Ellerbee v. State

CLINTON, Judge,

dissenting.

Overturning the opinion of the panel on original submission the majority says:

“Similarly, we conclude that an indictment for possession of THC may allege either ‘other than marihuana,’ or allege ‘penalty group 2,’ either of which is sufficient to determine the jurisdiction of the court to try the case.”1

Since the problem in the case at bar is not distinguishable from the one in Few v. State, 588 S.W.2d 578 (Tex.Cr.App.1979) *485and is not at all “similar” to the one addressed in Benoit v. State, 561 S.W.2d 810 (Tex.Cr.App.1977) and Kolbert v. State, 590 S.W.2d 711 (Tex.Cr.App.1979), the majority does not reason its way to the conclusion it reaches.

In the penalty group section of the Controlled Substances Act, Article 4476-15, § 4.02, tetrahydrocannabinols is listed only once, and that listing is in Penalty Group 2. Without any doubt one who possesses a controlled substance listed in Penalty Group 2 commits a felony of the third degree, id., § 4.03(a) and (b)(2). Thus, unlike Benoit and Kolbert, supra, in which the listing of codeine and opium, respectively, in three different penalty groups rendered uncertain whether a felony or misdemeanor was alleged — and perforce making uncertain that a district court had jurisdiction — here there can be no uncertainty whatsoever. Clearly a district court has jurisdiction to try one charged with a felony of the third degree. The majority errs in treating “similarly” that which is utterly dissimilar.

Few v. State, supra, on the other hand, was correctly summarized by the panel opinion in the instant case: “a felony information which attempted to allege the offense of possession of tetrahydrocannabinol was fundamentally defective for failing to allege all of the elements of the offense.” More particularized, Few concluded:

“So, here, the phrase ‘other than marihuana’ is a constituent element of the offense — albeit a negative one. [T]he Legislature obviously chose to delineate marihuana and other THC offenses by prescribing the latter as it did —‘tetrahydrocannabinols other than marihuana.’ Only in that fashion is the latter offense stated and, likewise only in that fashion is it to be alleged by indictment or information.”

The essential defect in Few, then, was that the charging instrument omitted an element of the offense it purported to allege, and thus failed to allege an offense under State law.2

Now, without analysis or principled rationale, the majority would have it that simply adding the “language of ‘listed in penalty group 2’ distinguishes this case from Few and is sufficient to cure the jurisdictional defect found in Few.” How can that be?

A charging instrument which informs one that THC is a controlled substance listed in Penalty Group 2 does not provide the element of the offense Few found had been omitted. Surely the majority is not saying that because one will read in Penalty Group 2, inter alia, “Tetrahydrocannabinols, other than marihuana ...,” the missing element is thereby supplied. Unlike pleadings in the Federal judicial system which do identify the statute allegedly violated, charging instruments in Texas must be tested for sufficiency of the conduct factually alleged in order to come to the legal conclusion that an offense is charged. It seems to me that one who resorts to Penalty Group 2 merely comes to the point where the analysis in Few began.

Because the Court does not follow Few and deny the State’s motion for rehearing, I dissent.

ONION, P. J., and ROBERTS and TOM G. DAVIS, JJ., join.

. AH emphasis is mine throughout unless otherwise indicated.

. Only after coming to the conclusion that the statutory phrase “other than marihuana” is an element of the offense, did Few state “also” that “because THC — without more — embraces marihuana” the charging instrument “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,” Few, id., at 585.