Sheffield v. State
| Decision Date | 10 June 1982 |
| Docket Number | No. 12-81-0132-CR,12-81-0132-CR |
| Citation | 635 S.W.2d 862 |
| Court | Texas Court of Appeals |
| Parties | Leo SHEFFIELD, Appellant, v. The STATE of Texas, Appellee. |
Harry R. Heard, Longview, for appellant.
Kent Phillips, Asst. Dist. Atty., Robert R. Foster, Dist. Atty., Longview, for appellee.
This is an appeal from a conviction for delivery of a controlled substance, to-wit: phenmetrazine. The jury sentenced appellant to ten years in the Texas Department of Corrections.
Appellant brings four grounds of error. We note that the Court of Criminal Appeals has already passed on some of the same grounds in a revocation of probation proceeding involving the same offense. See Sheffield v. State, 623 S.W.2d 403 (Tex.Cr.App.1981). Although a revocation of probation proceeding is considered administrative in nature, Cross v. State, 586 S.W.2d 478, 481 (Tex.Cr.App.1979), and the burden of proof is less in a revocation proceeding than in a criminal proceeding, Kulhanek v. State, 587 S.W.2d 424, 426 (Tex.Cr.App.1979), similar questions of law decided by the Court of Criminal Appeals in the prior Sheffield case are binding on this court.
Appellant's first ground of error contends the trial court erred in not granting appellant's objection to the indictment. Appellant argues that the indictment failed to allege certain language as required by statute. The indictment stated, in part, that Sheffield "did then and there intentionally and knowingly deliver to Marco Delgado a controlled substance, namely, phenmetrazine, by constructively transferring the same to the said Marco Delgado."
Art. 4476-15, § 4.02(d) of the Controlled Substances Act (Vernon Supp.1979), under which appellant was charged, sets out the drugs within penalty group three. Subsection 1 of penalty group three states:
Any material, compound, mixture or preparation which contains any quantity of the following substances having a potential for abuse associated with a stimulant effect on the central nervous system: ... (D) Phenmetrazine and its salts.
Appellant contends that under § 4.02(d) 1(D) the State is required to prove that the quantity of phenmetrazine contained in the pills sold by appellant contains "a potential for abuse associated with a stimulant effect on the central nervous system." In other words, he urges that the phrase beginning "having a potential for abuse" modifies "quantity," not "substances." This identical contention was rejected by the Court of Criminal Appeals in the first Sheffield case. The court held that "having a potential for abuse" modified "substances" rather than "quantity," and therefore, it was unnecessary for the State to prove the amount or the effect of the phenmetrazine contained in the pill. Sheffield, 623 S.W.2d at 406. Appellant's first ground of error is overruled.
Appellant's second ground of error contends that there was insufficient evidence to support his conviction because art. 44.76-15 § 1.02(8) requires corroboration of a witness in order to prove delivery of a controlled substance. We cannot agree. The article in question states:
"Deliver" or "delivery" means the actual or constructive transfer from one person to another of a controlled substance, whether or not there is an agency relationship. For purposes of this Act, it also includes an offer to sell a controlled substance. Proof of an offer to sell must be corroborated by a person other than the offeree or by evidence other than a statement of the offeree.
We cannot agree with appellant's construction of the statute. In the instant case the State alleged that appellant constructively delivered a controlled substance. Corroboration is required only when the State alleges an "offer to sell" a controlled substance. No corroboration is required to prove delivery in the form of a constructive transfer. Sheffield, 623 S.W.2d at 405.
Appellant's third ground of error contends the...
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McGee v. State
...for abuse" modifies the word "substance," not the word "quantity." See Sheffield v. State, 623 S.W.2d 403 (Tex.Crim.App.1981); Sheffield v. State, 635 S.W.2d 862 (Tex.App.--Tyler 1982, no pet.). Thus, the State was not required to allege or prove, and the court was not required to charge, t......
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Williams v. State
...then told the other man with him to give Bledsoe a ten-dollar rock of crack cocaine. Appellant concedes that the situation in Sheffield v. State, 635 S.W.2d 862 (Tex.App.--Tyler 1982, no pet.) provides similar facts which were sufficient to affirmatively link the defendant to the controlled......