Granado v. State

• Decision Date: 27 May 1959
• Docket Number: No. 30640,30640
• Citation: 168 Tex.Crim. 525,329 S.W.2d 864
• Parties: Gregorio GRANADO, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 864

329 S.W.2d 864

168 Tex.Crim. 525

Gregorio GRANADO, Appellant, v. STATE of Texas, Appellee.

No. 30640.

Court of Criminal Appeals of Texas.

May 27, 1959.

On Rehearing June 24, 1959.

On Motion for Further Rehearing Nov. 4, 1959.

Gregorio Granado, pro se, and Clyde W. Woody, Carl E. F. Dally, Houston, for appellant.

Charles J. Lieck, Jr., Dist. Atty., H. F. Garcia and John G. Benavides, Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is for the unlawful possession of marihuana, a narcotic drug; the punishment, life imprisonment.

The indictment charged in paragraph five thereof that on or about the 11th day of September, 1957, the appellant did unlawfully possess a narcotic drug to-wit: marihuana, and further charged in separate paragraphs that appellant had been previously convicted of three felony offenses less than capital.

In paragraph two of the indictment it was alleged that on the 17th day of January, 1941, appellant was convicted of the offense of unlawful possession of marihuana in the Criminal District Court of Bexar County, Texas, in Cause No. 45816 on the docket of said court and in paragraphs three and four it was alleged that on the respective dates of January 22, 1943, and August 11, 1953, appellant was convicted in the United States District Court, Western District of Texas, San Antonio Division, of two separate narcotic law violations in Cause Nos. 12640 and 19334 respectively on the docket of that court.

The court, in his charge, withdrew from the jury's consideration the third paragraph of the indictment and submitted the issue of appellant's guilt of the offense charged in the fifth paragraph of the indictment and whether he had been previously convicted of the offenses alleged in paragraphs two and four thereof.

In response to the court's instructions the jury returned into court the following verdict:

"We, the jury, find the defendant guilty of the offense of unlawful possession of marihuana, as alleged in paragraph five of the indictment, and further find that he is the same person who was convicted in Cause No. 45816, as alleged in paragraph two of the indictment, and further find that he is the same person who was convicted in Cause No. 19334 Criminal, as alleged in paragraph four of the indictment."

Upon the jury's verdict, the court entered judgment finding the appellant guilty of the offense charged and that he was the same person convicted in Cause Nos. 45816 and 19334 and fixed his punishment at confinement in the penitentiary for life.

It is apparent that appellant's conviction is under the Uniform Narcotic Drug Act, Art. 725b, Vernon's Ann.P.C., and that by reason of the two prior convictions found by the jury for violation of the narcotic laws his punishment has been fixed by the court and enhanced under the provisions of Art. 63, Vernon's Ann.P.C., which provides: "Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary."

The punishment for violation of the Uniform Narcotic Drug Act, Art. 725b, supra, is found in Sec. 23(1) of the Act which reads, in part, as follows:

"Any person violating any provision of this Act shall, upon conviction be punished by confinement in the State penitentiary for not less than two (2) years nor more than life, and upon the second or any subsequent conviction therefor shall be punished by confinement in the penitentiary for life or for any term of years not less than ten (10) * * *."

In the recent case of Parasco v. State, Tex.Cr.App., 309 S.W.2d 465, 466, this court in construing Sec. 23(1) of the Act pointed out that a subsequent violation of the Act is a different offense from that committed by a first offender and said "Being separate offenses with minimum punishment of two years for a first offense and ten years for a second or subsequent violation, the prior conviction is an element of the later offense itself and not an allegation such as would merely enhance the punishment under Arts. 62 and 63, Vernon's Ann.P.C."

Clearly the Uniform Narcotic Drug Act, Art. 725b, supra, is a special statute and therefore controls over Art. 63, supra, which is a general statute. Edwards v. State, Tex.Cr.App., 313 S.W.2d 618.

The prior conviction of appellant in the District Court of Bexar County in Cause No. 45816 for unlawfully possessing marihuana, as found by the jury, was for a violation of the Uniform Narcotic Drug Act. Such conviction was an element of the offense charged against appellant in the instant case and could not be used to enhance the punishment under the provisions of Art. 63, supra. The conviction in Federal Court in Cause No. 19334, was not available to enhance the punishment under Art. 725b, supra, not being a violation of that act.

Appellant's punishment as a second offender of the Uniform Narcotic Drug Act should have been assessed by the jury under the provisions of Sec. 23(1) of the Act, and under the record the court erred in assessing the punishment and giving application to the provisions of Art. 63, supra.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

On State's Motion for Rehearing.

WOODLEY, Judge.

The indictment charged that appellant possessed marihuana on or about September 11, 1957, in Bexar County.

Further allegations were that he had previously been convicted of three felonies less than capital, one being for the unlawful possession of marihuana in Criminal District Court of Bexar County on January 17, 1941.

Another prior conviction was on January 22, 1943, in United States District Court, for acquiring and concealing eight pounds of marihuana.

Another was for receiving and concealing eleven grains of heroin which, to his knowledge, had been imported into the United States contrary to law, also in United States District Court, on August 11, 1953, in Cause No. 19334.

There is no doubt that the State was seeking enhancement of punishment under Art. 63, Vernon's Ann.P.C., which would authorize the fixed punishment of life in the penitentiary.

Our holding is that insofar as the allegation as to the previous conviction on January 17, 1941, for possession of marihuana is concerned, it, together with the allegation that appellant possessed marihuana on or about September 11, 1957, must be construed as alleging a subsequent violation of Art. 725b, Vernon's Ann.P.C., the punishment for which is found in Section 23 of said Article and is confinement in the penitentiary for "life or any term of years not less than ten."

It is evident that in a jury trial the punishment so provided must be fixed by the jury.

If no other prior conviction had been alleged and proved, the conviction would have to be set aside because no punishment was assessed.

The indictment did, however, allege two other convictions for felonies less than capital, one of which was established. Neither of these convictions was for violation of Art. 725b, Vernon's Ann.P.C.

The prior conviction pleaded and proved was a conviction under the Federal Narcotic Laws for unlawfully receiving and concealing eleven grains of heroin which to his knowledge, had been imported into the United States contrary to law. This conviction was in the United States District Court.

This Court held in Bowers v. State, 155 Tex.Cr.R. 401, 235 S.W.2d 449, that such a conviction was for a felony less than capital, and was usable to enhance the punishment under Art. 63, Vernon's Ann.P.C. In that case the primary offense was burglary and a conviction enhanced by such prior conviction for violating the Federal Narcotics Act and a prior conviction for burglary, with a life term, was affirmed.

The non-capital felony offense of which appellant was convicted in the Federal Court is, we hold, an offense of the same nature as that of possessing a narcotic drug. Art. 62, Vernon's Ann.P.C. provides that the punishment for a subsequent conviction for a felony less than capital of the same nature shall be the maximum provided for the primary offense which, in this case, is life. The punishment, being definitely fixed by law, may be imposed upon the jury's finding that the defendant is guilty and was previously convicted of the offense of the same nature as charged in the indictment.

Whether the indictment be construed as alleging a first violation of Art. 725b Vernon's Ann.P.C. (rejecting the allegation and proof of the prior conviction under that statute) or as alleging a subsequent conviction for violation of Art. 725b Vernon's Ann.P.C., the maximum punishment is life in the penitentiary. Enhanced under Art. 62, Vernon's Ann.P.C. by reason of a prior conviction of a felony of the same nature, the punishment is fixed by law at life.

We desire to make it clear that nothing said in this or our original opinion is to be construed as in conflict with our holding in Robinson v. State, 163 Tex.Cr.R. 499, 293 S.W.2d 781. There the primary offense was possession of heroin, and the punishment was properly enhanced under Art. 63, Vernon's Ann.P.C. because of two prior non-capital convictions, one for burglary and the other for robbery.

To recapitulate: (1) In a prosecution for violation of the Uniform Narcotic Drug Act, Art. 725b Vernon's Ann.P.C., a prior conviction for violation of such act is not available to enhance the punishment under Art. 62 or 63, Vernon's Ann.P.C., but will be construed as an allegation which with the presently charged violation makes applicable the punishment for a second or subsequent conviction provided in Section 23 of said Article 725b Vernon's Ann.P.C.

(2) The punishment for violation of the Uniform Narcotic Act as a first or a second offender may properly be enhanced under Art. 63, Vernon's Ann.P.C. upon allegation and proof of two or more prior convictions for other felonies less than capital, and may be enhanced under Art. 62, ...