Main Menu
Bookmark Page
My AccountChapter 81
- 81.1 Rationale for Included Instructions
- 81.2 Weight Requirements and Grading of Offenses
- 81.3 Culpable Mental State Concerning Nature of Substance
- 81.4 Culpable Mental State Concerning Weight of Substance
- 81.5 Culpable Mental State—Possessory Offenses
- 81.6 Defining “Possession”
- 81.7 Texas Penal Code Section 6.01(b) and Voluntary Possession
- 81.8 Instruction—Possession of Marijuana—Class B Misdemeanor (with Voluntariness Requirement)
- 81.9 Instruction—Possession of Marijuana—Other Grades
- 81.10 Instruction—Possession of Controlled Substance
- 81.11 Culpable Mental State—Delivery Offenses
- 81.12 Delivery, Transfer, and Constructive Transfer
- 81.13 Instruction—Delivery of Controlled Substance— By Actual or Constructive Transfer
- 81.14 Instruction—Delivery of Controlled Substance— By Offer to Sell
- 81.15 Instruction—Possession of Controlled Substance with Intent to Deliver
Comment
Sections 481.115 through 481.118 and 481.121 of the Texas Health and Safety Code create offenses of possession of substances covered by the Texas Controlled Substances Act (Tex. Health & Safety Code tit. 6, subtit. C, ch. 481). The Code also distinguishes all the controlled substances possessory offenses by weight in grams of the substance, except for section 481.1151, which grades the offense according to “abuse units.” The Committee offers instructions for “basic” class B possession of marijuana and other marijuana possessory offenses. It also offers a general instruction that can be used for any of the basic possessory offenses except those created by section 481.1151.
The basic manufacture and delivery offenses are created by several sections of the Texas Controlled Substances Act that address substances by penalty groups: Tex. Health & Safety Code § 481.112 (substances in Penalty Group 1), § 481.1121 (group 1-A), § 481.113 (group 2), and § 481.114 (groups 3 and 4).
Because delivery is sufficiently distinguishable from manufacture, the Committee addressed delivery separately, drafting instructions that could be used in prosecutions for delivery of substances in all penalty groups except group 1-A (which uses abuse units rather than weight in grams).
Furthermore, under the statutory provisions, the definition of “delivery” includes offering to sell. The Committee concluded that there is too great a risk of confusion in attempting to explain to juries the inclusion of both transfer and offer to sell in the legislative concept of delivery. The Committee decided that delivery by offer to sell should instead be recognized as a matter distinct from delivery by transfer and that the two should be defined separately. The Committee therefore offers a separate instruction for each.
The Texas Controlled Substances Act offenses titled “Manufacture or Delivery” of specified controlled substances define the offenses as including possession of the substances with the intent to deliver them. Despite being thus joined with actual delivery, possession with intent to deliver is sufficiently different in content that, in the Committee’s view, it should be presented to juries as a separate offense. The Committee therefore also offers a separate instruction for possession with intent to deliver.