Morrell v. State

¶1OPINION

¶2The appellant was indicted for intentionally and knowingly delivering “a controlled substance, namely: Tuinal.” * A jury found the appellant guilty and the court sentenced him to five years’ confinement.

¶3Tuinal never has been listed as a controlled substance in the penalty groups of subchapter 4 of the Texas Controlled Substances Act (V.A.T.S., Art. 4476-15). The State’s theory was that Tuinal fell under the description “derivatives of barbituric acid.” See Section 4.02(d) of the Texas Controlled Substances Act.

¶4In Ex parte Wilson, 588 S.W.2d 905, 908-909 (Tex.Cr.App.1979), the Court stated:

“To state the rule generally, we hold that in a prosecution under the Controlled Substances Act for the manufacture, delivery, or possession of a substance not specifically named in a penalty group but *299which is otherwise described in a penalty group (for example, an isomer of methamphetamine), such description is an essential element of the offense which must be alleged in the indictment in order to state an offense.”

¶5The indictment failed to allege all that was necessary for the State to prove; thus it was fundamentally defective. The conviction cannot stand.

¶6The judgment is reversed and the indictment is ordered dismissed.