Haney v. State, 51733

Citation544 S.W.2d 384
Decision Date14 July 1976
Docket NumberNo. 51733,51733
PartiesFred Thomas HANEY, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

ONION, Presiding Judge.

This is an appeal from a conviction for the offense of unlawfully dispensing phenmetrazine by a practitioner. Punishment was assessed by the court following a guilty verdict at ten (10) years, probated.

The appellant, a licensed physician, was charged in five indictments with unlawfully dispensing phenmetrazine to Thomas Garner, shown to be an undercover agent, on various dates. The five indictments were consolidated upon appellant's motion and were jointly tried. The appellant was acquitted in four of the cases.

In the appeal from the conviction obtained appellant, among other things, contends the court erred in failing to quash the indictment and challenges the sufficiency of the evidence to sustain the conviction contending the evidence does not show he committed an offense.

The indictment in question alleged, omitting the formal parts, that the appellant on or about February 12, 1974, did 'intentionally dispense a controlled substance; to-wit, phenmetrazine, to Thomas Garner, and the said Fred Thomas Haney, M.D. did not dispense said controlled substance to the said Thomas Garner in the course of professional practice, in that no medical examination was given to said Thomas Garner before dispensing the said controlled substance.'

Section 3.01(b) of the Texas Controlled Substances Act (Article 4476--15, Vernon's Ann.C.S.) provides:

'Persons registered by the director Under this Act to manufacture, distribute, Dispense, analyze, or conduct research with controlled substances May possess, manufacture, distribute, Dispense, analyze, or conduct research with those substances to the extent authorized by their registration and in conformity with the other provision of this Act.' (Emphasis Supplied)

Section 3.03(b)(1) of the same Act reads:

'The director shall register an applicant To dispense any controlled substances in Schedules II through V or to conduct research with controlled substances in Schedules II through V, if:

'(1) the applicant is a practitioner licensed under the laws of this state.' (Emphasis Supplied)

Section 1.02(24) reads in part:

'(24) 'Practitioner' means:

'(A) a Physician, dentist, veterinarian, scientific investigator, or other person licensed, registered, or otherwise Permitted to distribute, Dispense, analyze or conduct research with respect to, or to administer a controlled substance in the course of professional practice or research in this state; or

'(B) . . ..' (Emphasis Supplied)

Sections 1.02(10), (11), (26) and (5) of the same Act read:

'(10) 'Dispense' means to deliver a controlled substance to an ultimate user or research subject by, or pursuant to the lawful order of, a practitioner (in the course of professional practice or research), including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for such delivery.

'(11) 'Dispenser' means a person who dispenses.

'(26) 'Ultimate user' means a person who has lawfully obtained and possesses a controlled substance for his own use or for the use of a member of his household or for administering to an animal owned by him or by a member of his household.

'(5) 'Controlled substance' means a drug, substance, or immediate precursor listed in Schedules I through V and Penalty Groups 1 through 4 of this Act.'

Section 4.08 of the Texas Controlled Substances Act provides:

'(a) It is unlawful for any person:

'(1) who is a practitioner knowingly or intentionally to distribute or dispense a controlled substance in violation of Section 3.08;

'(2) who is a registrant knowingly or intentionally to manufacture a controlled substance not authorized by his registration or to distribute or dispense a controlled substance not authorize by his registration to another registrant or other person;

'(3) to refuse or fail to make, keep, or furnish any record, notification, order form, statement, invoice, or information required under this Act; or

'(4) to refuse an entry into any premises for any inspection authorized by this Act.

'(b) An offense under this section is a felony of the second degree.'

Section 3.08 of the Texas Controlled Substances Act provides:

'(a) No controlled substance in Schedule II may be dispensed without the written prescription of a practitioner, except when dispensed directly to an ultimate user by a practioner, other than a pharmacy.

'(b) In emergency situations, as defined by rule of the director, Schedule II drugs may be dispensed upon oral prescription of a practitioner, reduced promptly to writing by the pharmacy and filed by the pharmacy. Prescriptions shall be retained in conformity with the requirements of Section 3.06. No prescription for a Schedule II substance may be refilled.

'(c) Except when dispensed directly to an ultimate user by a practitioner, other than a pharmacy, a controlled substance included in Schedule III or IV, which is a prescription drug as determined under the Federal Food, Drug, and Cosmetic Act, shall not be dispensed without a written or oral prescription of a practitioner. The prescription shall not be filled or refilled more than six months after the date thereof or be refilled more than five times, unless renewed by the practitioner.

'(d) A controlled substance included in Schedule V shall not be distributed or dispensed other than for a medical purpose.

'(e) No prescription for Schedule II narcotic drugs shall be filled after the second day the prescription was issued.'

Section 2.04 of the Controlled Substances Act lists the Schedule II substances and drugs. In subsection (d)(4) thereof, 'phenmetrazine and its salts' are listed as a Schedule II drug. Phenmetrazine is the drug alleged in the indictment.

It would seem that under the provisions of said Section 4.08(a)(1) a practitioner cannot be convicted of the offense of unlawfully dispensing a controlled substance except in violation of Section 3.08.

Where a practitioner dispenses a controlled substance listed in Schedule II (as in the instant case) upon written prescription (not without written prescription) has he violated the provisions of the said Section 3.08?

Putting aside any question as to whether the indictment is sufficient to charge the offense of dispensing a controlled substance by a practitioner, we turn to the facts to see if the proof supports such offense.

It was stipulated that the appellant was a licensed physician, a medical doctor in the State and had been licensed since 1938. Thomas Garner of the Department of Public Safety Diversionary Investigative Unit testified he had heard from street talk that prescriptions could be obtained from the appellant if you had a prescription label. With the aid of a pharmacist he obtained a prescription label and typed the appellant's name thereon, as well as the name of William Morrison and the words 'to curb appetite.' On December 19, 1973, he went to appellant's office in Houston, said he was Morrison, showed the prescription label on a bottle to the appellant and asked for a prescription for 'preludins' (shown to be the trade name for phenmetrazine). He told appellant he was working long hours and needed to curb his appetite. He related that he was not given a medical examination, did not have his blood pressure or weight checked, nor did he see equipment for such purposes, and was not asked any questions about his medical history. He obtained a prescription for preludins and paid the appellant $5.00. The prescription was filled and Garner obtained 30 preludin pills.

Garner returned to appellant's office on January 4, January 17, and February 4, 1974, and each time obtained a prescription for thirty pills of preludin without receiving a medical examination, etc. He had each prescription filled.

On the date charged in the indictment, February 12, 1974, and though he had no prescription label, Garner obtained another prescription for preludins from the appellant without receiving a medical examination. He paid the appellant $5.00 and had the prescription filled at a pharmacy and obtained thirty preludin pills.

Two medical doctors testified for the State that it was not proper in the course of professional practice to prescribe preludin (phenmetrazine) without a medical examination, particularly checking the cardiovascular system, checking for evidence of high blood pressure, etc.

The appellant testified in his own behalf, but it is not necessary to detail all the other evidence since it is without dispute that on the date in question and all other occasions the appellant gave a prescription to Garner.

The State urges that evidence reflects a violation of Section 4.08(a)(1) of the Controlled Substances Act, which provides that it is unlawful for any person who is a practitioner to knowingly or intentionally distribute or dispense a controlled substance 'in violation of Section 3.08.' Turning to Section 3.08, we find the only applicable subsection thereof to be subsection (a), which provides, 'No controlled substance in Schedule II may be dispensed without the written prescription of a practitioner, except when dispensed directly to an ultimate user by a practitioner, other than a pharmacy.'

It is clear that for there to be a violation of Section 4.08 by a practitioner there must be a violation of Section 3.08. Under the applicable facts involving a Schedule II substance and evidence reflecting that in each instance the appellant issued a written prescription for preludins (phenmetrazine) to Garner, we can...

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6 cases
  • State v. Young
    • United States
    • West Virginia Supreme Court
    • June 28, 1991
    ...v. State, 527 S.W.2d 76, 79-81 (Tenn.1975) (pharmacist); Santoscoy v. State, 596 S.W.2d 896, 902 (Tex.Crim.App.1980); Haney v. State, 544 S.W.2d 384 (Tex.Crim.App.1976) (3-2 opinion).These opinions are not persuasive. The Alabama and New York cases involved general statutes proscribing "sel......
  • People v. Alford
    • United States
    • Michigan Supreme Court
    • March 1, 1978
    ...presented in the instant case. 6 Of particular relevance is the poignant statement of the Texas Court of Criminal Appeals in Haney v. State, 544 S.W.2d 384 (1976): Controlled Substances Act, which was interpreted in "Obviously 'dispense' is a special and limited means of delivery provided b......
  • McKee v. State, 04-89-00121-CR
    • United States
    • Texas Court of Appeals
    • February 28, 1990
  • Ford v. State, 09
    • United States
    • Texas Court of Appeals
    • June 6, 1984
    ...him with an offense under the law as it existed before H.B. 730 was enacted. He cites, as his authority therefor, Haney v. State, 544 S.W.2d 384 (Tex.Crim.App.1976). We agree with appellant as to the effect of the Crisp case, but do not agree that it is dispositive of the question before us......
  • Request a trial to view additional results

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