*1 627 for quash, a motion to it cannot be raised time after trial has commenced. the first was filed. quash No motion shown, having No reversible affirmed. judgments J., ODOM, ONION, J., for P. dissent dissenting opinion reason stated in the (Tex.Cr. 771 in Jones S.W.2d 1975). App., BAKER, Appellant, No. 53458. Antonio, ap- E. Campion,
Charles San Court of Criminal of Texas. pellant. Butler, Atty., Ted Dist. Arm- Gordon V.
strong, Sharon S. MacRae and D. Susan
Reed, Antonio, Attys., Asst. Dist. Jim San
D. and David S.
DOUGLAS, Judge. appeals
These are from convictions for of forgery. Trial was before upon pleas guilty. court Punishment at years
was assessed ten in each case.
Appellant’s sole contention is that are fundamentally
indictments defective fail
because that he “. passed knowing the checks were ”
forged. . He relies on this Court’s
original opinion in Jones v. (1975).
S.W.2d rehearing
On in that case we held an indictment or information which allege knowledge as an essential
failed of the offense was not fundamen
element that, while omis
tally defective and such a matter which could be raised
sion was
stance, marijuana, to-wit: more than one-fourth ounce with Thomas agree Langley marijuana and to sell deliver to and, Kilty pursuance J. F. in the of such Joey agreement, Glenn Baker and Thom- Langley Kilty did direct J. F. to the marijuana inspected in order that it be Baker did discuss with J. and marijuana Kilty price per of the the F. .” purchases. pound Jim D. David S. State’s V.A.C.S., 15, Article 4476— Act,” perti- states in Controlled Substances part: nent “(d) provided by Except as otherwise Act, person a commits offense DAVIS, Commissioner. knowingly intentionally if he de- or livers marihuana. revoking Appeal is taken from an order (f) (e) provided probation. Except as in Subsection Section, of an offense under Appellant plea guilty entered a of before (d) of this section is a Subsection 25, 1975, to the court on the felony degree. of third of to sell marihuana. Punish- (f) (d) An offense under is a Subsection thirty days, probated ment was assessed at B Class misdemeanor if the de- actor and a fine of year, one $100.00. livers one-fourth ounce or with- less hearing The record reflects that after a receiving out remuneration.” to revoke appellant’s the motion on classify does not con- Section probation on November the court offense, to sell marihuana as an and spiracy appellant’s revoking pro- an order entered Act no Controlled Substances contains the finding appellant bation that violated had conspiracy provisions. note We probation by committing his terms of the it is that an offense offer sell mari- possession offense of of on the marihuana 4476-15, V.A.C.S., Art. Secs. huana under 10, April 1975. 1.02(8) 4.05(d), appellant and has not but The is us a tran- record before without charged with such an offense here. scription reporter’s of the court No notes. 15.02(a), reads in appellant’s brief was filed as is behalf as follows: 40.09, V.A.C.C.P., required by Art. “(a) conspir- A criminal commits record, however, An examination the re- acy felony with that a be intent veals fundamental must which we committed: justice review in the interest of under Art.
40.09, V.A.C.C.P., (1) persons with or more agrees he one or more of them that one or outset, we At the with the confronted would engage in conduct that consti- problem primary of whether the conviction offense; tute the and The and was void. information performs or them (2) he one more of or purport charge of the pursuance of the act an overt to sell appellant conspiring marihuana. agreement.” information, omitting parts, The the formal alleges appellant, July on or about us is whether The before question conspiracy provisions of criminal to the Con Texas and there with in- new unlawfully “did then Act. do knowingly or We tent the offense of sub- intentionally delivering a controlled not. reversed, cause re- judgment The (Tex. Moore v. 545 S.W.2d In manded, prosecution ordered dis- 1976), question a similar was an
Cr.App., of the missed. regarding applicability swered attempt general criminal
new Penal Code’s
Opinion approved by the Court.
Act.
to the Controlled Substances
provision
dissenting.
DOUGLAS, Judge,
Moore, we held:
In
*3
For the reasons stated in the dissenting
Legislature
argues that
“The State
opinion
in Moore v.
‘A WOODBERRY, Bobby Ray Appellant, offense, he intent to commit an specific amounting does an act to more than preparation that fails mere tends but
to effect the commission of the offense No. intended.’ “However, Code, Sec. Texas. of Criminal Court 1.03(b), states that: provisions ‘The of Titles 2 and 3 of apply to offenses defined laws, defining
other unless the statute otherwise; provides how-
ever, punishment affixed to an of- shall be
fense defined outside code punishment
applicable unless in accordance with this code.’
classified supplied.)
(Emphasis general attempt provisions of
15.01, supra, are contained in Title 4 of Code, 1.03(b),
the Penal and thus Section 15.01,
supra, apply not does to Section
supra.” conspiracy provisions the criminal
Since Code, Penal also
of V.T.C.A. Sec. 15.02 are Code, in Title 4 of the new Penal
contained provisions of V.T.C.A. 1.03(b), quoted in Moore v. apply supra. not
supra, do we that the crim
Consequently, provisions set forth
inal do not to the Controlled Act. The and infor
Substances in the instant case do not
mation against the laws of this State conviction based thereon is State, supra, and cases
void. Moore cited.
therein