*1 proffer any pro- gestión testimony
posed nothing witness. is for us to There
review.
Lastly, it is that revers contended trial
ible error was committed when the new trial overruled the for motion upon jury
based misconduct. presented
Assuming questions review, presented the evi- properly for
are was an for new trial
dence on motion processes
attempt the mental arriving verdict. at the
jurors juror adduce
wanted transactions the California
had considered gave punishment. The court assessing limiting instruction on California sup- There is evidence
transactions. no A defendant allegation. process of a develop mental
entitled to reaching a
juror in verdict. shown. has been
No abuse discretion error.
The record contains no reversible Cantu, (Court- Antonio Antonio G. San VASQUEZ, Appellant, Frank Hall, Philip Corpus appointed), Christi M. appellant. (Court-appointed), for Appellee. Texas, The STATE of Butler, Atty., Ted Dickinson Dist. E. Young, Dist. Ryman Douglas Asst. C. Court of Criminal of Texas. Vollers, Antonio, Attys., D. San Jim May 14, 1975. McAngus, Atty., and S. State’s David Atty., Austin, Asst. for State. State’s Rehearing May 28, Denied
OPINION MORRISON, Judge. a con-
The offense substance; punishment, trolled years. one,
By appellant con- ground of error him is tends that indictment sup- and will fundamentally defective 9H *2 State, 65 following: ing the Tucker v. 4.03(a) of under Sec. 627, 611; Boyd v. Act, 145 of the Texas Tex.Cr.R. S.W. Controlled Substances 492, State, 106 S.W. Vernon’s Ann.Civ.St. it fails to Tex.Cr.R. 292 because 578, State, 279 102 “unlawfully”.1 contain the word Morris v. Tex.Cr.R. State, Ross v. 102 Tex.Cr.R. S.W. Reliance, among authorities, is had other 667, 364, many others. S.W. 277 State, opinion in 473 our Jansson said: it 40, supra, In was we Ross S.W.2d wherein said: quash appellant assailed ‘By a motion to “In this case the revoke does motion to to necessarily it allege because omitted not facts which the would pos- appellant “unlawfully” charge that constitute a violation of the It does law. the liquor for intoxicating not sessed the allege not facts to and it does indict- the pos- purpose of sale. think allege as a the even conclusion that It the attack. ment not vulnerable to session of was narcotics unlawful. which, if pos- charged facts may lawfully the existence of narcotics be Some sustained, a of the law. acquired by if show violation prescription sessed oth- “unlaw- The failure to insert the word allegations er means. of the lawful The indict- fully” charging part in the of the fatally motion are defective. ment does not vitiate it.’ sufficient, if the the Even was the Missouri in Supreme The proof does not conform to the 155, Williams, 296 case of State v. S.W. appellant possessed The narcotics. that: probation the here held officer is that the convicted of was ‘Appellant that the also contends possession dangerous drugs.” is defective it does mation because was charge complained that the act probationer that case the had been In prohibited or The Constitu- unlawful. drugs possession dangerous convicted of 6, that an provides (article tion 38) which constituted the basis for the revoca- the words indictment shall conclude with tion, set but such had been conviction the peace dignity “against the aside. This concludes information state”. holding Jansson, in supra, must necessary for words. those light in examined earlier deci- of our say that the acts the information Tex.Cr.R. sion Veevers 172 statute, contrary to the defendant were 162,354 wherein we said: alleged facts of themselves when the contrary to the they showed were unnecessary allege “It is for the ” statute.’ ‘unlawfully’ that the act was done. rule has been stated as follows: It will thus be seen that the motion State, supra, revoke “[did] Jansson expressed ‘Nor need State aver in posses- allege that the facts show” “unlawful- charged terms that the act was (dangerous narcotics drugs) sion of the clearly ly” alleged done where facts was unlawful. show it to be 23 unlawful.’ Tex.Jur. Information, Indictment In the case at bar the indictment Section 32. and we find supported Jurispru- The rule is in Texas reasoning Fifth Circuit Court cases, dence with the includ- Miranda, citation of Appeals in United States v. part: 1. Sec. reads in sesses with the intent manufacture or de- “Except act, per- Penalty as authorized liver a controlled substance knowingly Group 1, 2, son commits an if he offense 3 or 4.” pos- manufactures, delivers or they is funda- persuasive. the Controlled Substances F.2d to be Therein allege the mentally defective for failure to said: “unlawfully.” act was committed argument ‘lawful-unlawful’ “Miranda’s light his status must be viewed supra, provides: Sec. 4.03(a), present under the law. . by this “Except authorized if he know- commits an offense *3 Miranda, however, does not fall within manufactures, de- ingly or exempted registered or cate- one of livers, intent to manu- possesses or people nothing in gories of and there is substance or deliver a controlled facture possibili- raises this indictment which Penalty Group or 4.” ty. by Miran- The distribution of heroin Sub- Controlled Sec. da in the indictment could as provides: stances Act be lawful.” necessary for the state to “It is not of “un- conclude that We exemption exception set negate any or lawfully” requisite in an indictment any complaint, forth in this Act in delivery heroin. charging the mation, indictment, or or other trial, proceeding any hearing, or other error contends Ground of two going and the burden under this appellant given the admonishments when respect the evidence with forward with plea accepted appellant’s the trial exemption exception shall any ad because such were insufficient claiming its benefit.” “right his monishments did not include privileges confront and witnesses necessary ne- compul right self incrimination or the pro- exceptions gate any exemptions or sory process.” give such The failure explicitly and indi- either vided plea not invalidate a admonishment does the deliv- alleging vidually, generally by voluntarily freely guilty otherwise ery was “unlawful.” State, Tex.Cr.App., made. Summerall v. in the affirmance. I therefore concur Cevalles Tex. S.W.2d Cr.App., 513 Franks
Tex.Cr.App.,
By ground of error three show that he was
contends that the facts law, there
entrapped a matter of sup fore the evidence sufficient WESTBROOK, Appellant, Jimmy Lee guilty. Texas, Appellee. be- need not discuss such contention STATE cause the written waiver consent suffi- stipulations in the record was found Texas. of Criminal judicial cient to confession constitute May support which will alone the conviction. 1975. State, Tex.Cr.App.,
Adam 490 S.W.2d
ODOM, Judge (concurring). affirmance.
I concur alleging
contends the 4.03(a) of
of heroin violation