Crowl v. State

611 S.W.2d 59, 1980 Tex. Crim. App. LEXIS 1274

• Court: Court of Criminal Appeals of Texas
• Decided: July 2, 1980
• Docket: 64101
• Status: Published

Opinions

OPINION

CLINTON, Judge.

Appellant entered a plea of not guilty before a jury to the offense of possession of a controlled substance, namely cocaine. Article 4476-15, V.A.C.S. He was convicted and the jury assessed punishment at imprisonment for 10 years and a fine of $10,000 (probated).

The record is before us without a transcription of the court reporter’s notes or bill of exception. No brief was filed in the trial court in appellant’s behalf pursuant to Article 40.09, § 9, V.A.C.C.P.

The record reflects that appellant is represented by retained counsel, although a pauper’s oath was filed on March 5, 1979, seeking a free transcription of the court reporter’s notes at State expense. The record was approved without objection on June 21, 1979. The record further contains a statement dated July 24, 1979, wherein appellant’s retained counsel acknowledges receipt of the statement of facts from the district clerk. It appears that the failure of the record to contain the statement of facts is due to the affirmative conduct of appellant’s retained counsel.

Our review of the transcript, however, reveals a matter which we proceed to review in the interest of justice. See Article 40.09, § 13, V.A.C.C.P.

The indictment returned against appellant, omitting the formal portions, alleged that he,

On or about the 11th day of May [1978] ... did then and there unlawfully knowingly and intentionally possess a controlled substance, namely, cocaine,

At the time appellant is alleged to have committed the offense charged, that offense was proscribed by Article 4476-15, § 4.04, V.A.C.S. which provided in germane portion:

(a) Except as authorized by this Act, a person commits an offense if he knowingly or intelligently possesses a controlled substance¹ unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice.

(b) An offense under subsection (a) of this section with respect to

(1) a controlled substance in Penalty Group 1 is a felony of the second degree;

Likewise, at the time of the commission of the alleged offense herein, Section 4.02, supra, provided in relevant part:

(a) For the purpose of establishing criminal penalties for violation of a provision of this Act, there are established the following groups of controlled substances.

(b) Penalty Group 1. Penalty Group 1 shall include the following controlled substances:

******

(3) Any of the following substances except those narcotic drugs listed in another group, however produced:

******

(D) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions which do not contain cocaine or ecgonine.²

In Ex parte Wilson, 588 S.W.2d 905 (Tex.Cr.App.1979), this Court overruled a line of cases which had held that the allegation by indictment of the possession or sale of a drug not enumerated in a statutory proscription, was nevertheless fundamentally sufficient to allege an offense, so long as adequate proof was adduced to show that the drug alleged was in fact equivalent to or included within, the drug named and specifically enumerated by statute.

In so overruling McClanahan v. State, 394 S.W.2d 499 (Tex.Cr.App.1965); Henley v. State, 387 S.W.2d 877 (Tex.Cr.App.1964); and Taylor v. State, 172 Tex.Cr.R. 461, 358 S.W.2d 124 (1962), this Court held in Ex parte Wilson, supra, at 908, 909:

To state the rule generally, we hold that in a prosecution under the Controlled Substances Act for the manufacture, delivery, or possession of a substance not specifically named in a penalty group but which is otherwise described in a penalty group (for example, an isomer of methamphetamine), such description is an essential element of the offense which must be alleged in the indictment in order to state an offense.

At the time of the commission of the offense alleged against appellant, “cocaine” was not “specifically named in a penalty group” as it has been since the 1979 amendment. [See n. 2, ante] Instead, “cocaine” was contained in the penalty group by virtue of its falling within some “other description” among which are the following: “any salt, compound, derivative, or preparation of coca leaves ” or “any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances.”³

As such, the indictment in this cause “does not allege why [cocaine], a substance not listed by name in a penalty group, is a controlled substance. Therefore, the indictment fails to allege an essential element of the offense and is fundamentally defective.” Ex parte Wilson, supra, at 909.

The judgment of conviction is reversed, and the indictment is ordered dismissed.

1 . “ ‘Controlled substance’ means a drug, substance, or immediate precursor listed in Schedules I through V and Penalty Groups 1 through 4 of this Act.” Article 4476-15, supra, § 1-02(5).

2 . Effective August 27, 1979, § 4.02(b) was amended to provide in this regard:

(3)(D) Cocaine, including its salts, isomers (whether optical, position, or geometric), and salts of such isomers, coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions which do not contain cocaine or ecgonine.

(All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

3 . Indeed, we are not informed of whether “cocaine” is a salt, compound, preparation or derivative of coca leaves, or whether it is in turn a compound, salt, derivative or preparation of a salt, compound, derivative or preparation of coca leaves.