                                                                                                ACCEPTED
                                                                                            01-14-00901-CR
                                                                                 FIRST COURT OF APPEALS
                                                                                         HOUSTON, TEXAS
                                                                                      11/13/2015 3:35:47 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
                                                                11/13/2015 3:35:47 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

  MOTION FOR REHEARING, OR IN THE ALTERNATIVE, MOTION TO PUBLISH


I. THE PRESENCE OF ADULTERANTS OR DILUTANTS CANNOT BE USED ESTABLISH
    THE PRESENCE OF A CONTROLLED SUBSTANCE AT ABOVE-TRACE LEVELS

   A. The Controlled Substance Act and the definitions of “controlled
   substance” and “adulterants and dilutants”

      The Controlled Substances Act defines “adulterant or dilutant” as: “any

material that increases the bulk or quantity of a controlled substance, regardless of

its effect on the chemical activity of the controlled substance.” TEX. HEALTH &

SAFETY CODE § 481.002(49). The Controlled Substance Act defines “controlled

substance” as:

      “a substance, including a drug, an adulterant, and a dilutant, 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). While not the model of clarity, a fair

reading of Section 481.002(5) requires that “controlled substance” must be listed in a

schedule or penalty group. In the context of Appellant’s case, the State must prove

Appellant “possesse[d] a controlled substance listed in Penalty Group 1” and that

“the amount of the controlled substance possessed is, by aggregate weight,

including adulterants or dilutants, one gram or more but less than four grams.”

TEX. HEALTH & SAFETY CODE § 481.115(a, c).

       In the context of Section 481.115, an “adulterant or dilutant” does not exist

without outside of the presence of a controlled substance in penalty group 1. TEX.

HEALTH & SAFETY CODE § 481.002(49); TEX. HEALTH & SAFETY CODE § 481.115(a,

c). To use the quantity of “adulterant or dilutant” present in the evidence is to create a

circular definition: an “adulterant or dilutant” is defined as a material mixed with a

controlled substance, which would then be defined as any “adulterant or dilutant”

mixed with a controlled substance. Such a definition is “completely circular and

explains nothing.” See e.g. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (U.S.

1992). But ultimately, this circular definition is the one applied to Appellant’s case

       Even accepting the merits of Appellant's reasoning, he cannot prevail.
       Regardless of the amount of cocaine present in the substance, it was
       present, and it was mixed with “adulterants and dilutants.” See TEX.
       HEALTH & SAFETY CODE ANN. § 481.002(49) (defining “adulterants and
       dilutants”). Regardless of whether the amount of cocaine by itself would
       have constituted a trace amount, with the adulterants and dilutants, it
       was visible and weighed 1.77 grams. See Melton, 120 S.W.3d at 344
       (holding State has to prove only that aggregate weight of controlled
       substance mixture, including adulterants and dilutants, equals alleged
      minimum weight). Accordingly, there was sufficient evidence for the jury
      to determine that Appellant possessed more than one gram and less than
      four grams of cocaine. See id. This is not a trace amount. See Shults, 575
      S.W.2d at 30 (defining trace amount to be quantity of substance
      possessed so small that it cannot be quantitatively measured).

Lamb v. State, 01-14-00901-CR, 2015 WL 6933120, at *3 (Tex. App.—Houston [1st

Dist.] Nov. 10, 2015, no. pet. h.). While Appellant readily concedes that the quantity

of “adulterants and dilutants” present in the crystalline substance can be qualitatively

measured, the amount of cocaine, without the presence of which there would be no

“adulterants or dilutants” or crime at all, is a trace amount which could not be

established by sensitive laboratory devices operating under normal conditions.

   B. Nothing in Seals suggests that the aggregate weight of a mixture can be
   used to determine whether or not a controlled substance is only present in
   trace amounts

      The Seals court resolved the issues of the aggregate weight of the blood waste

mixture and the presence of methamphetamine within the mixture independently.

The Court noted that there was an unmeasured amount of methamphetamine in the

blood waste mixture:

      The State's criminalist testified that the contents of the syringe weighed
      0.05 grams and the contents of a vial weighed 1.50 grams. The
      criminalist said that, in addition to methamphetamine, the vial contained
      nicotinamide (vitamin B3) and blood. The criminalist did not say how
      much of the vial's 1.50 grams came from each of the three substances.

      The appellant admitted possessing less than a gram of
      methamphetamine. He testified that the vial contained mostly blood
      waste. According to the appellant, the vial was used to squirt blood and
      trace amounts of methamphetamine when he was unable to successfully
      inject the drug into his arm.
Seals v. State, 187 S.W.3d 417, 418 (Tex. Crim. App. 2005). The dissenting opinion

explicitly noted that there was only a trace amount of methamphetamine in the blood

waste mixture: “In this case, there is no evidence of any illicit use of the bloody

mixture in the vial with traces of methamphetamine contained in it.” Seals v. State, 187

S.W.3d 417, 426 (Tex. Crim. App. 2005) (J. Cochran, dissenting). Seals does not seem

to treat the presence of methamphetamine in the blood as anything more than a trace

amount of a controlled substance.

   C. This Court’s holding sets a dangerous policy

      This Court’s holding that “[r]egardless of whether the amount of cocaine by

itself would have constituted a trace amount, with the adulterants and dilutants, it was

visible and weighed 1.77 grams” pushes the interpretation of the Controlled

Substance Act further down a dangerous and slippery slope. Imagine this scenario: a

law-abiding baker works in a local bakery. By the end of the baker’s shift, her apron

has a few noticeable splotches of flour. The baker throws the apron in the back of her

car and rushes home. A police officer pulls the baker over for speeding 5 miles over

the speed limit, notices the flour residue on the apron, suspects the visible residue to

be cocaine, arrests the baker for possession of a controlled substance, and seizes the

apron for testing. The laboratory technician carefully scrapes the flour off the apron

and weighs 1.77 grams of flour. The laboratory technician runs four sensitive

laboratory tests, none of which detect the presence of any controlled substance. The
laboratory technician concentrates the sample, and runs a second battery of tests and

detects cocaine. The cocaine is an environmental contaminant or is residue spread to

the baker when she handled customer’s cash. How does the baker vindicate her

innocence?

       Under the typical “affirmative links” analysis as would be applied by this Court

given the visible quantity of flour found in the baker’s case, it is highly likely that the

innocent baker would be found guilty. It would be enough for the State to show that

the apron was in the baker’s physical possession, the baker was present when the

search was conducted, the flour was in plain view, the baker owned her car where the

flour was found, and the car is enclosed. See Evans v. State, 202 S.W.3d 158, 162-163

(Tex. Crim. App. 2006) (providing an in-depth explanation of Texas’s affirmative links

doctrine). Under the stricter King standard, the mere possession of an immeasurable,

invisible amount of cocaine would not support a conclusion that the baker was guilty.

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

       As a rose by any other name would smell as sweet, calling the “cocaine” in this

case anything other than low-concentration, trace evidence does not change its nature.

The scientific techniques employed in this case like gas chromatography / mass

spectroscopy can detect substances at stunningly low levels. But what the scientific
techniques cannot do is explain to a jury the significance of a finding. In Appellant’s

case, the laboratory technician’s rather obtuse testimony about contamination did no

more than confuse the jury about the significance of the detection of cocaine at such

low levels within the crystalline substance. (4 R.R. at 77-79). While laboratory

procedures may be crafted to prevent cross-transfer and contamination of evidence,

such rigorous procedures are exceedingly unlikely adhered to by ordinary citizens or

patrol officers (who often handle both controlled substances and evidence). The law

must not merely seek to punish the guilty, it must seek to safeguard the innocent. See

Stone v. Powell, 428 U.S. 465, 494 (1976) (All courts “have a constitutional obligation to

safeguard personal liberties.”). In order to safeguard the innocent from punishment

for the accidental or unwitting possession of trace amounts of narcotics, this Court

must treat the narcotics as trace evidence whether present as invisible residue or

whether mixed with a “crystalline substance” which does not somehow externally

alert the possessor that the “crystalline substance” may contain cocaine.

     II. THIS COURT SHOULD HAVE ADDRESSED APPELLANT’S DUE PROCESS
                                      ARGUMENT

   A. An argument to the sufficiency of the evidence is a due process argument

      The doctrine of sufficiency of the evidence is carved directly from the Due

Process Clause. It has long been held that “[t]he Due Process Clause protects the

accused against conviction except upon proof beyond a reasonable doubt of every

fact necessary to constitute the crime with which he is charged.” In re Winship, 397
U.S. 358, 364 (1970). However, the Supreme Court struggled over how to ensure a

defendant’s due process protection against conviction on less than proof beyond a

reasonable doubt was appropriately vindicated on appeal. The sufficiency standard set

forth in Jackson “suppl[ies] a workable [and] predictable standard for determining

whether the due process command of Winship has been honored.” Jackson v. Virginia,

443 U.S. 307, 320 (1979). When setting forth the standard for sufficiency of the

evidence, the Jackson court explicitly balanced the factfinding power of the jury with

the due process rights of the defendant: “[t]he criterion thus impinges upon ‘jury’

discretion only to the extent necessary to guarantee the fundamental protection of due

process of law.” Id. at 319. Applying syllogistic reasoning, Appellant raised the issue of

sufficiency of the evidence, sufficiency of the evidence is a doctrine carved from due

process protections, therefore Appellant asserted his due process rights on appeal.

   B. An argument to the sufficiency of the evidence is an argument that the
   evidence supporting a conviction is of inadequate quality

      In Brooks, the Court of Criminal Appeals explained that sufficiency of the

evidence is synonymous with the quality of the evidence:

         Legal sufficiency of the evidence is a test of adequacy, not mere
      quantity. Sufficient evidence is “such evidence, in character, weight, or
      amount, as will legally justify the judicial or official action demanded.”
      Black's Law Dictionary 1285 (5th ed.1979). In criminal cases, only that
      evidence which is sufficient in character, weight, and amount to justify a
      factfinder in concluding that every element of the offense has been
      proven beyond a reasonable doubt is adequate to support a conviction.
                                          […]
         As Justice Harlan explained in his Winship concurrence, although the
      phrases “preponderance of the evidence” and “proof beyond a
      reasonable doubt” are quantitatively imprecise, they do communicate to
      the finder of fact different notions concerning the degree of confidence
      he is expected to have in the correctness of his factual conclusions.
      Justice Harlan noted that “[t]he preponderance test has been criticized,
      justifiably in my view, when it is read as asking the trier of fact to weigh
      in some objective sense the quantity of evidence submitted by each side
      rather than asking him to decide what he believes most probably
      happened.” Indeed, that is precisely why the standard of proof and
      review in criminal cases has been expressed, not by the quantity of
      evidence produced or how it might be weighed when viewed neutrally,
      but rather by the quality of the evidence and the level of certainty it
      engenders in the factfinder's mind.
          Legal sufficiency of the evidence in a criminal proceeding may be
      divided into two zones: evidence of such sufficient strength, character,
      and credibility to engender certainty beyond a reasonable doubt in the
      reasonable factfinder's mind and evidence that lacks that strength.
      Appellate review of a jury's verdict of criminal conviction focuses solely
      on that “either-or” character of evidentiary sufficiency because a
      defendant is entitled to an acquittal if the evidence lacks that strength.

Brooks v. State, 323 S.W.3d 893, 917-918 (Tex. Crim. App. 2010) (citations omitted).

Once again, applying the same syllogistic reasoning used above, Appellant raised the

issue of sufficiency of the evidence, sufficiency of the evidence measures the quality

of the evidence before the appellate court, therefore Appellant asserted that the

quality of the evidence supporting Appellant’s conviction was inadequate.

   C. The Court should not have distinguished between challenging the
   sufficiency of the evidence and challenging the quality of the evidence

       This Court did not fully address Appellant’s sufficiency argument, holding that

Appellant’s arguments under the due process clause were not part of Appellant’s

primary brief:

      In his reply brief, Appellant argues that due process requirements put
      limits on what constitutes an adulterant or dilutant and on the quality of
      evidence that will support a conviction for possession of a controlled
      substance. Appellant's due process arguments were not raised in his
      primary brief. An appellant cannot raise issues raised for the first time in
      a reply brief. See Tex. R. App. P. 38.3 (limiting reply brief to addressing
      matters raised in appellee's brief); Barrios v. State, 27 S.W.3d 313, 322
      (Tex.App.—Houston [1st Dist.] 2000, pet. ref'd) (rejecting review of
      argument raised for first time in reply brief).
Lamb v. State, 01-14-00901-CR, 2015 WL 6933120 at *4 (Tex. App.—Houston [1st

Dist.] Nov. 10, 2015, no. pet. h.). By distinguishing between Appellant’s sufficiency

argument and the due process argument, the Court seems to make a distinction

between doctrines which are identical in the context of a sufficiency analysis. Section

I(D) of Appellant’s brief focused on the lack of evidence that would suggest anyone

in Appellant’s shoes could or should believe that the crystalline substance contained

cocaine and that even using sensitive laboratory techniques, it was impossible to

detect any illicit drugs within the crystalline substance. Section I(E) of Appellant’s

brief focused on the reasons why the judicial interpretation of Texas’s Controlled

Substances Act, as it currently stands, is ultimately unworkable and unconstitutional.

Appellant argued that the Appellate Courts must draw a firmer line to distinguish

between the possession of narcotics and the innocent possession of narcotics residues

as well as to ensure the fairness and rationality of the definition of adulterant or

dilutant. Appellant believes addressing the quality of the evidence in this case in light

of Appellant’s due process protections is necessary for a full and fair resolution of

Appellant’s case.
                                      PRAYER

      Appellant prays that this Court reconsider and withdraw its opinion in 01-14-

00901-CR. In the alternative, Appellant prays that this Court publishes the opinion

Appellant’s case.

                                             Respectfully submitted,

                                             ALEXANDER BUNIN
                                             Chief Public Defender
                                             Harris County Texas

                                             /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 Motion for Rehearing / Motion to Publish

Brief (Lamb) has been served upon the Harris County District Attorney's Office −

Appellate Section, on November 13, 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

2,460 words excluding portions not to be counted under TEX. R. APP. P. 9.4(i)(1).


                                                      /s/ Nicolas Hughes
                                                      NICOLAS HUGHES
                                                      Assistant Public Defender
