King v. State, No. 971-83

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtODOM
Citation675 S.W.2d 514
Docket NumberNo. 971-83
Decision Date25 April 1984
PartiesRandall KING, Appellant, v. The STATE of Texas, Appellee.

Page 514

675 S.W.2d 514
Randall KING, Appellant,
v.
The STATE of Texas, Appellee.
No. 971-83.
Court of Criminal Appeals of Texas,
En Banc.
April 25, 1984.

James M. Murphy, Dallas, for appellant.

Grant Jones, Dist. Atty., Jack E. Hunter, Steve Schiwetz and Jeffery A. Babcock, Asst. Dist. Attys., Corpus Christi, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

Appellant was convicted of possession of over four ounces of marihuana. The Court of Appeals affirmed the conviction and this Court granted appellant's petition for discretionary review to consider the ground of error attacking the sufficiency of the indictment to allege an offense.

In relevant part the indictment alleged:

Page 515

"... Randall King, hereinafter styled defendant, on or about the 1st day of December, A.D. 1980, ... did then and there intentionally and knowingly possess marihuana in an amount of more than four ounces."

It is appellant's position that the indictment does not allege an offense because it fails to allege the marihuana possessed was "a usable quantity." In disposing of this ground of error the Court of Appeals wrote:

"Grounds of error two through four refer to the language defining the offense in the indictment and the jury charge. The appellant complains that an element of the offense was omitted. The indictment charges that Randall King did 'intentionally and knowingly possess marihuana in an amount of more than four ounces' and the charge to the jury tracked that language. The statute in effect at the time provided that it was an offense to knowingly or intentionally possess a usable quantity of marihuana and further provided that possession of more than four ounces was a felony. Tex.Rev.Civ.Stat.Ann. Art. 4476-15 4.05 (Vernon 1976).

"The appellant complains that the omission of the words 'usable quantity' renders the indictment defective. The Court of Criminal Appeals has determined that this phrase was inserted to prevent conviction for possession of trace amounts. Lejeune v. State, 538 S.W.2d 775 (Tex.Cr.App.1976). Therefore, the minimum quantity requirement of 'usable amount' is applicable to the lowest grade, a Class B misdemeanor prohibiting possession of two ounces or less. See Tex.Rev.Civ.Stat.Ann. Art. 4476-15 § 4.05(b)(3) (Vernon 1976); current version is § 4.051(b)(1) (Vernon Supp.1982). 'More than four ounces' and 'usable quantity' both define the amount of marihuana in the defendant's possession. With the exception of Class B misdemeanors, use of a minimum quantity term is superfluous when the indictment already charges 'more than four ounces.'

"The appellant relies on Tovar v. State, 612 S.W.2d 616 (Tex.Cr.App.1981) which held that an indictment for possession of marihuana was defective. Unlike the case before us, the Tovar indictment lacked any allegation of quantity. We hold that this indictment sufficiently sets forth the elements of the offense as intended by the Legislature. The second ground of error is overruled."

In his petition for discretionary review appellant contends the decision of the Court of Appeals is in conflict with some of the prior opinions of this Court. We will review some of those cases. In the earliest, Lejeune v. State, 538 S.W.2d 775, the Court gave considerable attention to the matter of the use of "usable quantity" in the statute:

"It is clear from the above that the...

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8 practice notes
  • Daniels v. State, No. 767-84
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 1, 1988
    ...it fails to precisely track the language of the statute. Rincon v. State, 615 S.W.2d 746 (Tex.Cr.App.1981). See also King v. State, 675 S.W.2d 514 (Tex.Cr.App.1984); Oliver v. State, 692 S.W.2d 712 Concluding the Queen indictment alleged both an actual and constructive transfer, the Queen C......
  • Coons v. State, Nos. B14-87-00548-C
    • United States
    • Court of Appeals of Texas
    • August 18, 1988
    ..."imminently" was not necessary in this instance because the indictment, read as a whole, supplies that element. Accord King v. State, 675 S.W.2d 514 (Tex.Crim.App.1984). See Murphy v. State, 665 S.W.2d 116 (Tex.Crim.App.1983), cert. denied, 469 U.S. 821, 105 S.Ct. 93, 83 L.Ed.2d 40 (1984); ......
  • Mayfield v. State, No. 12-93-00072-CR
    • United States
    • Court of Appeals of Texas
    • January 27, 1995
    ...the statute or conveys the same meaning as the statute is sufficient. TEX.CODE CRIM.PROC. art. 21.17 (Vernon Supp.1993); King v. State, 675 S.W.2d 514, 516 (Tex.Cr.App.1984); Bynum v. State, 767 S.W.2d 769, 778 (Tex.Cr.App.1989); Hogue v. State, 752 S.W.2d 585 (Tex.App.--Tyler 1987, pet. re......
  • State v. Perez, No. 1084-95
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 18, 1997
    ...different, "possess" and "acquire" are synonymous in this context. And, 9,000 grams is clearly a useable quantity. See, King v. State, 675 S.W.2d 514, 516 (Tex.Cr.App.1984); and, Lejeune v. State, 538 S.W.2d 775, 777 (Tex.Cr.App.1976). Therefore, under Blockburger, the possession of marihua......
  • Request a trial to view additional results
8 cases
  • Daniels v. State, No. 767-84
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 1, 1988
    ...it fails to precisely track the language of the statute. Rincon v. State, 615 S.W.2d 746 (Tex.Cr.App.1981). See also King v. State, 675 S.W.2d 514 (Tex.Cr.App.1984); Oliver v. State, 692 S.W.2d 712 Concluding the Queen indictment alleged both an actual and constructive transfer, the Queen C......
  • Coons v. State, Nos. B14-87-00548-C
    • United States
    • Court of Appeals of Texas
    • August 18, 1988
    ..."imminently" was not necessary in this instance because the indictment, read as a whole, supplies that element. Accord King v. State, 675 S.W.2d 514 (Tex.Crim.App.1984). See Murphy v. State, 665 S.W.2d 116 (Tex.Crim.App.1983), cert. denied, 469 U.S. 821, 105 S.Ct. 93, 83 L.Ed.2d 40 (1984); ......
  • Mayfield v. State, No. 12-93-00072-CR
    • United States
    • Court of Appeals of Texas
    • January 27, 1995
    ...the statute or conveys the same meaning as the statute is sufficient. TEX.CODE CRIM.PROC. art. 21.17 (Vernon Supp.1993); King v. State, 675 S.W.2d 514, 516 (Tex.Cr.App.1984); Bynum v. State, 767 S.W.2d 769, 778 (Tex.Cr.App.1989); Hogue v. State, 752 S.W.2d 585 (Tex.App.--Tyler 1987, pet. re......
  • State v. Perez, No. 1084-95
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 18, 1997
    ...different, "possess" and "acquire" are synonymous in this context. And, 9,000 grams is clearly a useable quantity. See, King v. State, 675 S.W.2d 514, 516 (Tex.Cr.App.1984); and, Lejeune v. State, 538 S.W.2d 775, 777 (Tex.Cr.App.1976). Therefore, under Blockburger, the possession of marihua......
  • Request a trial to view additional results

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