Alright all you brilliant legal minds, here's what I've got:
Kid has digital scale, one large bag of marihuana and four smaller baggies of marihuana in his possession at school. An anonymous tip leads school officials and police to him and he is arrested. No one witnessed him attempt to sell the pot.
Health and Safety Code (HSC) sec. 481.120 makes it an offense to deliver marihuana. On the above facts I clearly don't have delivery.
However, what has me interested is the fact that HSC sec. 481.108 clearly states that "Title 4, Penal Code, [the preparatory offenses] applies to an offense under this chapter." Thus, on its face, it would appear that I could charge him with attempted delivery of marihuana - although I have my doubts that such an offense exists: any thoughts?
Posts: 34 | Location: Hunt County, TX | Registered: November 10, 2008
Assuming you have More than Two but less than Four ounces, the key phrase of you case is "At School!"
HSC 481.134(e): An offense otherwise punishable under Sec. 481.121(b)is a State Jail Felony if it is shown on the trial of the offense that the offense was committed (1) in, on, or within 1000 feet of any real property that is owned rented or leased to a school . . .
Posts: 261 | Location: Lampasas, Texas, USA | Registered: November 29, 2007
Those are typical facts for possession with intent cases, where the jury is asked to infer his intent from the circumstances. But it seems a stretch to go from from inferring intent to making an actual attempt.
I've never dealt with an attempt under 481.108 in recent years, but I do seem to recall it being done - maybe as a corollary charge back when reverse stings were all the rage.
Possession with intent to deliver marihuana is not a crime; that law applies to all other controlled substances. Marihuana offenses are for possession only, and based on the amount of the marihuana.
Posts: 1029 | Location: Fort Worth, TX | Registered: June 25, 2001
quote:Originally posted by Ken Sparks: Possession with intent to deliver marihuana is not a crime; that law applies to all other controlled substances. Marihuana offenses are for possession only, and based on the amount of the marihuana.
Nowhere in 481.108 does it state that it's inapplicable to 481.120; In fact it clearly states it's applicable to offenses in the entire chapter. Moreover, distribution of marihuana is a crime (see HSC 481.120; 481.122) however, the distribution of marihuana statute is worded much differently than the other distribution statutes.
quote:Originally posted by John Greenwood I would be thrilled to be in a jurisdiction that a "large bag of marihuana" is less than 2 ounces!
As would I!
I assume the purpose was to convey the disparity between the four tiny "dime bags" and the larger bag that contained them.
As such irregardless of my facts; I'm still curious as to whether or not there is an actual crime of attempted delivery of marihuana.
Posts: 34 | Location: Hunt County, TX | Registered: November 10, 2008
Because of the wording of the statutes, Ken is correct. Possession with Intent to Deliver Marihuana is really just possession of marihuana.
It, also, appears that a person can be charged with "Attempted" Delivery of Marihuana. That requires proof amounting to more than mere preparation. Who are you planning to allege was about to receive this marihuana? Without the name of a specific person, I believe your charging instrument is subject to being quashed.
Posts: 14 | Location: Texas, USA | Registered: August 07, 2009
