Comment

Most controlled substances possessory offenses provide that a person commits the defined offenses only if the person acts “knowingly or intentionally.”

The possessory offenses are clearly “nature of conduct” offenses—the gravamen of the offenses is the conduct of possessing a substance. The state must also, however, prove a circumstance element—that the substance possessed is the controlled substance. The Committee believed that the required culpable mental state applies to both elements.

As chapter 1 of this product indicates, this presents a problem of applying the Texas Penal Code’s culpable mental state provisions. The definition of intent in section 6.03(a) of the Code contains no portion permitting its application to circumstance elements. Thus, the apparent statutory provision for establishing that the offense can be committed intentionally simply cannot be used employing the definitions provided in section 6.03.

The Committee concluded that the most reasonable response is simply to ignore the statutory provisions for the offenses to be committed intentionally. There is no reason for the state to plead this, because commission of the offense knowingly should be easier to prove. If the state does plead that the accused acted intentionally or knowingly, jury submission can be based on the state’s abandonment of the alternative allegation of intentional commission of the offense.

Defendants have no basis for complaint. There are no situations in which any reasonable interpretation of the statutes indicates a defendant is entitled to be charged with only “intentional” possession of an illegal substance.