*1 Raleigh LEJEUNE, Appellant, Texas, Appellee.
The STATE of
No. 49404.
Criminal
of Texas.
July
also, Tex.Cr.App.,
Bill (on appeal only). pellant Vollers, Atty., David Jim D. and State’s Austin, Atty., Asst. McAngus, S. State’s the State.
OPINION
ONION, Judge. Presiding revoking taken an order Appeal is probation. 19, 1973, appellant pleaded
On June before court guilty murder. Punishment with intent to assault (3) years, at three assessed suspended and imposition of sentence granted probation. the conditions One of against no offense “Commit any other this or laws 22, 1974, the filed a February On appellant’s probation, revoke motion to appellant “on or about alleging did then February, knowingly intention- unlawfully, ally possess Sup- (Emphasis two ounces.” of less than plied) hearing after reflects that
The record May to revoke was held on motion order, finding 31,1974, its thе court entered (b), violated “condition had “(3) B misdemeanor if he a Class against to-wit: no offense the laws Commit sesses two ounces or less.” of this other state of United States, . . . did then defendant unlawfully, knowingly and there and inten- It is clear from the above
tionally of mari- possess elements of the offense *3 huana of less than two ounces.” (1) (2) person knowing marihuana are a did intentionally (3) possess (4) ly (5) (6) pos quantity of marihuana amount police McKnight, Nacogdoches Archie sessed in ounces as set forth in statute. See officer, on February testified that Tex.Anno., (Auxiliary 4 Branch’s 3rd ed. he appellant hitchhiking observed the Statutes, Statutes), p. Penal Penal stopped patrol pick his car to recognized In the instant case up. McKnight When learned that a was a ele- usable name, McKnight told he un- ment of the offense when so der outstanding arrest as there were arrest appellant pos- the revocation motion that Upon warrants for traffic offenses. arrival of marihuana. sessed a usable station, police at the he observed the appel- wording lant to throw of said 4.05 of the something to the as he The Section Controlled does not reveal got patrol out of the Substances McKnight picked car. legislative intent for the inclusion of up object, appeared and it to be a quantity” requirement pos the “usable baggie of marihuana. It was sent to the session of and since the section Department Safety of Public Laboratory in act, part comprehensive none of the Tyler. Latta, Claude chemist at said labo- determining legislative in usual sources for ratory, testified that his examination of the readily appears though tent It apparent. substance in the baggie showed it to be Legislature intended to eliminate from weight and that the of the sub- penalty criminal of “trace” stance was 7.7 or “a little over а construing amounts of marihuana. for quarter of an ounce.” He did not testify, 725b, Ann.P.C., mer Article Vernon’s con nor was he asked if the amount was a and which cerning possession of narcotics usable amount or quantity. mar provided possession any quantity Appellant urges that no violation of a sufficient, ihuana this court in Pelham penal law has been shown since it was not State, 164 Tex.Cr.R. S.W.2d shown as alleged in the revocation motion violation, (1957), to constitute a held the marihuana in question was a usa- must be amount 4476-15, as required by Article capable being applied “such as is 4.05, (Controlled Vernon’s Ann.C.S. thereof.” The court commonly use made Act). Substances mostly noted that marihuana was common cigarette. in a Under this test a ly smoked Thе pertinent portion of said Section 4.05 upheld convictions were where number of provides: were in only small amounts of marihuana “(a) Act, Except as authorized volved, State, g., e. Parson v. S.W.2d knowing- commits an offense if he (1.41 (Tex.Cr.App.1968) grams of marihua ly or intentionally possesses usable State, (Tex. na); Tuttle v. S.W.2d quantity of marihuana. marihuana); (63 milligrams of Cr.App.1966) “(b) (a) An offеnse under Subsection State, Mitchell v. S.W.2d this section is: marihuana). (.0074 grams of App.1972) “(1) felony degree if he Taylor the third also and cf. S.W.2d ounces; possesses more Terrill than four “(2) a Class A misdemeanor if he (Tex.
sesses four ounces or less but more Reyes ounces; court held that the court- Cr.App.1972), than two done, delivery to constitute the offense of imposed minimum quantity requirеment of apply Pelham did not to cases where the
accused knowingly
the narcotic.
question presented
is whether this
probation may
revocation of
be sustained in
precedents mind,
With these
appears
chemist,
oth-
absence of
in enacting
4.05
Section
stipulation
er
witness or
that the
the Controlled
sought
Substances Act
quanti-
marihuana involved was a “usable
overrule the holding
Reyes,
supra, for it
course,
ty.” The amount of
established a minimum quantity require-
“a little over a
was shown to be
(usable
ment
quantity)
applies
even
ounce,”
this court
grams. May
or 7.7
when
drug
is knowingly possessed.
is a
take
notice that
While it can be assumed that
quantity?
requirement of
a “usable
was in
*4
research reveals that with the nota
Our
tended
prosecutions
to eliminate
for “trace”
exception
of California no other State
possession of
observed that
quantity
courts have allowed the minimum
proof of “usable
not
quantity” was
limited
proved by
of
to be
the use of
by the statute to cases involving possession
Villalobos,
judicial
People
v.
245
notice.
of under two ounces of marihuana. As
561,
(Dist.Ct.
Cal.Rptr.
60
of
Cal.App.2d
drafted,
requires proof
the statute
of a “us
Dist.,
*1966),
App., 2nd
Div.
4 -
possession
able
in all
cases re
stated:
gardless
the
possessed.
of
amount
that,
a trial
“Assuming
point,
at some
Worthy of note is the fact
judicial
court and we could take
notice
said
4.05(d), dealing
delivery
Section
with
of
narcotic,
of
or a
given quantity
that a
marihuana, does nоt require delivery of a
packag-
in a
condition of
narcotic
certain
“usable quantity”
(as,
marijuana ciga-
to constitute an offense.
ing
example,
for
usable,
Perhaps
rette),
milligrams
the
was satisfied with
the 50
here-
involved,
does
scraped
pocket,
in
prior holdings
the
of this court under the
If,
fact,
not reach that status.
it was
former statute
where the
sаle of a
quantity,
the burden was on the
drug
narcotic
was involved the
to
that fact. Under-
prosecution
the narcotic sold is irrelevant. Carter v.
attempt was here
standably, no such
quoted
made and the remarks above
Bryant v.
that the “a little over a quarter an estab- ounce” is sufficient to the marihuana discovered lish it was a mari- mari laboratory usable same tested at the easily objection huana. While the State could have no to the intro huana. findWe question by removed the grounds this casе marihuana on duction of the simply asking the or chemist other timely objection urged. now Absent a evidence, witness whether the amount nothing involved the introduction quantity, now would be absurd to v. appeal. Ballard presented for review on reverse this conviction so that testimo- State, (Tex.Cr.App.1975); S.W.2d ny be produced light could where in of the State, Hoffman v. proof amount involved usability would be State, Arivette v. 513 S.W.2d App.1974); superfluous. It should be patently obvious State, v. (Tex.Cr.App.1974); Booth to everyone that “a little over a 129, Palmer S.W.2d an ounce” or 7.7 use State, (Tex.Cr.App. in a cigarette, commonly the use most made 1972). grounds urged as were Only such supra, or in Pelham may review trial court pipe. Further, in the in- the trial court in this court. Foreman stant findings case in its found that Having made (Tex.Cr.App.1974). was a quantity.” “usable of the introduction objection at the time no evidence, error, any, if in admit Practice, Ray, Texas McCormick and Lopez ting the same waived. Evidence, ed., p. 2nd theo- ry of judicial part notice is discussed in as follows: no reasons we find For the same “The doctrine is one common sense. that he merit contention The theory that, where fact is well arrest warrant arrested under invalid peo- reasonably intelligent known all evi allowing any and the court erred ple its community in the or existence so arrest. a result his dence as *6 certainty with easily determinable objec again there was no We observe that reliable, sources it would nоt considered nothing ground urged, on and tion the now good proof. sense to formal require Further, ob we presented for review. judge justified such situations the in as the marihuana was not seized serve that the declaring the truth of fact without arrest, to result incident a of a search any party.” evidence from the plain was found in view. Casarez today does not draw а holding Our mari boundary quantities line between that Lastly appellant complains ounce of mari huana below was showing he máde no the State properly huana which in the future could condi probationary of his apprised ever a “usable judicially noticed or inferred as objection find no again tions. Once we and those which could not. of the revoca urged at the time this future, the prosecutors in since Hopefully re Nothing hearing. tion expert witness in the view. We further observe most cases to establish substance in ap with copy of the conditions record is a question is will take a few verifying receipt signature pellant’s longer through seconds to establish the same. in witness that marihuana error, quantity.” judgment volved is a “usable Finding no reversible is affirmed. complains Next the tri admitting al court erred in into evidence ODOM, (dissenting). Judge envelope Exhibit # contain State’s disposition majority’s I ing dissent proper because the revok- the order this case. I would reverse custody chain of not established. Fur of the that no violation urges “Appellant reasons set forth ing probation for thе marihuana in that the proven has been law by Com- opinion for the Court prepared by appellant been alleged to have Davis, opinion, adopt missioner a usable to be is not shown follows, as a statement marihuana. grounds my dissent. 4.05 of portion “The of Section pertinent revoking from an order “Appeal is taken (effective the Controllеd Substances probation. 27, 1973), August provides: appellant pleaded June “On “ Act, ‘(a) as authorized Except the offense of the court to guilty before if he know- an offense commits intent to murder. Punishment assault with a usable intentionally possesses ingly (3) years, but assessed at three quantity of marihuana. suspended sentence was imposition of (a) of under (b) An offense Subsеction granted probation. appellant was is: this section of the conditions of “One if he degree of the third (1) felony against ounces; offense ‘commit no more than four possesses this or other State. the laws of he pos- A misdemeanor if (2) a Class or less but more
sesses four ounces ounces; two than February filed “On State (3) B misdemeanor if he a Class prоbation, motion to revoke ” (Emphasis two ounces or less.’ sesses alleging ‘on or about supplied) then and February, did Act, “Prior to the Controlled Substances unlawfully, knowingly, and intention- Reyes Court ally possess 725b, Art. V.A.P.C. that under held of less than two ounces.’ 27, 1973), that (effective August until hearing “The record reflects after a must basic element which May held on the motion to revoke on the law to violate that the accused intended 31,1974, finding its order entered 725b, drug. Under a narcotic by possessing that appellant (b), had violated ‘condition to lesser amounts V.A.P.C., wit: Commit no against the laws of been to have than that this or any other the United case the instant by appellant States, the defendant . . . did then a conviction. support was held and there unlаwfully, knowingly and inten- (1.41 g.E. Parson v. tionally possess a of mari- State, 410 *7 marihuana); Tuttle grams huana of less than two ounces.’ marihuana); (63 milligrams “Archie McKnight, (.0074 member of the Nac- Mitchell ogdoches Police Department, Taylor and cf. marihuana). testified that grams case, appellant he arrested In the instant 927. warrant for a less traffic violation on with an February 20, chargеd 1974. than of less Possession Upon at ounces. police station, arrival than two denominated is the least McKnight two ounces observed throw some- However, before 4.05, supra. under thing got as he out of the offense, an constitutes patrol McKnight picked up object car. Implic- proven. must additional element ground. threw to the It appeared rеquirement 4.05, is the supra, it in Sec. baggie McKnight to be a the amount Department sent same to the of Public quantity. Latta, Safety Laboratory Tyler. Claude testified revoca- laboratory, chemist at said that his a basis for alleged as “The State he violat- baggie revealed that examination tion of by possessing usable question contained 7.7 ed a law of this State less than two ounc- proof es. The offered the State reflects appellant possessed 7.7 mari- grams of
huana, but record is devoid of evidence that such is a usable quantity.
having failed to an essential element
of the offense as a basis for revoca- tion, we conclude that the trial court abused its discretion in revoking appellant’s proba-
tion.
“The order of revocation is reversed and the cause remanded.”
I dissent. ROBERTS, J., joins in this dissent. parte Ex David Earl JASPER and Donald
Wayne Broussard.
No. 52026. Criminal of Texas. July