*1 diligence; and due and there cessation is support
ample findings. evidence to these
Accordingly, judgment of the Court reversed, Appeals judg-
of Civil
ment the trial court is affirmed.
Shirley BENOIT, Appellant, Richter Texas, Appellee.
The STATE
Nos. 54296-54300. Appeals of Texas.
Court Criminal
May 1977. 22, 1977.
Rehearing Denied June Rehearing Motion for Denied
States
Sept. 1977. *2 Austin, Splawn, appellant.
Walter F. Smith, Atty., Robert O. Dist. and Richard Banks, Austin, Atty., E. Asst. Dist. Jim D. Vollers, Atty., State’s David S. McAn- Austin, Atty., “then gus, Asst. State’s and there knowingly and inten- State. tionally deliver John Aycock a con- substance, trolled namely: (sic) Codiene
OPINION
ONION, Presiding Judge.
Appellant urges that
there
allega-
is no
*3
tion
to the penalty group
within which
revoking
appeals from an order
These are
codeine falls. Under Article
54,296),
(#
probation
two convictions for
4476-15,
(Controlled
Vernon’s Ann.C.S.
54,297
54,-
(#
delivery
and #
of codeine
Act), appellant
Substances
contends that
298),
pentazo-
of
conviction
Penalty
1,
codeine falls within
Group
3 or 4
(# 54,299)
cine
a conviction for deliv-
and
depending upon the amount of
54,300).
codeine in-
ery
(#
of
volved,
and that
of codeine could
18,
May
that on
record reflects
degree
be either a
felony,
first
a third de-
appellant
to assault with
pled guilty
intent
gree felony or a Class A misdemeanor.1
(5) years, probat-
to rob
five
given
and was
probation
ed. One of the
conditions
was
4.02,
Vernon’s Ann.
that
no
against
she “commit
the C.S., establishing
penalties,
criminal
men-
any
laws of this or
State or of the United
tions codeine in subsections (b)(3)(A)(viii),
States.”
(d)(5)(A), (B)
(e)(1). They
and
read as fol-
lows:
3,
April
On
1975 the State filed an
“(b) Penalty Group
Penalty
1.
Group 1
alleging
amended motion for
revocation
shall
following
include the
codeine
controlled sub-
Aycock
that she delivered
to John
30, 1974,
stances:
May
May
on
24 and on
that she
Aycock
had
to
pentazocine
delivered
“(3) Any
following substances,
21,
May
May
that on
and
she
except
those narcotic drugs listed in
These
offenses
diazepam.
delivered
group,
produced:
another
however
subject
were also the
of the indictments
“(A) Opium
opiate,
salt,
and
and any
herein.
compound, derivative,
preparation
or
opium opiate,
or
hearing
including
A
on the revocation motion was
the follow-
17, 1975,
ing:
conducted on
and
April
“true”
in the
pled
to the
motion.
“(viii)
(Emphasis
sup-
Codeine.’’2
confessed the
judicially
also
offenses
She
plied.)
made the
the revocation motion.
basis of
“(d) Penalty Group 3. Penalty Group 3
revoked.
probation
Her
was
following
shall include the
controlled sub-
guilty pleas
the same
she entered
stances:
On
date
charging the
to the indictments
offenses
material,
“(5) Any
compound, mixture,
In each case she
described above.
took
preparation containing
or
quan-
limited
judicial
made a
confes-
witness stand and
any
following
tities of
narcotic
(5) years’
five
im-
sion.
was assessed
She
drugs,
any
or
salts thereof:
appeal
in
case. Notice of
prisonment
each
“(A)
grams
than 1.8
not more
of co-
case.
given
in each
deine,
salts,
its
any
per
or
100 millili-
indictments in
Appellant complains
milligrams
ters or not more than 90
per
54,298
54,297 and_#
#
of co-
unit,
dosage
equal
an
greater
with
against
an offense
deine do not
quantity
isoquinoline
of an
alkaloid of
fundamentally defective.
law and are
opium;
“(B) not
than
grams
more
1.8
of co-
Omitting
parts,
the formal
the indict-
deine,
salts,
any
per
of its
charged
May
May
ments
that on
24 and
100 millili-
1974 the
did:
ters or not
than 90
milligrams per
more
urges
(E),
Appellant
4.02(b)(2)(D),
supra,
methyl-
1.
that if the
2.
In
also
offense was
codeine
misdemeanor the District Court did not have
bromide and codeine-N-Oxide are listed as be-
jurisdiction.
ing
Penalty Group
in
One.
active,
is,
course,
It
say
not sufficient to
unit,
one more
dosage
recognized
knew with what offense he
ingredients
accused
nonnarcotic
sup-
must
(Emphasis
charged,
inquiry
but
be
therapeutic amounts.”
charge
plied.)
writing
furnished
whether
intelligible
in plain
information
and
Penalty Group
4.
“(e) Penalty Group
State, supra;
Moore v.
mixture,
language. Wilson
compound,
shall include
containing
any of
follow-
preparation
drugs,
quantities
narcotic
ing limited
the rule is that an offense
one or more nonnar-
which shall include
charged
intelligible
plain
should
in suffi-
ingredients
cotic active medicinal
certainty as
enable the
words with such
to
upon the com-
proportion to confer
cient
to
what he will be called
accused
know
mixture,
pound,
preparation
valuable
him
against
enable
defend
pos-
qualities other than those
medicinal
given on it
plead
judgment
*4
by
drug
the
alone:
sessed
narcotic
for
prosecution
in bar of
further
the
milligrams of
“(1) not more than 200
State,
supra;
v.
same offense. Wilson
per
per
or
100
100 milliliters
codeine
State,
(Tex.Cr.
v.
501
315
Gaines
grams.” (Emphasis supplied.)
App.1973).
Penalty
a
Punishment
for
was
somewhat
This court
faced
a
(b)
degree
Group
in
is a first
1 substance
§
analogous
to the one in the
situation
4.03(b)(1).
felony
provisions
the
of §
under
State, supra.
Wilson v.
present case in
in
Penalty Group
a
3 substance
Delivery of
Wilson
the de-
in
that
indictment
“
(d)
degree felony
a
under
is
third
§
knowingly
then and there
fendant
‘did
Also,
Penalty
aof
4.03(b)(3).
§
to W. D. West a
intentionally deliver
A
(e)
in
is a Class
Group 4 substance
§
substance, namely: Marihuana.
controlled
’ ”
4.03(b)(4).
misdemeanor under §
. We
of mari-
noted
degree felony
either a third
huana could be
4.01(b)(l)(3) of the
Sub-
Controlled
§
4.05(d),
or a Class B
under article
§
provides
Act
that an individual ad-
stances
if the actor delivered one-
felony
first
misdemeanor
judged guilty
degree
of a
receiving
less without
re-
the
fourth ounce or
punished by confinement
in
shall be
4.05(f), supra.
or muneration under
This
Department
§
Texas
of Corrections
life
years
for a
of not more than 99
or less
court held that:
term
guilty
and one
of a third
years,
than 5
“We
the failure of the
conclude that
degree felony
in
De-
shall be confined
allege
in the instant case to
indictment
a term of not
partment
Corrections for
the amount of marihuana delivered or
years
years,
10
or less
2
more than
than
as
of remuneration' so
to
may
punished by a fine not to
in addition
be
involved,
punishment was
reflect what
$5,000.00.
4.01(a)(1)
provides
exceed
§
is a misdemeanor or
whether the offense
person guilty
of a Class A misdemeanor
felony, whether the District Court had
not
punished by
jail
shall
confinement
jurisdiction, renders
indictment fun-
year
one
fine not
exceed
to exceed
.
defective.
damentally
$2,000.00,
imprison-
such fine and
both
(f) of
provision
“The
of Subsection
Sec
ment.
creating
tion 4.05
a misdemeanor offense
exemption
exception
an
is not such
I,
10 of
is
intent
Article
It
contemplat
negated
which
not be
need
Constitution,
Ann.St.,
Vernon’s
Texas
by
5.10
the Controlled Sub
ed
Section
particular
accused in
case
Act,
ap
section
stances
so that
does
pre
he
upon
which
given information
State,
Mears v.
520 S.W.2d
ply.” See also
defense, and this information must
pare his
State,
v.
(Tex.Cr.App.1975); Suarez
380
Wil
the face of the indictment.
come from
(Tex.Cr.App.1976);
Dur
State,
(Tex.Cr.App.
532 S.W.2d
son v.
520 S.W.2d
State,
(Tex.Cr.
State,
ham v.
1975);
v.
501 S.W.2d
Voelkei
Finley v.
528 S.W.2d
App.1976);
(Tex.Cr .App.1973).
(Tex.Cr.App.1975);
Saunders
v.
isdiction of the offense sought
al-
to be
State, 528
(Tex.Cr.App.1975);
S.W.2d 843
leged. We conclude that the judgment of
(Tex.Cr.
Tribble v.
tions ordered dismissed. compounds except mixtures thereof topical appli- and creams for ointments Next, urges that in two containing not more than cation charging her with dictment (2½%) strength. percent and one-half since fundamentally defective against the laws an offense it did “(3) bears Any drug or device which this State. pro- Caution: federal law legend: prescription, without dispensing hibits parts, the indictment Omitting formal law May legend: or the Caution: federal that the about charged drug to use on the 1974: restricts this order veterinarian. of a licensed knowing- . then and there “. . did Ay- to John ly intentionally deliver Phendimetrazine, salts, “(4) its deriva- *6 namely: Diazep- cock, dangerous drug, a tives, or there- compounds mixtures am, drug legend: the Cau- which bears of. prohibits dispensing Federal Law tion: derivatives, Pentazocine, salts, “(5) its . . . .” prescription without compounds or mixtures thereof. diazepam is that argument Appellant’s it subject requirement the that not to was 4476-15, 2.17, Vernon’s also Article § See Law legend: Federal the “Caution: bear Ann.C.S.4 prescription” dispensing without prohibits the that the It obvious from above 2, 1975, the evidence shows July until under was drafted question indictment in drug question in on the that she delivered 4476-14, 2(a)(3) supra. Article 21, § 1974. May “(1) tranquilizers; 3. It is observed that in Morrison and Black- (Texas well’s New Texas Penal Code Forms “(2) procaine, salts, derivatives, its or com- 4.03, Act), it Controlled Substances is recom- § pounds thereof; or mixtures alleging in mended that unlawful of a “(3) penalty group the in legend: controlled substance that substance that bears the alleged prohibits which the controlled falls substance be Caution: dispensing federal law pled prescription; in the indictment. If that had been done legend: without or the Caution: question in the instant the raised case would federal drug by law restricts this to use or on have been avoided. the veterinarian; order of a licensed following substances are 2.17. The 4. “Sec. “(4) phendimetrazine, salts, derivatives, its by provisions drugs dangerous regulated the thereof; compounds or mixtures 425, Reg- Legislature, Chapter 56th Acts of the “(5) salts, pentazocine, derivatives, 726d, its Session, 1959, (Article as amended ular compounds or mixtures Code): thereof.” Texas Penal Vernon’s reveals bearing review of federal law that it device legend Our the ‘Caution: 2, July diazepam by prohibits was not until 1975that Federal law dispensing without dispensed prescription prescription’ name could unless the federal law did provide Register that that only. drug 40 Federal 23998-24002 or device be dis- 1975). 21, pensed only 4, 1308.14(7) Title (June prescription.” § was Regulations thereby of Federal Code We conclude in the instant case that the include as a diazepam depres- amended to indictment did not charge an offense under sant. the laws of prosecution Texas.5 The in 54,300 Cause No. thus Department The Texas State of Health must dismissed. has likewise added Schedule IV In connection with the revocation pro- Act, of the Texas Controlled Substances the bation and conviction for delivery of 2.06, 10, Article effective July pentazocine, appellant grounds raises two 1975, pursuant authority to its under of error appeals. common to all five 2.09(e) of the Act. Appellant urges the court erred in re- appear It would thus that federal law did fusing permit her appellant counsel to prohibit dispensing prescrip- without develop testimony of her trial counsel tion time of at offense. objections on a hearing appellate to the record. In a related in matter con- A similar issue was raised Jackson v. tends court accepted the “bill exception” it was reflected court erred charged selling There Jackson in drug, overruling motion for continuance. dangerous methaqualone. to wit: in drug was not included one of the Such pronounced The sentences were on April danger- as a specified classes of substances 17, 1975, and notice of appeal given in 726d, then drug ous Vernon’s each case at same time. Notice of Ann.P.C., proof and there had to be completion given record was on July support indictment 17, 1974, 1974. July On filed drug legend: that it was “a which bears an “bill of exception” stating unsworn prohibits dispensing law Caution: federal prior to trial the court had overruled her prescription.” without a of- motion for continuance. In such bill it was to have occurred on Janu- fense was shown stated trial counsel had been forced to ob- ary 17, it and was observed tain county a recess in a trial in court which that it until opinion court’s was not October court, he engaged and come to district 1,1973 provided law that meth- federal subpoenaed witnesses who had been aqualone by dispensed by name could be time, were not available at the but the prescription only. court him to trial without ordered witnesses *7 and adequate time to for trial prepare or to In Jackson this court stated: witnesses, locate some of whom would testi- interpretation “The this stat- proper fy appellant the had prescriptions for the a drug ute is that or device is not a drugs allegedly The delivered. “bill” fur- dangerous drug though even it bears ther related that counsel discussed the seri- prohibits law legend ‘Caution: Federal appellant ousness of the cases dispensing prescription’ without unless bargain authorized plea counsel to for her law that provide the federal did year and the five concurrent sentences fol- drug dispensed by prescrip- or device be lowed. Certainly tion. it would not constitute a 726d, criminal under Article presented Sec- “bill” was on the same V.A.P.C., dispense 2(a)(20), drug judge tion date to a district than judge zepam Physicians’ appear tranquilizer. 5. It that if the had or valium is a does State Reference, drug (28th dangerous pp. 1974). Desk was a because it 1337-1340 ed. tranquilizer State, See and 537 was a under Article cf. Ablon v. S.W.2d 267 2(a)(1), supra, (Tex.Cr.App.1976). been it would have able to § prove conviction. Dia the same obtain a
817 (Tex.Cr.App.1974); action 907 case, took no S.W.2d Thrash who tried the who (Tex.Cr.App.1974); 122 “was out of town” 515 S.W.2d judge the trial because (Tex.Cr. Ellard v. filing the bill S.W.2d time for extended who but App.1974). 11, 1975. August until Objec- 25, 1974 a “Defendant’s July it is observed that there
On
filed, and
Appeal” was
assigning
on
for new trial
to Records
no motion
tions
Bill of
7,
overruling
an “Amended
error the
of the motion for con
August
con-
with the identical
tinuance.
It is well settled that a motion
was filed
Exception”
preserve
be made to
first “bill.”
for new trial must
as the
tentions
overruling
of a motion for
complaint of
hearing on the
1975 a
August
On
continuance and should have the affidavit
was held.
appellate record
objections to the
missing
showing
witness or a
under
as a
counsel was called
Appellant’s trial
witness
oath from some source that
elic-
attempted to be
When it was
witness.
actually testify as to the facts set
would
engaged
what he was
from him
ited
in the motion.
Allen v.
forth
See
called
the instant cases were
doing when
supra; McCloud v.
trial,
objection that the testi-
State’s
(Tex.Cr.App.1973); Walker v.
or events
not relate to matters
mony did
during trial was sustained.
that occurred
Wiese, Jr.,
Department
Roy
from the State
ap
Wiese testified
The witness
It was
was then called.
of Public Welfare
prescriptions for the
pellant had obtained
through
appellant
him that
established
drugs involved and that
the Welfare De
drugs she was accused of
had the various
partment paid
testimony
for them. This
delivering
prescriptions
virtue of
by
by
appel
the court
virtue of
was before
them.
Department
paid
had
Welfare
testimony
undisputed.
lant’s own
and was
would
have been
testimony
only
Wiese’s
at
appears
It
immaterial. The Controlled
cumulative but
objec
tempted
hearing
to use the
on the
only
possession
Act
makes
Substances
enlarge upon
the record to
tions to
lawful where obtain
controlled substances
excep
in the “bills of
contentions advanced
4.04(a).
How
prescription.
ed
See §
part
and which were not a
tions”
ever,
an accused’s unlawful
40.09,
Vernon’s
record. See
is not made lawful be
controlled substance
in the court’s
Ann.C.C.P. We find no error
originally
cause she had
obtained such sub
sustaining
objection
action
State’s
prescription.
stance
virtue of a
See
testimony.
trial counsel’s
appellant’s
4.03(a).
contention, we
As to the related
ob
Next,
complains that she
are
exceptions”
serve that
if the “bills of
of counsel
denied effective assistance
under
err in
before us the court did not
properly
process
the due
clause
Fourteenth
continuance,
if
overruling the motion for
Amendment.
in fact made. There is no written
one was
ineffective assistance
Any claim of
in the record before us and even the
motion
be determined
of counsel must
not in
indicate that
the motion was
“bills”
particular circumstances
each individual
29.03, Vernon’s
compliance with Article
Prior,
(Tex.
parte
case. Ex
It
is well established that
Ann.C.C.P.
*8
Gallegos,
parte
Ex
511
Cr.App.1976);
writing and
the motion is not
where
(Tex.Cr.App.1974).
510
S.W.2d
it is
signed
appellant
and sworn
attorney’s
an
serv
adequacy
such oral motion for
not error to overrule
State,
gauged by
totality
468
ices must be
Gaines v.
continuance.
See
State,
v.
513
Williams
Carpenter
representation,
v.
(Tex.Cr.App.1971);
853
S.W.2d
(Tex.Cr.App.1974); Coble v.
54
State,
S.W.2d
(Tex.Cr.App.1971);
473
210
S.W.2d
State,
(Tex.Cr.App.1973),
State,
344
(Tex.Cr.App.
501 S.W.2d
Allen v.
tations
be
are
been no
question
available. The
State,
Faz v.
firmly founded.
510 S.W.2d
the defective nature of the indictments for
State,
(Tex.Cr.App.1974); Long v.
922
502
of codeine is
impression
one of first
(Tex.Cr.App.1973).
for this
past
prece-
139
court
no
definitive
S.W.2d
dent. Even if counsel had advanced the
It must be remembered that
argument
that the indictments were defec-
counsel,
right
constitutional
whether
tive on the grounds assigned in
ap-
these
retained,
appointed
be
does not
counsel
peals, the State could have re-indicted cor-
counsel,
errorless
and counsel is not to
mean
recting the
may
defects. Counsel
well have
judged
by hindsight.
ineffective
Ex
considered this factor when he evaluated
Prior,
State,
supra; Duran v.
parte
505
appellant’s situation and determined to ac-
(Tex.Cr.App.1974);
Pete v.
S.W.2d
cept
plea
bargain of five concurrent
(Tex.Cr.App.1973).
819 State, (d) Except provided Mitchell v. as otherwise probation. revocation of this (Tex.Cr.App.1972); 221 Guillot Act, person 482 S.W.2d a commits an offense if (Tex.Cr.App.1976). 650 v. 543 S.W.2d intentionally he knowingly deliv took the witness ers marihuana. judicial made a confession to all stand and “(e) Except provided (f) in Subsection in the revocation motion. section, of this an offense under the indictments have been While three of (d) Subsection of this section is a defective, what we need not determine held felony degree. of the third holdings would have on the rev- such effect “(f) (d) An offense under Subsection is a judicial because the confession to ocation B Class misdemeanor if the actor delivery pentazocine of would afford a delivers one-fourth ounce or less for revocation since a revo- sufficient basis receiving without remuneration.” supported by proof cation order can be violation alone. See Ross v. one decisions, past From our allege a felo- (Tex.Cr.App.1975); Gobell ny delivery for the of marihuana the indict- 528 S.W.2d allege ment or information must 54,297 in # and judgments The Causes amount delivered was more than one-fourth 54,298 codeine) (involving # of an ounce or that it was delivered for 54,300 (deliv- judgment in Cause # remuneration. ery diazepam) prosecu- are reversed and (Tex. In Suarez v. tions under the indictments therein ordered Cr.App.1976), the indictment alleged de 54,- judgments dismissed. The in # Causes livery of marihuana. This held that Court 54,299 296 and # are affirmed. it a misdemeanor offense even though the amount was not mentioned and ON MOTION FOR STATE’S jurisdiction try the court had REHEARING case. DOUGLAS, Justice, dissenting. provisions The of the controlled Sub- rehearing The State’s motion has stances Act in concerning this case the de- opinion. been overruled without written livery of codeine are not provisions like originally allegation We held that in allege felony marihuana. To a offense for Shirley pos- two indictments that Benoit possession of marihuana the indictment allege was insufficient sessed codeine a present information must under the code We conclude felony offense. should recite that than more four ounces were felony. the indictments possessed. specifical- The Act Controlled Substances Act makes the of codeine person felony that a commits a ly provides felony regard without to the amount or if it degree knowingly if he or inten- of the first was with remuneration. There are some tionally delivers controlled substance list- there mixture of lesser offenses where is a Group (Section 4.03). Penalty ed in Pen- sub- a small amount of codeine alty Group 1 lists codeine [Section would be misdemeanors. stances. These 4.02(b)(3)(viii)]. (Tex.Cr. Wilson v. In order for the offense to be point App.1975), is not because that in within the definition of substances Penal- charged dictment of marihuana that the ty Group requirement 3 there is a Controlled Substances Act does not compound prepa- be in a mixture or codeine felony it a to deliver make marihuana. The containing ration a limited mixture of co- felony Act does make it a same to deliver equal greater quantity deine with an codeine. opium or non-nar- isoquinoline alkaloid therapeutic ingredients recognized (e) cotic (d), (f) Sections of the Texas Act, Penalty Group within amounts. To be Controlled Substances 4.05, V.A.C.S., compound in a mixture provide: the codeine must be Sec. *10 containing preparation possessed one more non- an amount sufficient to be ingredients
narcotic active medicinal in suf- applied to the use commonly made there- portion ficient to confer valuable medicinal words, of. In other unless the amount of qualities upon compound and be in a marijuana possessed capable is such as is quantity. physical limited of being applied to commonly the use thereof, made it does not constitute mari- group penalty compounds These other juana within the meaning of the statute.” containing codeine do not contain codeine prohibit ingredi- alone but a combination of Greer v. 163 Tex.Cr.R. including appear ents codeine. It would 122, (1956), held that a trace of allegation brings codeine it piece heroin on a moist of cotton was insuf- provisions Penalty Group within the of a ficient to warrant possessing conviction for offense that the proof codeine was heroin. quantity in a limited in the mixture or After holdings, not, these this Court did compound prohibited by penalty other code, under the require pleader former groups simply would raise the issue of allege possessed the accused a nar- penalty whether or not there was a lesser cotic in an amount sufficient applied to be a lesser included offense involved commonly to the use made thereof. In prosecution. words, requirement there was no then uphold appellant’s To contention that the alleged. that a usable amount be All that defective, fundamentally is a indictment was necessary possession was that the of a allege the pleader delivery would have to alleged. narcotic be If a usable amount mixed codeine which was not with other proved, was not the evidence was insuffi- the act allege substances named in support appellant’s cient to a conviction. If required by of codeine not specific amount correct, contention be then a usable amount allege or he would have to more the statute should have been in narcotic cases that are mixed with other than the amounts or the jurisdic- indictment would not show constitute a misdemeanor of- substances to tion. fense. case, present As in the if requirement There no an indict- alleged, codeine is this is sufficient. If the ment in an assault with intent proof possession does not show the of co- murder case that the offense was not a deine, the evidence is insufficient. If the simple simple assault. Proof of a assault proof shows a smaller amount codeine only does not oust the district court of compounded with other substances under jurisdiction. judge In such a case the sub- Act, the Controlled then a lesser Substances jury simple mits the cause to the assault. jury. offense could be to the submitted case, In the of a codeine if the This, case, like the Pelham concerns the compounds shows a proof mixture proof pleading. Suarez v. See as set codeine out in the statute to be State, supra. offenses, judge misdemeanor sub- give mit the case an instruction in rehearing The State’s motion for should regard to a lesser included offense. 54,297 54,298 granted in Causes Nos. judgments should be affirmed. penal posses-
Under the former code the sion or of marihuana or heroin was regardless of the felony amount In Pelham v. 164 Tex.Cr.R.
involved. (1957), the Court held very small amount of marihuana was the conviction. The support
insufficient held:
Court . to constitute the unlawful
“. . marijuana, there must possessing
act of