(dissenting).
I dissent to the majority’s disposition of this case. I would reverse the order revok*781ing probation for the reasons set forth in the opinion prepared for the Court by Commissioner Davis, and adopt that opinion, which follows, as a statement of the grounds for my dissent.
“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.’
“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.’
“Archie McKnight, a member of the Nac-ogdoches Police Department, testified that he arrested appellant on a warrant for a traffic violation on February 20, 1974. Upon arrival at the police station, McKnight observed appellant throw something to the ground as he got out of the patrol car. McKnight picked up the object appellant threw to the ground. It appeared to be a baggie of marihuana, and McKnight sent same to the Department of Public Safety Laboratory in Tyler. Claude Latta, chemist at said laboratory, testified that his examination revealed that the baggie in question contained 7.7 grams of marihuana.
“Appellant urges that no violation of the law has been proven in that the marihuana alleged to have been possessed by appellant is not shown to be a usable quantity of marihuana.
“The pertinent portion of Section 4.05 of the Controlled Substances Act (effective August 27, 1973), 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)
“Prior to the Controlled Substances Act, this Court in Reyes v. State, 480 S.W.2d 373, held that under Art. 725b, V.A.P.C. (effective until August 27, 1973), that the basic element which the State must prove is that the accused intended to violate the law by possessing a narcotic drug. Under 725b, V.A.P.C., possession of lesser amounts of marihuana than that alleged to have been possessed by appellant in the instant case was held sufficient to support a conviction. E. g. Parson v. State, 432 S.W.2d 89 (1.41 grams of marihuana); Tuttle v. State, 410 S.W.2d 780 (63 milligrams of marihuana); Mitchell v. State, 482 S.W.2d 223 (.0074 grams of marihuana). See and cf. Taylor v. State, 505 S.W.2d 927. In the instant case, appellant is charged with an amount less than two ounces. Possession of less than two ounces is the least offense denominated under Sec. 4.05, supra. However, before such possession constitutes an offense, an additional element must be proven. Implicit in Sec. 4.05, supra, is the requirement that the amount of marihuana possessed be a usable quantity.
“The State alleged as a basis for revocation of appellant’s probation that he violated a law of this State by possessing a usable *782quantity of marihuana, less than two ounces. The proof offered by the State reflects that appellant possessed 7.7 grams of marihuana, but the record is devoid of evidence that such is a usable quantity. The State having failed to prove an essential element of the offense alleged as a basis for revocation, we conclude that the trial court abused its discretion in revoking appellant’s probation.
“The order of revocation is reversed and the cause remanded.”
I dissent.
ROBERTS, J., joins in this dissent.