Parasco v. State, 29214
| Decision Date | 05 February 1958 |
| Docket Number | No. 29214,29214 |
| Citation | 165 Tex.Crim. 547,309 S.W.2d 465 |
| Parties | Christy PARASCO, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Woody & Showers, by Clyde W. Woody, Houston, for appellant.
Dan Walton, Dist. Atty., Thomas D. White and Erwin G. Ernst, Asst. Dist. Atty., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
BELCHER, Commissioner.
All prior opinions herein are withdrawn and the following is substituted therefor.
This is an appeal from a conviction for the unlawful possession of isonipecaine, a narcotic drug; the jury, under a charge submitting the punishment provided for a second violation of the Uniform Narcotic Drug Act, having assessed the punishment at fifteen years in the penitentiary and appellant having been sentenced to serve a term of not less than ten nor more than fifteen years in the penitentiary as a second offender.
Prosecution was under the Uniform Narcotic Drug Act, Art. 725b, Vernon's Ann.Penal Code Acts of the 53rd Legislature, p. 812, Ch. 328, and Acts of the same Legislature at its first called session, p. 103, Ch. 50, and as ot punishment, by Acts of the 54th Legislature, p. 903, Ch. 354.
The indictment alleged in the first count that appellant on or about October 16, 1956, possessed a narcotic drug, to wit: isonipecaine. There were no allegations in this count that apellant had been previously convicted for violating the Uniform Narcotic Drug Act.
The punishment for the unlawful possession of a narcotic drug is found in Sec. 23(1) of Art. 725b, which reads:
'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), and the benefits of the suspended sentence law shall not be available to a defendant convicted for a violation of the provisions of this Act; provided that any person convicted of a first offense violation of this Act shall be entitled to the benefits of probation under the Adult Probation and Parole Law, as provided therein.'
It is apparent that the possession of a narcotic drug by one who has been previously convicted of violating the Uniform Narcotic Drug Act is a different offense from that of a first offender; provides a different minimum punishment, and permits the benefits of the Adult Probation and Parole Law to first convictions only.
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...
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...v. State, 475 S.W.2d 797 (Tex.Crim.App.1972)); Brooks v. State, 957 S.W.2d 30, 33 (Tex.Crim.App.1997) (discussing Parasco v. State, 165 Tex.Crim. 547, 309 S.W.2d 465 (1958)). 20.See Mosley v. State, 983 S.W.2d 249, 255–56 (Tex.Crim.App.1998) (observing, in connection with defendant's point ......
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Brooks v. State
...168 Tex.Cr.R. 306, 325 S.W.2d 697(1959), overruled in part by, Scott v. State, 553 S.W.2d 361 (Tex.Crim.App.1977); Parasco v. State, 165 Tex.Cr.R. 547, 309 S.W.2d 465 (1958), overruled in part by, Bell v. State, 504 S.W.2d 498, 500-501 (Tex.Crim.App.1974); Coleman v. State, 577 S.W.2d 486 (......
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Jackson v. State , No. 10-07-00089-CR (Tex. App. 1/30/2008)
...for enhancement" of the punishment range. Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997); accord Parasco v. State, 165 Tex. Crim. 547, 549, 309 S.W.2d 465, 467 (1958), overruled on other grounds, Brooks at 33-34; see TEX. PENAL CODE ANN. § 12.42(c)(1) (Vernon Supp. 2007); TEX. FA......
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Williams v. State, 2-04-175-CR.
...an indictment; they are not direct authority for the proposition that an indictment must refer to such enhancements. Parasco [v. State, 309 S.W.2d 465 (Tex.Crim.App. 1958)] and Rogers [v. State, 168 Tex.Crim. 306, 325 S.W.2d 697 (Tex.Crim.App. 1959)] did purport to hold that prior convictio......