Saunders v. State

• Decision Date: 02 July 1974
• Docket Number: No. 48762,48762
• Citation: Saunders v. State, 511 S.W.2d 281 (Tex. Crim. App. 1974)
• Parties: James D. SAUNDERS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 281

511 S.W.2d 281

James D. SAUNDERS, Appellant, v. The STATE of Texas, Appellee.

No. 48762.

Court of Criminal Appeals of Texas.

July 2, 1974.

A. J. Hohman, Jr., San Antonio (Court-appointed), for appellant, on appeal only.

Ted Butler, Dist. Atty., Lucien Campbell and Josephine M. Hall, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for sale of marihuana. Trial was before the court upon a plea of not guilty. Punishment was assessed at two years.

At the outset appellant contends that the court fundamentally erred in that it entered a judgment on an indictment which did not recite an offense for which a conviction may be found.

The pertinent portion of the indictment recites that appellant 'on or about the 2nd day of April, 1973 did then and there unlawfully sell to James Rozar a narcotic drug, to wit: marihuana.' Appellant points to the record where the court states, 'He (appellant) enters a plea of not guilty to delivery of marijuana for remuneration. . . .' and, 'The court will find the defendant guilty of delivering 1.6 grams of marijuana for remuneration in violation of Section 4.05(d) of the Texas Controlled Substances Act. . . .' Despite the court's oral pronouncement, the judgment in the record before us recites, 'And the court having heard said plea, and having heard the evidence which was submitted and the argument of counsel, and having duly considered the same, finds that the defendant is guilty of a felony, to wit: Sale of Narcotics, to wit: Marihuana, as charged in the indictment. . . .' (Emphasis supplied.) The sentence shows that appellant 'has been adjudged to be guilty of Sale of Narcotics, to wit: Marihuana.'

The offense for which appellant was charged occurred before August 27, 1973, the effective date of the Controlled Substances Act. Section 6.01(a) of the Controlled Substances Act, Vernon's Ann.Civ.St., art. 4476--15, provides:

'. . . this Act applies only to offenses committed on and after its effective date, and a criminal action for an offense committed before this Act's effective date is governed by the law existing before the effective date, which law is continued in effect for this purpose, as if this Act were not in force.' ¹

Thus, Article 725b, Vernon's Ann.P.C., was applicable to the instant case, and the indictment charging appellant with 'sale of a narcotic drug, to wit: marihuana,' properly charged appellant with an offense under said Article 725b, supra.

It appears that appellant, in urging that appellant was convicted for an offense other than that for which he was charged, is relying on the court's pronouncement from the bench rather than the judgment entered of record. Article 42.01, Vernon's Ann.C.C.P., provides, 'A 'judgment' is the declaration of the court entered of record. . . .' The judgment in the record before us shows to have been entered in the minutes of the court, and reflects that appellant was convicted of the offense charged in the indictment and said judgment meets all the requirements of Article 42.01, supra.

This case is analogous to Smith v. State, 468 S.W.2d 448, where this Court held that reversal was not required where the jury returned unauthorized verdict of robbery by firearms where court charged jury relative to law of robbery by assault and judgment correctly stated that conviction was for robbery by assault.

In the instant case appellant was charged by indictment with the law applicable at the time of the offense, appellant entered his plea to such indictment, and the judgment to which no objection was made reflects appellant was convicted of the offense charged in the indictment. We reject appellant's contention that the court entered a judgment for an offense for which a conviction could not be found.

What harm, if any, did the court's references to the inapplicable Controlled Substances Act cause? The court's references were to 'delivering for remuneration.' ² 'Delivery' under the Controlled Substances Act (Section 1.02(8)) is defined as 'the actual or constructive transfer from one person to another of a controlled substance.' Under Section 1(10) of Article 725b, supra, 'sale' includes barter, exchange, or gift. Clearly the trial court referred to the Same criminal conduct alleged in the indictment. As hereinafter noted, the evidence overwhelmingly supported the finding that appellant made a sale of marihuana. A delivery of marihuana for remuneration is a sale of the narcotic drug marihuana, and no distinction, real or apparent, can be made. Thus, appellant's argument that 'sale of narcotics, to wit: marihuana' was not such conduct as would constitute an offense after the effective date of the Controlled Substances Act (trial was on October 1, 1973) under Section 6.01(b) is without merit. ³

Under the foregoing circumstances, reversal is not required.

Appellant contends that evidence was insufficient to show that marihuana was delivered for remuneration in violation of Sectioin 4.05(d) of the Texas Controlled Substances Act.

Appellant's contention is based on the premise that the instant case was tried under Texas Controlled Substances Act which was not applicable to this case.

As heretofore noted, sale is defined under Section 1(10), Article 725b, supra, to include 'barter, exchange, or gift, or offer therefor.' A sale is shown under such Article without evidence of a conversation regarding drugs or price. Holdaway v. State, Tex.Cr.App., 505 S.W.2d 262; Lewis v. State, Tex.Cr.App., 482 S.W.2d 177. Even if this were not true, two officers testified as to the transfer of the marihuana and the receipt of money therefor by appellant. In addition, the testimony of appellant reflects:

'MR. CAMPBELL (prosecutor): I just want you to tell us whether the man gave you three or four dollars after you gave him the marihuana.

'MR. SAUNDERS (appellant): Yes sir, the best I recall,...