Benoit v. State, s. 54296-54300

• Decision Date: 25 May 1977
• Docket Number: Nos. 54296-54300,s. 54296-54300
• Citation: 561 S.W.2d 810
• Parties: Shirley Richter BENOIT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 810

561 S.W.2d 810

Shirley Richter BENOIT, Appellant,

v. The STATE of Texas, Appellee.

Nos. 54296-54300.

Court of Criminal Appeals of Texas.

May 25, 1977.

Rehearing Denied June 22, 1977.

States Motion for Rehearing Denied Sept. 21, 1977.

Walter F. Splawn, Austin, for appellant.

Robert O. Smith, Dist. Atty., and Richard E. Banks, Asst. Dist. Atty., Austin, Jim D. Vollers, State's Atty., and David S. McAngus,

Asst. State's Atty., Austin, for the State

OPINION

ONION, Presiding Judge.

These are appeals from an order revoking probation (# 54,296), two convictions for delivery of codeine (# 54,297 and # 54,298), a conviction for delivery of pentazocine (# 54,299) and a conviction for delivery of diazepam (# 54,300).

The record reflects that on May 18, 1972 appellant pled guilty to assault with intent to rob and was given five (5) years, probated. One of the conditions of probation was that she "commit no offense against the laws of this or any State or of the United States."

On April 3, 1975 the State filed an amended motion for revocation alleging that she delivered codeine to John Aycock on May 24 and on May 30, 1974, that she had delivered pentazocine to Aycock on May 20, 1974 and that on May 21, 1974 she delivered diazepam. These alleged offenses were also the subject of the indictments herein.

A hearing on the revocation motion was conducted on April 17, 1975, and appellant pled "true" to the allegations in the motion. She also judicially confessed the offenses made the basis of the revocation motion. Her probation was revoked.

On the same date she entered guilty pleas to the indictments charging the offenses described above. In each case she took the witness stand and made a judicial confession. She was assessed five (5) years' imprisonment in each case. Notice of appeal was given in each case.

Appellant complains that indictments in # 54,297 and # 54,298 for delivery of codeine do not allege an offense against the law and are fundamentally defective.

Omitting the formal parts, the indictments charged that on May 24 and May 30, 1974 the appellant did:

"then and there knowingly and intentionally deliver to John Aycock a controlled substance, namely: Codiene (sic) . . . ."

Appellant urges that there is no allegation as to the penalty group within which the alleged codeine falls. Under Article 4476-15, Vernon's Ann.C.S. (Controlled Substances Act), appellant contends that codeine falls within Penalty Group 1, 3 or 4 depending upon the amount of codeine involved, and that delivery of codeine could be either a first degree felony, a third degree felony or a Class A misdemeanor. ¹

Article 4476-15, § 4.02, Vernon's Ann.C.S., establishing criminal penalties, mentions codeine in subsections (b)(3)(A)(viii), (d)(5)(A), (B) and (e)(1). They read as follows:

"(b) Penalty Group 1. Penalty Group 1 shall include the following controlled substances:

"(3) Any of the following substances, except those narcotic drugs listed in another group, however produced:

"(A) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate, including the following:

"(viii) Codeine." ² (Emphasis supplied.)

"(d) Penalty Group 3. Penalty Group 3 shall include the following controlled substances:

"(5) Any material, compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs, or any salts thereof:

"(A) not more than 1.8 grams of codeine, or any of its salts, per 100 milliliters or not more than 90 milligrams per dosage unit, with an equal or greater quantity of an isoquinoline alkaloid of opium;

"(B) not more than 1.8 grams of codeine, or any of its salts, per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts." (Emphasis supplied.)

"(e) Penalty Group 4. Penalty Group 4 shall include any compound, mixture, or preparation containing any of the following limited quantities of narcotic drugs, which shall include one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer upon the compound, mixture, or preparation valuable medicinal qualities other than those possessed by the narcotic drug alone:

"(1) not more than 200 milligrams of codeine per 100 milliliters or per 100 grams." (Emphasis supplied.)

Punishment for delivery of a Penalty Group 1 substance in § (b) is a first degree felony under the provisions of § 4.03(b)(1). Delivery of a Penalty Group 3 substance in § (d) is a third degree felony under § 4.03(b)(3). Also, delivery of a Penalty Group 4 substance in § (e) is a Class A misdemeanor under § 4.03(b)(4).

§ 4.01(b)(1)(3) of the Controlled Substances Act provides that an individual adjudged guilty of a felony of the first degree shall be punished by confinement in the Texas Department of Corrections for life or for a term of not more than 99 years or less than 5 years, and one guilty of a third degree felony shall be confined in the Department of Corrections for a term of not more than 10 years or less than 2 years, and in addition may be punished by a fine not to exceed $5,000.00. § 4.01(a)(1) provides that a person guilty of a Class A misdemeanor shall be punished by confinement in jail not to exceed one year or a fine not to exceed $2,000.00, or both such fine and imprisonment.

It is the intent of Article I, § 10 of the Texas Constitution, Vernon's Ann.St., that the accused in a particular case be given information upon which he may prepare his defense, and this information must come from the face of the indictment. Wilson v. State, 520 S.W.2d 377 (Tex.Cr.App.1975); Voelkel v. State, 501 S.W.2d 313 (Tex.Cr.App.1973).

It is, of course, not sufficient to say that the accused knew with what offense he was charged, but the inquiry must be whether the charge in writing furnished that information in plain and intelligible language. Wilson v. State, supra; Moore v. State, 473 S.W.2d 523 (Tex.Cr.App.1971).

Further, the rule is that an offense should be charged in plain and intelligible words with such certainty as to enable the accused to know what he will be called upon to defend against and to enable him to plead the judgment that may be given on it in bar of any further prosecution for the same offense. Wilson v. State, supra; Gaines v. State, 501 S.W.2d 315 (Tex.Cr.App.1973).

This court was faced with a somewhat analogous situation to the one in the present case in Wilson v. State, supra. The indictment in Wilson alleged that the defendant " 'did then and there knowingly and intentionally deliver to W. D. West a controlled substance, namely: Marihuana. . . .' " We noted that delivery of marihuana could be either a third degree felony under article 4476-15, § 4.05(d), or a Class B misdemeanor if the actor delivered one-fourth ounce or less without receiving remuneration under § 4.05(f), supra. This court held that:

"We conclude that the failure of the indictment in the instant case to allege the amount of marihuana delivered or other allegations of remuneration so as to reflect what punishment was involved, whether the offense is a misdemeanor or felony, or whether the District Court had jurisdiction, renders the indictment fundamentally defective. . . .

"The provision of Subsection (f) of Section 4.05 creating a misdemeanor offense is not such an exemption or exception which need not be negated as contemplated by Section 5.10 of the Controlled Substances Act, so that section does not apply." See also Mears v. State, 520 S.W.2d 380 (Tex.Cr.App.1975); Suarez v. State, 532 S.W.2d 602 (Tex.Cr.App.1976); Durham v. State, 532 S.W.2d 606 (Tex.Cr.App.1976); Finley v. State, 528 S.W.2d 854 (Tex.Cr.App.1975); Saunders v. State, 528 S.W.2d 843 (Tex.Cr.App.1975); Tribble v. State, 525 S.W.2d 29 (Tex.Cr.App.1975).

Reliance was had in the Wilson decision upon the case of Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975). In Standley an indictment failed to allege whether the offense of conversion by bailee was under the value of $50, or $50 and over. The effect of not alleging the value was to place the appellant in the position of not having notice as to whether he was being charged with a felony or misdemeanor.

In Standley this court stated:

"It is well established that the value of the property must be alleged if it affects penalty. 5 Branch's Ann.P.C., 2d ed., Sec. 2674, p. 120.

"In 30 Tex.Jur.2d, Indictment and Information, Sec. 38, p. 604, it is written:

" 'An indictment or information should allege every fact which may affect the degree or kind of punishment. A prior conviction must be alleged where a higher penalty is sought by reason of such conviction; the value of property must be stated where it is made the basis of punishment; and the injury done to the owner of property must be averred where the amount of injury is an essential element in the punishment.' (Emphasis Supplied)

"In Hawkins v. State, 383 S.W.2d 416 (Tex.Cr.App.1964), this court said in a prosecution under Article 1429, Sec. 1, Vernon's Ann.P.C.:

" 'Without such an allegation the punishment cannot be determined.' See also Price v. State, 165 Tex.Cr.R. 326, 308 S.W.2d 47 (1957), and cases cited.

"It is clear from what has been said that the indictment in the instant case is fundamentally defective for the failure to allege value. The indictment omits a necessary element of the offense attempted to be alleged, does not show whether it was a misdemeanor or felony, and there is no way to determine from the face of the indictment if the District Court of Lippscomb (sic) County had jurisdiction of the offense sought to be alleged. We conclude that the judgment of the conviction based thereupon is void, rather than voidable."

In Tave v. State, 546 S.W.2d 317 (Tex.Cr.App.1977), it was held that information charging the offense of driving while license suspended was fatally defective for failing to allege whether the operator's license was suspended under the...