Few v. State, 60215

• Decision Date: 26 September 1979
• Docket Number: No. 3,No. 60215,60215,3
• Citation: 588 S.W.2d 578
• Parties: Larry Wendell FEW, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 578

588 S.W.2d 578

Larry Wendell FEW, Appellant, v. The STATE of Texas, Appellee.

No. 60215.

Court of Criminal Appeals of Texas, Panel No. 3.

Sept. 26, 1979.

Rehearing En Banc Denied Nov. 7, 1979.

Percy Foreman, Dick DeGeurin and Mike De Geurin, Houston, for appellant.

Carol S. Vance, Dist. Atty., Calvin A. Hartmann and J. Gordon Dees, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before DALLY, W. C. DAVIS and CLINTON, JJ.

OPINION

CLINTON, Judge.

This is an appeal from an order revoking probation. Appellant was originally charged by complaint ¹ and thereafter waived indictment and consented to be prosecuted on an information. ² December 14, 1977 appellant entered a plea of guilty to the felony information, his punishment was assessed at 10 years confinement and a $500.00 fine and the confinement portion of punishment was probated. March 23, 1978 the State filed an amended motion to revoke probation alleging that on the stated date in Harris County appellant "did intentionally and knowingly possess a controlled substance, namely tetrahydrocannabinol." After hearing on the motion before the same trial court and judge that assessed earlier punishment, the trial court found that appellant had violated the terms of his probation in committing the offense of "possession of a controlled substance, to-wit, tetrahydrocannabinol" and sentenced him to 10 years confinement in the Texas Department of Corrections.

By three grounds of error appellant assails validity of his original conviction by contending that there is a fatal variance between the original complaint and the felony information; that the felony information is facially void in failing to state an offense defined by the penal code, to-wit, "possession of tetrahydrocannibol (sic)" and that the felony information is facially void in failing to allege "an amount of tetrahydrocannibol (sic)" allegedly possessed and, therefore, does not confer district court jurisdiction. Similarly, in his fourth ground of error appellant contends that the motion to revoke is facially void for failing to state an offense defined by the penal code or the controlled substances act. Not otherwise attacking sufficiency of evidence, ground of error number five contends that the proof does not show that defendant possessed tetrahydrocannibols (sic) other than marihuana.

The first contention is ruled adversely to appellant by the holding of a divided court in Chapple v. State, 521 S.W.2d 280, 282 (Tex.Cr.App.1975) and Austin v. State, 531 S.W.2d 615, 616 (Tex.Cr.App.1975); and the unanimous opinion in Washington v State, 531 S.W.2d 632 (Tex.Cr.App.1976) all to the effect that since no complaint is required when an accused waives the right to be tried on an indictment and elects to be tried on an information, a faulty complaint does not vitiate the information. By the same rule and reasoning we must and do hold that where the accused waives indictment and elects to be tried on an information a variance between an underlying complaint and the information does not render the information void. Ground of error one is overruled.

The next three grounds of error, asserting that the original information and subsequent motion to revoke are each facially void, require that we examine again ³ pertinent provisions of the Texas Controlled Substances Act. We begin our analysis with a brief restatement of relevant botanical facts in an historical context.

Cannabis sativa L. is the name bestowed on the Indian hemp plant by the Swedish botanist Carolus Linnaeus. Early and late others have asserted and claimed recognition for different species of the plant but have yet to persuade the courts that the genus Cannabis sativa L. does not embrace any other species, kind or variety of hemp plant. ⁴ What all do agree on, however, is that as the plant ripens to maturity it develops within and secretes upon especially its flowering tops and leaves a resin whose chemical structure has come to be known as tetrahydrocannabinol THC, for short. This chemical is psychoactive ingredient responsible for euphoriant and hallucinogenic properties of the plant and its products.

In one form or another substances derived from the plant have been given various names. "Cannabis" is broadly used in several other countries and in the literature to embrace the plant and many of its substances. "Marihuana" originated in Mexico and actually means a preparation of chopped leaves and stems of the plant that resembles tobacco. ⁵ "Bhang" is the Indian smoking mixture of cannabis, similar to marihuana, in that it is a coarse powder derived from leaves of the plant. "Ganja" is prepared from the flowering tops of cultivated female plants and is smoked. "Charas" is resin of the pistillate flower of specially cultivated plants that is gathered by various exotic methods from the clean uncut plant, for the superior grade, and from the tops of harvested plants for the slightly weaker grade. The former is usually shaped into tiny tapering sticks or cakes whereas the latter is sold as brownish green lumps or flattened in bags of rawhide. "Hashish" corresponds to the second grade of Indian charas and may appear as a flattened cake or a thin sheet compacted into a form that resembles the sole of a shoe, but by the time it reaches an ultimate consumer hashish has become more of a dry granular or coarse powdery substance. ⁶

When uniform narcotic drug laws were enacted in the thirties, the prohibited substance was "marihuana" in the Federal act while Texas called it "cannabis" and took note of and included varieties of cannabis known "as Marihuana, Hashish and Hasheesh," Article 725b, V.A.P.C., 1925 as amended. But as learning improved and synthetic drugs were developed and abused, legislative bodies enacted "dangerous drug" laws. Persistent efforts led to successful synthesizing of THC about 1960, so that synthetic THC soon became available as a substitute for the organic substance. ⁷ Contemporaneously, conventional wisdom held that drugs, substances and their immediate precursors should be controlled and regulated under one umbrella controlled substances act.

Accordingly, the Congress enacted the Comprehensive Drug Abuse and Control Act of 1970, 21 U.S.C. Sec. 801 Et seq. and the same year the National Conference of Commissioners on Uniform State Laws recommended a uniform controlled substances act to the states, 1970 Handbook 223, 225. The format of both was to categorize substances into schedules according to prescribed criteria and each continued to deal with cannabis substances through the definition of marihuana. ⁸ As did the Federal Act, the draft Uniform State Act included in its Schedule I of Controlled Substances: ⁹

"(d) Any material, compound, mixture or preparation which contains any quantity of the following hallucinogenic substances . . . :

(10) Marihuana

(17) Tetrahydrocannabinols"

By thus defining marihuana and listing it separate and apart from tetrahydrocannabinols, the clear purpose and intent of the drafters was that the latter meant and included only synthetic THC. U. S. v. Wuco, 535 F.2d 1200 (9th Cir. 1976) Cert. denied, 429 U.S. 978, 97 S.Ct. 488, 50 L.Ed.2d 586 (1976). Under this statutory scheme marihuana includes everything that contains organic THC, U. S. v. Walton, 168 U.S.App.D.C. 305, 514 F.2d 201 (1975) including hashish, U. S. v. Kelly, 527 F.2d 961 (9 Cir. 1976).

Our Legislature, however, departed from the format and content of the Federal statute and proposed uniform controlled substances act. First, it defined marihuana in Sec. 1.02(17) so as to specifically exclude "the resin extracted from any part of such plant and any compound . . . or preparation of the resin." Then in listing substances in schedules, Sec. 2.03(d) enumerates separately:

"(10) Marihuana;

(17) Tetrahydrocannabinols and synthetic equivalents of the substances contained in the plant, or in the resinous extractives of cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as the following (stating chemical formulas for THC)."

And in listing substances in Penalty Group 2, Sec. 4.02(c) enumerates among other hallucinogenic substances:

"(N) Tetrahydrocannabinols other than marihuana and synthetic equivalents of the substances contained in the plant, or in the resinous extractives of cannabis . . ."

And marihuana separately is not listed in any penalty group but is dealt with apart therefrom in Sec. 4.05.

From this format and content we must believe that drafters of the modifications, especially as pertaining to tetrahydrocannabinols, were not aware of the purpose and intent of the National Conference of Commissioners that the term embrace only synthetic THC otherwise they would not have added the language "and synthetic equivalents of the substances contained in the plant . . ." The additional language and insertion of the phrase "other than marihuana" in Penalty Group 2 reflects the notion that the plural "tetrahydrocannabinols" is meant to include organic THC except in marihuana as well as the synthetic chemical. Thus any material, compound, mixture or preparation which contains any amount of the hallucinogenic substance tetrahydrocannabinol other than in marihuana is within the contemplation of Penalty Group 2. So embraced, then, is any preparation that contains organic resin extracted from the plant or synthetic THC in whatever form and under whatever name. In this fashion the Legislature greatly expanded what was the more restricted definition of tetrahydrocannabinols in the draft uniform act and the Federal law. See Kirkland v. State, 373 S.W.2d 756, 758 (Tex.Cr.App.1963).

The Legislature further found that its category of "tetrahydrocannabinols" includes marihuana. So in listing organic and synthetic hallucinogenic substances in Penalty Group 2, to reflect its policy determination of lesser...