I recently came across this issue. Any thoughts or opinions you guys have on it are welcome and will be appreciated:

Considering article 42.12, sections 4(d)(2) and 15(a)(1), do you think that a person - charged pursuant to 481.121(b)(3) with possession of five pounds or less but more than four ounces of marijuana - must have a jury determine whether the amount was over one pound; and if it is determined that the ammount is over one pound, would the jury be authorized to recommend or refuse to recommend probation (assuming of course that the person was otherwise eligible)?

At the same time, if the jury decides that it is less than one pound, would the jury then just assess the sentence and the judge then suspend the sentence and impose the mandatory community supervision described in section 15(a)(1) of art. 42.12?

That the quantity of marihuana possessed was either more or less than one pound is not a fact which would increase the penalty for the offense beyond the prescribed statutory maximum. But, it is a fact which could make the defendant ineligible for automatic suspension of his sentence if he elects to have the jury assess his punishment. This is because art. 42.01 (8) requires that the judgment shall reflect "that the defendant be punished in accordance with the jury's verdict." Thus, I would argue there is no requirement under Apprendi that a jury must determine the quantity of marihuana (other than "4 oz. or more but less than 5 lbs.") and that sec. 15(a) cannot apply for the reason stated if the proof shows one pound or less. The answer to whether the jury should be given the option of recommending a suspended sentence would seem to be "yes" since the defendant is not being "convicted of a state jail felony for which suspension of the imposition of the sentence occurs automatically under Section 15(a)", due to the fact that the jury's verdict will control.

But, assuming the proof shows more than one lb., then the defendant is not being "convicted of a state jail felony for which suspension of the imposition of the sentence occurs automatically under Section 15(a)", meaning that the court should give the jury the option of recommending a suspended sentence because the limitation in sec. 4(d)(2) would inapplicable.

In summary, the addition of the last sentence in 15(a) failed to take into account the fact that once the jury renders a verdict as to punishment, the court has no authority but to incorporate that verdict in the sentence.