Wilson v. State

• Decision Date: 09 July 1975
• Docket Number: No. 50298,50298
• Citation: 525 S.W.2d 30
• Parties: Don Henry WILSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 30

525 S.W.2d 30

Don Henry WILSON, Appellant, v. The STATE of Texas, Appellee.

No. 50298.

Court of Criminal Appeals of Texas.

July 9, 1975.

Robert Everett L. Looney and Duncan F. Wilson, Austin, for appellant.

Robert O. Smith, Dist. Atty., David A. Sheppard, Asst. Dist. Atty., Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

Appellant plead guilty, and was convicted of unlawful possession of a usable quantity of marihuana of more than four ounces. Punishment was assessed at two years. The offense occurred January 16, 1974.

Appellant's sole ground of error is:

'The trial court erred in its judgment of sentence in that the penal provisions of The Texas Controlled Substances Act under which appellant was convicted are unconstitutional and void.'

Appellant argues that the punishment provisions of the Texas Controlled Substances Act, Article 4476--15, Section 4.05(a) and (b)(1), Vernon's Ann.Tex.Civ.Stats. are in such direct conflict with those of the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, Title 21, U.S.C.A., Section 844(a), that by virtue of Title 21, U.S.C.A., Section 903, the Texas penalty provisions are void.

Appellant's conviction rests upon a violation of Section 4.05(a) of Article 4476--15, Vernon's Ann.Tex.Civ.Stats., which prohibits the possession of a usable quantity of marihuana. Where, as in the instant case, the quantity is more than four ounces, the offense is a third degree felony, Section 4.05(b) (1), with a punishment range of from two to ten years and a fine not exceeding $10,000.00. V.T.C.A., Penal Code, Section 12.34.

For the purpose of showing a 'positive conflict' (see 21 U.S.C.A., Section 903, supra) between the penalties under our State Controlled Substances Act and those provided in the Federal statute, appellant compares the above stated penalties with Title 21, U.S.C.A., Section 844(a), which prohibits 'simple possession' of controlled substances, including marihuana. The punishment there provided is 'imprisonment of not more than one year, a fine of not more than $5,000, or both, except that if he commits such offense after a prior conviction or convictions under this subsection have become final, he shall be sentenced to a term of imprisonment of not more than 2 years, and a fine of not more than $10,000, or both.'

Appellant in his brief states that he 'bases his appeal on the special nature of 21 U.S.C.A., Section 903, in relation to the penalty provisions of the Texas Controlled Substances Act . . ..'

He further states:

'It is appellant's contention that certain provisions of the Texas Act--specifically, the penal provisions--do frustrate the intention of Congress and thus are void through operation of the Supremacy Clause ¹ and the special nature of 21 U.S.C.A., Section 903.'

Section 903 of Title 21, U.S.C.A., provides:

'Application of State law

'No provision of this subchapter shall be construed as indicating an intent on the part of Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which...