Merriman v. State

OPINION ON APPELLANT’S MOTION FOR REHEARING

ONION, Presiding Judge.

This is an appeal from a conviction for delivery of a controlled substance, hydro-morphone; punishment is imprisonment for sixteen (16) years.

The judgment was affirmed in a per cu-riam opinion delivered November 22, 1978. That opinion did not address appellant’s contentions because the record then before a panel of this court showed that appellant’s retained counsel had filed his brief four days late. A supplemental transcript containing an order extending the time for filing the brief then was filed in this court on November 30,1978, and on December 20, 1978, appellant filed a motion for leave to file a motion for rehearing in which he asserted that the brief had been filed within the extended period. Appellant’s motion for leave to file a motion for rehearing was granted by this court on December 20,1978. We now grant appellant’s motion for rehearing and reverse the judgment.

The indictment alleged that appellant, on or about February 17, 1976, did “knowingly and intentionally deliver to Brantley Foster a controlled substance, namely: Hydromor-phone . . . ” Hydromorphone is a controlled substance under the Texas Controlled Substances Act [Article 4476-15, § 2.04(b)(K), V.A.C.S.]; the offense of delivery of hydromorphone is classified as a first degree felony. Article 4476-15, § 4.02(b)(3)(xi), § 4.03(b)(1).

Foster, an undercover agent of the Department of Public Safety, testified that he called appellant on February 14, 1976, and arranged to meet him on February 17, 1976, at a pharmacy owned and operated by appellant in Lampasas. At that meeting, which took place after appellant'closed the store and he and Foster retired to the back room, they discussed the sale of a number of controlled substances from appellant to Foster. Their conversation lasted approximately fifty minutes, following which Foster purchased 100 preludin tablets, 250 quaalude tablets and fifty dilaudid tablets.

Vickie Patterson, a Department of Public Safety chemist, testified that the dilaudid tablets contained hydromorphone.

James Gilstrap, a Department of Public Safety narcotics officer, testified that he supervised five other officers who worked in a forty-six-county area which included Lampasas. The officers under Gilstrap’s control were responsible for inspecting inventories of controlled substances of practitioners in their area. Gilstrap testified that appellant was a licensed pharmacist and that he was licensed under the Texas Controlled Substances Act.

Relevant to our disposition of this appeal are the following sections of the Texas Controlled Substances Act:

§ 4.03 provides, in pertinent part, as follows:

“(a) Except as authorized by this Act, a person commits an offense if he knowingly or intentionally manufactures, delivers or possesses with intent to manufacture or deliver a controlled substance listed in Penalty Group 1, 2, 3, or 4.”

§ 4.08 provides, in pertinent part, as follows:

“(a) It is unlawful for any person:

“(1) who is a practitioner knowingly or intentionally to distribute or dispense a controlled substance in violation of Section 3.08.”

§ 3.08 provides as follows:

“(a) No controlled substance in Schedule II may be dispensed without the written prescription of a practitioner, except when dispensed directly to an ultimate user by a practitioner, other than a pharmacy.

“(b) In emergency situations, as defined by rule of the director, Schedule II drugs may be dispensed upon oral prescription of a practitioner, reduced promptly to writing by the pharmacy and filed by the pharmacy. Prescriptions shall be retained in conformity with the requirements of Section 3.06. No prescription for a Schedule II substance may be refilled.

“(c) Except when dispensed directly to an ultimate user by a practitioner, other than a pharmacy, a controlled substance included in Schedule III or IV, which is a prescription drug as determined under the Federal Food, Drug, and Cosmetic Act, shall not be dispensed without a written oral prescription of a practitioner. The prescription shall not be filled or refilled more than six months after the date thereof or be refilled more than five times, unless renewed by the practitioner.

“(d) A controlled substance listed in Subdivision (1) or (2), Subsection (b), Section 2.07 of this Act, may not be dispensed without the prescription of a practitioner, except when dispensed directly to an ultimate user by a practitioner other than a pharmacy, and a prescription for the substances may not be filled or refilled more than six months after the date of the prescription or be refilled more than five times, unless renewed by the practitioner. A controlled substance included in Schedule V shall not be distributed or dispensed other than for a medical purpose.

“(e) No prescription for Schedule II narcotic drugs shall be filled after the second day the prescription was issued.”

§ 1.02 provides, in pertinent part, as follows:

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“(8) ‘Deliver’ or ‘delivery’ means the actual or constructive transfer from one person to another of a controlled substance, whether or not there is an agency relationship. For purposes of this Act, it also includes an offer to sell a controlled substance. Proof of an offer to sell must be corroborated by a person other than the offeree or by evidence other than a statement of the offeree.

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“(10) ‘Dispense’ means to deliver a controlled substance to an ultimate user or research subject by, or pursuant to the lawful order of, a practitioner (in the course of professional practice or research), including the prescribing, administering, packaging, labeling,, or compounding necessary to prepare the substance for such delivery.

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“(24) ‘Practitioner’ means:

“(A) a physician, dentist, veterinarian, scientific investigator, or other person licensed, registered, or otherwise permitted to distribute, dispense, analyze or conduct research with respect to, or to administer a controlled substance in the course of professional practice or research in this state; or

“(B) a pharmacy, hospital, or other institution licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to, or administer a controlled substance in the course of professional practice or research in this state.

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Gilstrap’s testimony established that appellant was a “practitioner” within the meaning of that term as used in the Controlled Substances Act. Article 4476-15, § 1.02(24)(B), supra. As such, he was not liable to prosecution for “delivery” of a controlled substance under § 4.03(a), supra, and could have been convicted for only unauthorized “dispensing” of a controlled substance in violation of § 3.08, supra, as proscribed by § 4.08(a)(1), supra. See Haney v. State, 544 S.W.2d 384 (Tex.Cr.App.1976).

The evidence is sufficient to sustain a conviction for unauthorized dispensing of a controlled substance under § 4.08(a)(1) and § 3.08(a), supra. The indictment, however, alleges that appellant had committed the offense of delivery of a controlled substance under § 4.03(a), supra, and the judgment recites that he was found guilty of the same. There is a fatal variance between the offense which was alleged and that which was proved, and the evidence therefore is not sufficient to sustain the conviction. See Bullet v. State, 538 S.W.2d 785 (Tex.Cr.App.1976); Byrom v. State, 528 S.W.2d 224 (Tex.Cr.App.1975); Green v. State, 502 S.W.2d 807 (Tex.Cr.App.1973).

The judgment is reversed and reformed to show a judgment of acquittal.