Comment

For many controlled substances offenses created by the Texas Controlled Substances Act (Tex. Health & Safety Code tit. 6, subtit. C, ch. 481), punishment grades are distinguished by the amount of substance by weight. For example, possession of marijuana under Tex. Health & Safety Code § 481.121 is graded according to whether the amount possessed is two ounces or less; four ounces or less but more than two ounces; five pounds or less but more than four ounces; fifty pounds or less but more than five pounds; two thousand pounds or less but more than fifty pounds; or more than two thousand pounds.

Traditionally in Texas, jury submissions purport to require juries to find that the amount proved is within the specified range. Third-degree possession of marijuana, for example, requires proof that the amount possessed is more than five pounds and fifty pounds or less. Nevertheless, it is clear that a jury is expected to convict even if it finds the amount possessed is more than fifty pounds. Essentially the state—if it has proved possession of more than five pounds—is entitled to abandon that evidence showing more than fifty pounds.

The Committee concluded that this manner of instructing juries is unnecessarily complex and confusing. Consequently, the instructions in this chapter are drafted to state what in fact the jury must find the state has proved and no more. Third-degree possession, then, requires only that the jury find the defendant possessed marijuana weighing more than five pounds.