Chapter 81
Controlled Substance Offenses
81.9 Instruction—Possession of Marijuana—Other Grades
LAW SPECIFIC TO THIS CASE
The state accuses the defendant of having committed the offense of possession of marijuana.
Relevant Statutes
A person commits the offense of possession of marijuana if the person knowingly possesses a usable quantity of marijuana of [insert specific amount, e.g., four ounces or less but more than two ounces].
Definitions
Possession
“Possession” means actual care, custody, control, or management.
Knew He Was Possessing Marijuana
The phrase knew he was possessing marijuana means a person was aware that he was possessing something and that this something was marijuana.
Marijuana
“Marijuana” means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds. The term marijuana does not include—
- the resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin; or
- the mature stalks of the plant or fiber produced from the stalks; or
- oil or cake made from the seeds of the plant; or
- a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake; or
- the sterilized seeds of the plant that are incapable of beginning germination; or
- any part of the plant with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.
Application of Law to Facts
You must decide whether the state has proved, beyond a reasonable doubt, four elements. The elements are that—
- the defendant possessed marijuana in [county] County, Texas, on or about [date]; and
- the marijuana was of a usable quantity; and
- the marijuana weighed more than [amount]; and
- the defendant knew he was possessing marijuana.
You must all agree on elements 1, 2, 3, and 4 listed above.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, 3, and 4 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved each of the four 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.]
Definition of “Usable Quantity.” It is not error for a trial court to refuse to define usable quantity. E.g., Holmes v. State, 962 S.W.2d 663, 674 (Tex. App.—Waco 1998, pet. ref’d, untimely filed).
Part of Plant Properly Considered in Determining Weight. In determining the amount of marijuana possessed, the statutory definition permits the jury to include “the plant Cannabis sativa L., whether growing or not,” but not “the mature stalks of the plant” or hemp, among other things. Tex. Health & Safety Code § 481.002(26). In Young v. State, 922 S.W.2d 676 (Tex. App.—Beaumont 1996, pet. ref’d), the Beaumont court of appeals, relying on Doggett v. State, 530 S.W.2d 552, 555 (Tex. Crim. App. 1975), held that “it was the defendant’s burden at trial to present evidence of the weight of any materials excluded from the statutory definition of marijuana so as to show the weight alleged and/or proven by the State was incorrect.” Young, 922 S.W.2d at 677. The case does not address what, if anything, this requires of the jury instruction.
Apparently, it is sufficient if the jury instruction makes clear the weight that must be proved and the statutory definition of marijuana so that the jury can determine what—if any—part of the material relied on by the state should be excluded in determining whether the defendant possessed a specific quantity.
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, 3, and 4 listed above” to “You must all agree on elements 1, 2, 3, 4, and 5 listed above”).
Comment
Possession of marijuana is prohibited by and defined in Tex. Health & Safety Code § 481.121. The definition of “marijuana” is derived from Tex. Health & Safety Code § 481.002(26) and Tex. Agric. Code § 121.001. The definition of “possession” is from Tex. Health & Safety Code § 481.002(38) and Tex. Penal Code § 1.07(a)(39).