Whitaker v. State

572 S.W.2d 956, 1978 Tex. Crim. App. LEXIS 1344

• Court: Court of Criminal Appeals of Texas
• Decided: November 1, 1978
• Docket: 55885
• Status: Published

Opinions

OPINION

ONION, Presiding Judge.

Our prior opinion is withdrawn.

The indictment in this case, omitting the formal parts, alleged that appellant on or about May 18, 1976 did “knowingly and intentionally offer to sell a controlled substance, namely: Marijuana,¹ to R. L. FERGUSON.” On September 9, 1976 appellant waived trial by jury and entered a plea of guilty in the 185th Judicial District Court of Harris County. Appellant was convicted, and the court assessed punishment at three (3) years in the Department of Corrections.

An examination of the indictment reveals that it alleges only a misdemeanor. Consequently, we reverse the judgment of conviction and remand the cause to the trial court to be transferred to a court having jurisdiction of the misdemeanor offense.² Suarez v. State, 532 S.W.2d 602 (Tex.Cr.App.1976).

Marihuana is a Schedule I controlled substance. Article 4476-15 (Controlled Substances Act), § 2.03(d)(10), V.A.C.S. Its knowing or intentional delivery is prohibited by § 4.05(d) of Article 4476-15, supra. The term “delivery” includes an offer to sell a controlled substance. § 1.02(8) of Article 4476-15, supra.³ Since an offer to sell marijuana comes within the meaning of “delivery,” a person who knowingly or intentionally offers to sell marihuana commits an offense. However, the inquiry does not end there, as it must next be determined whether a particular offer to sell is a felony or misdemeanor.

§ 4.05(d) of Article 4476-15, supra, as stated above, makes it an offense to knowingly or intentionally deliver (offer to sell) marihuana.⁴ Except as provided in § 4.05(f) of Article 4476-15, supra, a knowing or intentional delivery (offer to sell) of marihuana is a felony of the third degree. § 4.05(e) of Article 4476-15, supra.⁵ Under § 4.05(f) of Article 4476-15, supra,⁶ the knowing or intentional delivery (offer to sell) of marihuana is a Class B misdemeanor if the actor delivers (offers to sell) one-fourth ounce or less without receiving remuneration. Consequently, since the indictment in this case failed to allege the quantity of marihuana which was offered to be sold or whether the offer to sell was for remuneration, it does not allege a felony offense. Suarez v. State, supra, at 603, and cases there cited.

The judgment is reversed and the cause is remanded for proceedings consistent with this opinion.

1 . The statutory spelling of the drug is marih uana. See § 1.02(17) and § 4.02 of Article 4476-15, V.A.C.S. (Controlled Substances Act).

2 . Nothing herein precludes re-indictment consistent herewith. Suarez v. State, supra, at 602, footnote one.

3 . § 1.02(8) of Article 4476-15, supra, provides:

“ ‘Deliver’ or ‘delivery’ means the actual or constructive transfer from one person to another of a controlled substance, whether or not there is an agency relationship. For purposes of this Act, it also includes an offer to sell a controlled substance. Proof of an offer to sell must be corroborated by a person other than the offeree or by evidence other than a statement of the offeree.”

4 . § 4.05(d) of Article 4476-15, supra, provides:

“Except as otherwise provided by this Act, a person commits an offense if he knowingly or intentionally delivers marihuana.”

5 . § 4.05(e) of Article 4476-15, supra, provides:

“Except as provided in Subsection (f) of this section, an offense under Subsection (d) of this section is a felony of the third degree.”

6 . § 4.05(f) of Article 4476-15, supra, provides:

“An offense under Subsection (d) is a Class B misdemeanor if the actor delivers one-fourth ounce or less without receiving remuneration.”