Comment

The Committee had some difficulty determining precisely what culpable mental states current law requires for the major controlled substances and related offenses.

Current Practice. With regard to possession and delivery of controlled substances generally, present practice is to tell the jury, in the abstract portion of the instruction, that the crime requires proof of at least knowingly possessing (or delivering) a controlled substance and that the substance alleged in the charging instrument, such as cocaine, is a controlled substance. This leaves unclear whether the culpable mental state of knowledge applies only to the statutory requirement that the substance be a controlled substance or also to the pleaded specificity that it be, for example, cocaine.

Application portions of current instructions generally tell juries they must find that a defendant knowingly possessed (or delivered) a specific controlled substance. This is also unclear. Perhaps, however, it suggests more strongly than the abstract instruction that the state must prove at least knowledge that the substance is what is alleged.

Texas Case Law. Appellate case law, in contrast to current practice, frequently suggests that all that is required is awareness that the substance is “contraband.” For example, in Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005), which involved a charge of possession of cocaine with intent to distribute, the court of criminal appeals explains, “[t]o prove unlawful possession of a controlled substance, the State must prove that: (1) the accused exercised control, management, or care over the substance; and (2) the accused knew the matter possessed was contraband.” Poindexter, 153 S.W.3d at 405 (citing Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995), and Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988)). This or similar language appears in many opinions of the court of criminal appeals. E.g., King v. State, 895 S.W.2d 701, 702–03 (Tex. Crim. App. 1995); Martin, 753 S.W.2d at 386.

The language was first used in Ramos v. State, 478 S.W.2d 102, 103 (Tex. Crim. App. 1972) (prosecution must show that defendant “knew that the object he possessed was contraband”), which involved a charge of possession of marijuana. The court in Ramos relied on its earlier decisions in Rodriguez v. State, 372 S.W.2d 541, 542 (Tex. Crim. App. 1963), and Fawcett v. State, 127 S.W.2d 905, 905 (Tex. Crim. App. 1939).

In neither Ramos itself nor later decisions repeating the Ramos language has the court of criminal appeals explained how that language relates to the terms of the statutes defining the offenses at issue. In fact, the statutes involved in the early cases, such as Ramos, Rodriguez, and Fawcett, appeared to contain no explicit culpable mental state at all. The court’s discussions concerned an apparently judicially created doctrine. In Fawcett the court characterized the matter under discussion as an “affirmative defense,” and in Rodriguez the court referred to it as a “defense” and “defensive theory.” Clearly the court was not addressing how juries should be instructed on an expressly required culpable mental state element of the charged offense. See Harris v. State, 486 S.W.2d 88, 91–92 (Tex. Crim. App. 1972) (trial court did not err in refusing instruction on “knowledgeable possession” where evidence did not suggest lack of knowledge).

Other Jurisdictions. The Committee took into consideration that many and probably most other jurisdictions that have addressed similar matters have held that controlled substances offenses generally do not require awareness of the specific substance possessed. Culpable mental states are satisfied by proof that the accused knew (or believed) the substance was a controlled one. The rationale for this approach was well explained by an Idaho court:

State v. Stefani, 132 P.3d 455, 461 (Idaho Ct. App. 2005) (citation omitted).

Committee’s Approach—Controlled Substances Offenses Generally. The Committee concluded that the language of the current statutes defining many controlled substances offenses could and should be construed as relatively consistent with the Texas courts’ long-standing assumption that most offenses require awareness only that the substance is contraband. Possession of a Penalty Group 1 controlled substance, prohibited by Tex. Health & Safety Code § 481.115(a), illustrates the Committee’s approach to the controlled substances offenses.

The section itself provides in operative part that “a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 1.” Tex. Health & Safety Code § 481.115(a). The required culpable mental state, the Committee believed, should be determined from the face of the statute itself. The specific controlled substance, such as cocaine, is of course not named in the statute.

The most appropriate reading of section 481.115(a), therefore, is that the defendant need not know more than that he is possessing something and that it is a controlled substance. The Committee concluded most controlled substances offenses should be construed in like manner.

The result would vary slightly from the Ramos language in that the defendant would have to be aware that the substance was a “controlled substance,” not simply “contraband.” If the evidence showed that the defendant possessed cocaine but mistakenly believed it was marijuana, he could not be convicted under the Committee’s formulation. The Committee, however, thought this was appropriate and most likely within the legislative intent reflected in the different treatment of marijuana and other offenses.

The Committee considered the suggestion that the culpable mental state should also apply to the requirement imposed by the final statutory language, “listed in Penalty Group 1.” Thus a defendant must be required to know (or believe) that the substance was one of those in Penalty Group 1. Such a requirement might make the seriousness of a defendant’s liability appropriately turn on his mental state. The Committee, however, rejected this for several reasons. First, the statutes are not drafted carefully enough to always result in a mistaken defendant’s liability being appropriately reduced. Second, such a requirement would dramatically increase the complexity of instructions, particularly if the defendant contended that the state’s proof showed him at most guilty of a lesser included offense. Third, the Committee failed to find any other jurisdiction that took this approach.

The instructions could, of course, go further than simply stating that the accused must be proved to have known the substance was a controlled substance. The Ninth Circuit pattern instructions, for example, define the element as requiring proof that “the defendant knowingly possessed [specify controlled substance].” They then, however, add, “It does not matter whether the defendant knew that the substance was [specify controlled substance]. It is sufficient that the defendant knew that it was some kind of a prohibited drug.” Ninth Circuit Jury Instructions Comm., Manual of Model Criminal Jury Instructions for the District Courts of the Ninth Circuit inst. 9.15 (2010 ed.), https://www3.ce9.uscourts.gov/jury-instructions/model-criminal. The Committee was reluctant to recommend this elaboration, given the Texas courts’ concern with comments on the evidence.

An exceptional case might be presented in which a defendant comes forward with viable evidence that the defendant acted under a misperception regarding the nature of the substances involved and this misperception bears on the defendant’s apparent culpability. The Committee believed that any such cases could be addressed by creative application of mistake of fact under Tex. Penal Code § 8.02 and possibly “transferred intent” under Tex. Penal Code § 6.04(b).

Committee’s Approach—Marijuana Offenses. The Committee also concluded, however, that the approach appropriate for most controlled substances offenses could not be taken regarding possession of marijuana under Tex. Health & Safety Code § 481.121 (“a person commits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana”) and delivery of marijuana under Tex. Health & Safety Code § 481.120 (“a person commits an offense if the person knowingly or intentionally delivers marihuana”).

The only reasonable construction of the marijuana offense statutes, the Committee decided, was that the accused must be shown to have been at least aware that the substance was marijuana. Ramos and Fawcett were marijuana cases, and the language of both suggests a requirement of no more than awareness that the substance possessed was “contraband.” The Committee was convinced, however, that when the Texas courts address the current statutes relating to possession and delivery of marijuana, they will regard the early discussions superseded by today’s statutes.

The instructions in this chapter, then, vary in approach. Those concerning the basic marijuana offenses require knowledge that the substance is marijuana. The others require only knowledge that the substance is a controlled substance.