Ex parte Perez, 67972
| Decision Date | 15 July 1981 |
| Docket Number | No. 67972,67972 |
| Parties | Ex parte Ernest PEREZ, Appellant. |
| Court | Texas Court of Criminal Appeals |
This is an application for habeas corpus pursuant to Article 11.07, V.A.C.C.P. Petitioner was convicted for delivery of cocaine in three separate indictments.
The indictment in Cause No. F79-2705-PQ, filed on March 21, 1979, reflects an offense alleged to have been committed on March 1, 1979. Petitioner pled not guilty before a jury. Judgment was rendered on January 24, 1980, and petitioner was sentenced on February 15, 1980, to twenty-five (25) years in the Department of Corrections.
Indictment No. F79-2706-PQ was filed on March 21, 1979, for an offense alleged to have occurred on February 20, 1979. Petitioner pled not guilty before a jury. Judgment was rendered on January 24, 1980, and petitioner was sentenced on February 15, 1980, to seven (7) years.
Indictment No. F79-2707-PQ was filed on March 21, 1979, for an offense alleged to have occurred on February 26, 1979. Petitioner pled not guilty before a jury. Judgment was rendered on January 24, 1980, and petitioner was sentenced on February 15, 1980, to twelve (12) years.
The indictments in all three cases alleged that petitioner did unlawfully:
"knowingly and intentionally deliver a controlled substance, namely: cocaine, to (J. H.)."
On the dates alleged and proved, cocaine was not specifically named in a penalty group of the Controlled Substances Act. Article 4476-15, V.A.C.S. In Crowl v. State, 611 S.W.2d 59 (Tex.Cr.App.1981), this Court held that an indictment alleging possession of cocaine without alleging why cocaine is a controlled substance was fundamentally defective. The same rationale was applied by the Court to an indictment alleging delivery of cocaine without setting forth why cocaine is a controlled substance. Taylor v. State, 610 S.W.2d 471 (Tex.Cr.App.1981). Thus, the three indictments before us suffer the same defect condemned in Taylor, and are void.
The 66th Legislature amended Article 4476-15 V.A.C.S., effective August 27, 1979, to specifically list cocaine in the penalty groups. It is the State's contention that since the actual trial of petitioner on the three indictments occurred after the effective date of this amendment, the previously void indictments were injected with new life and were sufficient to support the convictions on the date of the trials.
Section 7 of the amendatory act provides:
"This Act applies only to offenses committed on or after its effective date, and a criminal action for an offense governed by the Texas Controlled Substance...
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