On February 4, the Ninth Court of Appeals in Texas provided a way for prosecutors to indict synthetic marijuana cases. In State v. Moseley, the 258th District Court in Polk County granted the Defendant’s motion to quash the indictment. The indictment in question did not identify any of the specific substances listed in Section 481.1031 (that would be “Penalty Group 2A”) of the Texas Health and Safety Code, but just referred generically to “a synthetic chemical compound that is a cannabinoid receptor agonist and mimics the pharmacological effect of naturally occurring cannabinoids.” At the suppression hearing, the defense successfully argued that this generic reference was insufficient to inform a defendant that he had committed any particular offense.
The cornerstone of the defense’s argument is that Penalty Group 2A provides an exclusive list of prohibited synthetic substances. So if the State indicts a person for possessing a controlled substance under Penalty Group 2A but fails to specify one of the particular substances listed in that group, then the State has effectively failed to allege an actual offense.
In its appeal, the State argued that it did not have to specify a particular substance, but could just rely on the “general requirements” set out in the preamble of Penalty Group 2A.
Here’s the actual preamble to Penalty Group 2-A (it may be boring, but you have to read it in order to understand the appellate court’s decision):
“Penalty Group 2-A consists of any quantity of a synthetic compound that is a cannabinoid receptor agonist and mimics the pharmacological effect of naturally occurring cannabinoids, including: . . . [the statute then lists all synthetic substances in Penalty Group 2-A” (emphasis added).
So the Ninth Court of Appeals reasoned that the word “including” was the key to deciding the case. Relying on the Code Construction Act, the Court determined that “including” is a “term of enlargement” that does not indicate an exclusive list of controlled substances, but rather merely an illustrative list. The Court reasoned that if you apply the normal meaning of the words in the preamble in Penalty Group 2A, then all those chemical compounds listed in the statute are merely examples of synthetic substances that mimic pot. The Court concluded that the indictment sufficiently informed the Defendant of the charges against him by referring to the generic preamble at the beginning of 2-A, and reversed the trial court.
There are two interesting aspects to this decision.
First, in its “common use” analysis, the appellate court never directly addressed the wording of the statute that actually charged the underlying offense, Health and Safety Code Section 481.113(a). That statute states that “a person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 2 or 2-A” (emphasis added). By applying a common usage analysis to Section 481.113(a), you could reasonably argue that a person could only be prosecuted under this statute if they possess one of the substances actually listed in Group 2-A. This would be true no matter what the preamble in Group 2-A says, because the language actually creating the offense would trump the penalty group language. As far as I can tell, this argument was not raised or addressed by the Court of Appeals.
Second, the defense never argued that the indictment should be quashed because it failed to include the actual name of the compound allegedly possessed by the defendant — XLR-11. Given the appellate court’s rationale for reversal, this probably would not have mattered. But this leaves open the door for other defendants to try and attack indictments for synthetic marijuana on slightly different grounds that those raised in Moseley.