Anderson v. State
Decision Date | 13 May 1981 |
Docket Number | No. 2,No. 67297,67297,2 |
Citation | 615 S.W.2d 745 |
Parties | Sammy ANDERSON, Appellant, v. The STATE of Texas, Appellee |
Court | Texas Court of Criminal Appeals |
Lawrence B. Mitchell, Dallas, for appellant.
Henry M. Wade, Dist. Atty., Gilbert P. Howard, and R. R. Smith, Asst. Dist. Attys., Dallas, and Robert Huttash, State's Atty., Austin, for the State.
Before ONION, P.J., and TOM G. DAVIS and CLINTON, JJ.
Appeal is from an order revoking probation. On December 7, 1978, following his plea of not guilty, a jury found appellant guilty of delivery of heroin. Punishment was assessed at 10 years, probated.
On May 28, 1980 the State filed a motion to revoke probation alleging that appellant had violated conditions of his probation by failing to report to the probation officer as directed and by failing to pay a probation fee as required by the probation order. Following appellant's plea of true, the court revoked his probation on July 10, 1980.
Appellant's sole contention on appeal is that the indictment in the primary offense is fundamentally defective. Omitting formal parts, the indictment alleges that on or about June 14, 1978 appellant "did unlawfully, knowingly and intentionally deliver a controlled substance, namely: HEROIN, to C. B. ROBERTS." Appellant maintains that this charging instrument is fundamentally defective because "it contains mutually exclusive allegations that offend the doctrine of repugnancy." No motion to quash the indictment was filed in the trial court.
Appellant notes that, pursuant to statutory definition, delivery can be established by proof of any of three separate activities: (1) the actual transfer of a controlled substance; (2) the constructive transfer of a controlled substance; or (3) an offer to sell a controlled substance. Art. 4476-15, Sec. 1.02(8), V.A.C.S. Since delivery can be accomplished in three separate ways, appellant contends the instant indictment contains repugnant allegations and is thus fatally defective. Appellant relies upon prior decisions of the Court holding that inconsistent allegations within the same count of an indictment render that indictment defective. See, e. g., Johnson v. State, 149 Tex.Cr.R. 245, 193 S.W.2d 528; Odle v. State, 139 Tex.Cr.R. 288, 139 S.W.2d 595; Graham v. State, 139 Tex.Cr.R. 98, 139 S.W.2d 269. These cases have been overruled insofar as they may have supported appellant's contention. See Green v. State, 578 S.W.2d 411 n. 1.
The focus of our review of a charging instrument's...
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