Lumberas v. State, 52313
| Decision Date | 16 November 1977 |
| Docket Number | No. 52313,52313 |
| Citation | 560 S.W.2d 644 |
| Parties | Manuel Martinez LUMBERAS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Jack M. Sessom, San Angelo, for appellant.
Ed R. Paynter, Dist. Atty. and Jim H. Smart, Jr., Asst. Dist. Atty., Abilene, Jim D. Vollers, State's Atty., Austin, for the State.
This is an appeal from a conviction for sale of phentermine. 1 After finding appellant guilty, the jury assessed appellant's punishment at nine years' confinement.
In reviewing the record we have determined that the judgment must be reversed because of unassigned error. Art. 40.09(13), Vernon's Ann.C.C.P.
In Riddle v. State, 560 S.W.2d 642 (Tex.Cr.App.1977); the defendant was charged with delivery of phentermine. In Riddle we held that there is no longer any penalty provided for the possession or delivery of phentermine. For the reasons stated in Riddle this rule also applies to this appellant's sale of phentermine. 2
Therefore, as in Riddle, the judgment must be reversed and the prosecution ordered dismissed.
1 On September 15, 1976, in an unpublished opinion, this appeal was dismissed for want of jurisdiction. The appeal is now reinstated.
2 As in Riddle, the appellant was alleged to have committed the offense after the date phentermine was added to Schedule IV of the Controlled Substances Act. See footnote 2 of the Riddle opinion.
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Chalin v. State
...the Controlled Substances Act, there is no penalty for the possession or delivery of phentermine." Id. at 644. Accord, Lumberas v. State, 560 S.W.2d 644 (Tex.Cr.App.1977). This judicial decision certainly would not lead one to believe that there was a penalty for the delivery of phentermine......
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Ex parte Ashcraft
...the sentence for that conviction. The petitioner, relying on Riddle v. State, 560 S.W.2d 642 (Tex.Cr.App.1977), and Lumberas v. State, 560 S.W.2d 644 (Tex.Cr.App.1977), asserts that his conviction for the possession of phentermine is void and that he is entitled to be released from The defe......
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Grady v. State, 63208
...4476-15, supra. 1 Apparently, because of what this Court said in Riddle v. State, 560 S.W.2d 642 (Tex.Cr.App.1978); Lumberas v. State, 560 S.W.2d 644 (Tex.Cr.App.1978); and Ex parte Wilson, supra, the State prepared the indictment in this cause as it did. It is also apparent that when the t......
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Ex parte Page, 58162
...in view of the fact that there is no longer any penalty provided for such offense. See Henderson v. State, supra; Lumberas v. State, 560 S.W.2d 644 (Tex.Cr.App.1977); Riddle v. State, 560 S.W.2d 642 A fundamentally defective indictment may be challenged by post-conviction writ of habeas cor......