In a Class B possession of marijuana case, the State has the burden to prove that the defendant knowingly or intentionally possessed a usable quantity of marijuana in an amount two ounces or less. TEXAS HEALTH & SAFETY CODE s481.121(b)(1). No “usable quantity”, no charge.
What is “usable quantity” of marijuana?
A “usable quantity” has been defined as “an amount sufficient to be applied to the use commonly made thereof.” Pelham v. State, 298 S.W.2d 171, 173 (Tex.Crim.App. 1957); Moore v. State, 562 S.W.2d 226, 228 (Tex.Crim.App. 1977). So a “usable quantity” of marijuana would be an amount sufficient to fulfill the common use of marijuana. Common uses of marijuana include smoking marijuana from a pipe or cigarette. Pelham, 298 S.W.2d at 228-9; Lejeune v. State, 538 S.W.2d 775, 780 (Tex.Crim.App. 1976).
Is there a set amount that constitutes a “usable quantity”?
No. There is no specific quantity of marijuana that constitutes the legal standard for determining a “usable quantity.” SeeKimberlin v. State, 2004 WL 1110523 (Tex.App. Dallas)(not designated for publication). Meaning, there is no set amount—a gram, two grams, half a gram—that is, per se, a “usable quantity” of pot. The case law is all over the place where specific amounts are concerned.
How is the amount of pot determined?
Generally, after the police seize the marijuana, it is weighed using an electronic scale. The unit of weight typically used is grams. One ounce, for example, is about 28 grams. Police typically weigh the marijuana including its packaging, and then without. The latter weight is termed the “prosecution weight”—this is the weight that establishes the level of offense. So, for example, if you have half a gram of marijuana rolled in cellophane and tucked into a pack of cigarettes, the prosecution weight would be half a gram.
Furthermore, Texas Health and Safety Code s481.002(26) specifically excludes from the definition of “marijuana” (and hence, the weight of the pot at issue):
(B) the mature stalks of the plant or fiber produced from the stalks;
(E) the sterilized seeds of the plant that are incapable of beginning germination.”
This means that seeds and stems must be excluded from the prosecution weight of the marijuana. However, the defense has the burden to establish the weight of the marijuana after any excludable material (seeds and stems) is deducted from it. See Nowling v. State, 801 S.W.2d 182, 184 (Tex.App.—Houston [14th Dist.] 1990, pet. ref’d.)
Who determines if an amount of pot is a “usable” amount?
Initially, the police. Recall that possessing an amount of marijuana that is not a usable quantity is not an offense. So, you shouldn’t be arrested (under the law) for possessing an amount that is not “usable.” But, experience teaches that the police will arrest you for any amount, so the real question is, after you have been arrested and charges have been filed, who determines whether the amount is a “usable” amount?
If the jury is able to examine the actual marijuana found in a defendant’s possession, the jury can determine whether or not there is a usable quantity. Kimberlin, 2004 WL 1110523.
The court also has the authority and ability to determine whether a given amount is “usable.” Case law provides some guidance (for both courts and for police) in determining what a “usable” quantity is. For example, an “infinitesimal” amount of marijuana is not a “usable quantity,” nor is a “trace amount.” See Pelham, 298 S.W.2d at 228; Greer v. State, 292 S.W.2d 122 (Tex.Crim.App.)
The manner in which the marijuana is found also can influence whether or not is determined to be a “usable quantity”: where marijuana is discovered already in a cigarette, this can be sufficient to establish “usable quantity.” SeeAndrade v. State, 662 S.W.2d 446, 449-50 (Tex.App.—Corpus Christi, 1983, pet. ref’d.)
I have had cases where my client is alleged to have possessed around a quarter of a gram of marijuana (1/4th the weight of a sugar packet or paperclip). That amount, set next to a quarter, would barely cover the surface of one side of the quarter. Nevertheless, they have been arrested and charged by the District Attorney’s office with possessing a usable quantity of marijuana.
While these charges can be defended successfully, any amount—even one this small—won’t prevent you from being arrested and charged in Denton County.