Case Information
*1 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-14-00195-CR CHRISTOPHER A. DOWDEN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1350525D
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OPINION
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I. I NTRODUCTION Appellant Christopher A. Dowden appeals his conviction for possession of tetrahydrocannabinol (THC) other than marijuana in the amount of four grams or
more but less than four hundred grams. See Tex. Health & Safety Code Ann. § 481.116(d) (West 2010). In two issues, Dowden argues that the evidence is *2 insufficient to support his conviction and that his trial counsel was ineffective. We will affirm.
II. B ACKGROUND
While visiting Los Angeles, Dowden suffered a series of cluster headaches that resulted in several emergency room visits. In order to combat these headaches, Dowden acquired a prescription for medical marijuana. With the prescription, Dowden purchased smokable marijuana, a pipe to smoke it with, and a THC-infused candy bar. He brought the marijuana and candy bar with him when he returned to Texas.
Upon arriving in Texas, Dowden was staying in a hotel room when police arrested him for outstanding warrants. He admitted to the police that he had marijuana in his hotel room. Thе police discovered the drugs and charged him with possession of a controlled substance for the THC-infused candy bar.
Dowden pleaded guilty to possession of THC without a plea bargain. In support of the guilty plea, Dоwden swore to and signed a judicial confession that he had “committed each and every act alleged” in the indictment. The trial court accepted Dowden’s plea and found that evidence substantiated his guilt but ordered that a presentence investigative report (PSI) be prepared and deferred a finding of guilt. After the PSI was completed, the trial court conducted a punishment hearing, at which the PSI was introduced into evidencе and Dowden, his ex- wife, a sheriff’s deputy, and Dowden’s grandmother testified. At the close *3 of the testimony, the trial court found Dowden guilty and sentenced him to fifteen ye ars’ confinement.
III. S UFFICIENCY OF THE E VIDENCE
In part of his first issue, Dowden argues that the evidencе is insufficient to support his conviction because the State did not prove that he obtained the THC without a valid prescription, which he contends is an element of the offense.
Article 1.15 of the Texas Code of Criminal Procedure provides that in the event of a felony conviction based upon a guilty plea in lieu of a jury verdict, “it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and . . . in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same.” Tex. Code Crim. Proc. Ann. art. 1.15 (West 2005). A judicial confession, standing alone, is sufficient to sustain a сonviction upon a guilty plea and to satisfy the requirements of article 1.15 so long as the judicial confession covers all of the elements of the charged offense. Menefee v. State , 287 S.W.3d 9, 13 (Tex. Crim. App. 2009). However, а judicial confession that fails to establish every element of the offense charged will not authorize the trial court to convict. Id. at 14.
Section 481.116 of the Texas Health & Safety Code provides that a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 2, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the cоurse of professional practice .
Tex. Health & Safety Code Ann. § 481.116 (emphasis added). Dowden argues that the italicized portion of the statute is an element of the offense and that neither his judicial confession nor any othеr evidence establishes this element of the offense — that he did not have a valid prescription or order of a practitioner for the THC.
Neither the indictment nor Dowden’s judicial confession included this language from thе statute. But the lack of a valid prescription or order is not an element of the offense that the State must prove; it is an exception that the defendant has the burden to present evidence on. Threlkeld v. State , 558 S.W.2d 472, 473 (Tex. Crim. App. 1977) (so holding for prior version of possession-of-controlled-substance statute, which was substantially similar to current section 481.116). Section 481.184 of the health and safety code provides,
The state is not required to negate an exemption or exception provided by this chapter in a complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this chapter. A person claiming the benefit of an exemption or exception has the burden of going forward with the evidence with respect to the exemption or exception.
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Tex. Health & Safety Code Ann. § 481.184(a) (West 2010). Thus, the State was
not required to prove thаt Dowden did not have a valid prescription or order of a
practitioner; instead, Dowden, as the person claiming the benefit of the
exception, had the burden to produce evidence regarding the valid-prescription
exemption. See Rodriquez v. State ,
Dowden argues alternatively that, even if the lack of a valid prescription is
not an element that the State had to prove, evidence established that he
obtained the THC by means of a valid California prescription and that,
consequently, he established the valid-prescription exemption. Dowden testified
that he obtained a doctor’s prescription for “marijuana products” in California and
bought the THC candy bar with that prescription. Even assuming that a
*6
prescription for “marijuana products” is a prescription for THC, Dowden’s
testimony does not constitute evidence that he had a valid “ prescription ” for THC
from a practitioner as required by the health and safety code. Tex. Health &
Safety Code Ann. §§ 481.002(41) (West Supp. 2014), .116. A prescription is
defined as an order by a practitioner to a pharmacist for a controlled substance
and must include the following information: (1) the date of issue, (2) the name
and address of the patient, (3) the name and quantity of the controlled
substance, (4) directions for use of the drug, (5) the intended use of the drug,
and (6) the name, address, Federal Drug Enforcement Administration registration
number, and telephonе number of the practitioner. Id. § 481.002(41). Dowden
did not present evidence satisfying the six elements set forth above necessary to
establish that he had a “prescription” as defined in the health and safety code.
id. §§ 481.002(41), .184; Elkins v. State ,
We overrule the remainder of Dowd en’s first issue. Dronabinol, nоt tetrahydrocannabinol, and we decline Dowden’s suggestion that we interpret “tetrahydrocannabinol other than marihuana,” as alleged in the indictment, as encompassing “( -)-delta-9-(trans)- tetrahydrocannabinol.” Dowden аlso argues that he established the “ultimate user” exemption set forth in section 481.062(a)(3), but subsection (a)(3) does not apply when the substance at issue is THC. Subsection 481.062(a)(5) sets forth the “ultimate user” exemption when dealing with THC and providеs that someone may possess THC if that person is “ an ultimate user possessing the substance as a participant in a federally approved therapeutic research program. ” Tex. Health & Safety Code Ann. § 481.062(a)(5)(B) (West 2010). Dowden did not present any evidence that he was a participant in a research program.
IV. E FFECTIVE A SSISTANCE OF C OUNSEL
In his second issue, Dowden argues that his trial counsel was ineffective because he failed to raise the defensive issue of the valid-prescription exception that we addressed above.
To establish ineffective assistance of counsel, an appellant must show by
a preponderance of the evidencе that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s defi ciency, the result of the trial would have
been differеnt. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Davis v. State , 278 S.W.3d 346, 352 (Tex. Crim. App. 2009). An
ineffective- assistance claim must be “firmly founded in the record” and “the
record must affirmatively demonstrate” the meritorious nature of the claim.
Thompson v. State ,
Because, as explained above, any argument that Dowden had a valid California prescription for THC would have been unsuccessful to establish an exception to the offense at trial, the record does not affirmatively demоnstrate the meritorious nature of the claim. See id. We overrule Dowden’s second issue.
V. C ONCLUSION
Having overruled Dowden’ s two issues, we affirm the trial court’s judgment.
/s/ Sue Walker SUE WALKER JUSTICE PANEL: WALKER, MEIER, and GABRIEL, JJ.
PUBLISH
DELIVERED: January 8, 2015
Notes
[1] The indictment alleged that Dowden “intentionally or knowingly possess[ed] a controlled substance, namely: tetrahydrocannabinol other than marihuana, of four grams or more but less than four hundred grams, including a ny adulterants or dilutants.” Dowden’s judicial confession stated that he had read the indictmеnt and had committed each and every alleged act.
[2] Under the penal code, the State must negate the existence of an exception to an offense in the accusation charging commission of thе offense and prove beyond a reasonable doubt that the defendant's conduct does not fall within the exception. Tex. Penal Code Ann. § 2.02(b) (West 2011). However, this requirement for offenses under the penal code does not apply to offenses committed under the Texas Controlled Substances Act. Threlkeld , 558 S.W.2d at 473.
[3] Dowden argues on appeal that THC is also a Schedule III drug and points to the following definition of the drug Dronabinol in Schedule III fоr support: Dronabinol (synthetic) in sesame oil and encapsulated in a soft gelatin capsule in a U.S. Food and Drug Administration approved drug product. (Some other names for dronabinol: (6aR-trans)- 6a,7,8,10a-tetrahydro-6,6,9-tri-methyl-3-pentyl-6H-dibenzo [b,d]pyran-1-ol, or (-)-delta-9-(trans)-tetrahydrocannabinol). Tex. Health & Safety Code Ann. § 481.032 (West Supp. 2014). Although Dronabinol may also be called (-)-delta-9-(trans)-tetrahydrocannabinol, which includes the word “tetrahydrocannabinol,” the drug listed as a Schedule III drug is