Opinion
No. 10-06-00278-CR
Opinion delivered and filed November 7, 2007 DO NOT PUBLISH.
Appeal from the 413th District Court Johnson County, Texas, Trial Court No. F39814.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
A jury convicted Charles Ralph Bull, Jr. of possession of less than one gram of methamphetamine. The court assessed his punishment at two years' confinement in a state jail. Bull contends in his sole issue that the court erred by refusing his request to charge the jury on possession of drug paraphernalia as a lesser-included offense. We will affirm. An offense is a lesser-included offense if it is: (1) "included within the proof necessary to establish the offense charged"; and (2) there is evidence from which a rational trier of fact could find that, if the defendant is guilty, he is guilty of only the lesser offense. See Campbell v. State, 149 S.W.3d 149, 152 (Tex.Crim.App. 2004); Powell v. State, 206 S.W.3d 142, 142-43 (Tex.App.-Waco 2006, pet. ref'd); see also TEX. CODE CRIM. PROC. ANN. art. 37.09 (Vernon 2006). Thus, we compare the elements of the charged offense with those of the purported lesser offense. See Guzman v. State, 188 S.W.3d 185, 188 (Tex.Crim.App. 2006); Campbell, 149 S.W.3d at 153; Powell, 206 S.W.3d at 143. "To prove unlawful possession of a controlled substance, the State must prove that: (1) the accused exercised control, management, or care over the substance; and (2) the accused knew the matter possessed was contraband." Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005); see also TEX. HEALTH SAFETY CODE ANN. § 481.115(a) (Vernon 2003) (prohibiting possession of controlled substance in Penalty Group 1). To prove unlawful possession of drug paraphernalia, the State must prove that the accused: (1) exercised control, management, or care over the paraphernalia; (2) knew the matter possessed was drug paraphernalia; and (3) used or possessed the paraphernalia with intent to store, contain, or conceal a controlled substance or to ingest, inject, inhale, or otherwise introduce into the human body a controlled substance. See State v. Holguin, 861 S.W.2d 919, 920 (Tex.Crim.App. 1993); see also TEX. HEALTH SAFETY CODE ANN. § 481.125(a) (Vernon 2003) (prohibiting possession of drug paraphernalia). A prosecution for possession of drug paraphernalia requires proof of elements not required for proof of possession of a controlled substance. See Holguin, 861 S.W.2d at 920-21; Sims v. State, 833 S.W.2d 281, 285 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd). Therefore, it is not a lesser-included offense. See Lomax v. State, 223 S.W.3d 302, 311 (Tex.Crim.App. 2007); Sims, 833 S.W.2d at 285. We overrule Bull's sole issue and affirm the judgment. Affirmed
Methamphetamine is a substance listed in Penalty Group 1. See TEX. HEALTH SAFETY CODE ANN. § 481.102(6) (Vernon Supp. 2007).