Threlkeld v. State
| Decision Date | 23 November 1977 |
| Docket Number | No. 54976,54976 |
| Citation | 558 S.W.2d 472 |
| Court | Texas Court of Criminal Appeals |
| Parties | Billy Carl THRELKELD, Appellant, v. The STATE of Texas, Appellee. |
This is an appeal from a conviction for possession of cocaine. Punishment was assessed by the court at three years.
Appellant contends that the court erred in overruling his motion to quash the indictment on the theory that possession of cocaine under Section 4.04(a) of the Controlled Substances Act is not illegal per se but becomes illegal only when not obtained directly from, or pursuant to, a valid prescription of a practitioner.
Section 4.04(a) of the Controlled Substances Act, V.A.C.S., 4476-15, under which appellant was indicted, provides:
"Except as authorized by this Act, a person commits an offense if he knowingly or intentionally possesses a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice."
The indictment alleged that appellant "did then and there knowingly and intentionally possess a controlled substance, namely cocaine, a derivative and compound of coca leaves." It did not allege that appellant's possession of cocaine was not pursuant to a valid prescription or doctor's order.
Prior to the enactment of the Controlled Substances Act this Court enunciated the rule that where a penal statute embraces an exception which is part of the statute itself, or the exception appears within the enacting clause of the law, it is necessary for the state to negate such an exception in the indictment. Baker v. State, 132 Tex.Cr.R. 527, 106 S.W.2d 308 (1937); Ford v. State, 105 Tex.Cr.R. 114, 286 S.W. 1089 (1926); Moore v. State, 90 Tex.Cr.R. 604, 236 S.W. 477 (1922).
V.T.C.A., Penal Code, Section 2.02(b), codified this common law rule:
"The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant's conduct does not fall within the exception."
Prior to the enactment of the Controlled Substances Act appellant's argument would have been well taken. The traditional rule upon which appellant relies, however, is no longer applicable to indictments charging possession of controlled substances. Article 4476-15, Section 5.10(a), expressly removed the burden of negating in an indictment any exemptions or exceptions under the act and placed the burden of going forward with the evidence with respect to such exemptions or exceptions upon the defendant. Wilson v. State, 520 S.W.2d 377 (Tex.Cr.App.1975); Thompson v. State, 495 S.W.2d 221 (Tex.Cr.App.1973).
This Court has consistently abided by the rule of statutory construction that a special provision as to a particular subject matter controls over general language which might otherwise govern. We hold, therefore, that the specific provisions of V.A.C.S., Article 4476-15, Section 5.10(a), prevail over the traditional rule set forth in Section 2.02(b) of the Penal Code and that the failure of an indictment to negate exceptions under Article 4.04(a) of the Controlled Substances Act will not render it defective.
Appellant also attacks the constitutionality of the Controlled Substances Act upon the theory that it delegates to the executive branch of the state government purely legislative power to determine what shall be illegal. Specifically, appellant challenges the authority of the State Commissioner of Health under V.A.C.S., 4476-15, Section 2.09, to amend, add to, or delete substances from the Schedules enumerated in the act. He reasons that if the act makes the possession of controlled substances a penal offense, and if the Commissioner may amend or make additions to the list of controlled substances, then the Legislature has invalidly vested in the Commissioner the authority to determine what shall be a crime.
Appellant challenges Section 2.09(a) of the Controlled Substances Act as it relates to all penal provisions of the statute. It is, however, incumbent upon an accused to show that he has...
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