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Stefanoff v. State

Appellant's "medicinal" use of marihuana to manage his post-traumatic stress disorder symptoms is not the type of imminent harm to which the necessity defense applies; accordingly, the district court erred by instructing the jury on the defense of necessity.

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A jury convicted appellant Jeffrey Walter Stefanoff of possessing four ounces or more but less than five pounds of marihuana. See Tex. Health & Safety Code Ann. � 481.121 (West Supp. 2002). The trial court sentenced him to one year’s confinement, probated for two years, and imposed a $2,500 fine, $1,500 being probated. As a condition of appellant’s probation, the trial court ordered him to enter the substance abuse felony punishment program and, prior to entry into such program, required appellant to serve seven days in jail as a detoxification period. By six points of error, appellant challenges his conviction and sentence. In one counterpoint, the State challenges the trial court’s submission of appellant’s necessity defense to the jury. We affirm the trial court’s judgment and sentence as modified.

BACKGROUND FACTS

While flying over appellant’s property in a helicopter during a “domestic marijuana eradication” operation, police discovered appellant growing marihuana. After obtaining and executing a search warrant, police recovered fifteen marihuana plants belonging to appellant. A search of his residence revealed no other drug paraphernalia or contraband. The marihuana confiscated from appellant weighed 2.16 pounds.

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