Comment

The controlled substances possessory offenses all raise a question about the effect of Texas Penal Code section 6.01(b). The section, in its entirety, provides as follows:

• (a) A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession.
• (b) Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.
• (c) A person who omits to perform an act does not commit an offense unless a law as defined by Section 1.07 provides that the omission is an offense or otherwise provides that he has a duty to perform the act.

Tex. Penal Code § 6.01.

Prevailing practice often appears to be simply to add the language of section 6.01(b) to the statutory definition of possession without any effort to relate or reconcile the two.

The Committee had considerable difficulty deciding what section 6.01(b) added to the statutory definition of possession. In part, this was because section 6.01 seems to combine a requirement of “conduct” and a demand that conduct be “voluntary.” The terms of the statute leave somewhat unclear whether section 6.01(b) addresses what is necessary for “possession” to constitute the “conduct” required or, rather, what is necessary for possession constituting conduct to be “voluntary.”

Some members of the Committee believed that section 6.01(b) has the effect of adding to the law’s definition of possession a requirement that the state’s proof of possession generally includes evidence that the defendant actively obtained or received the controlled substance. If instead the state’s evidence shows only passive control, the jury must find that this passive control lasted long enough for the accused’s omission—the failure to terminate control—to justify liability. See Powell v. State, 112 S.W.3d 642, 646 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (when evidence showed that defendant knowingly obtained or received shotgun he was charged with possessing, court need not reach whether proof showed he controlled shotgun long enough to terminate his control); Holman v. State, No. 01-04-00110-CR, 2005 WL 327205, at *4 (Tex. App.—Houston [1st Dist.] Feb. 10, 2005, pet. ref’d) (not designated for publication) (applying Powell analysis in prosecution for possession of cocaine, so when “the evidence was legally and factually sufficient to show that [the defendant] knowingly obtained or received the cocaine, i.e., that he knowingly exercised care, custody, control, or management over the cocaine,” court did not need to address whether state “showed that he had had control over the cocaine long enough to have terminated his control over it”).

Under this approach, jury instructions might include all or some of the following:

Ultimately, however, a majority of the Committee concluded that section 6.01(b) was designed to address the limited situation in which the evidence shows that the defendant exercised the actual control required by the statutory definition of possession but also raises a question of whether that control was of sufficient duration to justify criminal liability.

The Committee therefore recommends that jury instructions on controlled substances possessory offenses include this provision only when the trial judge finds the evidence raises a question of whether the defendant’s control, if it is proved, was for a long enough period. In those situations, the jury should be told that the control must have lasted for a sufficient time to enable the defendant to terminate the control. To avoid any risk that the confusing requirement is not adequately put to the jury, the instruction should also include the statement that the defendant must have been aware of the control. These requirements are phrased as ones of voluntariness because of the statutory provision and its terminology.

Then there is the question of whether to incorporate the language into the application portion of the instructions. The requirement could be regarded as simply part of the definition of the conduct required—possession—which would most likely not require incorporation into the application provision.

More likely, however, the requirement, phrased in the Texas Penal Code as one of “voluntary[iness],” is a “ground of defense in a penal law.” See Tex. Penal Code § 2.03(e). Further, it is one that is not plainly labeled as an exception, a defense, or an affirmative defense. Under Tex. Penal Code § 2.03(e), therefore, it is to be treated as a defense. Consequently, a jury instruction is appropriate only if evidence has been admitted that supports the ground of defense. See Tex. Penal Code § 2.03(c). If the jury is instructed on the matter, it must be told the state has the burden of proving voluntariness beyond a reasonable doubt. See Alford v. State, 866 S.W.2d 619, 624 n.8 (Tex. Crim. App. 1993).

If an instruction addresses “defensive issues,” the judge has an obligation to apply the abstract law to the facts. Barrera v. State, 982 S.W.2d 415, 416 (Tex. Crim. App. 1998). The substance of the requirement of voluntariness is considerably less complex than that of defenses, such as the defense of necessity incorporated into the instruction at CPJC 49.16. As a result, the Committee concluded that when voluntariness is raised, it can be adequately covered by adding it—in the application portion of the instructions—as a final element of the state’s case.

This defensive contention that otherwise-proved possession was not voluntary is provided for in the instruction at CPJC 81.8 for class B misdemeanor possession of marijuana. It could be raised in prosecutions for the other possessory offenses covered in this chapter, of course. If it is, it should be worked into the applicable offense instruction as it is worked into the marijuana instruction at CPJC 81.8.