I concur in the judgment but do not join the majority's opinion. In my view, the record establishes the trial court erred in its charge, and this error caused Wright not only "some harm" but "egregious harm"-a conviction and sentence when the applicable law and the uncontroverted evidence mandated a directed verdict of acquittal.
"ULTIMATE USER" DEFENSE Wright was not indicted for unlawful possession of a controlled substance. She was indicted for knowing and intentional possession, without regard to whether her possession was lawful. See TEX. HEALTH SAFETY CODE ANN. § 481.117 (offense is knowing and intentional possession) (Vernon Supp. 1997). This was appropriate because the lawful or unlawful nature of the possession is not an element of the offense but a part of the "ultimate user"defense. See id. §§ 481.002(42) ("ultimate user" defined as person who has lawfully obtained and possesses controlled substance for personal use), 481.062(a)(3) ("ultimate user" exempted from Act and "may possess a controlled substance"). As a result, the State was not required to negate lawful possession in the indictment or, in the first instance, at trial; rather, Wright bore the initial burden of producing evidence raising her "ultimate user" defense. Id. at § 481.184(a); see, e.g.,Threlkeld v. State, 558 S.W.2d 472, 473 (Tex.Crim.App. 1977) (State not required to allege possession not pursuant to valid prescription); see generally McLean v. State,527 S.W.2d 76, 82 (Tenn. 1975) (provision designed to eliminate technical problems in preparing indictments for statutory violations when statutes create exemptions or exceptions).
Once Wright met her burden of production under section 481.184, the constitutional guarantee of due process required the State to shoulder the burden of proving and persuading the jury beyond a reasonable doubt that Wright was not an "ultimate user," and her possession was therefore unlawful. SeeElkins v. State, 543 S.W.2d 648, 650 (Tex.Crim.App. 1976) (although version of section 481.184(a) then in effect imposed burden of producing evidence supporting exemption on defendant, burden of proof and persuasion remained on State and therefore did not violate due process clause of United States Constitution); see also TEX. PENAL CODE ANN. §2.03(d) (Vernon 1994).
CHARGE ERROR The Texas Controlled Substances Act does not clearly label Wright's "ultimate user" argument a "defense," rather than an exception or affirmative defense; therefore, Wright's contention that she was an "ultimate user" bears "the procedural and evidentiary consequences of a defense." TEX. PENAL CODE ANN. § 2.03(e) (Vernon 1994); see also id. § 2.02(d) (defense enacted before *Page 399 section 2.02 cannot be treated as an "exception"); Waitev. State, 169 Tex.Crim. 484, 334 S.W.2d 816, 817 (1960) (defense of lawful possession existed under Texas Narcotics Act). As a result, Wright's "ultimate user" defense was raised by the evidence, the trial court was required to instruct the jury on it, and its failure to do so constituted error.See TEX. PENAL CODE ANN. § 2.03(d) (Vernon 1994); TEX.CODE CRIM. PROC. art. 36.14-36.15 (Vernon Supp. 1997); Willis v. State, 790 S.W.2d 307, 315 (Tex.Crim.App. 1990).
As the majority indicates, the record in this case conclusively establishes that Wright obtained and possessed the controlled substances for her personal use pursuant to a valid prescription by a Mexican doctor. This same evidence thus conclusively established "lawful possession," as defined in section 481.002(24), the "ultimate user" defense provided by section 481.062(a)(3) of the Texas Controlled Substances Act, and lawful possession under the federal law reflected in 21 U.S.C. § 952-955 (1988) and 21 C.F.R. § 1311.27 (1996). Accordingly, the trial court erred in failing to instruct the jury on Wright's "ultimate user" defense.
PRESERVATION OF ERROR As a general rule, to present a complaint on appeal, a defendant must preserve error (1) in the trial court by making an objection and obtaining a ruling, TEX.R.APP. P. 33.1, and (2) in the appellate court by including the complaint as an issue or point of error in his brief. TEX.R.APP. P. 38.1(e). More specifically, to preserve the error in the trial court for its failure to instruct the jury on her "ultimate user" defense in the trial court, Wright was required by statute and case law to either request the instruction in writing or object to its omission. TEX.CODE CRIM. PROC. art. 36.14 CODE CRIM. P-36.15 (Vernon Supp. 1997); Elkins, 543 S.W.2d at 650.
Wright did not expressly request an instruction on her "ultimate user" defense, object to its omission, or bring forward an issue or point of error raising this argument on appeal. Wright did, however, ask the trial court to submit the written definition of "lawful possession" she provided and, when the trial court refused her request, she objected to the omission on the record. Finally, as to this complaint, Wright has brought forward a point of error.
Wright's attempts to preserve the error in the court's charge at trial and on appeal may thus not have been technically correct. However, Wright's actions were certainly sufficient to call the trial court's attention-and ours-to the error in failing to instruct the jury on Wright's "ultimate user" or "lawful possession" defense under state and federal law; no more is or should be required. See, e.g., Willis, 790 S.W.2d at 313. It is simply too far beyond reasoned analysis-much less a system of justice-to attribute to the Texas Legislature the intent to criminalize possession that is lawful under federal law. See, e.g.,UNIF. CONTROLLED SUBSTANCES ACT prefatory note (1970) ("The 1970 Uniform Act was designed to complement the federal Controlled Substances Act" and therefore "drafted to maintain uniformity" between the states and the federal government); UNIF. CONTROLLED SUBSTANCES ACT prefatory note (1990) ("Legitimate use of controlled substances is essential for public health and safety, and the availability of these substances must be assured."); see also TEX. HEALTH SAFETY CODE ANN. § 481.002(24) (Vernon 1992). I would therefore hold Wright preserved the substance of her second point of error both in the trial court and in this court.
HARM RESULTING FROM CHARGE ERROR When the trial court fails or refuses to instruct the jury on a statutory defense raised by the evidence, a harm analysis is required. Reich-Bacot v. State, 936 S.W.2d 961, 962 (Tex.Crim.App. 1996). If the charge error was properly preserved, we may reverse the trial court's judgment only if the error "was calculated to injure the rights of defendant"; conversely, if the error was not preserved, we may reverse only if "the error is so egregious and created such harm that [the defendant] 'has not had a fair and impartial trial.' "Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (quoting and construing TEX.CODE CRIM. PROC.art. 36.19).
Balancing the Almanza factors can yield only one result: Wright suffered the ultimate *Page 400 harm as a result of the trial court's error in failing to instruct the jury on her "ultimate user" defense-a conviction and sentence rather than the acquittal mandated by the applicable law and the uncontroverted evidence. SeeAlmanza, 686 S.W.2d at 171. Indisputably, a demonstrably erroneous conviction and sentence amounts to the "some harm" justifying a reversal for preserved error. SeeAlmanza, 686 S.W.2d at 171. It is just as clear that, even if the error was not preserved, there is and can be no doubt Wright suffered the "egregious harm" required for reversals based upon unpreserved error-regardless of how this test is defined or described. See, e.g., Almanza, 686 S.W.2d at 172 (likening "egregious error" to fundamental error, which "go[es] to the very basis of the case"); 43 GEORGE E. DIX ROBERT O. DAWSON, CRIMINAL PRACTICE AND PROCEDURE § 42.109 (Texas Practice 1995) (suggesting court may have implied in Bonfanti v. State, 686 S.W.2d 149, 153 (Tex.Crim.App. 1985) that "egregious harm" results from error that misleads jury). If the test is to have any meaning at all, it must be met when a defendant is convicted and sentenced for conduct that the applicable law and the uncontroverted evidence deems lawful and outside the reach of the charged statute.
CONCLUSION In sum, while I am unable to join the majority's opinion, I agree we must reverse the trial court's judgment and dismiss the charges against Wright. See TEX.R.APP. P. 43.3 (when reversal required, court of appeals "must" render the judgment the trial court should have rendered unless a remand is necessary for further proceedings or in the interest of justice); 43 GEORGE E. DIX ROBERT O. DAWSON, CRIMINAL PRACTICE AND PROCEDURE § 43.370 (Texas Practice 1995) (dismiss charges if trial court should have granted directed verdict of not guilty). Any other course of conduct would, in my view, constitute a violation of Wright's constitutionally-guaranteed right to due process.