*1 aspirin, view, is the correct or whether truly drug,” marihuana is a “killer that can LAVIGNE, Appellant, Rita crime, only insanity lead not but well, moral deterioration as which I believe position voters, majority is the that a South, at least would vote if given issue, the chance to vote on the not- Court of Criminal
withstanding reported that it has been marihuana popular illegal drug is the most (it today reported people that 30 million Dec. week),
use marihuana once a notwithstand-
ing epidemic, the crack and notwithstand-
ing “Drug Czar” William Bennett’s
view that marihuana is no more harmful
than alcohol.
Greenspoon also informs us that even Investigation Federal Bureau of has
sponsored the idea that a who uses savage
marihuana “becomes a fiend with
or ‘cave man’ tendencies. His sex desires
are aroused and some of the most horrible light
crimes result. He hears and sees get away suddenly
sound. To from he
becomes violent and kill.” Green-
spoon also informs us that the Federal Investigation put
Bureau of has out litera-
ture that declares that marihuana is a “kill- murder, drug
er” which can insanity, cause
and death. instance,
In this the defendant wanted to
introduce evidence that marihuana was deceased,
found on the attempting thus inferentially
show the deceased had
the opportunity ingest drug marihua-
na and might that this have him caused
have a state of mind wherein he would prone compelled more or attempt to kill Conn, Mary Houston, E. defendant, i.e., at time the him, Holmes, Jr., Atty., Mary John B.
defendant shot the deceased & Keel, Ogg “raving psychotic,” Lou Kimbra & Jose Gonzalez- cannabis thus Falla, Houston, credence Asst. Dist. to his claim of self-defense. for State. majority’s To the “improvi- decision to dently grant” appellant’s petition for dis- review,
cretionary I respectfully dissent.
OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW PER CURIAM. Appeals,
The Fourteenth Court of in La vigne (Tex.App- 1989), rejected Houston [14th Dist.] *2 303 of correctly disposed Lavigne, appeals court of of Rita the claim made on behalf appellant’s contention. year peni her appellant, that 25 henceforth The basis tentiary was invalid. sentence claim, as I under- gist appellant’s of The had appellant’s complaint was that she for 12.42(d) of the that resort stand § felony degree a convicted of second been inappropriate because the Penal Code was Code, the under the Public Health offense its own Act contains Controlled Substances Act. Texas Controlled Substances Article 4476- provision. See enhancement unen- possible punishment, maximum 15, 4.012, Health and Safe- now V.T.C.A. § hanced, years’ in the was 20 confinement (c) Code, ty 481.107. Subsection § assessing judge, The trial in penitentiary. (f), reads: provision, former now subsection years’ con appellant’s punishment at 25 subject prosecution “A who is applied 12.42, the penitentiary, finement in the and under both this section Section in range punishment Code, that is set out under ei- may prosecuted of be Penal 12.42(d). V.T.C.A., This was under Penal Code Because a conviction ther section.” § 4.04(b) to enhancement un- possible punishment subject that is not the minimum § 4.012, (b) 12.42(d). (a) ap- and of assessed under der subsections could have been § § reasons, can she be en- pellant neither trial The court of held that the Code, by 12.42 of the Penal hanced under improperly appellant’s judge § did not assess (c) It is operation subsection of 4.012. of § in order punishment. granted We review me, however, appellant that mis- clear to the the determination whether to make 4.012(c). purpose the of conceives § the issue. appeals correctly court of decided State, v. Gutierrez In State, 784 361 Childress In S.W.2d panel of this Court (Tex.Cr.App.1980), a recently held (Tex.Cr.App.1990), any for an essentially held that conviction upon the non-Penal that conviction for the Controlled Substances offense under stop and felony offense of failure to Code 12.42 of the enhanced under Act could be § aid, prescribed render which is an offense Code, long primary the offense Penal so as 6701d, 38(a), V.A.C.S., punish- in Art. § Pe- in with” the was “classified accordance pursuant enhanced ment be In re- scheme. our nal Code classification 12.42(d) felo- of the Penal Code with two § Childress in 784 cent decision ny Penal Code convictions. effective- (Tex.Cr.App.1990), we S.W.2d 361 Childress Finding holding in that the holding, that ly reconfirmed this the issue in this we hold controls defined outside even those offenses appeals correctly decided that the court of and not classified purposes Penal Code judgment of the court of strictly the issue. The in terms of the Pe- punishment of be en- appeals is affirmed. classification scheme could nal Code 12.42, supra. presume under We hanced § hold- cognizant was of our Legislature CLINTON, Judge, concurring. 4.012 of ing in Gutierrez when it enacted § possession of Appellant was convicted of in 1981. See Act the Controlled Substances grams, than 28 cocaine in an amount less 268, 2, 697, 1981, Leg., p. ch. 67th Acts § felony degree the second under this Court Aware that sept. eff. 4476-15, 4.04(b), Article now V.T.C.A. some of- time held at least by § had 481.115(b). Code, Her Safety Health and Act to in the Controlled Substances § fenses Subchap- punishment enhanced under V.T.C.A. under subject to enhancement Code, 12.42(d), by Code, assessed D, Chapter Penal 12 of the Penal ter § (c) to by minimum allowed under subsection Legislature trial court at the intended choose, prosecutor the Texas De- provision, years expressly 25 in allow a which of two enhance- Appellant applicable, partment of Corrections. where I not upon. do options proceed erred appeal that the trial court claimed on 4.012, su- promulgating in 12.42(d) punish- her using § to enhance believe § (c) intended subsection Legislature pra, The Fourteenth Court ment. under otherwise enhancement agree I to foreclose in short order. rejected the claim applicable provisions any Penal Code Act
offense the Controlled Substances subject
not enhancement under subsec- (a) (b). Thus, my
tions view *3 fails,
premise appellant’s argument
our recent decision Childress v. matter,
supra, and for that our earlier deci- State, supra,
sion Gutierrez v. controls. judg-
For this reason I would affirm the
ment of the court of
and thus I concur. KEETON,
Larry Appellant, Keene Criminal
Feb. Nation, Dallas,
John D. Vance, Carolyn John Dist. Doolin, Fitz-Gerald Levin and Colleen Asst. Dallas, Attys., for the State. APPELLANT’S PETITION OPINION ON REVIEW FOR DISCRETIONARY OVERSTREET, Judge. court, appellant
After a trial before the property theft of was convicted of or more but less value of $750.00 $20,000.00. court found the enhance true and assessed paragraph to be