JOHNSON v. STATE (2026)

OPINION

Appellant was convicted by a jury of the first-degree felony offense of knowingly possessing, with the intent to deliver, a controlled substance, namely fentanyl, in an amount greater than or equal to four grams or more but less than 200 grams. See Tex. Health & Safety Code § 481.1123(a), (d). The jury assessed appellant's punishment at thirty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. On appeal, appellant raises two issues concerning the trial court's charge to the jury: (1) the trial court erred in refusing to instruct the jury that it could convict appellant only if it believed appellant knew the substance in his possession was fentanyl; and (2) the trial court erred in instructing the jury on the ceiling of the State's burden of proof—all possible doubt—while refusing to also instruct the jury on the floor—clear and convincing evidence. For the reasons discussed below, we conclude the trial court did not err in instructing the jury and therefore affirm the judgment of conviction as modified herein.

Factual and Procedural Background

On December 11, 2022, the McKinney Police Department received a 9-1-1 call regarding a disturbance at a Valero gas station between appellant and the gas station clerk. The caller reported that appellant appeared intoxicated. When police arrived, appellant was in his vehicle backing out of a parking spot. He then pulled forward, back again, and then forward again. The responding officer was not sure where appellant was trying to go, but appellant stopped once the officer activated his emergency lights.

When the officer made contact with appellant at the driver's side window, there was an odor of “fresh” marijuana coming from inside the vehicle. The officer asked him to step out but had to instruct appellant to put the vehicle in park before appellant could comply. Based on appellant's confusion, slow speech, and difficulty in following commands or carrying on a conversation, the police conducted a DWI investigation. While other officers were conducting the DWI investigation, the responding officer noticed a magazine to a handgun in plain view inside the vehicle on the driver's side. He asked appellant if there was a gun in the car and, after appellant gave an affirmative response, he searched appellant's vehicle and found a Glock 43 handgun as well as a white envelope with sixty blue pills marked M30, which the officer testified was indicative of oxycodone hydrochloride, a controlled substance. The officer explained, however, that type of pill was commonly mixed or made with fentanyl to the point that police did not consider them to be oxycodone and just assumed if the pills were not in a prescription bottle, they were fentanyl. The pills were later tested and confirmed to contain fentanyl.

Officers also seized $7,780 in cash from appellant's person.

At trial, the defense presented several theories through various witnesses: (1) the pills could have been put in the vehicle by the gas station clerk when the clerk moved the vehicle from a gas pump to the handicap parking spot before police arrived; (2) the pills belonged to “Mike,” which is what appellant told police when they asked him about the envelope containing the pills; and (3) appellant could have mistakenly purchased them believing they were oxycodone, which is what he was prescribed to manage his pain from a serious car accident in May 2022, seven months before his arrest.

In rebuttal, the State presented evidence that appellant had sold “yerks,” which was a slang term for Percocet, a brand of oxycodone, to at least one person in the past. According to police, the pills being sold on the street were not actually Percocet but were pills made in China or Mexico that contained fentanyl and were made to look like Percocet or sometimes Xanax.

On the day trial began, defense counsel filed a written request for the trial court to include in the jury charge “an instruction regarding how the culpable mental state contained in the indictment (i.e., ‘knowingly’) pertains to knowing that ‘fentanyl’ was the controlled substance Defendant had possessed” and to include “a definition of ‘clear and convincing evidence,’ either as that phrase has been defined by the Texas Court of Criminal Appeals or as that phrase has been defined in the Texas Family Code.” Specifically, defense counsel requested that the jury charge explain “proving the guilt of Defendant beyond a reasonable doubt means proving the guilt of Defendant to a level that surpasses the definition of ‘clear and convincing evidence.’ ” In the alternative, defense counsel requested the trial court to omit the language in the charge that explained the State need not prove guilt beyond all doubt.

Defense counsel made the same requests at the charge conference and specifically asked that a sentence stating, “And that Denzel Joseph Johnson knew the controlled substance was fentanyl,” be included in the application paragraph. The trial court overruled defense counsel's requests. The charge submitted to the jury contained the following relevant language:

Offense Definitions

A person commits the offense of Possession with Intent to Deliver a Controlled Substance, if he knowingly possesses, with intent to deliver, a controlled substance.

Term Definitions

․

“Controlled Substance” means a substance, including a drug, an adulterant, and a dilutant, listed in Schedules I through V or Penalty Group I, 1-A, 1-B, 2, 2-A, 3, or 4. The term includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance. The term does not include hemp, as defined by Section 121.001, Agriculture Code, or the tetrahydrocannabinolis in hemp.

“Fentanyl” is a controlled substance listed in Penalty Group 1-B.

․

Possession with Intent to Deliver

Now bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt, that on or about December 11, 2022, in Collin County, Texas, the DENZEL JOSEPH JOHNSON, did then and there knowingly possess, with intent to deliver, a controlled substance, namely fentanyl, in an amount of less than 200 grams but more than 4 grams, by aggregate weight, including adulterants and dilutants, then you will find the defendant guilty of Possession with Intent to Deliver a Controlled Substance as charged in the indictment.

․

Presumptions and Burden of Proof

․

The burden of proof in all criminal cases rests upon the State throughout the trial and never shifts to the defendant. The prosecution has the burden of proving the defendant guilty, and it must do so by proving each and every element of the offense charged beyond a reasonable doubt. If the State fails to meet its burden, you must acquit the defendant.

It is not required that the prosecution prove guilt beyond all possible doubt. It is required that the prosecution's proof excludes all reasonable doubt concerning the defendant's guilt.

During deliberations, the presiding juror sent the following note to the court: “do we need to determine if the accused knew the pills were fentanyl versus a controlled substance?” The trial judge responded, “You have all the law and the evidence. Continue with your deliberations.”

The jury found appellant guilty of possession with intent to deliver. During the punishment phase, the State presented evidence appellant had been arrested in September, three months prior to the offense at issue, and found to be in possession of a firearm; three different bags of pills, including round blue pills, which were believed, and subsequently confirmed, to contain fentanyl; several bags of marijuana; and $2,540 in cash. The State also presented evidence that the person whom appellant had sold to in October, two months prior to the offense at issue, died of a fentanyl overdose after ingesting the pills he purchased from appellant. According to text messages, the deceased had been communicating with appellant about buying drugs for almost a year prior to his death. When appellant was arrested, shortly after bonding out on the charge at issue, police found marijuana, blue M30 pills, other pills that appeared to be Xanax, and $5,400 in cash. A search of appellant's phone revealed that he had been selling to other people as well.

The defense presented evidence that appellant had been working to change since his arrest, that he was a very involved father, that he was a supportive fiancé, and that the accident changed him, leading to his drug problems. Before the accident, he was clean.

The jury assessed appellant's punishment at thirty years’ confinement. Appellant filed a motion for new trial, which was overruled by operation of law, and this appeal ensued.

Jury Charge Error

A. Standard of Review

The trial court must deliver to the jury a written charge distinctly setting forth the law applicable to the case. Tex. Code Crim. Proc. art. 36.14. The “law applicable to the case” includes “all of the law applicable to the criminal offense that is set out in the indictment or information,” as well as “general admonishments, including reference to the presumption of innocence, proof beyond a reasonable doubt, unanimity of the verdict, and so forth.” Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007).

In reviewing a jury-charge issue, we first determine whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If we conclude error exists, we analyze the error for “some harm” to the defendant's rights when the defendant properly objected to the jury charge and for “egregious harm” when the defendant failed to object to the charge. Id. at 743–44 (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)). An error causes some harm if the error is “calculated to injure the rights of defendant,” that is, the error is not harmless. Almanza, 686 S.W.2d at 171 (quoting Tex. Code Crim. Proc. art. 36.19). The harm must be actual, not just theoretical. Id. at 174. In determining whether the error caused some harm, we consider the entire jury charge, the state of the evidence, arguments by counsel, and any other relevant information revealed by the record as a whole. Id. at 171.

B. Knowledge of Controlled Substance Named in Indictment

During the charge conference, appellant requested the jury be instructed that it could only convict him upon proof that he knew what he possessed was the substance alleged in the indictment. The indictment charged appellant with “knowingly possess[ing], with intent to deliver, a controlled substance, namely, fentanyl, in an amount of four grams or more but less than 200 grams, by aggregate weight, including adulterants and dilutants.” On appeal, appellant asserts that his defense at trial focused on the fact that he did not know the pills he possessed contained fentanyl. Appellant maintains he had been in a car accident and had a lawful prescription for painkillers. The pills in his possession closely resembled the oxycodone he had lawfully obtained by prescription.

A person commits the offense of manufacturing or delivering a controlled substance if he knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Groups 1, 1-A, 1-B, 2, 2-A, 3, or 4. Tex. Health & Safety Code §§ 481.112(a) (Penalty Group 1), 481.1121(a) (Penalty Group 1-A), 481.1123(a) (Penalty Group 1-B), 481.113(a) (Penalty Groups 2 and 2-A), 481.114(a) (Penalty Groups 3 and 4). Fentanyl is one such substance included in Penalty Group 1-B. Id. § 481.1022. Oxycodone is listed in Penalty Group 1. Id. § 481.102(3)(A). Under Penalty Groups 1, 1-B, 2, and 2-A, it is a first-degree felony to possess with intent to deliver an amount of four grams or more; punishment ranges vary based on how much more than four grams one possesses. Id. §§ 481.112(d)–(f), 481.1123(d)–(f), 481.113(d), (e). Under Penalty Groups 3 and 4, it is a first-degree felony once the amount is 200 grams or more; again punishment ranges vary based on how much more than 200 grams one possesses. Id. § 481.114(d), (e). In Penalty Group 1-A, the amount of controlled substance is measured by the number of “abuse units” but the statute similarly provides for a first-degree felony once the amount of the controlled substance reaches a certain threshold, and punishment ranges vary based on how much more than that threshold is involved in the offense. Id. § 481.1121(b)(3), (4).

“Possession” is defined as the “actual care, custody, control, or management” of the controlled substance. Id. § 481.002(38). In addition to showing that the defendant possessed the controlled substance in question, the State must prove that the defendant knew the substance he possessed was contraband. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). Appellant asserts this means the State was required to prove he knew the substance he possessed was the specific controlled substance named in the indictment, i.e. fentanyl, not just any controlled substance listed in the statute. For support of this argument, appellant relies on phrases in Texas Court of Criminal Appeals opinions such as “conscious of his connection with it and have known what it was,” Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995), and “the State must prove ․ that appellant had knowledge that the substance in his possession was cocaine,” King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).¹

In Brown, the Court was tasked with determining whether the court of appeals erred in not applying the affirmative links test in a sufficiency review of Brown's conviction for possessing more than eight pounds of marijuana, which was found in two large burlap bags in the trunk of his vehicle. 911 S.W.2d at 744. Throughout its opinion, the Court discussed the history of the “affirmative links” jurisprudence and its interplay between the previous standard in sufficiency reviews, which required one to exclude every other reasonable hypothesis except the defendant's guilt before concluding the evidence was sufficient, and circumstantial evidence jurisprudence. Id. at 745–47. The Court explained:

Because, under our law, an accused must not only have exercised actual care, control, or custody of the substance, but must also have been conscious of his connection with it and have known what it was, evidence which affirmatively links him to it suffices for proof that he possessed it knowingly. Under our precedents, it does not really matter whether this evidence is direct or circumstantial. In either case it must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous. This is the whole of the so-called “affirmative links” rule.

Id. at 747. Two paragraphs prior, the Court used the phrase “evidence which tends to prove that the accused was actually aware of his drug possession,” id. at 746, which seems to be supportive of a more general knowledge requirement, i.e. knowledge one possessed a drug or controlled substance. Importantly, the Court was not tasked with answering the question of whether a defendant must know he possesses a specific drug or simply know he possesses contraband, i.e. a controlled substance, i.e. a drug. Id. at 744–49. Therefore, we do not find it appropriate to rely on phrases within this opinion or others that do not specifically speak to the issue here. Judges may use the name of the particular drug listed in the indictment interchangeably with “controlled substance” or “contraband” throughout their opinions, see, e.g., King, 895 S.W.2d at 703–04, a case on which appellant relies, but that does not indicate the State must prove specific knowledge of the chemical makeup of a substance when such issue was never presented on appellate review.²

Appellant has not presented us with a case, and we have not found one, that concludes the State is required to prove the defendant knew he possessed the specific drug named in the indictment and that the trial court is required to charge the jury accordingly.³ However, at least one of our sister courts has expressly held otherwise, citing various authorities and noting, in the context of an evidentiary sufficiency challenge, that the State is not required to prove the defendant knew he possessed a specific drug. See Fletcher v. State, No. 10-22-00018-CR, 2022 WL 7288321, at *1, 4 (Tex. App.—Waco Oct. 12, 2022, no pet.) (mem. op., not designated for publication) (“[W]ith respect to Fletcher's contention on appeal that the evidence is insufficient as to the knowing element based on his mistaken belief that the pills were ecstasy, rather than methamphetamine, we note that the Texas Penal Code only requires Fletcher to have knowledge that he possessed a controlled substance, not that he knew the actual drug he possessed.”). And another sister court has noted such is not the State's burden regarding knowledge, although the issue was not raised on appeal. See Rand v. State, No. 14-16-00409-CR, 2017 WL 4273177, at *4 n.3 (Tex. App.—Houston [14th Dist.] Sept. 26, 2017, pet. ref'd) (mem. op., not designated for publication) (“Appellant contended at trial that it was his belief the drugs were ecstasy not methamphetamine, negating the statute's requirement of knowledge. The State correctly pointed out that the statute only requires knowledge of possessing a controlled substance, even if that substance is believed to be another illegal narcotic.”).

Furthermore, this is not a case in which the defendant possessed a trace amount of a controlled substance—appellant possessed sixty pills weighing 6.54 grams. The Texas Court of Criminal Appeals has explained, “When the quantity of a substance possessed is so small that it cannot be quantitatively measured, [i.e. a trace amount,] there must be evidence other than its mere possession to prove that the defendant knew the substance in his possession was a controlled substance.” Shults v. State, 575 S.W.2d 29, 30 (Tex. Crim. App. [Panel Op.] 1979) (defendant admitted to possessing marijuana that was concealed within a balloon hidden in her mouth but asserted she did not know she possessed the trace amounts of heroin found on the inside of the balloon during laboratory testing); see also King, 895 S.W.2d at 703 (applying Shults to case in which residue found in “crack pipe” tested positive for cocaine but could not be measured). Here there is no dispute appellant knew he possessed a controlled substance, even if we take as true his defense that he thought it was a different opiate—oxycodone.

The Criminal Pattern Jury Charges suggest that, when a defendant raises a question as to whether the defendant had a mistaken belief regarding the kind of substance he possessed, the trial court should include an instruction that both substances are controlled substances, such as, “Fentanyl and oxycodone are controlled substances.” See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Criminal PJC 81.10 (2024). No such request was made below in this case or presented in a point of error on appeal.

In its comment to section 81.3 of the Criminal Pattern Jury Charges, titled “Culpable Mental State Concerning Nature of Substance,” the committee stated it “had some difficulty determining precisely what culpable mental states current law requires for the major controlled substances and related offenses.” Id. at PJC 81.3. The committee noted that case law suggested “all that is required is awareness that the substance is ‘contraband,’ ” but that the current practice of including the named drug in the application paragraph of the charge, as was done in this case, suggests “that the state must prove at least knowledge that the substance is what is alleged.” Id. The committee went on to note that generally other jurisdictions do not require knowledge of a specific drug and quoted the following rationale from a court of appeals in Idaho:

The purpose of the intent element in the definition of a possession offense is to separate innocent, accidental, or inadvertent conduct from criminal behavior. Requiring knowledge of the specific type of controlled substance would not further this policy, for an individual's mistake as to which controlled substance he possessed does not negate criminal intent․ Whether the defendant thinks ․ those drugs [he possesses] are methamphetamine or cocaine or heroin, he knows that he is engaged in conduct prohibited by our laws. An individual ought not escape punishment for possessing an illegal substance merely because he mistakenly believed (or claims to have believed) that it was a different illegal substance.

Id. (quoting State v. Stefani, 142 Idaho 698, 132 P.3d 455, 461 (Idaho Ct. App. 2005)).

Additionally, in addressing the mens rea requirement for manufacturing, distributing, or possessing with intent to distribute a controlled substance that is an analogue and, thus, is to be treated as a controlled substance listed on schedule 1 in the United State Code, which is similar in format to Texas's penalty groups and related drug offenses, the Supreme Court of the United States explained that the ordinary meaning under the Controlled Substance Act “thus requires a defendant to know only that the substance he is dealing with is some unspecified substance listed on the federal drug schedules.” McFadden v. United States, 576 U.S. 186, 192, 135 S.Ct. 2298, 192 L.Ed.2d 260 (2015). The Court further explained:

That knowledge requirement may be met by showing that the defendant knew he possessed a substance listed on the schedules, even if he did not know which substance it was. Take, for example, a defendant whose role in a larger drug organization is to distribute a white powder to customers. The defendant may know that the white powder is listed on the schedules even if he does not know precisely what substance it is. And if so, he would be guilty of knowingly distributing “a controlled substance.”

The knowledge requirement may also be met by showing that the defendant knew the identity of the substance he possessed. Take, for example, a defendant who knows he is distributing heroin but does not know that heroin is listed on the schedules ․ Because ignorance of the law is typically no defense to criminal prosecution, ․, this defendant would also be guilty of knowingly distributing “a controlled substance.”

Id. (internal citations omitted). In short, knowing that the substance is “controlled” is sufficient. See id. at 196, 135 S.Ct. 2298.

In our view of the case law and the various sections in the Code itself, the State's burden is to prove that the defendant knowingly possessed a controlled substance. The State's determination of the chemical makeup and weight of the controlled substance decides under which particular section of the Code, and thus for what level of offense, the defendant will be tried and punished. To us, this is evident by the various provisions in the Code we discussed above, which each first sets out that a person commits the offense of manufacturing or delivering a controlled substance if he knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance and then directs the reader to a separate list of controlled substances for each offense. See Tex. Health & Safety Code §§ 481.112(a) (Penalty Group 1 offense), 481.102 (Penalty Group 1 list of substances), 481.1121(a) (Penalty Group 1-A offense), 481.1021 (Penalty Group 1-A list of substances), 481.1123(a) (Penalty Group 1-B offense), 481.1022 (Penalty Group 1-B list of substances), 481.113(a) (Penalty Group 2 or 2-A offense), 481.103 (Penalty Group 2 list of substances), 481.1031 (Penalty Group 2-A list of substances), 481.114(a) (Penalty Group 3 or 4 offense), 481.104 (Penalty Group 3 list of substances), 481.105 (Penalty Group 4 list of substances).⁴ If we were to require the State to prove that a defendant knew the specific drug and thus chemical makeup of the controlled substance he possessed, would that not imply a requirement to prove the defendant knew which particular penalty group and which particular drug within that penalty group at what particular weight he was possessing in order to prove its case? We do not believe such has ever been required of the State, and we decline to increase its burden today.

We conclude the trial court did not err in refusing to instruct the jury that it must find beyond a reasonable doubt appellant knew he was possessing fentanyl. Appellant's first issue is overruled.

C. Using “All Possible Doubt” and “Clear and Convincing Evidence” Language in the Jury Charge to Explain Parameters of State's Burden of Proof

The proposed jury charge explained the State's burden of proof was beyond a reasonable doubt and further explained, “It is not required that the prosecution prove guilt beyond all possible doubt. It is required that the prosecution's proof excludes all reasonable doubt concerning the defendant's guilt.” At the charge conference, and in a written request, defense counsel argued that this statement described the upper limit of the reasonable doubt standard but nothing in the court's charge described the lower threshold and that it was imperative the jury understand both limits of the State's burden of proof. Defense counsel requested the jury charge to include a definition of “clear and convincing evidence,” as the minimum threshold the jury was required to surpass, or to omit the statement above concerning “all possible doubt.” The trial court declined to do either.

On appeal, appellant argues the trial court's refusal to either add the “clear and convincing evidence” language or remove the “all possible doubt” language not only resulted in failing to give a “correct and complete” instruction on the State's burden of proof but also resulted in providing a more favorable instruction to the State. Appellant contends, “Telling the jurors not to require too much from the State while simultaneously refusing to instruct them not to accept too little undoubtedly weighted the jury's calculation in favor of the State.”

According to appellant, this Court has “reviewed both sides of this issue, in two separate cases, and has come to two different resolutions at odds with one another.” See Keller v. State, 604 S.W.3d 214 (Tex. App.—Dallas 2020, pet. ref'd); Baca v. State, No. 05-22-01008-CR, 2023 WL 3735073 (Tex. App.—Dallas May 31, 2023, pet. ref'd) (mem. op., not designated for publication). In Keller v. State, we concluded that it was not error for the trial court to instruct the jury that the State was not required to prove its case beyond “all possible doubt.” 604 S.W.3d 214, 230–31 (Tex. App.—Dallas 2020, pet. ref'd). The relevant issue in that appeal, see id., was whether such language violated Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000), which held a trial court is not required to provide the jury with a definition of “reasonable doubt” in the jury charge and “that the better practice is to give no definition of reasonable doubt at all to the jury.” Paulson, 28 S.W.3d at 573. Whether the “clear and convincing evidence” language should have also been included in the charge was not at issue before the trial court or this Court on appeal. See Keller, 604 S.W.3d at 230–31. Subsequently, in Baca v. State, this Court concluded that an instruction informing the jury that the State's burden of proof was a higher burden of proof than “clear and convincing evidence” amounted to a definition of reasonable doubt under Paulson and thus the trial court did not err in refusing the defendant's request to include such an instruction as well as a definition of “clear and convincing evidence” in the jury charge. No. 05-22-01008-CR, 2023 WL 3735073, at *1 (Tex. App.—Dallas May 31, 2023, pet. ref'd) (mem. op., not designated for publication). Baca did not address the Keller decision, and the “all possible doubt” language was not at issue. Id. Thus, neither case is squarely on point with the issue before us today.

After the case at issue was submitted for our review, this Court issued its opinion in Allen v. State, No. 05-24-01180-CR, 2025 WL 3246208 (Tex. App.—Dallas Nov. 20, 2025, pet. filed Feb. 11, 2026) (mem. op., not designated for publication). In Allen, appellant's counsel made the same arguments that have been raised in this appeal regarding the “all possible doubt” and “clear and convincing evidence” language. Id. at *1. We concluded again in Allen that the trial court did not err in including the “all possible doubt” language in the jury charge, citing numerous cases from this Court concluding the same, as well as to cases from the Texas Court of Criminal Appeals ⁵ and our sister courts. Id. at *2–3. We also concluded that the trial court's refusal to include the “clear and convincing evidence” instruction did not violate due process or due course of law. Id. We explained that the holding in Fuller v. State, 363 S.W.3d 583 (Tex. Crim. App. 2012), was unavailing because it did not concern instructing the jury on the upper and lower limits of “reasonable doubt.” Id. at *2. In Fuller, the Texas Court of Criminal Appeals held that the trial court abused its discretion when it denied defense counsel's request to question the venire panel about the State's burden of proof—beyond a reasonable doubt—as compared to burdens of proof in other cases—clear and convincing evidence and preponderance of the evidence. 363 S.W.3d at 583, 586–87. Here, defense counsel was not only allowed to present such issues in voir dire, but he was also permitted to argue the differences between the burdens of proof in his closing arguments.

Furthermore, although it is merely dicta in explaining its reasoning, the Court in Fuller stated that it was even more important for defense counsel to test the understanding of the panel as to the various burdens of proof because such definitions would not be included in the jury charge. Id. at 587. And in Mays v. State, the Texas Court of Criminal Appeals expressly overruled appellant's point of error on appeal complaining that the trial court “diluted” the reasonable doubt standard when it used the “all possible doubt” language but failed to explain how the reasonable doubt standard differed from “preponderance of the evidence” and “clear and convincing evidence.” 318 S.W.3d 368, 389 (Tex. Crim. App. 2010).

Accordingly, we conclude that the trial court did not err in denying appellant's requests as to the “all possible doubt” and “clear and convincing evidence” language in the jury charge.⁶ Appellant's second issue is overruled.

Modification of the Judgment

In our own review of the record in this appeal, we discovered that the judgment provides appellant's conviction was for a “HYBRID FELONY” under the “Degree of Offense” section. We are not familiar with the term “hybrid felony” and are unaware of any felonies being classified as such. This is a first-degree felony because appellant possessed greater than or equal to four grams or more but less than 200 grams of fentanyl. See Tex. Health & Safety Code § 481.1123(a), (d). This Court has the power to modify a judgment to speak the truth when we have the necessary information to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd) (en banc). Therefore, we modify the judgment by deleting “HYBRID FELONY” from the “Degree of Offense” section and replacing it with “FIRST-DEGREE FELONY.”

Conclusion

We affirm the judgment of conviction as modified. The trial judge is directed to prepare a corrected judgment that reflects the modifications made in this Court's opinion and judgment. See Shumate v. State, 649 S.W.3d 240, 245–46 (Tex. App.—Dallas 2021, no pet.). The trial judge is further directed to (1) order the district clerk to prepare and file a supplemental record containing the corrected judgment with this Court; (2) provide the corrected judgment to the parties; and (3) send the corrected judgment to the Texas Department of Criminal Justice.

FOOTNOTES

1.   Appellant also relies on the phrase “knowledge of what the substance is” in Pollan v. State, 612 S.W.2d 594 (Tex. Crim. App. 1981), but it appears in the dissent, not the majority opinion. See id. at 598 (Teague, J., dissenting).

2.   King involved a case in which the cocaine found in the defendant's “crack pipe” was of such a small amount it was unable to be weighed. 895 S.W.2d at 702. The Texas Court of Criminal Appeals was asked whether there was sufficient evidence that appellant knowingly possessed a controlled substance under such circumstance, and it concluded that there was based on the facts that appellant appeared intoxicated when arrested; there was visible residue in the “crack pipe,” which was later confirmed to be cocaine; and the “crack pipe” was still wet with saliva. Id. at 702–04.

3.   Appellant cites a case from Kansas and from Florida and asserts they have concluded the State must prove the defendant knew the nature of the substance possessed. See State v. Rizal, 310 Kan. 199, 445 P.3d 734, 741 (2019) (“[A] person must know the essence of the substance possessed; the fundamental quality that distinguishes that substance from another one.”); State v. Dominguez, 509 So. 2d 917, 918 (Fla. 1987) (holding jury charge was required to include instruction that, in order to find the defendant guilty, it must find, as one of the elements, the defendant knew the substance was the specific substance alleged). But even in Rizal, the court went on to hold, “[T]the State must prove that the defendant had knowledge of the nature of the controlled substance—meaning, that the defendant either knew the identity of the substance or knew that the substance was controlled.” 445 P.3d at 741. The court explained that a mistake-of-fact defense might negate that knowledge when the defendant believed he was possessing a lawful substance. Appellant further asserts Texas courts have declined to hold the State must prove the defendant knew the nature of the specific substance possessed or have side-stepped the issue. See Lamb v. State, No. 01-14-00901-CR, 2015 WL 6933120, at *4 (Tex. App.—Houston [1st Dist.] Nov. 10, 2015, pet. ref'd) (mem. op., not designated for publication); Smith v. State, No. 07-05-0289-CR, 2007 WL 2002897, at *1 (Tex. App.—Amarillo July 11, 2007, no pet.) (mem. op., not designated for publication).

4.   This is not true for offenses involving marijuana, as those sections specifically list marijuana within the offense and do not reference a separate statute containing a list of controlled substances for which possession is illegal. See Tex. Health & Safety Code §§ 481.120, 481.121. Marijuana has a very specific definition in the Code, see id. § 481.002(26), and is distinguishable from tetrahydrocannabinol (THC), which is listed under Penalty Group 2, see id. § 481.103(a)(1). But see id. § 481.002(5) (stating “controlled substance” does not include the tetrahydrocannabinols in hemp).

5.   See Woods v. State, 152 S.W.3d 105, 114–15 (Tex. Crim. App. 2004) (holding that trial court did not abuse its discretion in including “all possible doubt” language in jury charge); see also Mays v. State, 318 S.W.3d 368, 389 (Tex. Crim. App. 2010) (approving Woods and overruling appellant's arguments regarding trial court's inclusion of “all possible doubt” language and exclusion of instructions on “preponderance of the evidence” and “clear and convincing evidence”); Bluntson v. State, No. AP-77,067, ––– S.W.3d ––––, ––––, 2025 WL 1322702, at *37–38 (Tex. Crim. App. May 7, 2025, pet. for certiorari filed December 29, 2025) (not yet released for publication) (reaffirming holding in Woods and Mays that it is not error to include “all possible doubt” language in jury charge).

6.   Although we have concluded that the trial court did not err by including the “all possible doubt” language, we believe the better practice under Paulson is not to include either the “all possible doubt” or “clear and convincing evidence” language in the jury charge.

Opinion by Justice Smith