Few v. State
588 S.W.2d 578
Tex. Crim. App.
1979
Check Treatment

*1 Montoya Thus, on person. behalf of a third would not have saved this conviction.1 allegation support par- without to evidence law of Therefore the discussion of the ties, Montoya acting appellant was principles, agency and accommodation in, suggested g., some fashion as e. wholly Ham unnecessary to the decision. 499, monds v. 166 Tex.Cr.R. judgment. I concur in the reversal of the 423, (1958) so responsi as to be opinion. this DAVIS, J., concurs W. C. ble for the conduct of Montoya there is simply proof no appellant delivered Galvan,

heroin to in the indict

ment. judgment of conviction is set aside insufficiency

and in view of evidence support finding guilt, a this Court is required by the Supreme mandate of the FEW, Appellant, Larry Wendell Court of the United States in Burks v. U. S., 1, 437 U.S. S.Ct. L.Ed.2d 1 (1978) 19, 98 Massey, Greene v. 437 U.S. Texas, Appellee. The STATE of S.Ct. 57 L.Ed.2d 15 to reform No. 60215. judgment acquittal. to show an Texas, Appeals Court of Criminal

It is so ordered. Panel No. 3. DALLY, Judge, concurring. 26, 1979. Sept. The facts concerning the transaction are 7, 1979. Nov. Rehearing En Banc Denied majority opinion.

as stated in the The evi- simply dence appel- does not show that the

lant knowingly made a delivery of heroin to nothing

Galvan. There is in the record to

show appellant knew that he was

making a heroin, transfer of the either ac- constructive,

tual or to Galvan. There is no

evidence that appellant had ever met

Galvan or that he knew about Galvan’s role

in the sale. testimony of Galvan would supported

have appel- conviction of the

lant either for of heroin or for delivery Montoya; of heroin to but the charged was not with these of-

fenses. my opinion,

In present- based on the facts here,

ed the evidence did not raise an issue appellant’s culpability through the law of

parties. subject An instruction However, Miller court concluded that

1. The facts in one. Saddler v. principals (1959), presented with an instruction on law a dear sufficient, proper citing application princi That case pals. Saddler. of the law of evidence conclusion, Saddler, Saddler, in- are In the undercover officer made and the citation directly buy explicable the record deal with the defendant to mari we assume that unless dispatched princi- huana and the intermediary later defendant facts which raised Miller contained arrange delivery. ples analogous issue and made the case (Tex.Cr.App. Saddler, Miller v. 537 S.W.2d 725 mentioned those facts were not 1976) gave ap cursory a brief factual account that opinion’s factual recitation. the Miller peared very to make that case similar to this *2 felony information, to the punishment his years and a was assessed at 10 confinement portion fine and the confinement $500.00 punishment probated. March motion to re- State filed an amended probation alleging voke that on stated *3 “did inten- appellant date in County Harris controlled tionally knowingly possess and a substance, tetrahydrocannabinol.” namely After before the hearing on the motion judge that assessed same trial court and court found punishment, earlier the trial terms of his appellant had violated committing the offense of probation in substance, “possession to- of a controlled wit, sentenced tetrahydrocannabinol” and Texas years him to 10 confinement Department of Corrections. as-

By grounds appellant three of error by validity sails of his conviction contending that there fatal variance is a original complaint between the and the fel- information; felony that the informa- ony is facially failing void in to state an code, to-wit, penal by defined “possession tetrahydrocannibol and [sic]” facially information is void failing tetrahy- in “an amount of Foreman, Percy Dick DeGeurin and Mike and, allegedly possessed drocannibol Geurin, Houston, De [sic]” appellant. for therefore, jur- does not confer district court Vance, Carol Atty., S. Dist. Calvin A. ground of Similarly, isdiction. in his fourth Dees, Hartmann and J. Gordon Asst. Dist. motion to appellant error contends that the Attys., Houston, Huttash, Robert State’s failing to state an facially revoke is void for Atty., Austin, for the State. penal offense defined code or the otherwise act. Not controlled substances DALLY, Before W. C. and CLIN- DAVIS evidence, ground of attacking sufficiency of TON, JJ. proof error number five contends that tet- possessed defendant does not show that OPINION marihua- other than rahydrocannibols [sic] CLINTON, na. Judge. appeal

This is an revoking from an order ruled adverse The first contention is probation. Appellant originally ly appellant holding of a divided charged by complaint1 and thereafter Chapple court in waived indictment and consented to be and Austin (Tex.Cr.App.1975) prosecuted (Tex.Cr.App.1975); on an information.2 and December 531 appellant plea Washington guilty opinion entered a in unanimous Alleging Alleging did “in- substance that he did . substance intentionally knowingly possess tentionally knowingly possess controlled a con- a substance, namely, Tetrahydrocannabi- Tetrahydrocannabinol.” namely, trolled (All emphasis nols other than marihuana. is supplied throughout by opin- the writer of this indicated.) ion unless otherwise re- ingredient psychoactive This chemical (Tex.Cr.App.1976)— hallucinogenic euphoriant sponsible complaint no all to the effect that since products. its plant and right properties required when an accused waives elects to be to be tried on an indictment and de- substances another form or In one information, complaint faulty tried vari- given been plant have rived from the By the does not vitiate the information. used broadly “Cannabis” ous names. reasoning must and do same rule and we the literature countries several other indict- hold that where the accused waives of its sub- many embrace the elects on an informa- ment and to be tried Mexico originated “Marihuana” stances. underlying tion a variance between an com- preparation actually means plaint not render and the information does plant that and stems chopped leaves error one the information void. Ground of “Bhang” is Indian resembles tobacco.5 is overruled. cannabis, similar smoking mixture of powder a coarse error, marihuana, it is assert- in that The next three *4 “Ganja” plant. and subse- from leaves ing that the derived tops of culti- flowering quent facially prepared motion to revoke are each is from 3 smoked. “Char- void, perti- plants and is require again that we examine vated female spe- flower of pistillate provisions of the Texas is resin of nent Controlled as” by gathered plants that is cultivated begin analysis cially Substances Act. We our un- the clean methods from with a brief of relevant botani- various exotic restatement grade, and superior cal facts in an cut for the historical context. slightly plants for tops of harvested Cannabis sativa L. name bestowed is the usually is former grade. The weaker hemp plant by on the Indian the Swedish or cakes tapering sticks tiny into shaped Early botanist Carolus Linnaeus. and late green brownish is sold as the latter whereas recogni- have others asserted and claimed rawhide. bags flattened lumps or species plant tion for different grade second corresponds to the “Hashish” yet persuade have the courts that a flat- appear of Indian charas genus not embrace Cannabis sativa L. does into a compacted thin sheet tened cake or a hemp species, variety kind or shoe, but sole of a resembles the form that plant.4 agree on, however, What all do consumer an ultimate the time it reaches plant maturity it de- ripens that as the dry granular more of a hashish has become velops upon especially within and secretes powdery substance.6 coarse flowering tops its and leaves a resin whose were drug laws narcotic chemical structure has come to known as uniform When thirties, sub- prohibited tetrahydrocannabinol THC, short. enacted — interesting comparison (Tex. of assimilation 3. In Ex Parte 508 390 5. For an available, Cr.App.1974) see then this of information indictment 212, 58 accused delivered “hashish” to another and af ter Baker (1933). assaying phrases structure and light Texas Controlled Substances Act thought germane legislative Grindspoon, Recon generally, what to be Marihuana 6. See history, pro Press, 1971, Chap sidered, University is a Court held that hashish Harvard Marihuana, Two; Bloomquist, hibited controlled substance within the mean Glencoe ter ing 4.02(c),Penalty Group 2(N). McGlothlin, 1968, 8-10; Press, Reference,” But A of Section “Cannabis: finding prohibited Papers, New that hashish is a Marihuana or, holding 1966, Library, as in this not a that an indictment World case, alleging possession an information testimony ex rel. expert State See also “Tetrahydrocannabinol” or a motion to revoke (W.Va. Spillers, 202 S.E.2d 180 Hubbard probation “tetrahydro- alleging possession of experienced 1974). toxicol instant case In the sufficiently definite to state an cannabinol” offense. Floyd ogist testified E. McDonald and chemist pieces he he examined of the substance that explaining that epithelial present, hairs found (9th generally Kelly, 4. See U. S. v. 527 F.2d silky on the underside “flexible hair is the 1976) Cir. and cases therein summarized plant. leaf’ of the cited. nols, the clear purpose stance was “marihuana” in the Federal act and intent while Texas called it “cannabis” took and in drafters was that the latter meant note of and included varieties of cannabis Waco, only synthetic cluded THC. U. S. v. Marihuana, known “as Hashish and Hash- denied, 1976) (9th cert. 535 F.2d 1200 Cir. eesh,” 725b, V.A.P.C., Article 1925 as 978, 488, 50 L.Ed.2d 586 429 U.S. S.Ct. learning amended. But as improved and (1976). statutory Under this scheme mari synthetic drugs developed abused, were or everything huana includes that contains legislative bodies “dangerous drug” enacted THC, Walton, U.S.App. ganic U. S. laws. Persistent efforts led to successful (1975) including D.C. 514 F.2d synthesizing of THC about so that hashish, (9 527 F.2d 961 Cir. Kelly, U. v.S. soon became available as a 1976). substitute for the substance.7 Con- however, Legislature, departed from Our temporaneously, conventional wisdom held stat- Federal format and content of the drugs, substances and their immediate sub- ute controlled proposed uniform precursors should be regulat- controlled and First, marihuana stances act. it defined ed under one umbrella controlled substances 1.02(17) specifically exclude Sec. so as act. any part of such “the resin extracted from Accordingly, the Congress enacted prep- any compound ... Comprehensive Drug Abuse and Control listing sub- aration of the resin.” Then in Act of seq. 21 U.S.C. 801 et Sec. schedules, 2.03(d) stances in enumer- the same year the National Conference of separately: ates *5 Commissioners on Uniform State Laws rec Marihuana; “(10) ommended a uniform controlled substances act to the states, 1970 Handbook [******] Act, the draft Uniform State Act included in its Schedule I of Controlled Substances:9 scribed criteria and each continued to deal The format of nition of marihuana.8 As did the Federal stances into schedules according preparation “(d) stances (10) Marihuana (17) Tetrahydrocannabinols” cannabis substances the following hallucinogenic sub Any [******] [******] . material, which . both was to . : contains compound, mixture or through categorize any the defi quantity to sub pre And in lucinogenic substances: (17) Tetrahydrocannabinols “(N) Tetrahydrocannabinols Sec. ture and isomers with similar extractives cal formulas for such as the equivalents tained in substances, derivatives, and their 4.02(c) lents of the substances marihuana and listing enumerates substances pharmacological following of the substances plant, cannabis, THC).” synthetic equiva- among other hal- or in the resinous chemical struc- (stating Penalty Group contained or other synthetic synthetic activity chemi- than con- extrac- By defining listing thus marihuana and in the resinous plant, or ” separate apart tetrahydrocannabi- from . . tives of cannabis thereof; not; McGlothlin, cit., op. supra, reported growing in 1965 or the seeds the resin syn- any part plant; that some 80 of such derivatives THC had been extracted from every compound, thesized. or manufacture ... preparation or resin. of such its seeds Act, the mature stalks Such term does not include 8. The Federal U.S.C.A. Sec. 802 preparation plant practically of such ... or identical to the definition in the (except pro- mature the resin extract- draft Uniform such stalks Controlled Substances Act fiber, oil, cake, posed therefrom) or the steri- ed lized seed . National Conference of Commis- ” sioners: . . “(15) parts The term ‘marihuana’ means all 204(d), Handbook at 234. 9.Section L., plant Cannabis sativa determination of separately policy penalties And marihuana is not listed in lesser any penalty group apart dealt with amounts of marihuana —as THC in smaller therefrom in 4.05. supra, this Court discerned —it offending sub- list the necessary became to From we this format and content “tetrahydrocannabinols stances as must believe that drafters of the modifica is, This and has than marihuana.” tions, especially as pertaining tetrahydro- to itself, accept the consistently held bound cannabinols, were purpose not aware of the or classification legislative characterization and intent of the National Conference of how regardless prohibited substances Commissioners that the term embrace synthetic views them.10 community the scientific they THC—otherwise would not have added the language synthetic “and then, we turn background, Against equivalents of the substances contained in of error two direct consideration of plant .” The additional lan- question is whether and three and the guage and insertion of the pro- charging instrument that identifies than Penalty Group marihuana” in 2 re- only as “tetra- scribed controlled substance flects the plural “tetrahy- notion that the hydrocannabinol” is sufficient drocannabinols” is meant to include offense.11 except in marihuana —as well as the material, chemical. any Thus or infor an indictment By definition compound, mixture preparation “accusing statement mation is a written any contains amount of hallucinogenic omis person act or therein named of some tetrahydrocannabinol law, be an which, sion is declared —other than in marihuana —is within the contem- 21.01, It was a V.A.C.C.P. offense.” Art. plation embraced, of Penalty Group 2. So is, then, that “where familiar rule and still then, preparation that contains or- (and by our statute an offense is defined ganic resin extracted State), all of in this there are none other synthetic THC in whatever form and under must of the offense the essential elements whatever name. Legis- In this fashion the indictment,” Rice v. lature greatly expanded what was the more (1897). Like 38 S.W. restricted *6 tetrahydrocannabi- definition of language wise, an indictment drawn nols in the draft uniform act the Feder- and defining creating an of the statute and State, al law. See Kirkland v. 373 S.W.2d sufficient, ordinarily Burney offense is 756, 758 (Tex.Cr.App.1963). 723, State, 274, 171 347 S.W.2d Tex.Cr.R. that Thus, here (1961). 725 we first note Legislature further found in the lan that its the information is not drawn category “tetrahydrocannabi- of the listing guage nols” statute in that it omits includes marihuana. or the So ganic But, synthetic hallucinogenic phrase and sub “other than marihuana.” 2, Penalty Group stances in supra, to reflect its the State holding the Thus, law, except to marihuana was a otherwise the substance of the infor- “narcotic drug” many years long in Texas provided by, g., for after See mation as e. Art. 27.08. widely regarded See, State, research held otherwise. generally, Corp. American Plant Food State, g., 14, e. Fawcett v. 137 Tex.Cr.R. 127 (Tex.Cr.App.1974) explica- 508 598 for (1939); State, S.W.2d 905 Fletcher v. 162 Tex. exception opposed tion of an to an to form as 100, (1955); Cr.R. 282 S.W.2d 230 Gonzales v. exception During to substance. revocation State, 432, 786, 163 Tex.Cr.R. 293 S.W.2d 787 however, proceeding, to did move (1956); statutory “The definition makes canna quash original judgment information and drug;” bis a narcotic Gonzalez v. 168 facially substantially the same void on basis 49, (1959): Tex.Cr.R. 56 “Mari grounds of error two and now advanced drug. 725b, is huana a narcotic Art. Secs. 13 Nevertheless, quash three. to made the motion and 14.” proceeding at not relate the revocation trial, question here is so the back to During proceedings the course follow- still information is void ing filing complaint and information appeal. asserted on through judgment placing and order him on probation, appellant quash did not move to or argues that because marihuana is What the excluded State fails to recognize in its from Penalty Group by2 very phrase argument subject is that on this there are 5.10(a) and Sec. of the Act makes it unnec- rules, two distinct one or the other applica- essary negate exemption exclusion, an or circumstances, depending upon ble as was the information need not include the pointed painstakingly Lowery out “other than disagree. marihuana.” We (1916): S.W. As already discussing demonstrated in bo- rules, fully “There are two each well tanical and pharmacological facts of the one, that when a statute established— prescribes matter and reviewing statutory language, offense, an and also therein merely alleging THC embraces not exception proviso contains an or every marihuana but other syn- made necessary part a constituent or thetic substance that to contain found offense, exception then provi- such or THC. The testimony of chemist McDonald so negatived by proper allegation must be in this case point makes the he ac- when in the indictment or information to make knowledged that there was no definite “line good pleading. The second is scientifically recognized demarcation be- not where exception proviso tween marihuana on the one hand necessary part made a constituent or Thus, hashish on the other.”12 itself, then it is the statute alleging the controlled substance as THC wholly unnecessary for the indictment does inform, define or draw the line negative exception between such offenses as this Court concluded in Ex Parte Legislature proviso.”13 Psaroudis that meant to do and did. Rice this applied rule caused familiar early case, supra, Bice illus Court to hold in Anderson v. trates point. statutory rape In that that an Tex.Cr.R. case the indictment every statutori holder alleging permit that a indictment ly prescribed element of the offense but negative liquor Sunday sold but failed person.” than the wife of the After pro- statutory part of the statute that stating rule, above, the familiar set forth “(except upon prescription duly vided of a this pointed out that it had held “that fatally defective physician)” licensed it is incompetent for even legislature and, .notwithstanding furthermore, the fact create exception Then, to this rule.” act then in effect contained after reviewing authorities, the Rice provision 5.10(a) of almost identical to Sec. opinion concludes: here, the Controlled Act the An- Substances “Applying this rule to the construction of opinion noting holding: derson statute, it will be seen that the words uniformly “. . but this court has ‘other than the person’ wife of a occur in *7 exception held that where the is written body the of enacting the clause. The law, and, body as said in offense cannot be read reading without cases, enacting part some is made a (and) under the rule here- itself, we cannot down, tofore clause of the statute laid the indictment should

negative give the fact alleged injured application to the terms of Sec. female was the wife of clearly the defendant.” made a supra. exception is so Explaining unlawfully overlap,” Lowery pre- a “sort of an was convicted for McDonald particular noted a scribing morphine form of an marihuana derived to an habitual user under specially statutory plants cultivated female indictment that did not include proviso greatly which the THC content was increased not unlawful to the effect that it was and, continued, “Well, now, course, he practitioner prescribe of such some for an authorized THC, extract, poor might if it were a rather habitual be substances the treatment of the you entirely less than So couldn’t base it the second user. This situation came under rule, 6%. on the exactly concentration of THC. I’m need not not so the indictment the court held you negative sure where an proviso. could draw the line. It’s sort of overlapping area.” part offense, Similarly, motion. once is ad- evidence plainly and is so hearing on motion to by written into the and de- duced the State at very definition a THC possessed revoke the defendant scription of the offense cannot that one hashish, marihuana, it be substance—whether read without the other.” discretion of the trial or whatever —the So, here, than is raised. That probation court to revoke marihuana” is a constituent element of draw a line of demarcation chemist cannot Having a negative offense—albeit one. marihuana and some other between statutory provisions structured the weight of his testimo- goes to the which we are here concerned in the manner being ny, admissibility, not its and without did, it Legislature obviously chose to by the trial may well be considered disputed delineate marihuana of and other THC preponderance constitute that court to fenses the latter prescribing as it did— necessary probation.14 evidence to revoke “tetrahydrocannabinols than mari imposed be It the sentence Only huana.” is ordered that in that fashion is latter aside, and, judgment set of the trial court likewise, offense only stated in that in- prosecution on the instant fashion is it reversed and alleged by to be indictment or formation be dismissed. information. Legislative understanding, Given the DALLY, concurring. Judge,

then, charging we must conclude that a aon convicted Appellant originally alleging instrument possession of THC— charged him with felony which more, without fails substance, name- possessionof “a controlled offense under state law—the claims ly tetrahydrocannabinol.” Appellant “tetrahydrocannabinols other than mari it was void because that this information also, huana” —but because THC—without because failed to state an offense marihuana, more—embraces fails to state jurisdic- enough to confer specific was not the elements essential to jur determine the I write court. upon the district isdiction of the court try the case and the issue. of this help clarify the resolution range punishment may be as State, sessed. Mears See v. re- commonly Tetrahydrocannabinol, (Tex.Cr.App.1975), following the rule of for the THC, term a chemical ferred to as Standley 517 S.W.2d 540-541 Sativa plant Cannabis resin secreted (Tex.Cr.App.1975) and its progeny, includ key psychoactive plant’s L. and THC is that ing, Huggins (Tex. 544 S.W.2d 147 statutorily Marihuana ingredient. Cr.App.1976); Peoples L. or Sativa Cannabis defined as 640 (Tex.Cr.App.1978) and, recently, most V.A.C.S.,Art. 4476— its derivatives. any of Barcelo, Ex Parte (Tex.Cr. 577 S.W.2d 499 resin, e., i. 1.02(17). If the 15, Sec. App.1979). those THC, from the is extracted definition of from the extracts are excluded For these reasons we must hold their extracts and Id. These marihuana. and set aside conviction invalid hashish, such as preparations, derivative judgment. remaining grounds higher concentrations generally contain error need not be decided we would as “tetra- separately treated THC and are observe that a motion to revoke be a parte Ex hydrocannabinols.” precise pleading less (Tex.Cr.App.1974). *8 THC substance is unlawful—whether marihuana” felony misdemeanor or is irrelevant for the “other than Any material trial jurisdiction quantity court that has to decide of natural any which contains substance, Dealing a problem to-wit: as “a controlled with the we have decided offense material, case, although upon preparation, compound, in this are mixture and we not called marihuana, tetrahydro- so, containing necessarily determine and do not do other than cannabinol, commonly indictment or information should be sufficient known as-” requisites if it met other and then described the also, proscribed THC is because Penalty THC—without more— Group 2 of the marihuana, Controlled Substances Act. embraces fails to state V.A.C.S., 4476-15, 4.02(c). Art. juris- Posses- elements essential to determine of a sion in Penalty Group listed try diction of the case and the court to quantity, degree felony. is a third may be range punishment Id., Sec.-4.04. Marihuana is defined and assessed.” treated outside the penalty groups of the phrase majority isolates the possession Act and of a “usable quantity” of holds that than marihuana” and may marihuana degree be a third felony, a felony of be a constituent element misdemeanor, Class A a B or Class misde- THC. Such a conclu possession fense of meanor, depending pos- on the amount by the Controlled sion is not warranted sessed. V.A.C.S., Art. 4476-15 or Act. Substances This charged possession information (Tex.Cr. parte Ex tetrahydrocannabinol but left quali- out the Further, convinced that App.1974). I am Marihuana, fier “other than marihuana.” interpretation of the statuto majority’s defined, statutorily tetrahydro- contains provisions but also ry only is not incorrect cannabinol if its resin has not been extract- unnecessary. issue here is not statuto Therefore, ed. by leaving qualifying out the ry concern should construction. Our phrase, it is unclear whether this informa- properly notified charged possession of marihuana or charged that he was with an offense. possession other than marihua- error, without cita- In three na. tion of contends that authority, appellant marihuana, Possession of posses- unlike and the subse- original both the marihuana, sion of THC other than were void probation motion to revoke quent may not be a felony depending face, allegátion of claiming on their that an Where, alleged. case, the amount as in this possession THC, magic without alleged, no amount was the information not “other than marihuana” does words permits uncertainty as to whether the dis- majority agrees and an offense. The state jurisdiction trict court had over the case THC, broadly defining holds that uncertainty and this renders the informa- phrase “other than marihua- absence parte Barcelo, tion void. Ex 577 S.W.2d499 na,” alleged. no offense is (Tex.Cr.App.1979); Mears v. is the majority’s position key to the S.W.2d 380 (Tex.Cr.App.1975). specif- This embraces term THC determination that the ic attack on the information may recitation and includes marihuana. After a appeal be raised on from a revocation of pharmacological of certain botanical and probation. Peoples State, 566 S.W.2d640 facts, federal review of coupled with brief (Tex.Cr.App.1978). Although the convic- majority concludes: authority, the reversed, tion must be I do not believe that alleging THC embraces “. . comprehensive discussion of the nature of every or- only not marihuana but other marihuana or background of current ganic synthetic substance legislation necessary federal and state found to contain THC.” decision this case. Therefore, majority, the “oth- concludes the DAVIS, Judge, dissenting.

W. C. necessary language er than marihuana” being charged appellant he is to inform the majority’s I dissent to the conclusion than that with of THC that: confined, at occurring in and still naturally “. charging . a alleg- instrument prosecution, plants. to marihuana more, ing possession of THC—without the back- quarrel fails to an offense under I While have no majority, ‘tetrahy- ground supplied state law—the offense of material the chemical other than marihuana’— is not with drocannabinols the concern here *9 composition separately in I plant.1 pen- of the Schedule and different marihuana Rather, legal the of proscribed separa- the issue is definition alties are for each. Such THC whether that term and used alone Legislature tion means the in- only that allege sufficient to an offense. After the of marihua- separate tended treatment thorough examination of the Controlled and intent is evident on the na THC. Such Act and the reasoning Substances of the face of the definition of marihuana. Clear- majority, legal I am convinced that the green only the ly, this definition includes of THC should be: definition seeds, leafy whether on the substance organic separated, substance is known com- every plant and or tetrahydrocannabinols found to contain in monly grass, pot, as or or marihuana. form, except any marihuana. the concen- Clearly, cannot be marihuana chemicals, plant, trated or resins of the nor The Controlled Substances Act deals with isolated chem- legally can marihuana be the marihuana and THC follows: then compounds. ical term THC covers The (1) 1.02(17),marihuana means: Sec. is exclusive of these derivatives plant “. Cannabis sativa marihuana.2 green plant-like L., not; growing whether or interpretations Based on these thereof; every compound, seeds THC, the terms marihuana and salt, manufacture, derivative, mix- than redun- “other marihuana” ture, preparation plant, or or element dant and is a constituent of However, its seeds. not in- does of THC. The possession offense of clude any the resin extracted from are not nec- terms “other than marihuana” part plant any of such or compound, manufacture, essary understanding of an informa- salt, an derivative, mix- ture, resin; alleging THC. term preparation possession tion of or nor allege does it include THC stands alone and is sufficient the mature of stalks 21.01, Vernon’s Ann.C.C.P. produced fiber an offense. Art. from the stalks, of possession oil or THC allegation cake Since an of made from the plant, any alleges offense, seeds of the was relieved other com- an the State pound, manufacture, derivative, exemption salt, negating the burden of mixture, preparation Controlled 5.10(a) exception by of the ma- Sec. stalks, fiber, oil, ture cake, or the Substances Act. plant sterilized seed of the which is does em- THC Assuming, arguendo, incapable germination.” marihuana, the informa- brace include

(2) 2.03(10) (17), Sec. separately lists sub- a controlled alleges possession marihuana and THC under Schedule the Controlled prohibited stance which is I. allegation suf- an Substances Act. Such (3) 4.02(c), Two, Penalty Sec. Group pro- offense, ap- if the ficient to allege penalties scribed for being he was pellant was unsure THC, “other than plant-like marihuana.” green prosecuted possessing substance, chemical substance or a refined 4.05, contains penalty for mari- quash motion he should have filed a huana. original information. Legislature, throughout the Con- Act, is sufficient trolled Substances treats I would marihuana hold the separately. two are listed to an offense.3 notes, August majority legal Health dated reinforce As the definition of a drug may be at variance with the scientific distinction. however, meaning; this Court is bound degree majority on Ex relies to some 3.The legislative characterization. See footnote 10 of (Tex.Cr.App. parte majority opinion. language 1974). held that That case legally than excluded marihuana” substance, not the refined defined hash 2.03(d) by Revisions of Schedule I under Sec. Department Commissioner of the Texas ish.