Ex parte Madden
- Reporters:
- ,
- Before:
- Campbell
OPINION ON STATE’S MOTION FOR REHEARING
CAMPBELL, Judge.Relief was granted in a Per Curiam Opinion delivered November 3, 1982. 641 S.W.2d 564. We now decide the case on rehearing before the Court en banc. A post-convictiоn application for writ of habe-as corpus was filed pursuant to Articlе 11.-07, V.A.C.C.P.
Appellant was convicted of the offense of aggravated robbеry in a jury trial in Cause No. F79-11884-RL in the Criminal District Court No. 5 of Dallas County. Punishment, enhanced by a рrior conviction, was assessed by the jury at sixteen years. Sentence was рronounced on February 1, ,1980. The conviction relied upon for enhancеment was based on an indictment which alleged:
“... [Michael William Madden] did unlawfully and intеntionally possess a controlled substance namely: hydromor-phone sulfаte .... ”
On original submission this Court held that the inclusion of the term “sulfate” in the allegation rendered the indictment fundamentally defective. Specifically, the Court held, “The drug hydromorphone sulfate is not listed as a controlled substance in the Texаs Controlled Substances Act. [V.A.T.S., Art. 4476-15.] Ex parte Howeth, 609 S.W.2d 540 [Tex.Cr.App., 1980], Jackson v. State, 518 S.W.2d 371 [Tex.Cr.App., 1975].”
At the onset of this discussion it must be noted that “hydromorphоne” is and has since 1973, been designated by name1 a Schedule II and Penalty Group I controlled substance:
*469“(a) Schedule II shall consist of thе controlled substance listed in this section.
“(1) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate, ... including the following:
(t * * #
“K. Hydromorphone.”
The Court erroneously relied upon the authority of Ex parte Howeth, supra, and Jackson v. State, supra, in determining the instant indictment was void. In both How-eth and Jackson indiсtments were returned alleging possession of “methaqualone.” At the time of indictment, “methaqualone” was not specifically named a controlled substance.2 Since hydromorphone was listed as a controlled substance in April, 1977, when appellant was indicted, this issue is not contested. Thе dispositive issue presented becomes, whether or not for purposes of indictment, “hydromorphone sulfate” and “hydromorphone” are analogous.
In Ex parte Everett, 635 S.W.2d 554, 555 (Tex.Cr.App.1982) this Court recently examined whether or not the trade name “Dilаudid” was sufficient to sustain an indictment for possession of hydromorphone. In concluding the trade name was not sufficient Judge Clinton noted:
“It is, however, a trade nаme for hydro-morphone hydrochloride, which at all pertinent times was listed in Schedule II, Section 2.04(b)(1)(K).” [Footnotes omitted]. Ex parte Everett, supra.
The term “hydromorphone hydrochlоride” appears nowhere in the statute. Rather, the court recognized and chose to accept that the inclusion of “hydrochloride” did not аlter the inherent nature of the substance, hydromorphone. We note that hy-drоmorphone hydrochloride and hydromor-phone sulfate are both derivatives of dihy-dromorphinone hydrochloride. See American Drug Index, 1982, 26th Ed., p. 301. We further note that bоth hydromorphone hydrochloride and hydromorphone sulfate are classified as analgesic narcotics. See American Drug Index, supra. It is readily аpparent from an examination of the chemical components of these two drugs that the only difference lies in the additives, i.e., “hydrochloride” and “sulfate.” See American Drug Index, supra. We conclude, therefore, that hydrоmorphone, as listed in the Texas Controlled Substances Act, necessarily inсludes both the preparation hydro-morphone “hydrochloride” and hydromor-phone “sulfate.” For this Court to hold that the indictment in the ease at bar is fundamеntally defective because it alleges the possession of hydromorphone sulfate would preponderate against the greater weight of sсientific and legal reasoning. The appellant in the case at bar wаs necessarily given more notice by the indictment than is required by constitutional and statutory mandates. No valid distinction can be advanced which justifies holding “hydro-mоrphone hydrochloride” is hydromorphone while “hydromorphone sulfate” is nоt. We therefore decline to do so.
No fundamental error was demonstrated; the relief sought is denied.
TEAGUE, J., concurs in the result. TOM G. DAVIS, MILLER and CLINTON, JJ., dissent.
Notes
. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
. The Texas Controlled Substances Act was enacted August 27, 1973, specifically naming “methaqualone” a controlled substance.