Tovar v. State
Citation | 612 S.W.2d 616 |
Decision Date | 11 March 1981 |
Docket Number | No. 3,No. 66789,66789,3 |
Parties | Ralph Guadalupe TOVAR, Appellant, v. The STATE of Texas, Appellee |
Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
William W. Burge, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., Winston E. Cochran, Jr., and Marie Vonkrosigk, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before TOM G. DAVIS, McCORMICK and TEAGUE, JJ.
Appeal is taken from an order revoking probation.
The judgment in this cause recites that on March 10, 1978, following his plea of guilty in a trial before the court, appellant was convicted "of the offense of unlawfully with intent to deliver, intentionally and knowingly possess a controlled substance, namely, marijuana." Punishment was assessed at 5 years, probated, and a fine of $1500.00. Appellant's probation was revoked on February 13, 1980.
At the outset, we are confronted with unassigned error which requires reversal in the interest of justice. Art. 40.09, Sec. 13, V.A.C.C.P. The indictment in the primary offense alleges in pertinent part that on January 12, 1978, appellant did:
The record reflects that the State dismissed and abandoned the first count of the indictment. Appellant was tried and convicted under the second count of the indictment.
The offenses of possession and delivery of marihuana are proscribed by the Controlled Substances Act, Art. 4476-15, Sec. 4.05, V.A.C.S., in the following manner
In order to allege a felony offense, an indictment for the delivery of marihuana must allege the amount of marihuana delivered or whether the delivery was for remuneration. Ex Parte Barcelo, Tex.Cr.App., 577 S.W.2d 499; Ex Parte Osbourn, Tex.Cr.App., 574 S.W.2d 568; Whitaker v. State, Tex.Cr.App., 572 S.W.2d 956. Likewise, in order to allege a felony offense, an indictment for possession of marihuana must allege that the defendant possessed a usable quantity of marihuana of more than four ounces. Art. 4476-15, Sec. 4.05(b)(1), supra; Lejeune v. State, Tex.Cr.App., 538 S.W.2d 775.
In the instant case, the first count of appellant's indictment sufficiently alleged felony possession of marihuana. However, ...
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Bridges v. State
...§ 4.05(d) and (f) V. A.T.S. 1 provides that the delivery of marihuana for remuneration is a felony offense. Also see: Tovar v. State, 612 S.W.2d 616 (Tex.Cr.App.1981). Appellant's second, third, fourth, eighth and ninth grounds of error are The judgment of conviction is affirmed. 1 This ref......
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King v. State
...quantity term is superfluous when the indictment already charges 'more than four ounces.' "The appellant relies on Tovar v. State, 612 S.W.2d 616 (Tex.Cr.App.1981) which held that an indictment for possession of marihuana was defective. Unlike the case before us, the Tovar indictment lacked......
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King v. State
...quantity term is superfluous when the indictment already charges "more than four ounces". The appellant relies on Tovar v. State, 612 S.W.2d 616 (Tex.Cr.App.1981) which held that an indictment for possession of marihuana was defective. Unlike the case before us, the Tovar indictment lacked ......
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Stewart v. State
...it is in Article 4476-15, §§ 4.03, 4.031, 4.032, 4.044 and 4.05(b), (c) and (d), especially the aggravated offenses. Tovar v. State, 612 S.W.2d 616, 618 (Tex.Cr.App.1981). When a cautious person makes a mere offer to sell without exhibiting or mentioning a definite amount or weight of the p......