Lejeune v. State

• Decision Date: 14 July 1976
• Docket Number: No. 49404,49404
• Citation: 538 S.W.2d 775
• Parties: Raleigh LEJEUNE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 775

538 S.W.2d 775

Raleigh LEJEUNE, Appellant, v. The STATE of Texas, Appellee.

No. 49404.

Court of Criminal Appeals of Texas.

July 14, 1976.

Bill Pedersen, Jr., Nacogdoches, for appellant (on appeal only).

Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

Appeal is taken from an order revoking probation.

On June 19, 1973, appellant pleaded guilty before the court to the offense of assault with intent to murder. Punishment was assessed at three (3) years, but the imposition of sentence was suspended and appellant was granted probation.

One of the conditions of probation was that appellant 'Commit no offense against the laws of this or any other State . . ..'

On February 22, 1974, the State filed a motion to revoke appellant's probation, alleging that appellant 'on or about the 20th day of February, 1974, did then and there unlawfully, knowingly and intentionally possess a Usable quantity of marihuana of less than two ounces.' (Emphasis Supplied)

The record reflects that after a hearing was held on the motion to revoke on May 31, 1974, the court entered its order, finding that appellant had violated 'condition (b) to-wit: Commit no offense against the laws of this or any other state of the United States, the defendant . . . did then and there unlawfully, knowingly and intentionally possess A usable quantity of marihuana of less than two ounces.' (Emphasis Supplied)

Archie McKnight, a Nacogdoches police officer, testified that on February 20, 1974, he observed the appellant hitchhiking and stopped his patrol car to pick the appellant up. When McKnight learned appellant's name, McKnight told appellant he was under arrest as there were outstanding arrest warrants for traffic offenses. Upon arrival at the police station, he observed the appellant to throw something to the ground as he got out of the patrol car. McKnight picked up the object, and it appeared to be a baggie of marihuana. It was sent to the Department of Public Safety Laboratory in Tyler. Claude Latta, chemist at said laboratory, testified that his examination of the substance in the baggie showed it to be marihuana and that the weight of the substance was 7.7 grams or 'a little over a quarter of an ounce.' He did not testify, nor was he asked if the amount was a usable amount or quantity.

Appellant urges that no violation of a penal law has been shown since it was not shown as alleged in the revocation motion that the marihuana in question was a usable quantity as required by Article 4476--15, Sec. 4.05, Vernon's Ann.C.S. (Controlled Substances Act).

The pertinent portion of said Section 4.05 provides:

'(a) Except as authorized by this Act, a person commits an offense if he knowingly or intentionally possesses A usable quantity of marihuana.

'(b) An offense under Subsection (a) of this section is:

'(1) a felony of the third degree if he possesses more than four ounces;

'(2) a Class A misdemeanor if he possesses four ounces or less but more than two ounces;

'(3) a Class B misdemeanor if he possesses two ounces or less.' (Emphasis Supplied)

It is clear from the above that the elements of the offense of possession of marihuana are (1) a person (2) did knowingly or intentionally (3) possess (4) a usable quantity of (5) marihuana (6) amount possessed in ounces as set forth in statute. See 4 Branch's Tex.Anno., 3rd ed. (Auxiliary Penal Statutes), Penal Statutes, p. 215.

In the instant case the State recognized that a usable quantity was a necessary element of the offense when it so alleged in the revocation motion that appellant possessed a usable quantity of marihuana.

The wording of said Section 4.05 of the Controlled Substances Act does not reveal the legislative intent for the inclusion of the 'usable quantity' requirement for possession of marihuana, and since the section is part of a comprehensive act, none of the usual sources for determining legislative intent is readily apparent. It appears though the Legislature intended to eliminate from criminal penalty the possession of 'trace' amounts of marihuana. In construing former Article 725b, Vernon's Ann.P.C., concerning possession of narcotics and which provided possession of any quantity of marihuana was sufficient, this court in Pelham v. State, 164 Tex.Cr.R. 226, 298 S.W.2d 171 (1957), held that to constitute a violation, the amount of marihuana possessed must be 'such as is capable of being applied to the use commonly made thereof.' The court noted that marihuana was mostly commonly smoked in a cigarette. Under this test a number of convictions were upheld where only small amounts of marihuana were involved, e.g., Parson v. State, 432 S.W.2d 89 (Tex.Cr.App.1968) (1.41 grams of marihuana); Tuttle v. State, 410 S.W.2d 780 (Tex.Cr.App.1966) (63 milligrams of marihuana); Mitchell v. State, 482 S.W.2d 223 (Tex.Cr.App.1972) (.0074 grams of marihuana). See also and cf. Taylor v. State, 505 S.W.2d 927 (Tex.Cr.App.1974); Terrill v. State, 531 S.W.2d 642 (Tex.Cr.App.1976).

In Reyes v. State, 480 S.W.2d 373 (Tex.Cr.App.1972), the court held that the court- imposed minimum quantity requirement of Pelham did not apply to cases where the accused Knowingly possessed the narcotic.

With these precedents in mind, it appears the Legislature in enacting Section 4.05 of the Controlled Substances Act sought to overrule the holding in Reyes, supra, for it established a minimum quantity requirement (usable quantity) which applies even when the drug is Knowingly possessed.

While it can be assumed that the requirement of a 'usable quantity' was intended to eliminate prosecutions for 'trace' possession of marihuana, it is observed that proof of 'usable quantity' was not limited by the statute to cases involving possession of under two ounces of marihuana. As drafted, the statute requires proof of a 'usable quantity' in all possession cases regardless of the amount possessed.

Worthy of note is the fact that said Section 4.05(d), dealing with delivery of marihuana, does not require delivery of a 'usable quantity' to constitute an offense. Perhaps the Legislature was satisfied with the prior holdings of this court under the former statute that where the Sale of a narcotic drug was involved the quantity of the narcotic sold is irrelevant. Carter v. State, 480 S.W.2d 735 (Tex.Cr.App.1972); Bryant v. State, 492 S.W.2d 947 (Tex.Cr.App.1973). Both the possession and the delivery of marihuana require the element of 'knowingly or intentionally.' The rationale for including the 'usable quantity' requirement for possession of marihuana but not for delivery of marihuana is unclear. ¹ It would seem that unless the quantity delivered was sufficient to constitute a 'usable quantity' the delivery of a lesser amount would not create any opportunity for drug abuse. Despite this, delivery of any quantity, whether 'usable' or not, is sufficient if knowingly or intentionally done, to constitute the offense of delivery of marihuana.

The question presented is whether this revocation of probation may be sustained in absence of testimony from the chemist, other qualified witness or stipulation that the marihuana involved was a 'usable quantity.' The amount of marihuana, of course, was shown to be 'a little over a quarter of an ounce,' or 7.7 grams. May this court take judicial notice that this amount is a usable quantity?

Our research reveals that with the notable exception of California no other State courts have allowed the minimum quantity of marihuana to be proved by the use of judicial notice. In People v. Villalobos, 245 Cal.App.2d 561, 54 Cal.Rptr. 60 (Dist.Ct. of App., 2nd Dist., Div. 4--1966), the court stated:

'Assuming that, at some point, a trial court and we could take judicial notice that a given quantity of narcotic, or a narcotic in a certain condition of packaging (as, for example, a marijuana cigarette), was usable, the 50 milligrams herein involved, scraped from a pocket, does not reach that status. If, in fact, it was a usable quantity, the burden was on the prosecution to prove that fact. Understandably, no such attempt was here made and the remarks above quoted make it clear that that issue had not occurred to the trial court as a matter calling for its factual determination. Because of this deficiency in proof, the case must be remanded for a new trial.'

In People v. Locke, 274 Cal.App.2d 541, 79 Cal.Rptr. 367 (Ct. of App., 4th Dist., Div. 1--1969), the court stated:

'Locke contends no showing was made the quarter to one-half ounce of marijuana found in his pocket was a useable amount. We hold a quarter to a half ounce of packaged marijuana is beyond that point suggested in People v. Villalobos, 245 Cal.App.2d 561, 567, 54 Cal.Rptr. 60, where a court may take judicial notice the quantity is useable.'

There was no other discussion as to the judicial notice issue.

In People v. Valerio, 13 Cal.App.3d 912, 92 Cal.Rptr. 82 (Ct. of App., 4th Dist., Div. 2--1970), the court stated:

'There was testimony that the fragments, the partially smoked cigarette and the bags of marijuana together constituted a usable amount, but there was no testimony as to whether the fragments themselves or the partially smoked cigarette itself constituted a usable quantity of marijuana. In the absence of such testimony, it may not be inferred that the fragments constituted a usable quantity (People v. Leal, 64 Cal.2d 504, 512, 50 Cal.Rptr. 777, 413 P.2d 665; People v. Villalobos, 245 Cal.App.2d 561, 567, 54 Cal.Rptr. 60), but, inasmuch as the marijuana cigarette was only partially smoked and the remaining portion was approximately one and one-half inches long, it may be inferred that it constituted a usable quantity (People v. Locke, 274 Cal.App.2d 541, 544, 79 Cal.Rptr. 367; People v. Villalobos, supra).'

Several Arizona cases, though never dealing precisely with the situation where judicial notice was taken, contain dicta which seems to...