Smith v. State

• Decision Date: 31 December 2020
• Docket Number: No. 05-19-01059-CR,No. 05-19-01057-CR,05-19-01057-CR
• Parties: Tavario Jermaine SMITH, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

620 S.W.3d 445

Tavario Jermaine SMITH, Appellant

v.The STATE of Texas, Appellee

No. 05-19-01057-CR

No. 05-19-01059-CR

Court of Appeals of Texas, Dallas.

Opinion Filed December 31, 2020

Rehearing En Banc Denied March 22, 2021

Kyle Therrian, Rosenthal Barbieri, PLLC, McKinney, for Appellant.

Tavario Jermaine Smith, pro se.

Greg Willis, Collin County District Attorney, John R. Rolater Jr., Asst. Criminal District Attorney, Chief of the Appellate Division, Kate Harrison, Collin County District Attorney's Office, McKinney, for Appellee.

Before Justices Myers, Nowell, and Evans

Opinion by Justice Myers

Appellant Tavario Jermaine Smith was convicted following a bench trial of possession of marijuana in an amount less than two ounces¹ and unlawful carrying of a weapon.² He was sentenced to twenty days' confinement in the county jail, a $500 fine, court costs for each offense, and ordered to forfeit the seized weapons. In four issues, he argues (1) the State failed to prove he possessed marijuana as that term is now defined by statute; (2) the evidence is insufficient to support the possession of marijuana conviction; (3) the Fifth and Eighth Amendments of the U.S. Constitution prohibit punishing him; and (4) he was not arraigned for and did not enter a plea to the offense of unlawful carrying of a weapon. We affirm.

I.H.B. 1325

In his first issue, appellant argues the State failed to prove he possessed marijuana as that term is now defined by statute, i.e., as having a THC (tetrahydrocannabinol) concentration of more than 0.3%.

This issue stems from the passage by the Texas Legislature on May 22, 2019, of H.B. 1325, which regulates the growth, production, and consumption of legal hemp products in Texas. See Act of May 22, 2019, 86th Leg., R.S., ch. 764, 2019 Tex. Sess. Law Serv. 2084, 2100. H.B. 1325 passed while appellant's case was pending, taking effect on June 10, 2019. Id.

Defense counsel objected at trial—held in August of 2019—to the admission of the marijuana evidence, State's exhibit 3, arguing H.B. 1325 made it lawful to possess marijuana with a THC concentration of 0.3% or less. He also argued the State failed to prove the THC concentration of the marijuana and that, without evidence of the THC concentration, the marijuana was inadmissible because the State failed to prove it was, in fact, marijuana. The trial court heard arguments from counsel regarding whether the State was required to prove the THC concentration of the marijuana. The court asked for briefs from the parties and took the matter under advisement. The State conditionally offered State's exhibit 3 after the trial court asked for briefs from the parties, but the court withheld a final ruling until it had had an opportunity to determine admissibility. The trial court did not directly rule on the marijuana's admissibility, but it ultimately found appellant guilty of possession of marijuana and unlawful carrying of a weapon.

The specified intent behind H.B. 1325 was for the "state [to] have primary regulatory authority over the production of hemp in this state." Id. § 2, 2019 Tex. Sess. Law Serv. at 2084–85 (codified at TEX. AGRIC. CODE ANN. § 121.002 ). Pursuant to H.B. 1325, hemp is now defined as follows:

In this chapter, "hemp" means the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta–9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

Id. at 2085 (codified at TEX. AGRIC. CODE ANN. § 121.001 ). In addition, H.B. 1325 amended the Texas Controlled Substances Act to remove hemp from the definition of marijuana. Id. § 8, 2019 Tex. Sess. Law Serv. at 2099–2100 (codified at TEX. HEALTH & SAFETY CODE ANN. § 481.002 ).

Therefore, the question here is whether the amended definition of marijuana applies to prosecutions for possession of marijuana offenses committed prior to H.B. 1325's enactment but prosecuted, as appellant's case was, after its effective date. Appellant argues that H.B. 1325 should apply to possession of marijuana offenses committed before June 10, 2019, and in support he cites the doctrine of abatement (a common law rule of statutory construction) and the legislative history of H.B. 1325, among other arguments. According to appellant, the State failed to prove he possessed illegal marijuana (as opposed to legal hemp) because it did not introduce evidence of THC concentration of more than 0.3 percent, pursuant to H.B. 1325. The State responds that the plain language of H.B. 1325—read in light of the Code Construction Act—shows that it applies only to offenses committed after it took effect. We agree with the State.

"When construing a statute, our dominant consideration is to ascertain the intention of the legislature." Irving Fireman's Relief & Ret. Fund v. Sears , 803 S.W.2d 747, 750 (Tex. App.—Dallas 1990, no writ). "The intent of the legislature is found in the language of the statute, the legislative history of the statute, and the context of the entire law within which the statute is located." Id. "The legislature is presumed to have acted with full knowledge of the existing laws, unless a contrary intent is clearly demonstrated." Id. Moreover, "[o]ur interpretation of the statute must be fair, rational, reasonable, and consistent with the legislative intent." Id.

The Code Construction Act, Chapter 311 of the Texas Government Code, provides a set of guidelines and construction aids we may use in construing Texas statutes. See Lee v. Mitchell , 23 S.W.3d 209, 212 (Tex. App.—Dallas 2000, pet. denied) (court may look to Code Construction Act to provide guidance in construing statute). It applies to the construction of all provisions in both the Agriculture Code and the Health and Safety Code unless otherwise expressly noted. See TEX. AGRIC. CODE ANN. § 1.002 ("The Code Construction Act (Chapter 311, Government Code) applies to the construction of each provision in this code, except as otherwise expressly provided by this code."); TEX. HEALTH & SAFETY CODE ANN. § 1.002 ("Chapter 311, Government Code (Code Construction Act), applies to the construction of each provision in this code except as otherwise expressly provided by this code."). Under section 311.022 of the Government Code, statutes are presumed prospective in their operation "unless expressly made retrospective." TEX. GOV'T CODE ANN. § 311.022 ; see also State v. Fid. & Deposit Co. , 223 S.W.3d 309, 311 (Tex. 2007) (per curiam) (citing TEX. GOV'T CODE ANN. § 311.022 ). H.B. 1325 does not contain an express retroactivity clause and it does not otherwise expressly provide for retroactive application—an indication the Legislature intended it to apply prospectively to offenses committed after it took effect. See TEX. GOV'T CODE ANN. § 311.022 ; City of Austin v. Whittington , 384 S.W.3d 766, 790 (Tex. 2012) ("We generally presume that statutes are prospective unless they are expressly made retroactive.") (citing TEX. GOV'T CODE ANN. § 311.022 and State v. Fid. & Deposit Co. , 223 S.W.3d at 311–12 ).

A recent decision offers some guidance. In Childress v. State , No. 06-19-00125-CR, 2020 WL 697903 (Tex. App.—Texarkana, Feb. 12, 2020, no pet.) (mem. op., not designated for publication), the defendant was charged with unlawful carrying of a weapon based on an underlying criminal offense of possession of marijuana—with an alleged offense date of on or about October 31, 2017. Id. at *3. The defendant's argument on appeal was that the testimony of the officer who made the stop was insufficient to show the substance in the defendant's possession was marijuana. Id. The court affirmed the conviction. Id. at *4. In a footnote, the court observed that the defendant also argued, based on "recent changes in the law" (i.e., H.B. 1325), that there was insufficient evidence to show the substance met the definition of marijuana under the Health and Safety Code and the Agriculture Code. Id. at *4 n.6. The court swiftly rejected this argument, stating: "We need not address this argument because, when the offense was alleged to have occurred, the Texas Health and Safety Code did not exclude ‘hemp’ from the definition of mari[j]uana." Id.

The plain language of H.B. 1325 reinforces the conclusion that it applies prospectively because there are directives in the bill calling for future action to develop a new regulatory scheme to enforce it. For example, H.B. 1325 directs the Texas Department of Agriculture, after consulting with the governor and the attorney general, to "develop a state plan to monitor and regulate the production of hemp in this state." H.B. 1325, § 2, 2019 Tex. Sess. Law Serv. at 2085 (codified at TEX. AGRIC. CODE ANN. § 121.003 ). As part of the "state plan," H.B. 1325 mandates the department adopt rules that will "prescribe sampling, inspection, and testing procedures ... to ensure that the delta-9 tetrahydrocannabinol concentration of hemp plants cultivated in this state is not more than 0.3 percent on a dry weight basis[.]" Id. at 2086 (codified at TEX. AGRIC. CODE ANN. § 122.051(b) ). The bill also requires the Texas Department of Agriculture to "adopt a schedule of sanctions and penalties for violations of this chapter and rules adopted under this chapter[.]" Id. at 2093 (codified at TEX. AGRIC. CODE ANN. § 122.401(a) ). The full schedule of penalties and sanctions under this language for non-compliance is not listed; it must be created in the future. Finally, H.B. 1325 states that "a retailer may possess, transport, or sell a consumable hemp product, as defined by section 443.001, Health and Safety Code, as added by this Act, that becomes part of the retailer's inventory before rules under Section 443.051, Health and Safety Code, as added by this Act, become effective[.]" Id. § 11, 2019 Tex. Sess. Law Serv. at 2100. This language refers to hemp products that may become part of a retailer's...