Ex Parte Colten Adam ( 2020 )

IN THE
TENTH COURT OF APPEALS
No. 10-19-00177-CR
EX PARTE COLTEN ADAM
From the 85th District Court
Brazos County, Texas
Trial Court No. 16-03532-CRF-85
MEMORANDUM OPINION
Appellant, Colten Adam, was charged with unlawful possession of a controlled
substance—tetrahydrocannabinol (“THC”)—in an amount of one gram or more but less
than four grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.116(c) (West 2017). Adam
filed a pretrial application for writ of habeas corpus, arguing that sections 481.103, 481.113
and 481.116 of the Texas Health and Safety Code are unconstitutional on their face. See
id. §§ 481.103, .113, .116 (West 2017). Adam appeals from the trial court’s order denying
relief. We affirm.
I. ANALYSIS
In his sole issue on appeal, Adam argues that the trial court abused its discretion
by denying his pretrial application for writ of habeas corpus because the blanket ban of
THC is not rationally related to any legitimate government purpose, the disparity in
punishment between THC and plant-form marihuana violates the Due Process Clause of
the Fifth and Fourteenth Amendments to the United States Constitution, and because the
ban on THC violates the Dormant Commerce Clause and the fundamental right to travel
for United States citizens using marihuana for medical purposes.
a. Cognizable Claims in a Pretrial Writ of Habeas Corpus
Pretrial habeas is an “extraordinary remedy” used to challenge the legality of one’s
restraint, and appellate courts should be careful to ensure that it is not “misused to secure
pretrial appellate review of matters that in actual fact should not be put before appellate
courts at the pretrial stage.” Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010); see
Ex parte Barnett, 424 S.W.3d 809, 810 (Tex. App.—Waco 2014, no pet.). Whether a claim
is even cognizable on pretrial habeas is a threshold issue that should be addressed before
the merits of the claim may be resolved. See Ex parte Ellis, 309 S.W.3d at 79; see also Ex
parte Barnett, 424 S.W.3d at 810. When determining whether an issue is cognizable by
pretrial habeas, courts consider a variety of factors, including whether the rights
underlying the claims would be effectively undermined if not vindicated before trial and
whether the alleged defect would bring into question the trial court’s power to proceed.
Ex parte Adam Page 2
Ex parte Perry, 483 S.W.3d 884, 895-96 (Tex. Crim. App. 2016); see Ex parte Weise, 55 S.W.3d
617, 619 (Tex. Crim. App. 2001). “Neither a trial court nor an appellate court should
entertain an application for writ of habeas corpus when there is an adequate remedy by
appeal.” Ex parte Weise, 55 S.W.3d at 619; see Ex parte Carter, 514 S.W.3d 776, 785 (Tex.
App.—Austin 2017, pet. ref’d).
Pretrial habeas is not available to test the sufficiency of the charging instrument or
to construe the meaning and application of the statute defining the offense charged. Ex
parte Ellis, 309 S.W.3d at 79. Pretrial habeas can be used to bring a facial challenge to the
constitutionality of the statute that defines the offense, but may not be used to advance
an “as applied” challenge. Id.
Generally, a claim is cognizable in a pretrial writ of habeas corpus if, resolved in
the defendant’s favor, it would deprive the trial court of the power to proceed and result
in the applicant’s immediate release. Ex parte Smith, 185 S.W.3d 887, 892 (Tex. Crim. App.
2006); see Ex parte Barnett, 424 S.W.3d at 810. When an applicant contends that a criminal
statute is facially unconstitutional, he is contending that there is no valid statute and that
the charging instrument is therefore void. Ex parte Weise, 55 S.W.3d at 620.
b. Adam’s Challenge to Section 481.113 of the Texas Health and Safety Code
At the outset, we note that the indictment in this case shows that Adam was
charged only with unlawful possession of a controlled substance under section 481.116
of the Texas Health and Safety Code. See TEX. HEALTH & SAFETY CODE ANN. § 481.116.
Ex parte Adam Page 3
There is nothing in the record demonstrating that Adam was charged by indictment with
manufacturing or delivering a controlled substance under section 481.113 of the Texas
Health and Safety Code. See id. § 481.113. The alleged unconstitutionality of section
481.113 of the Texas Health and Safety Code does not render the charging instrument
against Adam—based on a violation of section 481.116 of the Texas Health and Safety
Code—void. As such, a ruling in Adam’s favor would not result in his release from the
restraint imposed by the pending charge of unlawful possession of a Penalty Group 2
controlled substance under section 481.116 of the Texas Health and Safety Code. See Ex
parte Weise, 55 S.W.3d at 620; Ex parte Barnett, 424 S.W.3d at 810; see also Ex parte Taylor,
No. 03-16-00689-CR, 2017 Tex. App. LEXIS 10008, at *9 (Tex. App.—Austin Oct. 26, 2017,
pet. ref’d) (mem. op., not designated for publication) (“The alleged unconstitutionality of
Penal Code section 21.16(c) does not render the charging instrument against appellant—
based on violations of Penal Code section 43.26(a)—void. Thus, a ruling in appellant’s
favor would not result in his release from the restraint imposed by the pending charges
of possession of child pornography.”). Therefore, we do not review the issue as it relates
to section 481.113 of the Texas Health and Safety Code.
c. Adam’s Challenge to Sections 481.103 and 481.116 of the Texas Health and
Safety Code
With regard to Adam’s challenges to section 481.103 and 481.116 of the Texas
Health and Safety Code, we note that section 481.103 is the listing of Penalty Group 2
substances, which includes THC, and section 481.116 criminalizes the possession of
Ex parte Adam Page 4
controlled substances, including those contained in Penalty Group 2. See TEX. HEALTH &
SAFETY CODE ANN. §§ 481.103, .116. Therefore, it appears that the true focus of Adam’s
complaints is on section 481.116 of the Texas Health and Safety Code.
1. Applicable Law
We review a trial court’s ruling on a pretrial writ of habeas corpus for an abuse of
discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); see Ex parte Arango,
518 S.W.3d 916, 923 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d). In conducting this
review, we view the facts in the light most favorable to the trial court’s ruling. See Kniatt,
206 S.W.3d at 664; see also Ex parte Arango, 518 S.W.3d at 924.
To prevail on a facial challenge, a party must establish that the statute always
operates unconstitutionally in all possible circumstances. State v. Rosseau, 396 S.W.3d 550,
557 (Tex. Crim. App. 2013). A facial challenge to a statute is the most difficult challenge
to mount successfully because the challenger must establish that no set of circumstances
exists under which the statute will be valid. Santikos v. State, 836 S.W.2d 631, 633 (Tex.
Crim. App. 1992).
Whether a statute is facially unconstitutional is a question of law that we review
de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When the constitutionality
of a statute is attacked, we begin with the presumption that the statute is valid and that
the legislature has not acted unreasonably or arbitrarily. Id. at 14-15. The burden
normally rests upon the person challenging the statute to establish its unconstitutionality.
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Id. at 15. In the absence of contrary evidence, we will presume the legislature acted in a
constitutionally-sound fashion. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App.
2002).
2. The Rational-Basis Test
In a substantive due-process analysis, we determine whether the claimant had a
protected liberty interest, and if so, whether the government deprived him of such
interest arbitrarily and capriciously. See Ex parte Morales, 212 S.W.3d 483, 493-94 (Tex.
App.—Austin 2006, pet. ref’d); Scott v. State, 36 S.W.3d 240, 241 (Tex. App.—Houston [1st
Dist.] 2001, pet. ref’d); see also Ex parte Kinnett, No. AP-75,611, 2008 Tex. Crim. App.
Unpub. LEXIS 122, at **7-8 (Tex. Crim. App. Feb. 13, 2008) (not designated for
publication). If a fundamental right is not implicated, substantive due process requires
only a rational relationship between a legitimate state interest and the statute. See Ex parte
Morales, 212 S.W.3d at 493-94; Scott, 36 S.W.3d at 241; see also Ex parte Kinnett, 2008 Tex.
Crim. App. Unpub. LEXIS 122, at **7-8.
Both parties agree that the rational-basis test applies in this matter. On appeal,
Adam asserts that the blanket ban of THC is not rationally related to any legitimate
government purpose. We disagree. The State has a legitimate interest in regulating drug
possession for the health and welfare of its citizens. See 21 U.S.C. § 801(2) (noting that,
with respect to the Uniform Controlled Substances Act, “[t]he illegal importation,
manufacture, distribution, and possession and improper use of controlled substances
Ex parte Adam Page 6
have a substantial and detrimental effect on the health and general welfare of the
American people”); Daniels v. State, 754 S.W.2d 214, 220 (Tex. Crim. App. 1988) (noting
that the Texas Controlled Substances Act is derived from the Uniform Controlled
Substances Act); Ingram v. State, 124 S.W.3d 672, 677 (Tex. App.—Eastland 2003, no pet.)
(“Protection of the public health, safety, morals, or some other phase of the general
welfare is a legitimate state interest.” (citation omitted)); see also Ex parte Kinnett, 2008 Tex.
Crim. App. Unpub. LEXIS 122, at *11 (“The state has an interest in deterring and
punishing possession and manufacture of illegal drugs . . . .”).
Indeed, as highlighted by the testimony of Kenneth Lester Malamud, M.D.,
Adam’s witness at the hearing on his pretrial habeas, there are many risks associated with
ingesting THC, which includes harmful byproducts from smoking marihuana (the
creation of benzyne, toluene, and carbon monoxide—“all bad things”); illnesses
associated with marihuana use (cannabis hyperemesis syndrome that results in an
emergency-room visit for being “very, very nauseated and continues the nausea and
vomiting”); psychosis that could result from marihuana use; side effects of marihuana
use (dizziness, altered body movements, altering of the senses, and numbness); the fact
that commercially-available marihuana is more concentrated that thirty years ago; and
that THC ingestion could result in hallucinations.1 Dr. Malamud also admitted that the
1 Dr. Malamud explained that THC is contained in marihuana and that extracted THC is more
potent than that found in plant form.
Ex parte Adam Page 7
process for extracting THC from marihuana plants using butane can be dangerous,
resulting in someone “wind[ing] up in flames.” The dangers outlined by Dr. Malamud
demonstrate the legitimacy of the State’s interest in regulating THC for the health and
welfare of its citizens. See Estes v. State, 546 S.W.3d 691, 698 (Tex. Crim. App. 2018)
(“Above all, a court should spurn any attempt to turn rational-basis review into a debate
over the wisdom, eloquence, or efficacy of the law in question. As its name would
suggest, rational-basis review should focus solely on the rationality of the law or state
action. Should we determine that the State has invoked a legitimate governmental
purpose and, in enforcing its law, has charted a course that is rationally related to it, our
inquiry is at an end.” (internal citations & quotations omitted)). We therefore conclude
that section 481.116, which criminalizes possession of controlled substances, bears a
rational relationship to the legitimate State interest of deterring and punishing possession
of illegal drugs for the health, safety, and general welfare of the citizens of this State. See
Ingram, 124 S.W.3d at 677; see also Ex parte Kinnett, 2008 Tex. Crim. App. Unpub. LEXIS
122, at *11.
3. Due Process and the Fifth and Fourteenth Amendments to the United
States Constitution
Next, Adam argues that the Texas Controlled Substances Act violates due process
under the Fifth and Fourteenth Amendments to the United States Constitution. In
making this argument, Adam compares THC to marihuana and complains about
disparities in punishment related to possession of THC, marihuana, and cannabis-related
Ex parte Adam Page 8
products. Adam admits in his brief, and Dr. Malamud acknowledges, that each of the
aforementioned products have different potencies. THC is the most potent. Again, as
Dr. Malamud acknowledged, along with stronger potency of THC comes more severe
dangers, consequences, and side effects. This accounts for differences in punishment
regarding possession of the different products. Regardless, as mentioned earlier, the
State has a legitimate interest in deterring and punishing possession and manufacture of
illegal drugs for the health, safety, and general welfare of the citizens of this State. See
Ingram, 124 S.W.3d at 677; see also Ex parte Kinnett, 2008 Tex. Crim. App. Unpub. LEXIS
122, at *11. And because of the varying potencies of the aforementioned products, we
conclude that the Legislature had a rational basis for proscribing different penalties.
4. The Dormant Commerce Clause and a Person’s Right to Travel
Finally, Adam asserts that the Texas Controlled Substances Act violates the
Dormant Commerce Clause and a person’s right to travel for citizens using medical
marihuana. At the outset, we note that Adam’s entire discussion on this point centers on
medical marihuana, which is not at issue in this case. See Shaffer v. State, 184 S.W.3d 353,
364 (Tex. App.—Fort Worth 2006, pet. ref’d) (noting that, even in a facial challenge to a
statute, “[b]ecause a statute may be valid as applied to one set of facts and invalid as
applied to another, it is incumbent upon the appellant to first show that in its operation
the statute is unconstitutional as to him in his situation; that it may be unconstitutional
as to others is not sufficient.” (citing Santikos, 836 S.W.2d at 633; Fluellen v. State, 104
Ex parte Adam Page 9
S.W.3d 152, 167 (Tex. App.—Texarkana 2003, no pet.))). Because there are no allegations
that Adam is being prosecuted in this case for using medical marihuana, we cannot say
that Adam has shown that, in its operation, the complained-of statute is unconstitutional
as to him. See id. Simply relying on the fact that the statute may be unconstitutional as
to others is not sufficient. See id. Therefore, given the above, we conclude that Adam
lacks standing to argue that the Texas Controlled Substances Act would be
unconstitutional if applied to third parties in hypothetical situations, such as those
traveling across state lines with medical marihuana. See id.; see also Santikos, 836 S.W.2d
at 633.
Based on the foregoing, we hold that Adam’s facial constitutional challenge to
section 481.116 of the Texas Health and Safety Code fails because he cannot overcome the
presumption that the statute is valid; that the legislature acted reasonably; and that no
set of circumstances exists under which the statute will be valid. See Ex parte Lo, 424
S.W.3d at 14-15; see also Santikos, 836 S.W.2d at 633. Accordingly, viewing the facts in the
light most favorable to the trial court’s ruling, we cannot say that the trial court abused
its discretion by denying Adam’s pretrial writ of habeas corpus. See Kniatt, 206 S.W.3d
at 664; see also Ex parte Arango, 518 S.W.3d at 923. We overrule Adam’s sole issue on
appeal.
II. CONCLUSION
We affirm the trial court’s order denying Adam’s pretrial writ of habeas corpus.
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JOHN E. NEILL
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Affirmed
Opinion delivered and filed March 18, 2020
Do not publish
[CR25]
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