             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



        H OLCOMB, J., filed a concurring opinion, in which W OMACK, J., joined.


                                           OPINION

        I note at the outset that I stand by my position in Wright v. State, 201 S.W.3d 765, 770 (Tex.

Crim. App. 2006) (Holcomb, J., dissenting). In my view, the Legislature’s wording of the statute

in question, Texas Health and Safety Code, Section 481.002(49), is overly broad when it defines an

“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.” (Emphasis added.) But

I believe that the Court has reached the correct result in this case primarily because the “adulterant”

or “dilutant” in question was water.
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       There was apparently no evidence at trial that applicant flushed the commode after pouring

his liquid methamphetamine in it, even though he had time to do so. Indeed, the habeas court

specifically found that the commode had not been flushed. Moreover, that court also noted that there

was nothing in the record to suggest that the toilet was not functioning. According to the experts’

affidavits in the habeas record, it is common for methamphetamine “cooks” to keep the left-over

materials (“bones”) from methamphetamine production. This “bones” material is retained for further

processing to extract more methamphetamine later. According to one of the experts’ affidavits, “[i]t

is possible to extract methamphetamine from ‘bones’ material, if the ‘bones’ still contain

methamphetamine, if such material has been introduced into a quantity of water.” Chandley

Affidavit, Habeas Record at 10 (emphasis added). Thus, unlike the extraneous liquids in question

in Seals v. State, 187 S.W.3d 417 (Tex. Crim. App. 2005) (blood), and Wright (unusable toxic

liquids), water appears to be correctly characterized as an adulterant or dilutant in the present case

because it seems to play a critical role in the preservation, and later extraction, of methamphetamine

from the “bones” material. Based on all this evidence produced at trial and at the evidentiary

hearing, I can see how the habeas court could have concluded that applicant had poured the

methamphetamine in the commode with the intention of later retrieving the mixture and extracting

any residue of methamphetamine from the water, no matter how ridiculous this may seem to

someone not versed in the drug trade.

       In addition to above, I note that applicant has presented several examples to show the

absurdity of the statute in question. See Ante, slip op. at 3 n.2. All of those examples are

hypothetical and none comes even close to describing this applicant’s case. It is therefore important

to note that this Court has declined to comment in any way on the merit of those hypothetical cases,
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if one should materialize before us someday.

       Finally, I note that applicant incorrectly argues that “[t]he enhanced punishment to which he

was sentenced bears no reasonable relationship to the crime he committed,” Applicant’s Brief at 14-

15, suggesting that he had been sentenced to 85 years’ imprisonment and a fine of $250,000 solely

for his conviction for possession of more than 400 grams of a controlled substance, which included

the weight of the actual methamphetamine and the toilet water. As the State points out, however,

it had presented evidence, during the punishment phase, showing that applicant was already on

felony probation for aggravated assault at the time of the present offense. The evidence also showed

that, only six days before the present offense, applicant had been stopped and arrested, caught with

56 grams of usable methamphetamine, a large wad of cash, a number of empty little bags typically

used to distribute drugs, and digital scales typically used to weigh drugs. Thus, it was no doubt due

to the introduction of such evidence, and not simply because of the offense charged in the present

case, that the jury assessed the enhanced punishment.

       For all the foregoing reasons, I concur.



FILED: FEBRUARY 13, 2008.

DO NOT PUBLISH
