Moore v. State

545 S.W.2d 140

• Court: Court of Criminal Appeals of Texas
• Decided: January 26, 1977
• Docket: 53059
• Status: Published

Opinions

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for attempting to obtain a controlled substance by fraud. Trial was before the court upon a plea of guilty, and punishment was assessed at two years.

The indictment alleged the offense occurred on or about July 25, 1975, and the record reflects that trial was on January 14, 1976.

Appellant contends in his sole ground of error that the indictment under which he was convicted is fatally defective because the offense charged does not exist under the laws of the State of Texas. The pertinent portion of the indictment recites as follows:

“. . . that appellant did then and there with the specific intent to commit the offense of obtaining a controlled substance by fraud, did then and there knowingly and intentionally attempt by forgery, to acquire and obtain possession from Kathy Baker, of a controlled substance, to-wit: amphetamine by then and there using a forged prescription said attempt amounting to more than mere preparation that tended but failed to effect the commission of the offense intended.”

Appellant urges that the indictment is defective because there is no law against attempting to obtain a controlled substance by fraud.

Article 4476-15, V.A.C.S., Sec. 4.09(a)(3), “The Controlled Substances Act,” states that:

“It is unlawful for any person knowingly or intentionally to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge.”

Section 4.09, supra, does not classify “attempt to obtain a controlled substance by fraud” as an offense, and no general criminal attempt provision is contained in the Controlled Substances Act.

The State argues that the Legislature intended for the criminal attempt provision of the new Penal Code, effective January 1, 1974, to apply to the Controlled Substances Act. We do not agree.

V.T.C.A., Penal Code, Sec. 15.01(a), reads as follows:

“A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.”

However, V.T.C.A., Penal Code, Sec. 1.03(b), states that:

“The provisions of Titles 1, 2, and 3 of this code apply to offenses defined by other laws, unless the statute defining the offense provides otherwise; however, the punishment affixed to an offense defined outside this code shall be applicable unless the punishment is classified in accordance with this code.” (Emphasis supplied.)

The general attempt provisions of Sec. 15.01, supra, are contained in Title 4 of the Penal Code and thus Sec. 1.03(b), supra, does not apply to Sec. 15.01, supra.

The forerunners of the Controlled Substances Act, the Uniform Narcotic Act, Art. 725b, V.A.P.C., and the Dangerous Drug Act, Art. 4476-14, V.A.C.S., did not contain “attempt” provisions originally, but through subsequent amendments both were provided with such provisions.

The Uniform Narcotic Act was repealed in 1973 with the enactment of the Controlled Substances Act. The Legislature saw fit to retain the “attempt” offenses in the Dangerous Drug Act, but omitted such provisions from the Controlled Substances Act. We can only conclude that the Legislature intended to omit the “attempt” offenses from the Controlled Substances Act. Contrary to the State’s argument, we cannot agree that the Legislature in enacting the Controlled Substances Act, effective August 27, 1973, made such omission with the knowledge that the new Penal Code (effective four months after the Controlled Substances Act) would make the necessary provisions for making any attempt to violate any provisions of the Controlled Substances Act a criminal offense.

We hold that the attempt provisions set forth in the new Penal Code in Sec. 15.01, supra, do not apply to the Controlled Substances Act. The indictment in the instant case does not allege an offense and consequently the conviction based thereon is void. American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598; Shane v. State, Tex.Cr.App., 513 S.W.2d 579.

The judgment is reversed, the cause remanded, and the prosecution ordered dismissed.

Opinion approved by the Court.