Chapter 81
Controlled Substance Offenses
81.10 Instruction—Possession of Controlled Substance
LAW SPECIFIC TO THIS CASE
The state accuses the defendant of having committed the offense of possession of a controlled substance.
Relevant Statutes
A person commits the offense of possession of a controlled substance if the person knowingly possesses a controlled substance [and the amount of the controlled substance is, by aggregate weight, including adulterants or dilutants, [insert specific amount, e.g., one gram or more but less than four grams]].
[Include the following if the evidence does not raise a question concerning a mistaken belief by the defendant regarding the kind of substance.]
[Substance] is a controlled substance.
[Include the following if the evidence raises a question concerning the defendant’s mistaken belief regarding the kind of substance.]
[Substance] and [substance] are controlled substances.
Definitions
Possession
“Possession” means actual care, custody, control, or management.
Knew He Was Possessing Controlled Substance
The phrase knew he was possessing a controlled substance means a person was aware that he was possessing something and aware that what he was possessing was a substance that in fact was a controlled substance.
Application of Law to Facts
[Include the following if the offense does not require a minimum weight.]
You must decide whether the state has proved, beyond a reasonable doubt, two elements. The elements are that—
- the defendant, [name], possessed [substance] in [county] County, Texas, on or about [date]; and
- the defendant knew he was possessing a controlled substance.
[Include the following if the offense requires a minimum weight.]
You must decide whether the state has proved, beyond a reasonable doubt, three elements. The elements are that—
- the defendant, [name], possessed [substance] in [county] County, Texas, on or about [date]; and
- the [substance] was, by aggregate weight, including adulterants or dilutants, [amount] gram[s] or more; and
- the defendant knew he was possessing a controlled substance.
[Continue with the following.]
You must all agree on [both elements 1 and 2/elements 1, 2, and 3] listed above.
If you all agree the state has failed to prove, beyond a reasonable doubt, [either or both of elements 1 and 2/one or more of elements 1, 2, and 3] listed above, you must find the defendant “not guilty.”
If you all agree the state has proved [both of the two/each of the three] elements listed above, you must find the defendant “guilty.”
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]
Ultimate User Exemption. The possessory offenses for controlled substances in penalty groups 1, 2, 3, and 4 provide that an offense is not committed if the substance is possessed pursuant to a valid prescription. Tex. Health & Safety Code §§ 481.115, 481.116–.118. Section 481.062(a)(3) provides a similar defense—explicitly an “exception”—for “an ultimate user or a person in possession of a controlled substance under a lawful order of a practitioner or in lawful possession of the controlled substance if it is listed in Schedule V.” Tex. Health & Safety Code § 481.062(a)(3). “Practitioner” and “ultimate user” are defined in Tex. Health & Safety Code § 481.002. But section 481.184(a) states that—
[t]he state is not required to negate an exemption or exception provided by this chapter in a complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this chapter. A person claiming the benefit of an exemption or exception has the burden of going forward with the evidence with respect to the exemption or exception.
Tex. Health & Safety Code § 481.184(a).
As a result, the jury instructions need not address these matters unless evidence has been produced supporting, and thus raising, the matter. Wright v. State, 981 S.W.2d 197, 200 (Tex. Crim. App. 1998) (“[A] person claiming the benefit of the ‘ultimate user’ exemption or defense has the burden of producing evidence that raises the defense. Once the defense is raised, the trial court must, if requested, instruct the jury that a reasonable doubt on the issue requires that the defendant be acquitted.”) (citations omitted); Dudley v. State, 58 S.W.3d 296, 301 (Tex. App.—Beaumont 2001, no pet.) (in trial for possession of cocaine under section 481.115(a), trial court not required to instruct jury to find that defendant did not have prescription unless defendant produced evidence raising matter).
Identifying Controlled Substances. The evidence may suggest that the defendant may have mistakenly believed the substance that he is charged with possessing was a different controlled substance than what in fact it was.
In this event, it is important that the instructions accurately inform the jury that both what the substance in fact was and the substance the defendant may have mistakenly believed was involved are controlled substances. This is necessary for the jury to apply the requirement that the state prove knowledge that the substance was a controlled substance.
Voluntariness Requirement Language. The voluntariness requirement language is included in the instruction at CPJC 81.8 in this chapter only. It could, of course, be modified and incorporated into the above instruction if the issue of voluntariness is raised. See also the voluntary possession comment at CPJC 81.7.
If modifying this instruction to include the voluntariness requirement language, be certain to also incorporate, at the appropriate locations, the additional element the state must prove and to alter any supporting language (for example, changing “You must all agree on elements 1, 2, and 3 listed above” to “You must all agree on elements 1, 2, 3, and 4 listed above”).
Comment
Possession of a controlled substance in Penalty Group 1 is prohibited by and defined in Tex. Health & Safety Code § 481.115. Possession of a controlled substance in Penalty Group 2 is prohibited by and defined in Tex. Health & Safety Code § 481.116. Possession of a controlled substance in Penalty Group 3 is prohibited by and defined in Tex. Health & Safety Code § 481.117. Possession of a controlled substance in Penalty Group 4 is prohibited by and defined in Tex. Health & Safety Code § 481.118.