*1 protect against the oth- “(A) to himself attempted use of unlawful HANEY, use Fred Appellant,
er’s force; deadly “(B) ...” Texas, The STATE of Appellee. before he Appellant testified that No. 51733. pushed Lee resistance Officer offered of Criminal Appeals Court of Texas. pistol, and reached for his Fuentez be shot. him fear would On caused July 1976. force, appel subsequent deadly use Dissenting Opinion on State’s Motion for disarming testified that after Officer lant Rehearing Dec. 1976. he moved to the middle of street Lee fire hit being until after and did shot fired Officer Cullar.
second actually happened the events
Whether
way question jury, in this case was a for the jury opportunity was denied the
but charge those facts because a on self-
decide given. was not Whether the offi
defense necessary, greater force than
cer used beliefs, appellant’s fears and ac
whether required stat were reasonable
tions jury,
ute, also issues for the but were fact deprived opportuni jury was also issues because to decide those
ty on self-defense. jury to instruct
failure opinion appellant’s
We are of the
testimony raised the issue of self-defense overruling court that the trial erred objection charge. We appellant’s testi- that the truth of
reiterate express not at issue here and we no
mony is telling the truth. The on
opinion have been jury whether the should
issue those facts under the decide
instructed We hold the trial on self-defense.
law refusing charge jury erred in
court the law self-defense. and the cause is reversed
remanded.
ONION, DOUGLAS,J., J., concur P. the results.
385 stances to the extent Channing Cass, authorized by D. Bradshaw and Earl B. their Jr., Pasadena, and in appellant. with the of this Act.” (Emphasis Vance, Atty., Dist. Carol S. James C. Supplied) Cottingham, Brough, Charles Asst. Dist. At- Houston, Vollers, tys., and Jim D. State’s 3.03(b)(1)of the same Act reads: McAngus, Atty. and David S. Asst. State’s register “The director shall appli- an Austin, Atty., for the State. cant any controlled sub- through stances in Schedules V or to OPINION conduct research with controlled sub- ONION, Presiding Judge. V, through stances Schedules II if: appeal This is an from a applicant conviction for “(1) is a li- unlawfully the offense of dispensing phen- censed under the laws this state.” metrazine Punishment (Emphasis Supplied) assessed the court following was a guilty part: reads in (10) years, probated. at ten verdict “(24) ‘Practitioner’ means: appellant, licensed was “(A) dentist, a physician, veterinarian, charged in five indictments with unlawfully investigator, scientific person li- dispensing phenmetrazine to Thomas Gar- censed, registered, or otherwise ner, shown to be an agent, undercover on distribute, dispense, analyze or conduct various dates. The five indictments were to, respect research with or to administer upon appellant’s consolidated motion and a controlled substance in the course of were jointly tried. The was ac- professional practice or research in this quitted four of the cases. state; or In appeal the conviction obtain- from “(B) . (Emphasis Supplied) appellant, among things, ed contends 1.02(10),(11), (26) Sections (5) failing court quash erred the in- read: Act same challenges the sufficiency dictment “(10) ‘Dispense’ the evidence to sustain the conviction con- means to deliver a con- tending the evidence does not show he com- trolled substance to an ultimate an mitted offense. subject by, user or research pur- of, suant to the lawful order question alleged, indictment in omit- (in the pro- course of ting parts, the formal that the research), fessional in- February about did “intention- cluding prescribing, adminis- substance; to-wit, ally dispense controlled packaging, tering, labeling, or Garner, phenmetrazine, to Thomas compounding necessary prepare Fred M.D. Haney, said did not dis- delivery. the substance for such substance to the pense said controlled said “(11) ‘Dispenser’ who dis- Thomas Garner in course of penses. practice, in that no medical examination given to said Thomas Garner before ‘Ultimate user’ means a dispensing the said controlled substance.” lawfully possess- has obtained and es a for his 3.01(b) of the Texas Controlled use or for the use of a own mem- 4476-15, (Article Act Vernon’s his household ber of or for admin- Ann.C.S.) provides: istering animal owned registered by “Persons director un- him or a member his house- distribute, manufacture, der this Act to hold. analyze, dispense, or conduct research “(5) ‘Controlled may possess, with controlled substances substance’ means a manufacture, distribute, substance, pre- dispense, drug, ana- immediate lyze, conduct research with those sub- I cursor listed Schedules not be
through Penalty Groups V and without a written through 4 of this Act.” or oral prescription of a practition- er. The prescription shall not be Texas Section 4.08 of the Controlled Sub- filled refilled more than six *3 months after the date thereof or be “(a) It is for any person: unlawful times, refilled more than five unless “(1) who is a knowingly or renewed intentionally dispense to distribute or a “(d) A controlled substance included in in violation of Sec- V shall Schedule not be distributed 3.08; tion dispensed other than for a medi- “(2) registrant who is a knowingly or cal purpose. intentionally to manufacture a controlled n “(e) No prescription for II Schedule nar- registra- not authorized his substance drugs cotic shall be filled after the tion or to a dispense distribute con- day prescription second was is- trolled substance not authorized his sued.” registrant another oth- person; er of the Controlled Substances “(3) make, keep, to refuse or fail to or Act lists the Schedule II substances and record, notification, any furnish order (d)(4) thereof, In drugs. subsection “phen- invoice, form, statement, or information metrazine its salts” are listed as a Act; required under this drug. II Phenmetrazine is the- Schedule refuse entry premis- into any drug alleged in the indictment. any inspection es for It would seem that under provisions Act. 4.08(a)(1) practitioner a of said can- “(b) An offense under this a section is be convicted the offense not of unlawful- felony degree.” of the second dispensing a controlled ly substance except Section 3.08 of Texas Controlled Sub- in violation of Section 3.08. Where a dispenses a con- “(a) No controlled substance Schedule (as trolled substance listed in II Schedule may dispensed be without case) instant upon written prescription prescription practition- of a (not without written prescription) has he er, except dispensed when directly violated the of the said Section to an ultimate by practition- user a 3.08? er, other than a pharmacy. Putting any question aside as to whether “(b) situations, In emergency as defined the indictment sufficient to charge the director, by rule of the Schedule II offense of a controlled substance drugs may dispensed upon oral practitioner, we by a turn to the facts to see prescription practitioner, re- proof supports if the such offense. promptly writing by duced
pharmacy
stipulated
It was
pharma-
appellant
and filed
that the
was a
cy. Prescriptions
shall be retained
licensed
a medical doctor in the
with the requirements
and had been
State
licensed since 1938.
prescription
3.06. No
for
Garner of the Department
of Pub-
a
substance
be re-
Safety
Diversionary
lic
Investigative Unit
filled.
testified he had heard from street talk that
prescriptions could be
“(c) Except
directly
obtained from the
when
to an
appellant
you
if
had a
practitioner,
aby
ultimate user
oth-
label.
pharmacist
With the aid of a
pharmacy,
er than
obtained a
prescription label and typed
included in
III
appellant’s
thereon,
IV,
which is a
name
as well
drug
as the name of Wil-
as determined under the Federal
liam Morrison and the words “to curb appe-
Food,
Drug, and Cosmetic
shall
tite.” On December
he went to
Houston,
appellant
behalf,
said he was
testified in his
office
own
Morrison,
but it
necessary
is not
showed the
label on a
detail all the other
evidence since it is
dispute
appellant
to the
that on
bottle
asked
question
date in
and all other occasions
“preludins” (shown
to be
gave
a prescription
to Garner.
phenmetrazine).
trade name for
He
working long
told
he was
hours
urges
evidence
reflects
appetite.
and needed to curb his
He related
4.08(a)(1)
violation of Section
of the Con-
given
he was not
a medical examina-
trolled Substances
tion,
pressure
did
have his blood
any
is unlawful
checked,
weight
equipment
nor did he see
knowingly
or intentionally
purposes,
and was
not asked
distribute
questions
history.
about his medical
He
violation of Section 3.08.” Turning
“in
*4
3.08,
prescription
preludins
only applicable
obtained a
for
and
we find the
(a),
thereof
to be
paid
prescription
the
subsection
subsection
appellant
$5.00.
provides, “No
which
controlled
and Gamer
preludin
was filled
obtained 30
may
dispensed
be
the
pills.
prescription
written
of a practitioner, ex-
Garner
to
returned
office
cept
when
directly
an ultimate
4,
January
January 17,
4,
February
and
practitioner,
by a
other
pharma-
user
than a
1974, and
prescription
each time obtained a
cy-”
thirty pills
receiving
for
of preludin without
It
is clear that
for there to
abe
examination, etc.
a medical
He had each
4.08 by
violation
prescription filled.
be a
there must
violation of Section 3.08.
indictment,
charged
On
date
in the
Under
applicable
facts
involving
12, 1974,
February
and though he had no
II substance
and evidence reflect
label,
prescription
Garner obtained another
ing that
in each instance
is
preludins
appel-
from the
sued a written
preludins
receiving
lant without
a medical examina-
(phenmetrazine)
Garner,
perceive
we can
paid
tion. He
and had
$5.00
violation of Section
as
by
no
enacted
pharmacy
filled at a
Legislature.
thirty preludin pills.
obtained
We are not aware
any provision
Two medical doctors testified for
or
of the Controlled Substances
proper
it was not
in the course of
it a
Act which makes
offense for a
professional practice
prescribe
preludin
to issue a
(phenmetrazine) without a medical exami-
a Schedule
controlled
substance with
nation, particularly checking the cardiovas-
out
a medical
taking
examination or
system, checking
cular
high
evidence of
other
pressure,
blood
etc.
professional practice.1
argued
be
dissent,
it,
1. The
as we
person
understand
tive
takes the
transfer
from one
to another of a
position
possible
that there could be a
substance,
violation
whether or not there is
4.03(a),
under Section
agency relationship.
purposes
an
For
this
“(a) Except
by
it also includes
this
an offer to sell a controlled
knowingly
commits an
an
offense if
substance.
Proof of
offer to sell
be
must
manufactures,
intentionally
by
or
delivers
corroborated
other than the offeree
possesses
with intent
to manufacture
de-
evidence
than a statement of the
Penalty
liver a controlled substance listed in
offeree.”
“
1, 2,
Group
1.02(10)
‘Dispense’
3 or 4.”
Sec.
of the Act defines
delivery
phenmetrazine
(a
The offense of
deliver
Penalty Group
subject by,
pursu-
user
3 as
ultimate
or research
of,
provided by
4.02(d)(1)(C)
(in
Sec.
to the lawful order
Controlled
ant
Act)
degree felony.
research),
is a third
Sec.
course
4.05(b)(3),
including
prescribing, administering, pack-
Controlled Substances Act.
“
provides
aging,
labeling,
compounding
of the Act
necessary
Sec.
‘Deliv-
‘delivery’
prepare
delivery.”
er’
means the actual or construc-
the substance for such
such should be an offense under the
statute. Our statutes have
been wholly
law,
but this
a matter addressed to the
intolerant of constructive offenses.
Legislature.
We are not unaware of the decision of
V.T.C.A.,
Code,
1.03,
Penal
reads as
Moore,
United States
423 U.S.
follows:
(1975),
fense unless defined the Federal lation of Controlled Substances ordinance, statute, municipal order of a (21 U.S.C., 841(a)(1)) when their court, county commissioners or rule au- fall outside the usual activities course of lawfully adopted thorized under a However, professional practice. because of statute. language in the the difference of the Feder- “(b) provisions of Titles and 3 of statute, al and State the decision is distin- to offenses defined code from the instant case. guishable laws, defining unless the statute stated, For the reasons otherwise; however, the offense reversed the cause remanded. punishment affixed to an offense applica- outside this code shall be defined ODOM, Judge (dissenting). punishment is classified in unless ble this code. accordance with I to the reversal of this convic- dissent *5 bar, “(c) or suspend, majority This code does not do not simply The hold that tion. right liability a otherwise affect or evidence is insufficient to show that the forfeiture, other damages, penalty, or violated the Controlled Sub- by law to be remedy authorized recovered Act when wrote the this or enforced in a civil suit for conduct Garner; they hold that because the offense, civil code defines as an and the doctor, by was written a it is injury merged in the offense.” is not impossible law, a show violation that of regardless of how abbreviated an evalua- (a) foregoing the section Subsection of grounds writing the prescrip- tion of the prior prohibi- the law’s restates and refines made, or even if no was tion evaluation against penal “unwritten law.” tion See all. If the actor is a made at 3, Ann.P.C., 1925. It has Article Vernon’s written, is delivery a of and in this that no act long been law by pre- II controlled substance a Schedule is crime unless by omission a made so or scription protected majority’s is under the object The of former Article 3 was statute. a set facts as holding. astounding for what Even of prosecution was an prohibit Moore, law but not made that set out in United States penal at common by special Obviously “dispense” is a and limited this Act . .” As earlier noted in this delivery provided by registered opinion, persons statute and the Act to of under general may dispense dispense control over the broad definition controlled would substances transfer, “delivery,” 3.01(b). which relates to the See with the Act. of accordance constructive, register applicant of a controlled sub- shall actual Further the director “Dispense” dispense instances relates to those controlled substances Schedules stance. dispensing pursuant through applicant is to the lawful or- is a where V if practitioner. Thus Sections 4.08 and the law of this State. See Sec- der licensed under dispens- 3.03(b)(1). “practitioner” a relate to the offense of unlawful A includes tion by ing physician sub- a controlled substance A Act, including 1.02(24). reading The facts show of the entire the defini- stances. See “Practitioner,” provisions physician of Sub- was a licensed this tion argued (Regulations chapter that of Manufacture and Dis- if it could be 3 State. Even 4.03(a) Substances), portion pensing it can of Section had refer- of Controlled readi- “delivers” by “dispense” separate ly substances that has a of controlled be seen ence to “delivery” by meaning purposes the Act from distinct written for authorization Act. elsewhere portion why 4.03(a), would fall under There is another reason and thus action reading, “Except by applicable. as authorized supra, The section com- is not section words, “Except with the as authorized Act.” mences this
389 trolled practitioner.” 126, 338, 122, 335, 423 U.S. at at This S.Ct. language leaves the impression majority, L.Ed.2d at cited that dis- pensing lawful, definition apparently yet would be lawful under the hold- unlaw- ful dispensing is an offense! ing majority. parties this case and the people of Texas are enti- majority state: tled to clarification of paradox. this Is provision “We are not aware dispensing by lawful, definition or is there provisions of the Controlled Substances such an offense as unlawful dispensing? which makes offense for a Second, the majority in to issue a footnote 1 state prescrip- Sec. 4.03 does not for a because tion controlled sub- exempts section deliveries stance without authorized medical examina- taking Act. Reference is tion made to 3.01(b) Sections 1.02(24), yet provisions those professional practice.” read: registered by “Persons the director un- suggest they I would have failed to manufacture, der this Act to distribute, address issue of whether such acts dispense, analyze, conduct research would violate Sec. 4.03 of the Controlled with controlled substances possess, which provides in part: manufacture, distribute, dispense, ana- “(a) Except as lyze, conduct research with those sub- commits an offense if he know- stances to the extent authorized by their ingly or intentionally manufactures, de- registration and in conformity with the livers possesses with intent manu- this Act.” facture deliver a controlled substance 3.01(a). (Emphasis added.) 1, 2, 3, listed in Penalty Group or 4.” “ ‘Practitioner’ means: Phenmetrazine, case, substance in this “(A) dentist, veterinarian, a physician, Penalty listed in Group 3. investigator, scientific li- 4.02(d)(1)(C), Controlled Substances Act. *6 censed, registered, or otherwise majority persuasively The demonstrate that distribute, dispense, analyze or conduct acts do not 3.08, such violate Secs. 4.08 and to, respect with research to administer but failure of prohibit those sections to substance in a controlled the course of acts does not warrant the conclusion that professional or research in this the acts are authorized the Act. The ” state; 1.02(24). . (Empha- Sec. language 4.03(a), supra, of Sec. prohibits added.) sis every delivery of such substances unless expressly authorized the Act. con- majority, The ap- without discussion of the (constructive duct here was a delivery parent limitations of the emphasized por- by prescription, transfer see quoted provisions, Sec. tions of the asserts “the (10)), specifically and unless a Act elsewhere for authorization” delivery, it was delivery. an unlawful I am prescription-writing powers, for unlimited any provision aware of yet neglects specifically identify the stat- utory language Controlled Substances that autho- pro- “elsewhere” so prescription-writing powers rize unlimited vides. physicians by
granted majority. Furthermore, majority’s under the hold- According majority, to footnote 1 of the prescriptions that all ing by practi- 4.03 does not substances, for two reasons. tioners Schedule valid are First, “dispense” conjunction read in “deliver” are charac- prescriptions, with Sec. “separate 4.04(a) distinct.” 3.01(e)(3) terized and Sec. any- “ there, ‘Dispense’ possessing relates to those asserted such a one dispensing where [delivery?] pursuant instances any is like- pursuant to lawful of practition- order possession wise in lawful of that controlled er. Thus 3.01, Sections 4.08 and 3.08 relate to supra, substance. provides of unlawful a con- part: The Controlled Substances Act makes it a “(e) following persons need not penal offense for a practitioner may lawfully possess con- issue a
register and written prescription under this Act: substances medi- trolled
cal examination or taking other proper in the course user, as that term is ultimate practice. herein, possession or a defined The State’s motion for rehearing should pursuant to a and the granted affirmed. of a or in lawful order lawful V substance.” possession added.)
(Emphasis 4.04(a) possession of a con- prohibits “Except as authorized
trolled Act”, g. possession pursuant e. to a a practitioner, lawful order of which lawful McCLURE, Appellant, Dean Robert pre- practitioner-written include all orders scriptions, majority’s holding under the to- Texas, Appellee. day. The STATE of Unless authorization is shown under the No. 52035. prescription-writing pow- Act for unlimited Appeals Court Criminal Texas. I must physicians, ers for dissent. Sept. 1976. Rehearing Denied Jan. 1977. OPINION ON STATE’S DISSENTING MOTION FOR REHEARING
DOUGLAS, Judge. consideration, appears
After further Judge Odom dissenting opinion by Leg- is correct. The original submission offense under the made it a
islature practition- Act for a
Controlled a written for a
er to issue II controlled substance without
taking steps
professional practice. appears to restrict
Legislature intended activi- others, as well as physicians,
ties
might in controlled substances. deal practi-
Article of the Act defines being
tioner as “a licensed, or otherwise registered, * * * a controlled sub-
to distribute professional practice.
stance in the course supplied) (Emphasis
.” 3.01(b) of the Act
persons registered may, under the Act
among things, dispense those sub-
stances “to the extent authorized their with the oth-
er of this Act.”