McSwain v. State , 1966 Tex. Crim. App. LEXIS 857 ( 1966 )

ON APPELLANT’S MOTION FOR REHEARING

BELCHER, Commissioner.

It is now insisted that appellant’s prior conviction for the offense designated in the judgment and sentence as “Habitual user of narcotic drugs” which was used for enhancement is void.

He relies on the holding of this court that the statute (Art. 725c, Vernon’s Ann.P.C.) making it an offense for a person to be “addicted to the use of narcotic drugs” was invalid, and a conviction thereunder was void. Ex Parte Rogers, Tex.Cr.App., 366 S.W.2d 559. He urges that “Habitual user of narcotic drugs” is synonymous with “addicted to the use of narcotic drugs,” and that both import a “status” or “condition” and not an act.

The applicable portion of Art. 725c, V.A. P.C., reads as follows:

“It shall be unlawful for any person to habitually use narcotic drugs, be addicted to the use of narcotic drugs, * * *.”

The portion of the statute containing the words “habitually use” is based upon the act of using. Without an “act” a person could not “habitually use” narcotic drugs. To be addicted to the use of narcotic drugs is a status or condition.

The motion for rehearing is overruled.

Opinion approved by the Court.