance] as well.” (4 R.R. at 64).

       Analyst Noyola performed a third test by placing a sample in a FTIR

spectrometer. (4 R.R. at 64). FTIR is a confirmatory test that can identify an unknown

substance by determining the absorption of different wavelengths of infrared

radiation by molecular bonds in a substance, then mathematically processing (by

computing the Fourier transform of the absorption spectra) the results into a more

usable format. See Forensic Science and the Law at n. 10; (4 R.R. at 64). Unequivocal

identification of cocaine is possible by FTIR spectroscopy. Recommended methods for the

Identification and Analysis of Cocaine in Seized Materials at 35. According to Analyst

Noyola, “the results [of the FTIR spectrometer] were not an acceptable match” when

compared to the internal library of controlled substances, meaning that no controlled

substances were detected by FTIR. (4 R.R. at 64).

                                           10
                             iii. The first GC/MS test

       The fourth laboratory test performed by Analyst Noyola was gas

chromatography / mass spectrometry. (4 R.R. at 65). A gas chromatograph separates

a mixture into its components as the components flow through the instrument and

interact with stationary components of the instrument to varying degrees, exiting the

instrument at different, characteristic times. Lab 5: Gas Chromatography/Mass

Spectrometry (GC/MS), U.C. Davis available at http://chemwiki.ucdavis.edu/Wikitexts/

UC_Davis/UCD_Chem_115_Lab_Manual/Lab_5%3A_Gas_Chromatography_Mass

_Spectrometry_%28GSMS%29. The separated components are then ionized and

measured by the mass spectrometer to determine the components’ molecular mass. Id.

The GC/MS is a commonly used and highly specific technique that provides a

confirmatory result. (4 R.R. at 65); Recommended methods for the Identification and Analysis of

Cocaine in Seized Materials at 29. The GC/MS test can detect cocaine in a sample. Id. at

29-30. The GC/MS test “came out to be negative [for any controlled substance].”

                     c. The second series of chemical analysis performed on the

                     crystalline substance

                             i. Concentration procedure

       After three tests produced negative results and one test produced an

inconclusive result, Analyst Noyola increased the concentration of the test sample: “I

added more sample, concentrated it more.” (4 R.R. at 65). Analyst Noyola testified

that it was part of the lab’s procedure to concentrate the sample and to re-test:

                                              11
       Q. (By the prosecution) And is it part of the lab's policy and procedure
       to add or concentrate the amount to determine whether a controlled
       substance exists?
       A. (By Analyst Noyola) It's part of the procedure, yes, on the GCMS
       portion part of the test, yes.
       Q. And that's what you did in this case?
       A. Right. If we were to get a negative Spectra, basically there's no
       retention times or peaks on our chromatograph, then our next --
       according to SOP's procedures, we would add more sample and then
       run it again on the GCMS.

(4 R.R. at 72).

                           ii. The second GC/MS test

       The second time the GC/MS instrument was run with the concentrated sample

(Analyst Noyola’s fifth test of the substance), the instrument detected cocaine:

              Q. (By the prosecution) And what were the results of your
              analysis of the substance in this case?
              A. (By Analyst Noyola) It contains cocaine.

(4 R.R. at 66).

                           iii. Thin layer chromatography

       The final test performed by Analyst Noyola was thin layer chromatography.

Thin layer chromatography is a separation technique, like gas chromatography, and

involves determining how a sample moves through solvents passing over a solid

adsorbent coating on a plate. See Forensic Science and the Law at n. 2. Thin layer

chromatography is a presumptive test which can be used to help identify cocaine. (4

R.R. at 66); Recommended methods for the Identification and Analysis of Cocaine in Seized




                                           12
Materials at 26-29. According to Analyst Noyola, the thin layer chromatography test

“came positive for cocaine.”

                    d. The critical gaps in Analyst Noyola’s testimony

                           i. There is no record-based reason for a juror to

                           conclude that there was anything more than a trace

                           amount of cocaine detected in the crystalline

                           substance

      Analyst Noyola did not provide any testimony which would help a trier of fact

determine the amount of cocaine detected in the sample. The first series of chemical

analyses produced three negative results and one inconclusive result. (4 R.R. at 62-65).

There is no testimony about the level of concentration of sample in the second series

of tests or the limitations of the GC/MS and thin layer chromatography tests. Analyst

Noyola performed no quantitative analysis, or analysis of the amount of cocaine present

in the sample. Analyst Noyola noted that the sample did not appear to be cocaine, but

was in the form of the “adulterants and dilutants” in the compound. (4 R.R. at 74).

There was no evidence suggesting that a person viewing the crystalline substance

would have any reason to believe it contained cocaine, no evidence suggesting that

cocaine was detected at anything more than a trace level, or that the cocaine detected

was anything other than contamination.




                                          13
                           ii. Analyst Noyola’s testimony consisted of bare

                           conclusions unsupported by foundational data

      Analyst Noyola did not provide any of the foundational knowledge required to

reach the conclusion that the crystalline substance in this case contained cocaine.

Analyst Noyola did not provide the data from the GC/MS, namely the

chromatograph (indicating when substances passed through the instrument), the mass

spectra (indicating the molecular weight of the substances passing through the

instrument), or any of the data of the reference cocaine sample for comparison.

Analyst Noyola did not provide any images of the thin layer chromatography plates of

the sample or the reference, nor any analysis comparing the two plates/images. The

single page “laboratory report” is simply the conclusion Analyst Noyola arrived at

without any supporting documentation. The jury simply did not have the foundational

knowledge necessary to conclude that the crystalline substance contained cocaine. The

jury was required to assume upon nothing more than Analyst Noyola’s insistence that

the results of the tests matched the reference standards for cocaine.

      D. Analysis

             1. Analyst Noyola’s conclusions are insufficient to support a

             conviction for possession of substance in penalty group 1, ≥ 1 g.

             and < 4 g (cocaine)

      Analyst Noyola’s testimony was necessary to prove that Travis Lamb possessed

cocaine. See TEX. CODE CRIM. PROC., art. 38.35(d)(1). As Analyst Noyola’s testimony

                                          14
consisted of conclusions without any supporting facts or data, it cannot support the

verdict. See e.g. City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009) (Bare,

baseless opinions will not support a judgment even if there is no objection to their

admission in evidence). Without any of the details of the specific analysis Analyst

Noyola performed in this case, much less the foundational data reported by the

laboratory instruments, there is simply no basis for Analyst Noyola’s expert opinion.

See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (expert opinion must have some

connection to data). While it may be perfectly reliable for a witness to base her expert

opinion on the nature of a substance by performing GC/MS or thin layer

chromatography analysis, such reliability can only be established when the

foundational support of the results of the analysis is furnished along with the witness

testimony. Analyst Noyola’s unsupported claim that the crystalline substance contains

cocaine is insufficient to support the verdict.

              2. There is no evidence which proves that Travis Lamb

              intentionally or knowingly possessed cocaine

                     a. There is no evidence that “bath salts” contain cocaine

       “Bath salts” are a generic term for a collection of designer drugs that are

commonly synthetic derivatives of cathinone, the active ingredient of the khat plant.

Drug Fact Sheet: Bath Salts or Designer Cathinones, DEA available at http://www.dea.gov/

druginfo/drug_data_sheets/Bath_Salts.pdf. Many of the drugs considered “bath

salts” were made illegal on September 1, 2011. TEX. HEALTH & SAFETY CODE

                                            15
§ 481.103(a)(4). However, unlike cocaine, which is made through a natural process,

bath salts are lab created and can be specifically designed to skirt the law. Synthetic

'Bath Salts' An Evolving Problem For DEA, NPR (Jun. 30, 2012). There is no federal

regulation on what is labeled a “bath salt,” and not all active “bath salt” ingredients

are prohibited cathinones. Karen Miotto, et al.,Clinical and pharmacological aspects of bath

salt use: A review of the literature and case reports, 132 DRUG ALCOHOL DEPEND. 1, 1

(2013). There is no guarantee that a person possessing so-called “research chemicals”

like “bath salts,” recreational drugs created specifically to skirt the law as it existed at

the time of the chemical’s creation, possesses a prohibited substance. There is no

record-based evidence suggesting that “bath salts” are mixed, prepared with, or

otherwise contain cocaine; rather “bath salts” were intended as a substitute for illegal

drugs like cocaine. See Jill Gallus, Synthetic Cocaine Sold As Legal Substitute To Real Drug,

KVIA (Jun. 26, 2012).

                     b. Travis Lamb’s incriminatory statement at the scene of the

                     arrest does not indicate that he knowingly possessed cocaine

       Travis Lamb’s potentially incriminatory statement that “it's not meth, it's bath

salts” is the only evidence offered regarding whether Mr. Lamb knew the true nature

of the crystalline substance. (4 R.R. at 17, 40). See e.g. Chavez v. State, 769 S.W.2d 284,

288 (Tex. App.-Houston [1st Dist.] 1989) (incriminating statement made by the

accused relevant in possession of a controlled substance case). In Shults v. State, the

Court of Criminal Appeals held that where trace amounts of heroin were found in a

                                             16
baggie that a defendant had admittedly used to transport marijuana, the evidence was

insufficient to prove possession of heroin. Shults v. State, 575 S.W.2d 29, 30 (Tex. Crim.

App. 1979). As stated in King, the burden is on the state to “prove, through other

evidence, that appellant had knowledge that the substance in his possession was

cocaine.” King, 895 S.W.2d at 703. There is no record-based or evidence-based reason

to disbelieve Travis Lamb’s assertion that he thought the drugs were “bath salts.”

                    c. The physical appearance of the crystalline substance does

                    not indicate the presence of cocaine

      The Court of Appeals should closely inspect Exhibit 4-b. A picture of the

crystalline substance is attached for the Court’s convenience. Appendix A. The

substance is composed of small, irregularly shaped, crystals with a translucent, white

color. Appendix A. The substance does not resemble the fine, white powder of

cocaine in its salt form or jagged, off-white to yellowish nuggets of cocaine in its

freebase form. Appendix B, Appendix C, Appendix D. The substance looks more

like methamphetamine, but methamphetamine crystals are larger and more

transparent (glassy) than the crystalline substance and methamphetamine powder

more closely resembles sugar or baking soda than the small, irregular crystals in the

crystalline substance. Appendix E, F. Both police officers, who encounter controlled

substances on a daily basis, believed that crystalline substance was crystal

methamphetamine and the officers did not attempt to test the substance for the

presence of cocaine. (3 R.R. at 20; 4 R.R. at 33-34). Analyst Noyola conceded that the

                                           17
crystalline substance was not powder or crack-cocaine, but was purportedly in the

form of the “adulterants and dilutants” which happened to contain cocaine. (4 R.R. at

74). The physical properties of the crystalline substance, found in a form not

associated with cocaine, is relevant to the determination of whether or not Travis

Lamb knowingly possessed cocaine. (4 R.R. at 74).

                     d.   The     laboratory      tests,   performed    under     standard

                     conditions, did not indicate the presence of cocaine

       Finally, the laboratory performed three tests that should have reported the

presence of cocaine in the sample. Recommended methods for the Identification and Analysis of

Cocaine in Seized Materials at 29, 35. There was no testimony that the crystalline

substance was chemically impure, contained a mixture of different substances, or

contained substances that would mask the detection of cocaine. When Analyst Noyola

performed UV-Vis spectroscopy, FTIR, and GC/MS under standard laboratory

conditions, no controlled substance was detected. (4 R.R. at 64-65). If sensitive

laboratory instruments could not detect cocaine in a sample prepared from the pure

crystalline substance tested under ordinary conditions, there can be no valid argument

that an ordinary person could know that there was cocaine on or in the crystals.




                                             18
                    e. Even if Analyst Noyola’s testimony is considered, there is

                    insufficient evidence to prove that Travis Lamb knowingly

                    possessed cocaine

                           i. The State’s burden of proof is increased when only a

                           trace amount of a controlled substance is found

      Texas courts have long set boundaries on what sort of evidence will support a

conviction for possession of a controlled substance. In Curtis v. State, the Court of

Criminal Appeals held that a field test, paired with an officer’s visual “identification”

of a controlled substance, was insufficient to support a conviction. Curtis v. State, 548

S.W.2d 57, 58–59 (Tex. Crim. App. 1977). In King v. State, the Court of Criminal

Appeals upheld special evidentiary requirements for proof in cases involving trace

amounts of controlled substances, requiring “evidence other than mere possession to

prove that the defendant knew the substance in his possession was a controlled

substance.” King, 895 S.W.2d at 703.

                           ii. The State failed to prove by evidence other than the

                           mere detection of cocaine by the laboratory that Travis

                           Lamb knew that the crystalline substance contained

                           cocaine

      The laboratory performed no quantification of the substances involved in this

case. The laboratory did not report the quantity of cocaine detected in the substance,

the quantity of “adulterants and dilutants” in the substance, or the purity of the

                                           19
cocaine. The laboratory did not even identify which “adulterant and dilutants” were

contained within the crystalline substance. Even assuming Analyst Noyola’s

conclusory testimony constitutes valid evidence, the evidence did not establish that

anything more than a trace amount of cocaine was found in the sample. Analyst

Noyola simply reported the presence of cocaine in the sample: “I am confident of the

analysis that I performed and I am confident to -- to write the results as containing

cocaine based on my analysis and the results of those analyses.” (4 R.R. at 75). As the

State failed to prove that there was a visible, measurable amount of cocaine in the

sample tested, the State’s burden of proof is heightened under the standard set forth

in King. King, 895 S.W.2d at 703.

       The government can only convict after providing “sufficient evidence to justify

a rational trier of the facts to find guilt beyond a reasonable doubt.” Brooks v. State,

323 S.W.3d 893, 916–917 (Tex. Crim. App. 2010). Officer Gallegos’s offhand

comment that the officers “were contemplating whether the crystalline substance was

meth or powder cocaine” is not sufficient evidence to convict Travis Lamb of

possession of cocaine. (4 R.R. at 40). An ordinary police officer is not qualified to

classify a crystalline substance forensically, much less by sight. Curtis, 548 S.W.2d at

58–59; TEX. CODE CRIM. PROC., art. 38.35(d)(1). This leaves the laboratory analysis as

the State’s last opportunity to prove guilt.

       Even if Analyst Noyola’s conclusory testimony constitutes valid evidence, there

is no evidence that Travis Lamb knew, or should have known, that there was cocaine

                                               20
in the crystalline substance. Mr. Lamb thought the substance was “balt salts,” police

thought the substance was methamphetamine, the analyst could not detect the

presence of cocaine under ordinary conditions, and the crystalline substance did not

appear to be cocaine or crack. (4 R.R. at 15-17, 33-34, 40, 62-65, 74-75). Analyst

Noyola did not know if the crystalline substance had been contaminated with cocaine,

nor did Analyst Noyola testify that the cocaine was detected within the crystalline

substance, as opposed to a residue on the outside of the crystals. (4 R.R. at 77-79).

Cocaine is a very fine powder that is easily spread. David Biello, Cocaine Contaminates

Majority of U.S. Currency, SCIENTIFIC AMERICAN (August 16, 2009). Whether it was

inadvertently spread by police officers, the person manufacturing the “bath salts,” lab

personnel, or any other person handling the crystalline substance or the plastic baggie

it was stuffed inside, without knowing the concentration of cocaine present during the

analysis and where the cocaine was found, it is impossible to say that a person

knowingly possessed the trace amount of cocaine. Richard Sleeman et al., Drugs on

Money, 72 ANALYTICAL CHEM. 397, 401 (2000) (“Traces of controlled substances [can]

arise from contact with the drug itself, a contaminated hand, or another contaminated

item.”) Analyst Noyola had to concentrate the pure sample in order to obtain a

detectable amount of cocaine, increasing the risk that a contaminant was detected.

Again, whatever intent Mr. Lamb may have had to possess bath salts does not supply

the requisite culpable mental state for possession of cocaine. Shults, 575 S.W.2d at 30.



                                           21
      E. The current legal standards employed in drug possession cases are

      unworkable

             1. A law that makes criminals out of us all

      Rarely does it benefit an appellate advocate to “break down the fourth wall,”

but the interplay of the precedent employed in controlled substance cases require this

departure from the norm. The rule set forth in Joseph and King regarding trace amounts

of controlled substance, even those invisible to the human eye, and the rule set forth

in Seals, transforming pretty much any substance mixed with a controlled substance

into an “adulterant or dilutant,” make felons of the innocent. Joseph v. State, 897

S.W.2d 374, 376 (Tex. Crim. App. 1995); King, 895 S.W.2d at 703; Seals v. State, 187

S.W.3d 417, 421 (Tex. Crim. App. 2005). While some claim “the truth shall set you

free” and “knowledge in power,” innocence is no defense under Section 481.115 of

the Health and Safety Code. Be warned: knowing how widespread the problem of

controlled substance contamination is will transform any who dare read further into

hardened, if unintentional, criminals.




                                         22
             2. There is no minimum amount of a controlled substance

             required for conviction under Section 481.115 of the Health and

             Safety Code and anything mixed with the controlled substance can

             be considered an “adulterant or dilutant”

      The rule set forth in King and clarified in Joseph permits the conviction of a

person who knowingly possesses a trace amount of a controlled substance, even if it is

immeasurable, invisible to the human eye, or microscopic:

      There is no requirement that one must possess a usable amount of a
      controlled substance in order to be convicted of unlawful possession of
      a controlled substance. There is also no requirement that the substance
      be visible to the naked eye.

Joseph, 897 S.W.2d at 376; see also King, 895 S.W.2d at 703 (upholding a conviction for

possession of a microscopic and unweighable amount of cocaine). Unwanted,

unusuable waste products of drug use have been held sufficient to support conviction.

Daniels v. State, 853 S.W.2d 749, 751 (Tex. App.−Houston [1st Dist.] 1993, no pet.)

(crack-cocaine residue on a pipe sufficient to support a conviction).

      Under Seals, the Court of Criminal Appeals noted that the definition of

“adulterant of dilutant” had been expanded to encompass literally any material that

increased the bulk of a controlled substance, even if the bulk was increased

unintentionally:

      One might argue that the legislature meant to include as an adulterant or
      dilutant only materials that increase the bulk or quantity of the
      controlled substance before distribution, sale, or consumption and that
      the legislature meant to exclude waste materials or materials that do not

                                           23
      increase the bulk or quantity of salable or usable weight. But these are
      not the words that the legislature actually used. The drafters of the
      definition could have easily included these terms, but they did not. More
      to the point, the drafters could have left the definition that this Court
      used in McGlothlin v. State and Cawthon, which would have achieved
      the same result. What message are we to glean from the legislature's
      omission of the phrases "before distribution, sale, or consumption";
      "waste products"; and "salable or usable weight"? The only
      interpretation that is permitted under the seminal rule of statutory
      construction: We presume that the legislature meant what it said.

Seals, 187 S.W.3d at 421. The combination of Seals with the rule set forth in Joseph and

King allow a trace amount of a controlled substance, when inadvertently mixed with a

substantial quantity of another product, to serve as the basis of a serious felony

conviction.

              3. Ignorance is bliss: why a little bit of knowledge is a bad thing

              under Section 481.115 of the Health and Safety Code

      In contemplating the Seals case, the concurrence and dissent noted that Section

481.115 of the Health and Safety Code skated on thin Constitutional ice, and they

considered possible flaws with the plain language of the statute. In Judge Womack’s

concurring opinion, the Judge noted:

      But the statutory definition may be so inclusive as to invite constitutional
      problems. For example, it is no rarity for suspects to attempt to flush
      controlled substances down the toilet. […] I would hate to see this Court
      forced to hold the statute unconstitutional when a prosecutor tried to
      include all the water in the toilet bowl as part of the controlled
      substance.

Seals, 187 S.W.3d at 423 (J. Womack, concurring). Citing similar examples, Judge

Cochran explained in her dissent that a person who vomited up a controlled

                                          24
substance or who urinated out a controlled substance could be convicted for the

aggregate weight under the “adulterants and dilutants” provision. Id. at 427 (J.

Cochran dissenting).

      What the Court did not consider are that controlled substance contaminants

are encountered on a daily basis and have absolutely nothing to do with the

commission of a crime. It has been known for decades that American currency is

laced with detectable levels of controlled substances. See Jonathan Oyler et al., Cocaine

Contamination of United States Paper Currency, 20 J. ANALYTICAL TOXICOLOGY 213, 214-

215 (1996) (1996 study noting the widespread contamination of currency with cocaine

and noting several previous studies conducted in the 1980’s regarding the

contamination of currency by cocaine reside). It has been noted that cocaine, heroin,

6-acetylmorphine, morphine, phencyclidine, methamphetamine, amphetamine, and

MDMA have all been identified on U.S. currency notes. Eric Lavins, Cannabis

(Marijuana) Contamination of United States and Foreign Paper Currency, 28 J. ANALYTICAL

TOXICOLOGY 439, 439 (2004). Cocaine contamination seems to be most frequently

observed, with studies reporting over 79% contamination on circulating bills. Id.

Cocaine contamination is so widespread that many courts have declared that a

narcotics dog’s positive alert to a large sum of money is insufficient to establish

probable cause for forfeiture. See United States v. U.S. Currency, $30, 060.00, 39 F.3d

1039, 1041–1043 (9th Cir. 1994) (explaining, in detail, the contamination problem). A

person carrying a wallet and aware of the drug contamination problem knowingly

                                           25
possesses the controlled substances in the wallet. After all, given such high

contamination levels, it is reasonably certain that, given one or more bank notes in a

wallet, one will find cocaine or another controlled substance. See TEX. PENAL CODE §

6.03(b) (defining the culpable mental state of “knowingly”).

       The problem with drinking water is even more difficult to dismiss. Drinking

water contains metabolites and residues of pharmaceutical, industrial, personal care,

and other chemicals that are not completely eliminated by the filtration process. P.E.

Stackelerg et al., Persistence of pharmaceutical compounds and other organic wastewater

contaminants in a conventional drinking-water-treatment plant, 324 SCIENCE   OF THE   TOTAL

ENVIRONMENT 99, 101-103 (2004) (Table listing various chemicals detected in

processed tap water). Among the many pharmaceutical compounds that have been

detected in drinking water are illicit drugs, including codeine, methadone,

amphetamine, methamphetamine, MDMA, and cocaine. Christian G. Daughton, Illicit

Drugs: Contaminants in the Environment and Utility in Forensic Epidemiology, 210 REV.    OF

ENVIRON. CONTAMINATION          AND   TOXICOLOGY 59, 77-79 (2011). While it is bad

enough that a person understanding the problem of invisible contaminants in drinking

water “knowingly possesses” the controlled substances within the drinking water, the

drinking water in which the contaminants are found is an “adulterant or dilutant.” See

Seals, 187 S.W.3d at 421. Given that a cup of water weighs over 200 grams, the old

advice to “drink eight glasses of eight ounces of water a day” seems a quick road to a

lengthy prison sentence.

                                            26
             4. A new rule must be crafted

      There are other reported avenues of undesired exposure to controlled

substance contaminants. Studies have reported that many controlled substances can

be transmitted through the air or through dermal (skin) contact. Illicit Drugs:

Contaminants in the Environment and Utility in Forensic Epidemiology at 77-79. A system of

laws that punishes the knowing possession of microscopic, unweighable amounts of

controlled substances, given the incredibly sensitive and ever-improving forensic

laboratory techniques employed today, quickly turns those aware of the contamination

problem into hardened felons. Joseph, 897 S.W.2d at 376; King, 895 S.W.2d at 703.

Additionally, a system of laws that permits the punishment range to vary with physical

and chemical processes which “increase the bulk” of a controlled substance, but

which occur without a person’s intent to actually adulterate or dilute a controlled

substance (and maybe even without the person’s involvement, such as water naturally

absorbed from the air by certain substances) amplifies the risk of wrongful conviction.

As the legal standard does not consider whether the person in possession of a trace

amount of a controlled substance actually intends to possess that controlled substance

(what drug user desires waste material such as unusable combustion byproducts lining

a pipe or unusable powder residue lining a baggie?) or even whether the possession of

a controlled substance is related to criminal activity, it is constitutionally infirm. See

Papachristou v. City of Jacksonville, 405 U.S. 156, 169-171 (1972) (laws that allow the



                                           27
police wide discretion to arrest the poor and unpopular at an officer’s whim are

unconstitutional).

      The majority of the Judges on the Court of Criminal Appeals agreed that the

Texas Controlled Substance Act could be unconstitutional if applied incorrectly. Seals,

187 S.W.3d at 422–428 (J. Womack, concurring and J. Cochran dissenting). But the

Court cannot “uphold an unconstitutional statute merely because the Government

promised to use it responsibly.” United States v. Stevens, 559 U.S. 460, 480 (2010). An

interpretation of the law which creates criminals of us all is absurd and unintentional.

Whitelaw v. State, 29 S.W.3d 129, 131 (Tex. Crim. App. 2000). Respectfully, Travis

Lamb would ask this Court to reconsider the Court of Criminal Appeals’s

interpretation of Section 481.115, as the current interpretation leads to absurd and

unintended results. Restricting the application of Section 481.115 only to cases where

the controlled substance is in usable form (covering an invisible substance like LSD)

or is visible, measurable, and not a waste product would limit the potential for

wrongful conviction under Section 481.115.

                                        PRAYER

      Respectfully, Travis Lamb would ask this Court to reverse the conviction in

Cause No. and direct an acquittal in this case.

                                                  Respectfully submitted,

                                                  ALEXANDER BUNIN
                                                  Chief Public Defender
                                                  Harris County Texas

                                           28
                                               /s/ Nicolas Hughes
                                               NICOLAS HUGHES
                                               Assistant Public Defender
                                               Harris County Texas
                                               1201 Franklin Street, 13th Floor
                                               Houston Texas 77002
                                               (713) 368-0016
                                               (713) 386-9278 fax
                                               TBA No. 24059981
                                               nicolas.hughes@pdo.hctx.net


                              CERTIFICATE OF SERVICE

       I certify that a copy of this Appellant’s Brief (Lamb) has been served upon the

Harris County District Attorney's Office − Appellate Section, on May 29, 2015, by

electronic service.

                                                      /s/ Nicolas Hughes
                                                      NICOLAS HUGHES
                                                      Assistant Public Defender

                           CERTIFICATE OF COMPLIANCE

       This document complies with the typeface requirements of TEX. R. APP. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the page

and word count limitations of TEX. R. APP. P. 9.4(i), if applicable, because it contains

6,708 words excluding portions not to be counted under TEX. R. APP. P. 9.4(i)(1).


                                                      /s/ Nicolas Hughes
                                                      NICOLAS HUGHES
                                                      Assistant Public Defender

                                          29
                                  APPENDIX

A. Picture of State’s Exhibit 4-b, enlarged to show crystalline substance

B. Picture of power cocaine from DEA website. Cocaine, DEA available at

   http://www.dea.gov/pr/multimedia-library/image-gallery/

   images_cocaine.shtml

C. Picture of compressed powered cocaine from DEA website. Cocaine, DEA

   available   at       http://www.dea.gov/pr/multimedia-library/image-gallery/

   images_cocaine.shtml

D. Picture of crack-cocaine from DEA website. Cocaine, DEA available at

   http://www.dea.gov/pr/multimedia-library/image-gallery/

   images_cocaine.shtml

E. Picture of crystal methamphetamine from DEA website. Methamphetamine,

   DEA available at     http://www.dea.gov/pr/multimedia-library/image-gallery/

   images_methamphetamine.shtml

F. Picture of powder methamphetamine from DEA website. Methamphetamine,

   DEA available at     http://www.dea.gov/pr/multimedia-library/image-gallery/

   images_methamphetamine.shtml




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