Peak v. State, 49625
| Decision Date | 21 May 1975 |
| Docket Number | No. 49625,49625 |
| Citation | 522 S.W.2d 907 |
| Court | Texas Court of Criminal Appeals |
| Parties | John Larry PEAK, Appellant, v. The STATE of Texas, Appellee. |
William M. Porter, San Antonio, for appellant.
Ted Butler, Dist. Atty., Gordon V. Armstrong, Alan E. Battaglia, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
This is an appeal from a conviction for the sale of amphetamine. The jury assessed punishment at ten years.
The record reflects that on the 12th day of March, 1971, appellant sold ten 'black mollies' or amphetamine tablets to Robert Fullerton, an undercover agent, at the Cloverleaf Lounge in San Antonio.
Appellant testified that he had never been in trouble before and had never sold any pills to anyone. Richard Floan, a detective of the Anaheim, California, Police Department, testified that in June of 1971 appellant gave him what he described as 'righteous' mescaline. He also produced a straw some three inches in length and stated that the mescaline was to be 'snorted.' Appellant then offered to sell him amphetamines, benzedrines and seconal in large quantities in jars of 1000 count for $40.00 a jar. The price of $10,000 would be at a discount rate of $35.00 a jar. Appellant also offered to sell ninety hits of blotter acid. When asked what that was, he replied:
Later, appellant sold Floan ten packages or jars containing approximately 10,000 benzedrine tablets. These were identified by the witness at the trial. Floan also testified that, during the transaction for the benzedrine, appellant tried to negotiate sales of 'kegs' of 50,000 and 100,000 count.
Appellant presents six grounds of error.
First he contends that he was denied a speedy trial. He contends that he was unable to locate witnesses because of not being tried earlier. The offense was alleged to have been committed March 12, 1971 in an indictment returned May 12, 1971 when appellant was in California. Appellant was arrested in December, 1972. A new indictment using the correct name of appellant was returned January 31, 1973. He was tried eleven months after his arrest.
The record does not contain a request for a speedy trial.
'When non-availability of witnesses is the basis of the alleged prejudice, an appellant must show that the witnesses were unavailable at the time he was tried; that their testimony may be relevant and material to his defense, and that due diligence was exercised in an attempt to locate such witnesses at the time he was tried.' McCarty v. State, 498 S.W.2d 212, 218 (Tex.Cr.App.1973).
No error has been shown. See Courtney v. State, 472 S.W.2d 151 (Tex.Cr.App.1971); McKinney v. State, 505 S.W.2d 536 (Tex.Cr.App.1974), and Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
Next, complaint is made that Article 726d, Section 15, Session Laws, Chapter 437, 61st Leg. Session, page 1474, effective June 4, 1969 (former penal code under which he was tried), was unconstitutional because sufficient notice of punishment increase for the sale of amphetamine was not given.
Amphetamines were included in the term 'dangerous drugs' in both the 1959 version of Texas Penal Code Annotated, Article 726d, Section 2, and in the amended 1969 version of said Article. The 1959 version of the Texas Penal Code Annotated, Article 726d, Section 15, classified the offense of sale of a dangerous drug as a misdemeanor. The 1969 version of Section 15, Article 726d, supra, made the sale of a dangerous drug a felony. Specifically delineated in the title or caption to the 1969 Act is the statement, 'providing penalties for illegal sale or delivery of certain dangerous drugs.' Vernon's Texas Session Law Service: Texas Laws 1969, Chapter 437 at 1474. Amendments are subject to a stricter rule of conformity of title to subject matter legislated on in the body of the act, with the primary goal to be achieved being that the title or caption give fair notice within itself and a reading of the title reasonably forewarn of the subject of the statute. White v. State, 440 S.W.2d 660 (Tex.Cr.App.196...
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