Drug possession cases tend to be factually simple scenarios. The State must prove that you had care, custody and control of X, and that X is illegal. We’ll save possession for another day. Today let talk about proving X is marijuana.
In most cases drug DPS labs provide analyze the putative contraband and attempt to positively identify whatever it is the police sent them (you’d be shocked how often drugs aren’t actually drugs). Not so much with marijuana.
By far, the most untested alleged controlled substance in Texas is weed. In an effort to convict the maximum number of otherwise law abiding citizens for the least cost many marijuana cases are brought without the benefit of drug testing.
Why? First, lab testing takes time and money. We are trying to run this drug war on the cheap. Second, most judges and juries will believe a cop when he says that he can instantly diagnose a green leafy substance as marijuana. “I recognized the distinct odor of burnt marijuana” is a common arrest report proclamation.
Most Americans who have attended college or any outdoor music event (ACL, any 311/Black Crowes concert) remember that pungent odor. When LEO tells a judge/jury that he smelled weed, they believe him. A question I’ve always had is-Is weed the only thing that smells like weed? I can’t find a good answer to that question.
What I’ve learned is that LEO doesn’t know, doesn’t want to know, and most judges/jurors don’t care anyway.
Beyond odor officers will also testify they can recognize weed on sight. I’ve always been a little more skeptical that LEO can visually diagnose a plant material pot. Why? Because of the way Texas defines “marihuana”. For that, let’s go to the Health and Safety Code.
(26) “Marihuana” means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds. The term does not include:
(A) the resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin;
(B) the mature stalks of the plant or fiber produced from the stalks;
(C) oil or cake made from the seeds of the plant;
(D) a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake; or
(E) the sterilized seeds of the plant that are incapable of beginning germination
Some states define marijuana as THC. Texas has gone the botanist route and made this one subspecies verboten. When LEO says he saw, smelled, or used the Force to identify a substance as marijuana what he is really saying is that he can instantly diagnose plant material as Cannabis Sativa L. That’s an amazing claim considering there are 170 plants in the Cannabaceae family, not to mention thousands of other “green leafy substances” to exclude.
Sativa, Indica, Ruderalis
Cannabis itself has 3 subspecies– indica, sativa, and ruderalis. I know what you’re thinking. “Wouldn’t that make C. Indica and C. Ruderalis legal? After all, the plain language of the statute only outlaws one subspecies.”
Not so fast Willie. This is Texas and our State has a fetish for malum prohibitum prosecution. We don’t let something like the wording of a law get in the way of a drug war. To that end our Court of Criminal Appeals rewrote the statute to seemingly include all subspecies- Williams vs. State, 524 S.W.2d 705. Go Go Gadget Judicial Activism!
Williams is a particularly disturbing case where the court cites the Equal Protection clause to expand police power. That is, it woudn’t be fair to sativa defendants if we didn’t arrest, prosecute, and incarcerate indica defendants. That’s not equal protection, that’s equal oppression. Moving on.
Seeds and Stems
You’ll notice that the definition of marihuana excludes numerous items including oil, cake, salts and fibers etc from stalks, sterilzed seeds inter alia. Those items should not be included when the State weighs your weed. Defense lawyers refer to this as “removing seeds and stems”. I’ve never seen a case involving oil, cakes, or salts; it just hasn’t come up.
You can’t count on the police or DPS lab to remove these items before weighing. They have no incentive to check because our reefer mad appellate courts shifted the burden of proof to the defendant. Nice.
It is the defendant’s burden to establish the seeds were sterilized. Doggett v. State,530 S.W.2d 552, 554-56 (Tex. Crim. App. 1976); Nowling v. State, 801 S.W.2d 182, 184 (Tex. App.–Houston [14th Dist.] 1990, pet. ref’d); JohnJock v. State, 763 S.W.2d 918, 919-20 (Tex. App.–Texarkana 1989, pet. ref’d).
Weight issues comes up most often in cases that are close to a statutory limit. For example, over 4 ounces is a felony, but less than 4 is a misdemeanor. However, any usable amount up to two ounces is a class B so most joints are never reweighed.