dissenting.
I dissent to the majority’s conclusion that:
“. . . a charging instrument alleging possession of THC — without more, not only fails to allege an offense under state law — the felony offense of ‘tetrahy-drocannabinols other than marihuana’— but also, because THC — without more— embraces marihuana, fails to state the elements essential to determine the jurisdiction of the court to try the case and the range of punishment which may be assessed.”
The majority isolates the phrase “other than marihuana” and holds that phrase to be a constituent element of the felony offense of possession of THC. Such a conclusion is not warranted by the Controlled Substances Act. V.A.C.S., Art. 4476-15 or Ex parte Psaroudis, 508 S.W.2d 390 (Tex.Cr.App.1974). Further, I am convinced that the majority’s interpretation of the statutory provisions is not only incorrect but also unnecessary. The issue here is not statutory construction. Our concern should be whether the appellant was properly notified that he was charged with an offense.
In three grounds of error, without citation of authority, appellant contends that both the original information and the subsequent motion to revoke probation were void on their face, claiming that an allegátion of possession of THC, without the magic words “other than marihuana” does not state an offense. The majority agrees and by broadly defining THC, holds that in the absence of the phrase “other than marihuana,” no offense is alleged.
The key to the majority’s position is the determination that the term THC embraces and includes marihuana. After a recitation of certain botanical and pharmacological facts, coupled with brief review of federal authority, the majority concludes:
“. . . merely alleging THC embraces not only marihuana but every other organic and synthetic substance that is found to contain THC.”
Therefore, concludes the majority, the “other than marihuana” language is necessary to inform the appellant he is being charged with possession of THC other than that naturally occurring in and still confined, at prosecution, to marihuana plants.
While I have no quarrel with the background material supplied by the majority, the concern here is not with the chemical *587composition of the marihuana plant.1 Rather, the issue is the legal definition of THC and whether that term used alone is sufficient to allege an offense. After a thorough examination of the Controlled Substances Act and the reasoning of the majority, I am convinced that the legal definition of THC should be:
every organic and synthetic substance found to contain tetrahydrocannabinols in any form, except marihuana.
The Controlled Substances Act deals with marihuana and THC as follows:
(1) Sec. 1.02(17), marihuana means:
“. . . the plant Cannabis sativa L., whether growing or not; the seeds thereof; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, or its seeds. However, it does not include the resin extracted from any part of such plant or any compound, manufacture, salt, derivative, mixture, or preparation of the resin; nor does it include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.”
(2) Sec. 2.03(10) and (17), separately lists marihuana and THC under Schedule I.
(3) Sec. 4.02(c), Penalty Group Two, proscribed penalties for possession of THC, “other than marihuana.”
(4) Sec. 4.05, contains penalty for marihuana.
The Legislature, throughout the Controlled Substances Act, treats marihuana and THC separately. The two are listed separately in Schedule I and different penalties are proscribed for each. Such separation means only that the Legislature intended the separate treatment of marihuana and THC. Such intent is evident on the face of the definition of marihuana. Clearly, this definition includes only the green leafy substance with seeds, whether on the plant or separated, which is known commonly as grass, or pot, or marihuana. Clearly, marihuana cannot be the concentrated chemicals, or resins of the plant, nor can marihuana legally be the isolated chemical compounds. The term THC then covers these organic derivatives and is exclusive of the green plant-like substance marihuana.2
Based on these interpretations of the terms marihuana and THC, the phrase “other than marihuana” is merely redundant and is not a constituent element of the felony offense of possession of THC. The terms “other than marihuana” are not necessary to an understanding of an information alleging possession of THC. The term THC stands alone and is sufficient to allege an offense. Art. 21.01, Vernon’s Ann.C.C.P. Since an allegation of possession of THC alleges an offense, the State was relieved of the burden of negating any exemption or exception by Sec. 5.10(a) of the Controlled Substances Act.
Assuming, arguendo, that THC does embrace and include marihuana, the information alleges possession of a controlled substance which is prohibited by the Controlled Substances Act. Such an allegation is sufficient to allege an offense, and if the appellant was unsure whether he was being prosecuted for possessing a green plant-like substance or a refined chemical substance, he should have filed a motion to quash the original information.
I would hold the information is sufficient to allege an offense.3
. As the majority notes, the legal definition of a drug may be at variance with the scientific meaning; however, this Court is bound by the legislative characterization. See footnote 10 of majority opinion.
. Revisions of Schedule I under Sec. 2.03(d) by the Commissioner of the Texas Department of Health dated August 21, 1978, reinforce this distinction.
.The majority relies to some degree on Ex parte Psaroudis, 508 S.W.2d 390 (Tex.Cr.App.1974). That case held that the language “other than marihuana” excluded only the legally defined plant substance, not the refined hashish.