Finley v. State, 50403
| Decision Date | 29 October 1975 |
| Docket Number | No. 50403,50403 |
| Citation | 528 S.W.2d 854 |
| Parties | Bobby FINLEY, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Weldon Holcomb, Tyler, for appellant.
Curtis L. Owen, Dist. Atty., Howard W. Britain, Asst. Dist. Atty., Tyler, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
The offense is delivery of marihuana; the punishment, two years.
The indictment, omitting the formal parts, alleges that appellant on or about October 19, 1973, did '. . . then and there knowingly and intentionally deliver to Oscar Salazar a controlled substance, to-wit: Marihuana . . .' Consequently, such indictment was drawn under the provisions of Section 4.05, Texas Controlled Substances Act (Article 4476--15, V.A.C.S.). The indictment is fundamentally defective in that it fails to allege the amount of marihuana delivered or that the marihuana was delivered for remuneration, so as to reflect what punishment is involved, whether the offense is a misdemeanor or felony, or whether the district court has jurisdiction. Saunders v. State, Tex.Cr.App., 528 S.W.2d 843 (delivered October 22, 1975); Tribble v. State, Tex.Cr.App., 525 S.W.2d 29; Medrano v. State, Tex.Cr.App., 524 S.W.2d 719; Wirges v. State, Tex.Cr.App., 521 S.W.2d 251; Mears v. State, Tex.Cr.App., 520 S.W.2d 380; Wilson v. State, Tex.Cr.App., 520 S.W.2d 377.
The judgment is reversed, and the prosecution is ordered dismissed.
DOUGLAS, J., not participating.
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Suarez v. State
...Wirges v. State, 521 S.W.2d 251 (Tex.Cr.App.1975); Saunders v. State, 528 S.W.2d 843 (Tex.Cr.App.1975); Finley v. State, 528 S.W.2d 854 (Tex.Cr.App.1975). In the cases just cited the indictments failed to allege that the delivery of marihuana was for remuneration and failed to allege that t......
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...because the indictments failed to allege a felony offense, depriving the district court of jurisdiction. E.g., Finley v. State, 528 S.W.2d 854 (Tex.Cr.App.1975). Later, in Suarez v. State, 532 S.W.2d 602, 603 (Tex.Cr.App.1976), however, the court held that indictments failing to allege a sp......
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Gonzales v. State, s. 51166 and 51167
...Mears and Willis v. State, 520 S.W.2d 380 (Tex.Cr.App.1975).' (Footnote omitted.) In addition to the authorities cited above, in Finley v. State, 528 S.W.2d 854 (Tex.Cr.App. delivered 10/29/75), we held that an indictment for delivery of marihuana is fundamentally defective if it fails to a......