¶1DISSENTING OPINION TO THE OVERRULING OF STATE’S MOTION FOR REHEARING WITHOUT WRITTEN OPINION
¶2Today I find myself once again amazed, as I am sure many judges and trial attorneys will be, at the ease and ability of this Court to abandon what appeared to be established principles of law in favor of a snowballing doctrine known as fundamental error. On February 5, 1975, this Court, without the necessity of citation of authority held:
“The plain language of this section leaves no doubt but that it was the legislative intent that any derivative of coca leaves, including cocaine, be included in penalty group one.” Elam v. State, 518 S.W.2d 367 (Tex.Cr.App.1975).
¶3Not only does the Court today chip another block from the foundation of stare deci-sis, it also demonstrates its ability to selectively read the statutes of this State with an eye toward hypertechnicality and further abandonment of any common sense approach to criminal pleadings in the State of Texas.
¶4The instant case comes to us on appeal from a conviction for possession of a controlled substance, namely, cocaine. After finding appellant guilty, the jury assessed punishment at ten years, probated, and a fine of $10,000. On original submission, the panel found appellant’s indictment to be fundamentally defective, reversed the conviction, and ordered the indictment dismissed.
¶5Omitting the formal parts, the indictment alleged that the appellant did:
“... knowingly and intentionally possess a controlled substance, namely, cocaine, ...”
¶6Relying on Ex parte Wilson, 588 S.W.2d 905 (Tex.Cr.App.1979), the panel held that since cocaine was not specifically mentioned in any penalty group the indictment was fundamentally defective for failing to allege why cocaine is a controlled substance. Prior to its amendment on August 27, 1979, Article 4476-15, Section 4.02(b)(3)(D), V.A. C.S., provided:
“Coca leaves and any salt, compound, derivative or preparation of coca leaves and any salt, compound, derivative or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions which do not contain cocaine or ecgonine.”
¶7The instant prosecution was for an offense alleged to have occurred while the above quoted language was still in existence.
¶8Following the unanimous opinion in Elam v. State, supra, which left no doubt that cocaine was a derivative of coca leaves, a panel of this Court again, in 1978, addressed the identical issue presented here. In Bishop v. State, 568 S.W.2d 136 (Tex.Cr.App.1978), it was contended that an indictment for delivery of cocaine was fundamentally defective in that it failed to allege an offense because the Controlled Substances Act did not specifically name cocaine as a controlled substance. The indictment in Bishopalleged:
“Bobby Joe Bishop, hereinafter referred as the Defendant, heretofore on or about February 13, 1976, did then and there unlawfully, knowingly and intentionally deliver to John Tanner a controlled substance, namely cocaine.” (Emphasis supplied)
¶9In overruling the appellant’s contention in Bishop, it was held that:
“Where this definition specifically includes any compound or derivative of coca leaves but excludes decocainized coca leaves or extractions which do not contain cocaine there is a necessary implication in the definition that cocaine is a derivative of or preparation from, coca leaves. This inference is strengthened by *62the prior provision of Article 725b, V.A. P.C. (1925) which was the predecessor of the Texas Controlled Substances Act where coca leaves were defined as including ‘cocaine and any compound, manufacture, salt, derivative, mixture, or preparation of coca leaves, except derivatives of coca leaves which do not contain cocaine ... ’ ” Bishop v. State, supra, at 137.
¶10The Court in both Elamand Bishoprecognized that it was the intent of the Legislature to include cocaine within the penalty group I proscriptions of the Controlled Substances Act. In overruling these two decisions, the validity of which had not heretofore been doubted, the majority has misapplied the holding of Ex parte Wilson, supra. There the indictment alleged possession of a “controlled substance, namely: Phenter-mine.” Phentermine was not specifically listed as a prohibited drug: nor, could the Court take judicial notice that phentermine was an isomer of methamphetamine. Whether phentermine is an isomer of methamphetamine depends on evidentiary proof. Thus, the Court held that the indictment should allege why possession of a non-listed drug was prohibited by the Act. See also Ex parte Charles, 582 S.W.2d 836 (Tex.Cr.App.1979).
¶11Undoubtedly, one cannot look at the statute which forbids isomers of methamphetamine and judicially construe it to include phentermine. Thus, for phentermine to be equivalent to an isomer of methamphetamine one look outside the statute itself to extrinsic evidence. Cocaine is different. One can look to the statute, as the Court did in Elamand Bishop, without resort to extrinsic evidence and say, as a matter of law, judicial notice, and statutory construction that cocaine is prohibited.
¶12In addition to holding that former Section 4.02(b)(3)(D) of Article 4476-15, V.A. C.S., no longer by implication defined cocaine as a derivative or preparation from coca leaves, the majority ignores the provisions of Article 21.18, V.A.C.C.P., which provides:
“Presumptions of law and matters of which judicial notice is taken (among which are included the authority and duties of all officers elected or appointed under the General Laws of this State) need not be stated in the indictment.”
¶13Judicial notice has been said to be a doctrine of common sense whereby facts that are so notorious or their existence so easily ascertainable that proof is not required. 1 Ray, Law of Evidence, 3rd Ed., Section 151 (1980). Although I feel it should be unnecessary to the disposition of this matter in light of the Court’s previous holdings on the issue, I would also hold that this Court can take judicial notice of the fact that cocaine is included in Section 4.02(b)(3)(D) and that such allegation is sufficient.
¶14In United States v. Umentum, 401 F.Supp. 746, 748 (E.D.Wis.1975), affirmed 547 F.2d 987 (7 Cir.), cert. denied 430 U.S. 983, 97 S.Ct. 1677, 52 L.Ed.2d 376, it is stated:
“B. Failure to list cocaine in Schedule II “The defendants Umentum and Piecho-ta have moved to dismiss counts I and II of the indictment for failure to allege an offense. Each of those counts refers to ‘cocaine, a Schedule II narcotic drug controlled substance.’ The defendants argue that cocaine does not appear in 21 U.S.C. Section 812(c) Schedule II, which reads in part:
“ ‘(a)(4) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative or preparation thereof which is chemically equivalent or identical with any of these substances, except that the substances shall not include decocainized coca leaves or extraction of coca leaves, which extractions do not contain cocaine or ecgonine.’
“I take judicial notice that cocaine is a derivative of coca leaves. See United States v. Amidzich, 396 F.Supp. 1140 (E.D.Wis.1975), and United States v. Orzechowski, 75-CR-83 (E.D.Wis. August 21, 1975). See also Webster’s Third New International Dictionary, at 434 (G & C Merriam Co. 1966); 4 Gray’s Attorneys’ Textbook of Medicine, Ch. 132, at 132-181 (3d ed. 1974). The court of appeals for *63the seventh circuit has held that in a similar situation a court should take judicial notice that heroin in a ‘salt, compound, derivative, or preparation of opium.’ United States v. Chiarelli, 192 F.2d 528 (7th Cir. 1951), cert. denied 342 U.S. 913, 72 S.Ct. 359, 96 L.Ed. 683. Accordingly, the defendants’ motion to dismiss counts I and II will be denied.”
¶15Other federal courts have assumed that cocaine was within the prohibition of “Coca leaves”, etc. found in 21 U.S.C. Section 812(c), Schedule II, (a)(4). See United States v. Harper, 530 F.2d 828, 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed. 80; United States v. Wheaton, 557 F.2d 275 (1 Cir. 1977); United States v. Solow, 574 F.2d 1318 (5 Cir. 1978); United States v. Lane, 574 F.2d 1019 (10 Cir. 1978), cert. denied 439 U.S. 867, 99 S.Ct. 193, 58 L.Ed.2d 177; United States v. Vila, 599 F.2d 21 (2 Cir. 1979); United States v. Stieren, 608 F.2d 1135 (8 Cir. 1979). See also Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), especially footnote one where it is stated:
“Heroin, a derivative of opium, and cocaine, a product of coca leaves, are within the meaning of the term ‘narcotic drug’ as used in 21 U.S.C. Section 174.”
¶16Because of the abandonment without reason of this Court’s previous holdings, I dissent to the overruling of the State’s motion for rehearing.