Gregorio Granado v. State, 168 Tex. Crim. 525

DICE, Judge. The conviction is for the unlawful possession of marijuana, a narcotic drug; the punishment, life imprisonment. The indictment charged in paragraph five thereof that on or about the 11th day of September, 1957, the appellant did unlawfully possess a narcotic drug to-wit: marijuana, and further charged in separate paragraphs that appellant had been previously convicted of three felony offenses less than capital.

In paragraph two of the indictment it was alleged that on the 17th day of January, 1941, appellant was convicted of the offense of unlawful possession of marijuana in the Criminal District Court of Bexar County, Texas, in Cause No. 45,816 on the docket of said court, and in paragraphs three and four it was alleged that on the respective dates of January 22, 1943, and August 11, 1953, appellant was convicted in the United States District Court, Western District of Texas, San Antonio Division, of two separate narcotic law violations in Cause Nos. 12,640 and 19,334 respectively on the docket of that court.

The court, in his charge, withdrew from the jury’s consideration the third paragraph of the indictment and submitted the issue of appellant’s guilt of the offense charged in the fifth paragraph of the indictment and whether he had been previously convicted of the offenses alleged in paragraphs two and four thereof.

In response to the court’s instructions the jury returned into court the following verdict: “We, the jury, find the defendant guilty of the offense of unlawful possession of marijuana, as alleged in paragraph five of the indictment, and further find that he is the same person who was convicted in Cause No. 45,816, as alleged in paragraph two of the indictment, and further find that he is the same person who was convicted in Cause No. 19,334 Criminal, as alleged in paragraph four of the indictment.” Upon the jury’s verdict, the court entered judgment finding the appellant guilty of the offense charged and that he was the same person convicted in Cause Nos. 45,816 and 19,334 and fixed his punishment at confinement in the penitentiary for life.

It is apparent that appellant’s conviction is under the Uniform Narcotic Drug Act, Art. 725b, V.A.P.C., and that by reason of the two prior convictions found by the jury for violation of the narcotic laws his punishment has been fixed by the court and enhanced under the provisions of Art. 63, V.A.P.C., which provides: “Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary.” The punishment for violation of the Uniform Narcotic Drug Act, Art. 725b, supra, is found in Sec. 23(1) of the act which reads, in part, as follows: “Any person violating any provision of this Act shall, upon conviction be punished by confinement in the State penitentiary for not less than two (2) years nor more than life, and upon the second or any subsequent conviction therefor shall be punished by confinement in the penitentiary for life or for any term of years not less than ten (10) * * In the recent case of Parasco v.

State, 165 Texas Cr.

Rep. 549, 309 S.W. 2d 465, this court in construing Sec. 23(1) of the act pointed out that a subsequent violation of the act is a different offense from that committed by a first offender and said: “Being separate offenses with minimum punishment of two years for a first offense and ten years for a second or subsequent violation, the prior conviction is an element of the later offense itself and not an allegation such as would merely enhance the punishment under Arts. 62 and 63, Vernon’s A.P.C.” Clearly the Uniform Narcotic Drug Act, Art. 725b, supra, is a special statute and therefore controls over Art. 63, supra, which is a general statute.

Edwards v. State, 166 Texas Cr. Rep. 301, 313 S.W. 2d 618. The prior conviction of appellant in the district court of Bexar County in Cause No. 45,816 for unlawfully possessing marijuana, as found by the jury, was for a violation of the Uniform Narcotic Drug Act. Such conviction was an element of the offense charged against appellant in the instant case and could not be used to enhance the punishment under the provisions of Art. 63, supra. The conviction in Federal Court in Cause No. 19,334, was not available to enhance the punishment under Art. 725b, supra, not being a violation of that act.

Appellant’s punishment as second offender of the Uniform Narcotic Drug Act should have been assessed by the jury under the provisions of Sec. 23(1) of the act, and under the record the court erred in assessing the punishment and giving application to the provisions of Art. 63, supra. The judgment is reversed and the cause remanded. Opinion approved by the Court.