Graham v. State

• Decision Date: 02 February 1977
• Docket Number: No. 50234,50234
• Citation: 546 S.W.2d 605
• Parties: Joe GRAHAM, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 605

546 S.W.2d 605

Joe GRAHAM, Appellant, v. The STATE of Texas, Appellee.

No. 50234.

Court of Criminal Appeals of Texas.

Feb. 2, 1977.

Rehearing Denied Feb. 23, 1977.

Pat McDowell, Dallas, on appeal only, for appellant.

Henry Wade, Dist. Atty., W. T. Westmoreland, Jr., Gerald A. Banks and Winfield Scott, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for obtaining a controlled substance, phenmetrazine, by use of a forged prescription. Punishment, enhanced by two prior felony convictions less than capital, was life.

The indictment alleged that the offense occurred on or about September 17, 1973, and the record reflects that trial began on July 31, 1974.

The record reflects that appellant obtained the drug in question by presenting a prescription purporting to be signed by Dr. Tim Reedy. Dr. Reedy testified that the signature on the prescription was not his. The pharmacist recognized that the signature did not belong to Dr. Reedy and took steps which resulted in the arrest of appellant as he was leaving the pharmacy. Appellant testified that he was having the prescription filled for a person whose first name was David and that he did not know that there was anything wrong with the prescription. The State then called a clerk from another pharmacy in Dallas who testified that appellant had attempted to pass another prescription purporting to be signed by Dr. Reedy about five days prior to the primary offense, but left the pharmacy after the pharmacist picked up a telephone as if to make a call.

By way of supplemental brief filed in this Court, appellant contends that the indictment is fundamentally defective in that the indictment failed to allege that appellant knew that the prescription was forged. We review such question in the interest of justice under the provisions of Art. 40.09, Sec. 13, V.A.C.C.P.

In the instant case, the indictment alleged in pertinent part that appellant,

'did then and there knowingly and intentionally acquire and obtain possession of a controlled substance, namely: Phenmetrazine by misrepresentation, fraud, forgery, deception, and subterfuge, in that he, the said defendant, did then present to Myrtle Vincent, a prescription for said controlled substance, for David Jordan, but which said prescription was then and there forged in that it then and there purported to but had not been written and signed by Dr. Tim Reedy, and the said prescription was then and there of the tenor following:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

TABLE

Section 4.09 of the Controlled Substances Act provides in pertinent part:

'(a) It is unlawful for any person knowingly or intentionally:

(3) to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.'

The indictment followed the terms of Section 4.09(a)(3), supra, when it alleged that appellant knowingly and intentionally acquired a controlled substance by 'misrepresentation, fraud, forgery, deception, and subterfuge.'

This, coupled with an averment of the means used, the passing of a forged prescription was sufficient to put appellant and his attorney on notice of the crime for which he was charged. See Baldwin v. State, Tex.Cr.App., 538 S.W.2d 109; Vaughn v. State, Tex.Cr.App., 530 S.W.2d 558.

In Baldwin v. State, supra, it was held that in a credit card abuse case in which it was alleged that the defendant 'did then and there unlawfully, knowingly and intentionally steal a Master Charge credit card belonging to and from Brenda White,' it was unnecessary for the indictment to aver that the credit card was taken with the intent to deprive the owner of the property.

In Gonzales v. State, Tex.Cr.App., 517 S.W.2d 785, it was held that 'the constituent elements of the particular theft or intended theft need not be alleged in an indictment or information for burglary with intent to commit theft.'

We need not determine whether knowledge that the prescription was forged is an essential averment in an indictment for passing a forged instrument since we conclude that it was unnecessary for the indictment to aver the elements of passing a forged writing in a case of obtaining a controlled substance by 'misrepresentation, fraud, forgery, deception, or subterfuge.' We reject appellant's contention that the indictment was fundamentally defective.

Appellant contends that 'the evidence is insufficient to support the allegation of the two prior felonies relied on by the State to enhance defendant's conviction.'

Appellant, having entered a plea of 'true' to the enhancement paragraphs of the indictment, cannot be heard to complain that the evidence is insufficient to support same. O'Dell v. State, Tex.Cr.App., 467 S.W.2d 444; Alardin v. State, Tex.Cr.App., 491 S.W.2d 782.

Appellant contends that the 'life sentence is void because it results from an ex post facto application of the law.'

Appellant urges that the prior convictions could not have been used for enhancement under the 'old Narcotic Drug Act' (Art. 725b, V.A.P.C.) and therefore cannot now be used for enhancement.

In Shaw v. State, Tex.Cr.App., 529 S.W.2d 75, this Court quoted from Vasquez v. State, Tex.Cr.App., 477 S.W.2d 629, as follows:

"It is well settled that a conviction which occurred prior to the enactment of a statute providing for increased punishment upon a subsequent conviction may be used for enhancement purposes under that statute, and that such usage is not unconstitutional as being an ex post facto application of the statute.' Citing many authorities.

'The opinion adds:

'The reason that a conviction which occurred before the statute was enacted may be used for enhancement is that the statute providing for a greater penalty upon a subsequent conviction does not seek to punish the offender for the original criminal act a second time, but rather 'The repetition of criminal conduct aggravates . . . guilt and justifies heavier penalties . . .' Graham v. West Virginia, 224 U.S. 616, 623, 32 S.Ct. 583, 585, 56 L.Ed. 917 (1912)."

We reject appellant's contention that the life sentence is void as the result of an ex post facto application of the law.

Appellant contends that 'the State's attorney committed error when he argued that the State's witnesses were 'Clean. No prior record."

Appellant urges that the following argument by the prosecutor constituted 'blatant bolstering of the State's witnesses.'

'You didn't hear anybody attack Debbie Robertson's credibility with any prior convictions. You didn't hear anybody attack Myrtle Vincent's credibility with any prior convictions. You didn't hear...