Gomez v. State
| Decision Date | 18 May 1955 |
| Docket Number | No. 27615,27615 |
| Citation | 280 S.W.2d 278,162 Tex.Crim. 30 |
| Parties | Joe GOMEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Wm. E. Davenport, San Angelo, for appellant.
Leon Douglas, State's Atty., Austin, for the State.
Upon an indictment charging the possession of marihuana, a naroctic drug, and alleging a prior conviction 'of the less than capital offense of sale of a narcotic drug, an offense of like character and of the same nature as that hereinbefore charged against him in this cause,' appellant was found guilty by the jury and assessed a term of 20 years in the penitentiary.
Appellant urges that the indictment is not sufficient to charge a second offense under the Uniform Narcotic Drug Act, Art. 725b, V.A.P.C., and to support the enhanced punishment provided in Section 23 of said act as amended in 1953.
He contends that the trial court erred in submitting the enhanced punishment of not less than 5 nor more than 25 years confinement in the penitentiary provided in Section 23 of said act as amended, and says that the indictment was drawn under Art. 62, V.A.P.C., which provides for a different enhancement of punishment.
There were no exceptions or objections reserved to the court's charge.
In determining whether or not the indictment supports the conviction the material inquiry is not whether the allegations are appropriate in charging the violation of some other statute, but whether the indictment contains the allegations necessary to show the commission of the offense which is submitted to the jury and for which he is convicted.
The same rule applies to allegations of the indictment made for the purpose of securing an enhanced punishment.
The question, therefore, is not whether the allegations of the indictment are appropriate to Art. 62, P.C., but whether they are sufficient to sustain a conviction for violation of Art. 725, V.A.P.C., with the enhanced punishment for a second conviction as provided in Section 23 of the act as amended.
In order to secure enhancement of punishment as a second offender under Section 23 of Art. 725b as amended in 1953 it was necessary that the State allege and prove that the accused violated a provision of the Uniform Narcotic Drug Act after he had been convicted for a prior violation thereof. It was also necessary that the indictment be so drawn as to inform the accused of the basis of the State's claim for enhancement.
The indictment made no reference to the Uniform Narcotic Drug Act but alleged the prior conviction of appellant on or about February 10, 1944, for the sale of a narcotic drug, setting out the cause number, the style of the case and the court wherein the conviction was had.
The sale of a narcotic drug being a violation of the Uniform Narcotic Drug Act at the time of the prior conviction, we find the allegations of the indictment sufficient.
It is to be remembered that the same degree of particularity required in alleging an offense is not required in alleging a prior conviction for the purpose of obtaining an enhanced punishment.
Appellant suggests that the enhanced punishment should not have been applied for the reason that the prior conviction occurred prior to the amendment of Section 23 providing for increase of punishment for a second, third and subsequent conviction.
We are cited to no decision of this Court directly bearing on the question. There are authorities which appear to sustain appellant's contention. See State v. Kuhlman, 206 Iowa 622, 220 N.W. 118.
We think that the better view is that followed by the Supreme Court of the United States in Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683, wherein, speaking through Justice Jackson, the court said:
The case of Armstrong v. Commonwealth, 177 Ky. 690, 198 S.W. 24, 26, quotes from Cooley's Constitutional Limitations and cites Bishop's New Criminal Law, Vol. 1, Sec. 283, as well as cases from many states, including the following quotations:
'The question seems to have been squarely decided in Ex parte Gutierrez, 45 Cal. 429, wherein it was held that the section of the Penal Code of California which provides that one who has been convicted of the offense of petit larceny, who shall again commit the offense of petit larceny, is to be deemed guilty of a felony, is not ex post facto, within the meaning of the federal Constitution, even when applied to one who committed the first offense prior to the taking effect of the Code. * * *
'In Jones v. State of Oklahoma, 9 Okl.Cr. 646, 133 P. 249, 48 L.R.A., N.S., 204, * * * 'The act of the Legislature providing that upon the second conviction for a violation of the prohibitory liquor law a higher punishment shall be inflicted is a reasonable classification which the Legislature had the power to make, and it is not ex post facto, although by its terms it may be enforced against one whose former conviction occurred before its passage.''
The Kentucky case of Thacker v. Commonwealth, 228 Ky. 819, 16 S.W.2d 448, cited by this Court in Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93, appears to be in conflict with the case of Armstrong v. Commonwealth, supra, by the same court, and with the authorities cited therein.
It is contended that the State failed to prove that the defendant knew the cigarette he possessed contained marihuana. He directs attention to the fact that an exculpatory statement by appellant was offered by the State which was to the effect that he did not know whether the cigarette in question was marihuana or not, and the trial court charged the jury upon the necessity that the State disprove such statement. The prior conviction for sale of marihuana alleged in the indictment was properly proved.
W. F. Hendricks, employed by the Department of Public Safety of Texas, testified that he went to Big Springs to work undercover on their narcotic problem and became acquainted with appellant at his beer tavern; that he talked with and visited appellant some 10 or 15 times; that he inquired of appellant regarding the obtaining of marihuana and as a result of such inquiry appellant furnished him with a cigarette on December 2, 1953. The cigarette was offered in evidence at the trial and the testimony of a chemist shows that it contained cannabis sativa or the marihuana plant.
On cross-examination it was shown that appellant gave the witness another marihuana cigarette on another occasion.
The exculpatory statement was a part of the testimony of appellant given at a former trial, other portions of which were also offered by the State including the following:
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