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Intent to possess CS under PG 1; Lab reveals PG1B Login/Join 
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I have a case where the defendant intended to possess a controlled substance under PG 1 (or at least, I believe I can prove that) but lab results return Fentanyl. Does Texas Penal Code Sec. 6.04 get me out of this philosophical quandary? If not, what does?
 
Posts: 3 | Registered: December 08, 2023Reply With QuoteReport This Post
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Here is a case that might add to the quandary:

Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011) (stating that to prove “the unlawful-possession-of-a-controlled-substance element of the charged offense in this case, the State was required to prove that: 1) appellant exercised control, management, or care over the three kilograms of cocaine; and 2) appellant knew that this was cocaine”).

But it seems this language received a different interpretation in White, 509 S.W.3d at 309.
 
Posts: 2387 | Registered: February 07, 2001Reply With QuoteReport This Post
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You can probably distinguish Blackman b/c it was an affirmative links case, not a mistaken substance case, so its restating of past precedent was more specific than that precedent actually required.

Here's some language from a recent (albeit unpublished) case dispensing with a "mistaken belief" defense

quote:
And with respect to Fletcher's contention on appeal that the evidence is insufficient as to the knowing element
based on his mistaken belief that the pills were ecstasy, rather than methamphetamine, we note that HN9[ ] the
Texas Penal Code only requires Fletcher to have knowledge that he possessed a controlled substance,
not that he knew the actual drug he possessed. See Carter v. State, 575 S.W.3d 892, 899 (Tex. App.—
Amarillo 2019), aff'd, 620 S.W.3d 147 (Tex. Crim. App. 2021) (noting that to show mens rea, "[t]he prosecutor
may show 'the defendant' 1) knew 'he possessed a substance listed on the schedules, even if he did not
know which substance it was' or 2) knew 'the identity of the substance he possessed." (quoting McFadden v.
United States, 576 U.S. 186, 192, 135 S. Ct. 2298, 2304, 192 L. Ed. 2d 260 (2015))); Blackman, 350
S.W.3d at 594; Poindexter, 153 S.W.3d at 405; Moreno, 195 S.W.3d at 325; see also Rand v. State, No. 14-16-
00409-CR, 2017 Tex. App. LEXIS 9014, at *24 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd) (mem. op.,
not designated for publication) ("Although none of the messages contain methamphetamine, the Texas Penal
Code only requires appellant to have knowledge that he possessed a controlled substance, not that he knew the
drug he possessed was actually methamphetamine." (citing Tex. Health & Safety Code Ann. § 481.112)).


Fletcher v. State, No. 10-22-00018-CR, 2022 Tex. App. LEXIS 7599 (Tex. App.—Waco Oct. 12, 2022, no pet. h.). And yes, it's basically a transferred intent argument.
 
Posts: 2426 | Location: TDCAA | Registered: March 08, 2002Reply With QuoteReport This Post
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Thank you both very much for the guidance! That is extremely helpful.
 
Posts: 3 | Registered: December 08, 2023Reply With QuoteReport This Post
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