Mears v. State, 49735
Decision Date | 26 March 1975 |
Docket Number | No. 49735,49735 |
Citation | 520 S.W.2d 380 |
Parties | Roger MEARS and Joe Willis, Appellants, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Lindley Gary Beckworth, Jr., Longview, for appellants.
Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State.
Appellants were convicted of delivery of marihuana; punishment was assessed at three years.
The offense was committed after the effective date of the Controlled Substances Act (Art. 4476--15, Vernon's Ann.Civ.St.), and the prosecution was predicated upon Section 4.05(d)--(f) of that Act, which provides:
'Sec. 4.05 . . .
'(d) Except as otherwise provided by this Act, a person commits an offense if he knowingly or intentionally delivers marihuana.
'(e) Except as provided in Subsection (f) of this section, an offense under Subsection (d) of this section is a felony of the third degree.
'(f) An offense under Subsection (d) is a Class B misdemeanor if the actor delivers one-fourth ounce or less without receiving remuneration.'
The indictment, however, failed to allege the quantity of marihuana involved or to allege that the delivery was for remuneration. It therefore is fundamentally defective and requires dismissal of the prosecution.
In the recent case of Standley v. State, 517 S.W.2d 538, 540--541, this Court held:
'It is well established that the value of the property must be alleged if it affects penalty. 5 Branch's Ann.P.C., 2d ed., Sec. 2674, p. 120.
'In 30 Tex.Jur.2d, Indictment and Information, Sec. 38, p. 604, it is written:
(Emphasis Supplied)
'In Hawkins v. State, 383 S.W.2d 416 (Tex.Civ.App.1964), this court said in a prosecution under Article 1429, Sec. 1, Vernon's Ann.P.C.:
"Without such an allegation the punishment cannot be determined.' See also Price v. State, 165 Tex.Cr.R. 326, 308 S.W.2d 47 (1957), and cases cited.
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