Ex parte Roberts

623 S.W.2d 138, 1981 Tex. Crim. App. LEXIS 1133

• Court: Court of Criminal Appeals of Texas
• Decided: September 23, 1981
• Docket: No. 67856
• Status: Published

Opinions

OPINION

DALLY, Judge.

This is a post-conviction habeas corpus proceeding, Art. 11.07, V.A.C.C.P., in which the petitioner asserts that his conviction is void because the indictment on which he was convicted is fundamentally defective.

The petitioner argues that the indictment attempts, but fails, to allege an offense under the provisions of Art. 725b, Sec. 20(1), V.A.P.C. (1925). The indictment in pertinent part alleges that the petitioner did on or about October 23, 1963:

“unlawfully attempt to obtain a narcotic drug, to-wit, diluadid pills, by fraud, deceit, and misrepresentation, and by willfully and fraudulently making a false prescription and written order in writing purporting to be the act of another, without lawful authority, and with the intent to injure and defraud, which false prescription and written order is to the tenor as follows:

FOR

ADDRESS

Diluadid Vie gr.

Disp 11 XII

Take as directed

10-24-63

A. H. Neighbors M.D.”

The argument is that “ ‘diluadid pills’ are not specifically named within the statutory definition of a narcotic drug. Art. 725b, Sec. 1(14), V.A.P.C. 1925. Thus, the indictment fails to allege an essential element of the offense because it fails to sufficiently describe how or why ‘diluadid pills’ are a narcotic drug.”

The facts presented and the argument made by the petitioner are essentially the same as those in Ex parte McClain, 623 S.W.2d 140 (Tex.Cr.App.1981). It is important to remember that the offense alleged in the indictment is securing a narcotic drug through fraud; the particular narcotic drug that petitioner was attempting to obtain is unimportant. Ex parte McClain controls the disposition of the petitioner’s case and we hold here as we did there that the indictment sufficiently alleges an offense under the provisions of Art. 725b, Sec. 20(5), V.A.P.C. (1925); the collateral attack on the indictment is without merit and the relief sought will be denied. Ex parte McClain, supra.

It is so ordered.