                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-14-00195-CR


CHRISTOPHER A. DOWDEN                                            APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


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        FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 1350525D

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                                 OPINION

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                                I. INTRODUCTION

      Appellant Christopher A. Dowden appeals his conviction for possession of

tetrahydrocannabinol (THC) other than marijuana in the amount of four grams or

more but less than four hundred grams. See Tex. Health & Safety Code Ann. §

481.116(d) (West 2010). In two issues, Dowden argues that the evidence is
insufficient to support his conviction and that his trial counsel was ineffective. We

will affirm.

                                 II. BACKGROUND

       While visiting Los Angeles, Dowden suffered a series of cluster headaches

that resulted in several emergency room visits.         In order to combat these

headaches, Dowden acquired a prescription for medical marijuana. With the

prescription, Dowden purchased smokable marijuana, a pipe to smoke it with,

and a THC-infused candy bar. He brought the marijuana and candy bar with him

when he returned to Texas.

       Upon arriving in Texas, Dowden was staying in a hotel room when police

arrested him for outstanding warrants. He admitted to the police that he had

marijuana in his hotel room. The police discovered the drugs and charged him

with possession of a controlled substance for the THC-infused candy bar.

       Dowden pleaded guilty to possession of THC without a plea bargain. In

support of the guilty plea, Dowden swore to and signed a judicial confession that

he had “committed each and every act alleged” in the indictment. The trial court

accepted Dowden’s plea and found that evidence substantiated his guilt but

ordered that a presentence investigative report (PSI) be prepared and deferred a

finding of guilt.   After the PSI was completed, the trial court conducted a

punishment hearing, at which the PSI was introduced into evidence and Dowden,

his ex-wife, a sheriff’s deputy, and Dowden’s grandmother testified. At the close




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of the testimony, the trial court found Dowden guilty and sentenced him to fifteen

years’ confinement.

                        III. SUFFICIENCY OF THE EVIDENCE

      In part of his first issue, Dowden argues that the evidence is insufficient to

support his conviction because the State did not prove that he obtained the THC

without a valid prescription, which he contends is an element of the offense.

      Article 1.15 of the Texas Code of Criminal Procedure provides that in the

event of a felony conviction based upon a guilty plea in lieu of a jury verdict, “it

shall be necessary for the state to introduce evidence into the record showing the

guilt of the defendant and . . . in no event shall a person charged be convicted

upon his plea without sufficient evidence to support the same.” Tex. Code Crim.

Proc. Ann. art. 1.15 (West 2005).       A judicial confession, standing alone, is

sufficient to sustain a conviction upon a guilty plea and to satisfy the

requirements of article 1.15 so long as the judicial confession covers all of the

elements of the charged offense. Menefee v. State, 287 S.W.3d 9, 13 (Tex.

Crim. App. 2009). However, a judicial confession that fails to establish every

element of the offense charged will not authorize the trial court to convict. Id. at

14.

      Section 481.116 of the Texas Health & Safety Code provides that

      a person commits an offense if the person knowingly or intentionally
      possesses a controlled substance listed in Penalty Group 2, unless
      the person obtained the substance directly from or under a valid
      prescription or order of a practitioner acting in the course of
      professional practice.


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Tex. Health & Safety Code Ann. § 481.116 (emphasis added). Dowden argues

that the italicized portion of the statute is an element of the offense and that

neither his judicial confession nor any other evidence establishes this element of

the offense—that he did not have a valid prescription or order of a practitioner for

the THC.

      Neither the indictment nor Dowden’s judicial confession included this

language from the statute.1     But the lack of a valid prescription or order is not

an element of the offense that the State must prove; it is an exception that the

defendant has the burden to present evidence on. See Threlkeld v. State, 558

S.W.2d 472, 473 (Tex. Crim. App. 1977) (so holding for prior version of

possession-of-controlled-substance statute, which was substantially similar to

current section 481.116).     Section 481.184 of the health and safety code

provides,

      The state is not required to negate an exemption or exception
      provided by this chapter in a complaint, information, indictment, or
      other pleading or in any trial, hearing, or other proceeding under this
      chapter. A person claiming the benefit of an exemption or exception
      has the burden of going forward with the evidence with respect to
      the exemption or exception.




      1
       The indictment alleged that Dowden “intentionally or knowingly
possess[ed] a controlled substance, namely: tetrahydrocannabinol other than
marihuana, of four grams or more but less than four hundred grams, including
any adulterants or dilutants.” Dowden’s judicial confession stated that he had
read the indictment and had committed each and every alleged act.


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Tex. Health & Safety Code Ann. § 481.184(a) (West 2010).2 Thus, the State was

not required to prove that Dowden did not have a valid prescription or order of a

practitioner; instead, Dowden, as the person claiming the benefit of the

exception, had the burden to produce evidence regarding the valid-prescription

exemption. See Rodriquez v. State, 561 S.W.2d 4, 4–5 (Tex. Crim. App. [Panel

Op.] 1978); Threlkeld, 558 S.W.2d at 473; Francois v. State, No. 14-97-00419-

CR, 1998 WL 148333, at *3 (Tex. App.—Houston [14th Dist.] Apr. 2, 1998, no

pet.) (not designated for publication). We overrule the portion of Dowden’s first

issue asserting that proof of the lack of a valid prescription is an element of the

offense under section 481.116 of the health and safety code that the State failed

to prove.

      Dowden argues alternatively that, even if the lack of a valid prescription is

not an element that the State had to prove, evidence established that he

obtained the THC by means of a valid California prescription and that,

consequently, he established the valid-prescription exemption. Dowden testified

that he obtained a doctor’s prescription for “marijuana products” in California and

bought the THC candy bar with that prescription.          Even assuming that a


      2
        Under the penal code, the State must negate the existence of an
exception to an offense in the accusation charging commission of the offense
and prove beyond a reasonable doubt that the defendant's conduct does not fall
within the exception. Tex. Penal Code Ann. § 2.02(b) (West 2011). However,
this requirement for offenses under the penal code does not apply to offenses
committed under the Texas Controlled Substances Act. See Threlkeld, 558
S.W.2d at 473.


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prescription for “marijuana products” is a prescription for THC, Dowden’s

testimony does not constitute evidence that he had a valid “prescription” for THC

from a practitioner as required by the health and safety code. Tex. Health &

Safety Code Ann. §§ 481.002(41) (West Supp. 2014), .116. A prescription is

defined as an order by a practitioner to a pharmacist for a controlled substance

and must include the following information: (1) the date of issue, (2) the name

and address of the patient, (3) the name and quantity of the controlled

substance, (4) directions for use of the drug, (5) the intended use of the drug,

and (6) the name, address, Federal Drug Enforcement Administration registration

number, and telephone number of the practitioner. Id. § 481.002(41). Dowden

did not present evidence satisfying the six elements set forth above necessary to

establish that he had a “prescription” as defined in the health and safety code.

See id. §§ 481.002(41), .184; Elkins v. State, 543 S.W.2d 648, 650 (Tex. Crim.

App. 1976). And in any event, Dowden could not have presented evidence that

he had a valid prescription for THC. THC is a Schedule I controlled substance.3


      3
        Dowden argues on appeal that THC is also a Schedule III drug and points
to the following definition of the drug Dronabinol in Schedule III for support:

      Dronabinol (synthetic) in sesame oil and encapsulated in a soft
      gelatin capsule in a U.S. Food and Drug Administration approved
      drug product. (Some other names for dronabinol: (6aR-trans)-
      6a,7,8,10a-tetrahydro-6,6,9-tri-methyl-3-pentyl-6H-dibenzo
      [b,d]pyran-1-ol, or (-)-delta-9-(trans)-tetrahydrocannabinol).

Tex. Health & Safety Code Ann. § 481.032 (West Supp. 2014). Although
Dronabinol may also be called (-)-delta-9-(trans)-tetrahydrocannabinol, which
includes the word “tetrahydrocannabinol,” the drug listed as a Schedule III drug is

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Tex. Health & Safety Code Ann. § 481.032. The health and safety code provides

that a Schedule I controlled substance “has no accepted medical use in

treatment in the United States or lacks accepted safety for use in treatment under

medical supervision.”   Id. § 481.035(a)(2) (West 2010). Texas law does not

authorize prescriptions for Schedule I controlled substances.       See 37 Tex.

Admin. Code Ann. § 13.72 (2014) (Tex. Dep’t of Pub. Safety, Prescriptions)

(setting forth requirements for prescriptions for Schedule II–V controlled

substances). Consequently, Dowden failed to satisfy his burden of bringing forth

evidence with respect to the valid-prescription exception of section 481.116. See

Tex. Health & Safety Code Ann. § 481.116; Rodriquez, 561 S.W.2d at 4–5;

Threlkeld, 558 S.W.2d at 473.4

      We overrule the remainder of Dowden’s first issue.




Dronabinol, not tetrahydrocannabinol, and we decline Dowden’s suggestion that
we interpret “tetrahydrocannabinol other than marihuana,” as alleged in the
indictment, as encompassing “(-)-delta-9-(trans)-tetrahydrocannabinol.”
      4
        Dowden also argues that he established the “ultimate user” exemption set
forth in section 481.062(a)(3), but subsection (a)(3) does not apply when the
substance at issue is THC. Subsection 481.062(a)(5) sets forth the “ultimate
user” exemption when dealing with THC and provides that someone may
possess THC if that person is “an ultimate user possessing the substance as a
participant in a federally approved therapeutic research program.” Tex. Health &
Safety Code Ann. § 481.062(a)(5)(B) (West 2010). Dowden did not present any
evidence that he was a participant in a research program.


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                     IV. EFFECTIVE ASSISTANCE OF COUNSEL

      In his second issue, Dowden argues that his trial counsel was ineffective

because he failed to raise the defensive issue of the valid-prescription exception

that we addressed above.

      To establish ineffective assistance of counsel, an appellant must show by

a preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009). An

ineffective-assistance claim must be “firmly founded in the record” and “the

record must affirmatively demonstrate” the meritorious nature of the claim.

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

      Because, as explained above, any argument that Dowden had a valid

California prescription for THC would have been unsuccessful to establish an

exception to the offense at trial, the record does not affirmatively demonstrate the

meritorious nature of the claim. See id. We overrule Dowden’s second issue.




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                             V. CONCLUSION

     Having overruled Dowden’s two issues, we affirm the trial court’s

judgment.


                                             /s/ Sue Walker
                                             SUE WALKER
                                             JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

PUBLISH

DELIVERED: January 8, 2015




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