Durham v. State, s. 50530
| Decision Date | 21 January 1976 |
| Docket Number | Nos. 50530,50531,s. 50530 |
| Parties | David John DURHAM, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Joe Slator Petsch, Del Rio, for appellant.
John F. Pettit, Dist. Atty., Durwood Edwards, Asst. Dist. Atty., Del Rio, Jim D. Vollers, State's Atty., and David S. McAngus Asst. State's Atty., Austin, for the State.
GREEN, Commissioner.
In the two cases, appellant was convicted of delivery of marihuana. Punishment in each case was assessed at three years.
The indictments in both cases allege that on or about the named date (October 19, 1973 in No. 50,530, and November 2, 1973 in No. 53,531) appellant 'did then and there unlawfully, knowingly and intentionally deliver marihuana to Richard Cantwell.'
Section 4.05 of the Texas Controlled Substances Act provides for offenses involving both the possession and delivery of marihuana. The portions of Sec. 4.05 applicable to offenses relating to the delivery of marihuana are subsections (d), (e), and (f), providing as follows:
'(d) Except as otherwise provided by this Act, a person commits an offense if he knowingly or intentionally delivers marihuana.
'(e) Except as provided in Subsection (f) of this section, an offense under Subsection (d) of this section is a felony of the third degree.
'(f) An offense under Subsection (d) is a Class B misdemeanor if the actor delivers one-fourth ounce or less without receiving remuneration.'
This appeal will be disposed of on the insufficiency of the indictments to allege a felony offense.
As we stated in Suarez v. State, Tex.Cr.App., 532 S.W.2d 602 (No. 51,096, January 21, 1976),
Since the indictments in the instant cases do not allege the quantity of marihuana delivered, or whether the delivery was for remuneration, they do not allege a felony offense. Suarez v. State, supra, and authorities there cited; Gonzales v. State, supra; Wilson v. State, Tex.Cr.App., 520 S.W.2d 377. However, for the reasons stated in Suarez, we hold, as we held in that case, that an indictment which alleges the offense of delivery of marihuana, but fails to allege the quantity of marihuana delivered or that it was delivered for remuneration, alleges an offense...
To continue reading
Request your trial
-
Benoit v. State, s. 54296-54300
...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, ......
-
Carpenter v. State
...in Suarez v. State, 532 S.W.2d 602, 603 (Tex.Cr.App.1976), the judgment is reversed and the cause remanded. 4 See also Durham v. State, 532 S.W.2d 606 (Tex.Cr.App.1976). DOUGLAS, Judge, The majority holds that the indictment for aggravated kidnapping is fundamentally defective because it do......