Salas v. State
| Citation | 365 S.W.2d 174 |
| Decision Date | 16 January 1963 |
| Docket Number | No. 35202,35202 |
| Parties | Alberto Carreon SALAS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Joseph A. Calamia, Edward S. Marquez, El Paso, for appellant.
Edwin F. Berliner, Dist. Atty., Jack N. Ferguson, Asst. Dist. Atty., El Paso, and Leon B. Douglas, State's Atty., Austin, for the State.
The indictment charged that appellant was at the time and place mentioned therein 'unlawfully under the influence of a narcotic drug.' Upon his plea of guilty, appellant was sentenced to not less than one (1) hour and not more than three (3) years; the execution of such sentence was probated, and under the authority of Section 8 of Article 781d, Vernon's Ann.C.C.P., this appeal is prosecuted.
Ample proof was offered that appellant came across the international bridge at El Paso into this State while under the influence of narcotics.
The constitutionality of Article 725c, Vernon's Ann.P.C., is attacked, and reliance is had upon the recent holding of the Supreme Court of the United States in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758. Article 725c, V.A.P.C., reads, in part, as follows:
Under the above holding of the Supreme Court, Article 725c, V.A.P.C., insofar as it makes it a crime for a person to be addicted to the use of narcotic drugs is invalid. We cannot bring ourselves to agree with appellant that the entire act must fall. The majority opinion in Robinson points out that '[t]hat portion of the statute (California) referring to the 'use' of narcotics is based upon the 'act' of using,' while being addicted to narcotics was a status or condition and not identical to the act of using. The California trial court instructed the jury that they might convict upon a finding that accused committed the 'act' or was of the 'status' and such instructions were approved on appeal. Such is not the case before us here. Appellant was charged with the 'act' of being under the influence, to which indictment he...
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