Ex Parte Charles

582 S.W.2d 836

• Court: Court of Criminal Appeals of Texas
• Decided: April 25, 1979
• Docket: 59772
• Status: Published

Opinions

OPINION

DALLY, Judge.

This is a post-conviction writ of habeas corpus proceeding. Art. 11.07, V.A.C.C.P.

On May 2, 1977, the petitioner was convicted of the offense of delivery of sine-quan, a dangerous drug. The punishment assessed was imprisonment for five years.

The petitioner now asserts that the indictment under which he was convicted is void. If the indictment is void the trial court did not have jurisdiction and the judgment is subject to collateral attack. See Ex parte Russell, 561 S.W.2d 844 (Tex.Cr.App.1978); Ex parte Valdez, 550 S.W.2d 88 (Tex.Cr.App.1977); Ex parte Banks, 542 S.W.2d 183 (Tex.Cr.App.1976).

The indictment alleges:

“. . . MORRELL RICHARD CHARLES did then and there knowingly and intentionally DELIVER A DANGEROUS DRUG, NAMELY: SINE-QUAM, A DRUG PROHIBITED TO BE DISPENSED WITHOUT A PRESCRIPTION TO THOMAS CONNOLLY; . . ”

We hold the indictment fails to allege an offense. The indictment would not be sufficient if it merely alleged without naming the drug that the appellant knowingly and intentionally delivered to Thomas Connolly a dangerous drug which could not be dispensed without a prescription. See e. g., Baker v. State, 123 Tex.Cr.R. 212, 58 S.W.2d 535 (1933); Horton v. State, 123 Tex.Cr.R. 237, 58 S.W.2d 833 (1933). By adding the allegation that the name of the dangerous drug is sinequan does not cure the insufficiency, because si-nequan is not listed by name in the Dangerous Drug Act; therefore, it is necessary to allege facts showing why sinequan is a dangerous drug. An indictment should allege all that the State is required to prove. Art. 21.03, V.A.C.C.P., and see Benoit v. State, 561 S.W.2d 810 (Tex.Cr.App.1977).

Drugs which bear a legend: “Caution: federal law prohibits dispensing without a prescription" are dangerous drugs. Art. 4476-14, Sec. 2(a)(3), V.A.C.S. Assuming as the dissenting opinion states that sinequan is a dangerous drug because it bears that legend, it would be necessary for the State to prove that it was a dangerous drug because it bears that legend. Since an indictment should allege all that the State is required to prove, Art. 21.03, V.A.C.C.P., and Benoit v. State, supra, it would be essential for the State to allege that sine-quan is a dangerous drug because it bears the legend: “Caution: federal law prohibits dispensing without a prescription.” The indictment fails to allege an essential element of the offense, because it fails to allege why sinequan is a dangerous drug. The relief sought must be granted.

It is so ordered.