Cook v. State
| Decision Date | 02 June 1971 |
| Docket Number | No. 43872,43872 |
| Citation | 467 S.W.2d 421 |
| Parties | Alan W. COOK, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
B. J. Wilkinson, San Antonio, for appellant.
Ted Butler, Dist. Atty., Gordon V. Armstrong and Lucien B. Campbell, Asst. Dist. Attys., San Antonio, and Jim D. Vollers, State's Atty., Austin, for the State.
This is an appeal from a conviction for possession of marihuana. The punishment was assessed at 3 years.
On May 13, 1970, the appellant waived trial by jury and entered a plea of guilty before the court. Following a pre-sentence report his application for probation was by the court denied.
The sufficiency of the evidence to sustain the plea of guilty is not challenged.
In his first two grounds of error appellant contends that marihuana cannot meet the scientific definition of a narcotic drug and that the classification of marihuana as a narcotic is arbitrary and unconstitutional. Reyna v. State, Tex.Cr.App., 434 S.W.2d 362 and Miller v. State, Tex.Cr.App., 458 S.W.2d 680, have only recently been decided adversely to appellant's contentions, and, as in Miller, these claims are advanced only in the appellate brief and are not supported by the record in the trial court. See Scott v. United States, 129 U.S.App.D.C. 396, 395 F.2d 619.
In his third ground of error appellant now claims for the first time that the indictment to which he pleaded guilty does not allege an offense against the laws of this state since it alleged only that he possessed 'a narcotic drug, to-wit: marihuana.' He contends that '(f)or this indictment to have been correctly written the State would have to allege that the defendant unlawfully possessed a narcotic drug, to-wit, a Cannabis, more commonly known as 'Marihuana' and the mere allegation of possession of marihuana and the designation of the same as a narcotic is not sufficient to allege an offense and sustain a conviction.' The contention is without merit. 3 Branch's Ann.P.C., 2d ed., Secs. 1423 and 1423.2; Gonzalez v. State, 168 Tex.Cr.R. 49, 323 S.W.2d 55; Fletcher v. State, 162 Tex.Cr.R. 100, 282 S.W.2d 230; Fawcett v. State, 137 Tex.Cr.R. 14, 127 S.W.2d 905; Escamilla v. State, 162 Tex.Cr.R. 346, 285 S.W.2d 216; Willison's Criminal Forms, 7th Ed., Sec. 942, p. 241.
Appellant also urges that a punishment of three years for possession of marihuana constituties cruel and unusual punishment. The penalty assessed being within the statutory limits...
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Albro v. State
...(Tex.Cr.App.1972); Samuel v. State, 477 S.W.2d 611 (Tex.Cr.App.1972); Lopez v. State, 474 S.W.2d 196 (Tex.Cr.App.1971); Cook v. State, 467 S.W.2d 421 (Tex.Cr.App.1971); Broom v. State, 463 S.W.2d 220 (Tex.Cr.App.1971), cert. den., 402 U.S. 933, 91 S.Ct. 1523, 28 L.Ed.2d 868; Garcia v. State......
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Branch v. State, 45129
...better practice would dictate alleging the possession of the marihuana was 'unlawful' the allegation was sufficient. Cook v. State, 467 S.W.2d 421 (Tex.Cr.App.1971). The appellant also contends that the marihuana introduced into evidence was obtained in violation of his constitutional right......
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Attwood v. State, 47539
.... . . did then and there unlawfully possess a narcotic drug, to wit: marihuana, . . .' The contention is without merit. Cook v. State, 467 S.W.2d 421 (Tex.Cr.App.1971). Appellant contends by his seventh and eighth grounds of error that Article 725b, V.A.P.C. is unconstitutional in that it c......
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Poe v. State, 48914
...the statutory limits, it was not excessive, cruel, or unusual. Morse v. State, 502 S.W.2d 805; Williams v. State, 476 S.W.2d 674; Cook v. State, 467 S.W.2d 421; Broom v. State, 463 S.W.2d 220, cert. 402 U.S. 933, 91 S.Ct. 1523, 28 L.Ed.2d 868. We overrule this contention. The judgment is af......