Posey v. State, s. 53191
| Citation | 545 S.W.2d 162 |
| Decision Date | 05 January 1977 |
| Docket Number | 53207 and 53208,Nos. 53191,s. 53191 |
| Parties | James Andrew POSEY, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
DALLY, Commissioner.
These are appeals from convictions for the offense of obtaining a controlled substance by misrepresentation, fraud, deception, and subterfuge, in violation of Section 4.09(a)(3) of the Controlled Substances Act. The punishment assessed in each case is imprisonment for 5 years.
In Cause No. 53,191, the appellant waived indictment and was prosecuted on an information. He then waived a jury trial, entered a plea of guilty before the court, and made a judicial confession that the allegations in the information were true and correct. In Cause Nos. 53,207 and 53,208, the appellant was prosecuted by indictment; he waived jury trials, entered pleas of guilty before the court, and made judicial confessions that the allegations in the indictments were true and correct.
Briefs filed in Cause Nos. 53,207 and 53,208 state that the appeals are wholly without merit and are frivolous. We agree that these appeals are frivolous and they will be affirmed. In Cause No. 53,191, the appellant asserts that the evidence is insufficient to support the judgment. We do not reach this contention since in our review in the interest of justice as required by Article 40.09, Sec. 13, V.A.C.C.P., we find the information in Cause No. 53,191 is fatally defective; the judgment in that cause must be reversed.
Section 4.09(a)(3) of the Controlled Substances Act provides:
'(a) It is unlawful for any person knowingly or intentionally:
'(3) to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge.'
The information, omitting its formal parts, alleges that the appellant on or about January 31, 1976, did unlawfully
'. . . then and there knowingly and intentionally acquire and obtain possession of a controlled substance, namely: Parest, by misrepresentation, fraud, deception, and subterfuge, in that he, the said defendant, did then and there present to Paul Kamleiter, a pharmacist, a prescription purporting to prescribe said controlled substance for Donna Renner.'
The facts constituting an offense denounced by a statute should be alleged so that the conclusion of law may be arrived at from the facts stated. Stribling v. State, 129 Tex.Cr.R. 656, 91 S.W.2d 735 (1936); Pond v. State, 116 Tex.Cr.R. 54, 32 S.W.2d 855 (1930); Jones v. State, 118 Tex.Cr.R. 106, 38 S.W.2d 587 (1931). The pleading must state facts which if true show a violation of the law. Ex parte Vasquez, 122 Tex.Cr.R. 475, 56 S.W.2d 190 (1933); Bassett v. State, 139 Tex.Cr.R. 65, 139 S.W.2d 267 (1940); Taubert v. State, 146 Tex.Cr.R. 582, 176 S.W.2d 955 (1944). Although it is generally sufficient to allege an offense in the terms of the statute without alleging additional facts, if it is the manner and means by which an act is done that makes the otherwise innocent act a criminal offense, it is necessary to allege facts showing the manner and means which make the act a criminal offense. See Bush v. State, 97 Tex.Cr.R. 219, 260 S.W. 574 (1924); Terry v. State, 471 S.W.2d 848 (Tex.Cr.App.1971); Reeves v. State, 144 Tex.Cr.R. 270, 162 S.W.2d 705 (1942); Parker v. State, 114 S.W.2d 906 (Tex.Cr.App.1938); Kennedy v. State, 86 Tex.Cr.R. 450, 216 S.W. 1086 (1919).
The State recognized that it was necessary to allege additional facts which would lead to the legal conclusion that the appellant knowingly and intentionally acquired and obtained possession of a controlled substance by misrepresentation, fraud, deception, or subterfuge. In attempting to allege these additional facts the State alleged '. . . in that he, the said defendant, did then and there present to Paul Kamleiter, a pharmacist, a prescription purporting to prescribe said controlled substance for Donna Renner . . .,' but those facts...
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