Young v. State
| Decision Date | 01 June 1977 |
| Docket Number | No. 53642,53642 |
| Citation | 552 S.W.2d 441 |
| Parties | George Calvin YOUNG, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Steven G. Condos, Dallas, for appellant.
Henry Wade, Dist. Atty., William M. Lamb, Norman Kinne, John W. Booth and Brady W. Sparks, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
This is an appeal from a conviction for possession of heroin. The punishment, enhanced by two prior felony convictions alleged and proved, was assessed by the court at life imprisonment following a guilty verdict.
On original submission the appeal was abated in order that appellant might have an opportunity to examine the appellate brief and file a pro se brief since his court-appointed counsel had concluded that the appeal was frivolous and filed a brief accordingly. The opinion abating the appeal stated that the trial court will require the parties to brief the question of whether the punishment was enhanced under Article 62, Vernon's Ann.P.C., 1925; Article 725b, Vernon's Ann.P.C., 1925; the Texas Controlled Substances Act or V.T.C.A., Penal Code, § 12.42(d). The question has now been briefed.
In the primary count the indictment alleged that appellant unlawfully possessed heroin on or about March 23, 1973 in Dallas County. The enhancement paragraphs of the indictment alleged a 1957 conviction for possession of heroin in Dallas County and a 1942 conviction in the same county for burglary.
The indictment was returned on May 21, 1973, and appellant's trial commenced on February 2, 1976.
Appellant, upon re-briefing, now urges the trial court erred in enhancing punishment under Article 63, Vernon's Ann.P.C., 1925, as the prior conviction for possession of heroin was not available for use under Article 63, supra, because of the special enhancement provisions of Article 725(b), § 23(1), Vernon's Ann.P.C., 1925. In support of his contention he cites Heredia v. State, 468 S.W.2d 833 (Tex.Cr.App.1971), and cases there cited.
Article 63, supra, provided:
"Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary."
Article 725b, supra (Uniform Narcotic Drug Act), provides in part in § 23(1) that:
". . . upon the second or any subsequent conviction therefor shall be punished by confinement in the penitentiary for life or for any term of years not less than ten (10). . . ."
In Watson v. State, 532 S.W.2d 619 (Tex.Cr.App.1976), it was written:
If the punishment was assessed under Article 63, supra, appellant's contention would have merit. However, in the record we find a motion entitled "Defendant's Motion to Elect Punishment under Texas Controlled Substance Act," which reads:
"
The motion was signed by the appellant and his counsel.
At the penalty hearing the court inquired of the appellant concerning such motion, and the appellant stated he elected to be punished under the Texas Controlled Substances Act rather than the "law applicable to this cause at the time it is alleged to have occurred."
Heroin is a controlled substance found in Penalty Group 1, Texas Controlled Substances Act (Article 4476-15, Vernon's Ann.C.S.), § 4.02(b)(2)(J). Unlawful possession of a controlled substance in Penalty Group 1 is a felony of the second degree. § 4.04(b)(1), Article 4476-15, supra. § 4.01(b)(2) of said Act provided:
§ 6.01(c) of the Texas Controlled Substances Act provides:
"In a criminal action pending, on appeal, or commenced on or after the effective date of this Act, for an offense committed before the effective date, the defendant, if adjudged guilty, shall be assessed punishment under this Act if he so elects by written motion filed with the trial court requesting that the court sentence him under the provisions of this Act."
V.T.C.A., Penal Code, § 1.03(b), reads:
"The provisions of Titles 1, 2, and 3 of this code apply to offenses defined by other laws, unless the statute defining the offense provides otherwise; however, the punishment affixed to an offense defined outside this code shall be applicable unless the punishment is classified in accordance with this code."
Title 3 of the Penal Code applies to punishment, and thus the provisions of the Penal Code are applicable to the instant case.
V.T.C.A., Penal Code, § 12.33 of said Title 3, relates to second degree felony punishment and is exactly the same as the punishment for second degree felonies in the Texas Controlled Substances Act. Thus, the punishment in the Controlled...
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...for the defense, and (3) the materiality of the evidence. Ransonette v. State, 550 S.W.2d 36, 39 (Tex.Cr.App.); Young v. State, 552 S.W.2d 441, 443 (Tex.Cr.App.). "The standard to be applied in cases of suppression or nondisclosure of evidence by the State is whether the testimony may have ......
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