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Brown v. State

Court of Criminal Appeals of Texas, Panel 3
Jul 12, 1978
568 S.W.2d 137 (Tex. Crim. App. 1978)

Opinion

No. 58542.

July 12, 1978.

Appeal from the 182nd Judicial District Court, Harris County, Lee Dugan, Jr., J.

Before ROBERTS, ODOM and TOM G. DAVIS, JJ.


OPINION


Appeal is taken from an order revoking probation. Appellant was convicted of the primary offense of "attempted delivery of a controlled substance, to wit: morphine" on March 24, 1976. Punishment was assessed at five years, probated.

On April 1, 1977, the court held a hearing on the State's motion to revoke probation and following the hearing the court entered an order revoking appellant's probation.

The record is before us without a transcription of the court reporter's notes. No brief was filed in the trial court in appellant's behalf as is required by Art. 40.09, Sec. 9, V.A.C.C.P. No question of indigency is raised; however, we have examined the record and find unassigned error which must be considered in the interest of justice under Art. 40.09, Sec. 13, V.A.C.C.P.

The disposition of this case is governed by our decisions in Moore v. State, Tex.Cr.App., 545 S.W.2d 140, and Ex parte Barnes, Tex.Cr.App., 547 S.W.2d 631. There we held that the criminal attempt provisions set forth in V.T.C.A. Penal Code, Sec. 15.01, do not apply to the Controlled Substances Act (Art. 4476-15, V.A.C.S.), which contains no criminal attempt provision.

The charge to which appellant entered a plea of guilty (in the purported primary offense) and received a probated sentence is not an offense and the conviction based thereon is void.

The judgment is reversed, the cause remanded, and the prosecution ordered dismissed.


Summaries of

Brown v. State

Court of Criminal Appeals of Texas, Panel 3
Jul 12, 1978
568 S.W.2d 137 (Tex. Crim. App. 1978)
Case details for

Brown v. State

Case Details

Full title:George Wilbert BROWN, Appellant, v. The STATE of Texas, Appellee

Court:Court of Criminal Appeals of Texas, Panel 3

Date published: Jul 12, 1978

Citations

568 S.W.2d 137 (Tex. Crim. App. 1978)

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