Santoscoy v. State, 55910

• Decision Date: 16 April 1980
• Docket Number: No. 55910,No. 1,55910,1
• Citation: 596 S.W.2d 896
• Parties: Ernesto SANTOSCOY, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 896

596 S.W.2d 896

Ernesto SANTOSCOY, Appellant, v. The STATE of Texas, Appellee.

No. 55910.

Court of Criminal Appeals of Texas, Panel No. 1.

April 16, 1980.

Albert Armendariz, Jr., El Paso, for appellant.

Steve W. Simmons, Dist. Atty., and Douglas Gelo, Asst. Dist. Atty., El Paso Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.

Robert Huttash, State's Atty., Austin, for the State.

OPINION

I.

ROBERTS, Judge.

The appellant was a physician who was charged in an indictment which had fifteen counts, each count alleging that on a certain day he "did then and there unlawfully knowingly and intentionally deliver to (a named person) a controlled substance, namely (a particular substance), against the peace and dignity of the State." Five counts were dismissed at trial. The jury found the appellant guilty on the remaining counts, which were for delivering methaqualone (eight counts), amphetamine, and ethchlorvynol. On each count the jury assessed punishment at four years' confinement and a $500 fine, and it recommended probation of the confinement only. A judgment and order were entered, placing the appellant on probation and requiring him to pay a $5000 fine.

The appellant was licensed by the State of Texas to practice medicine and his license was recorded in the district clerk's office (see V.A.T.S. Arts. 4498 et seq.). He was registered with the Attorney General under the federal Controlled Substances Act; see 21 U.S.C. Sec. 822. He was not registered with the Director of the Texas Department of Public Safety as required by Section 3.01 of the Texas Controlled Substances Act (V.A.T.S. Art. 4476-15).

On sixteen occasions between December 12, 1974, and April 4, 1975, undercover officers (two from the Department of Public Safety, one from the Texas Board of Medical Examiners, and one from the federal Drug Enforcement Administration) posed as patients visiting the appellant's office in Anthony. Each officer began as a new patient and made several visits. Each asked for, and was given, prescriptions for drugs. None complained of any illness or disorder. Two officers were asked if they were addicts, which they denied; no other medical history was asked for. One officer's blood pressure was measured; no other physical examinations were made. Sometimes the appellant wrote prescriptions without even being asked. The prescriptions were filled at local drugstores. Twice the appellant refused to prescribe certain drugs because "the F.B.I.," or "they," were "checking." The appellant also said he was not a moralist. Two physicians who were general practitioners in the community testified that no valid physician-patient relationships had been established by this conduct, which conduct was not the usual course of medical practice in accordance with the standard of medical practice generally accepted and recognized in Texas.

II.

The proof that the appellant was not registered with the Director of the Department of Public Safety was the written statement of Kenneth W. Decker, which the State offered in rebuttal. Decker swore that he was the custodian of the records of registration under the Texas Controlled Substances Act and that, "a search of records has been made and Ernesto Santoscoy is not now registered and has never been registered with the Texas Department of Public Safety in compliance with the Texas Controlled Substances Act." The appellant claims that, for four reasons, it was error to admit the statement.

First, he says that the State did not deliver a copy of the statement to him before trial as Section 3 of V.A.T.S. Article 3731a requires. Although the appellant made extensive objections (which occupy nine pages in the statement of facts), he did not claim that he was surprised or that he had not been given a copy of the statement before trial. He may not raise this objection for the first time on appeal. Campbell v. State, 521 S.W.2d 636 (Tex.Cr.App.1975); Hill v. State, 163 Tex.Cr. 331, 290 S.W.2d 677 (1956).

The appellant recognizes that such a statement, by virtue of Article 3731a, Section 5, is an exception to the rule against hearsay. But he reminds us in his second argument that hearsay within the statement that is, hearsay on hearsay would not be admissible. See Smith v. Riviere, 248 S.W.2d 526, 530 (Tex.Civ.App. Texarkana 1952, no writ) (admissibility of medical board's records did not extend to hearsay statements about patient's life history). This rule of law avails the appellant nothing, for two reasons: It, too, is raised for the first time on appeal. And, unlike the records in Smith v. Riviere, the statement does not appear on its face to relate any hearsay.

The appellant next says that the certificate was not proper rebuttal to anything in his case-in-chief. The appellant's defense was based on his status as a practitioner. As evidence of this status he proved the fact that his license to practice medicine was recorded in the district clerk's office, and he introduced a federal "controlled substance registration certificate." The appellant having put his status as a practitioner in issue, it was proper rebuttal for the State to have introduced more evidence relevant to that status.

Finally the appellant argues that Decker's written statement was not relevant to any issue in the case. To the contrary, it was relevant to an issue which was the sine qua non of this offense for reasons which we shall discuss next.

III.

The appellant's principal contention is that, because he was a licensed physician who was registered with the Attorney General of the United States, he could not be convicted of unauthorized delivery under Section 4.03 of the Texas Controlled Substances Act. He relies heavily on Haney v. State, 544 S.W.2d 384 (Tex.Cr.App.1976), and especially on the footnote in that case, but his reliance is misplaced. The court held in Haney v. State that a physician, whose actions in dispensing a Schedule II drug by giving a written prescription without a medical examination were "not in the course of medical practice," did not commit an offense. There are two important distinctions between that case and this.

A.

First, Haney was charged with dispensing and this appellant was charged with delivering, which terms deserve some discussion. The parties' briefs proceed on an assumption, apparently gained by misreading Haney v. State, that "dispense" and "deliver" are mutually exclusive terms. They are not.

"Deliver" includes every kind of transfer of a controlled substance. See Texas Controlled Substances Act, Section 1.02(8). Delivering, like Gaul, is divided into three forms: administering, dispensing, and distributing. Every delivery must be in one of those three forms (or an offer to sell; see id.). "Administer" refers to the direct application of a controlled substance to a patient or research subject by, or in the presence of, a practitioner. Texas Controlled Substances Act, Section 1.02(1). "Dispense" refers to a delivery of a controlled substance to an ultimate user or research subject by a practitioner or pursuant to a lawful order of a practitioner. Texas Controlled Substances Act, Section 1.02(10). " 'Distribute' means to deliver other than by administering or distributing a controlled substance." Texas Controlled Substances Act, Section 1.02(12).

The legislative history of the statute also reveals that "delivery" is intended to encompass, not to exclude, "dispensing." The Texas Controlled Substances Act is a substantial adoption of the Uniform Controlled Substances Act, with variations. 9 U.L.A. 193 (master ed. 1979). The Commissioners' Note to Section 401 of the Uniform Act (the substantial equivalent to Section 4.03 of the Texas Act) states, "The term 'delivery' as used in this Section is intended to include both dispensing and distribution as they are defined in Section 101." Id. at 259. (For our purposes, the definitions are identical to those in the Texas Act.)

The statement in Haney v. State, 544 S.W.2d 384, 388 n. 1 (Tex.Cr.App.1976) that "deliver" and "dispense" have distinct meanings is correct, but it must not be misunderstood to say that one term excludes the other. "Delivery" includes "dispensing" and the other two forms of transfers (and offers to sell).

Even a practitioner can be convicted for a delivery that is outside the bounds of dispensing or administering. Merriman v. State, 594 S.W.2d 410 (Tex.Cr.App.1980) (an unauthorized distribution by a pharmacist).

Therefore it may be understood that the charge against Haney of dispensing involved a much narrower range of acts than the entire range of transfers encompassed by the charge of delivering in this case.

B.

A second distinction between Haney v. State and this case is that the State offered proof that this appellant was not registered by the Director of the Texas Department of Public Safety (or his designee; see Texas Controlled Substances Act, Section 1.02(9)). This proof goes directly to the heart of a prosecution for delivery under Section 4.03 of the Texas Controlled Substances Act: authorization. Section 4.03(a) provides, "Except as authorized by this Act, a person commits an offense if he knowingly or intentionally . . . delivers . . . a controlled substance listed in Penalty Group 1, 2, 3, or 4." The lack of statutory authorization to deliver is essential to conviction for delivery.

The only authorization of delivery in the Texas Controlled Substances Act is in Section 3.01(b):

"Persons registered by the director under this Act to manufacture, distribute, dispense, analyze, or conduct research with controlled substances may possess, manufacture, distribute, dispense, analyze, or conduct research with those substances to the extent authorized by their registration and in conformity with the other provisions of this Act."

If a person delivers a controlled substance listed in Penalty Groups 1, 2, 3, or 4, without the authorization of Section 3.01, he commits an offense. If, because he...