            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                         NO. AP–75,611



                   EX PARTE BRIAN KEITH KINNETT, Applicant



             ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                       FROM WICHITA COUNTY



       Meyers, J., filed a dissenting opinion.


                                 DISSENTING OPINION

       The majority should make a determination regarding whether the water in the toilet

was an adulterant or dilutant before addressing whether the statute regarding adulterants

and dilutants is facially unconstitutional. Since the majority does not make such a

determination, I respectfully dissent.

       Applicant did not add the drugs to the water in the toilet to dilute or adulterate the

drugs or to increase “the bulk or quantity of a controlled substance.” Even if you believe

the state’s theory that the substance was put into the toilet in order to preserve the drugs
                                                                         Kinnett dissent–Page 2

for later use, as discussed in the concurring opinions, this still may not fit the definition of

adulterant or dilutant. The majority fails to establish that putting a controlled substance

into a vessel of water in order to preserve the controlled substance makes the entire

amount of water in the vessel an adulterant or dilutant.

       The past cases dealing with this issue involved adulterants or dilutants that had

been mixed with the drug either to increase the amount available for sale, or as part of the

manufacturing process, or through the actual use of the drug. I agree with those cases,

Wright v. State, 201 S.W.3d 765 (Tex. Crim. App. 2006), and Seals v. State, 187 S.W.3d

417 (Tex. Crim. App. 2005), in which we determined that the legislature promulgated this

definition in order to punish to the fullest extent of the law those guilty of the

manufacture, sale, or use of controlled substances. Applicant argues that the statute is

unconstitutionally vague, over-broad, and has no reasonable relation to these state

objectives. He reasons that while the state may be acting in pursuit of permissible state

objectives, the means adopted, i.e., the inclusion in the weight of a controlled substance

of any material which contains any quantity of a controlled substance, are not reasonably

related to the accomplishment of these objectives. I agree that it is more reasonable to

read the definition of adulterants and dilutants as including substances that have been

commingled with the drugs through their use, as part of the manufacturing process, or in

order to increase the amount available for sale. Because I feel that the majority should

consider whether the water in which the drugs were placed actually increased the bulk or
                                                                       Kinnett dissent–Page 3

quantity of the controlled substance, I respectfully dissent.




                                                          Meyers, J.




Filed: February 13, 2008

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