Opinion

Foster v. State

  • 635 S.W.2d 710
  • 1982 Tex. Crim. App. LEXIS 1000
Court
Court of Criminal Appeals of Texas
Filed
Jul 21, 1982
Status
Published
Author
Dally
On the bench
Clinton, Dally, Davis, Teague, McCor-mick
Cited by
62 cases
Authority
More cited than 97.9%

stating that affirmative-links doctrine applies in absence of “direct evidence of the defendant’s exclusive possession” of contraband

How later courts described this case

  • stating that affirmative-links doctrine applies in absence of “direct evidence of the defendant’s exclusive possession” of contraband
  • holding that a legal sufficiency review must still be conducted even if the indictment was fatally defective
  • defendant not alone in premises at time of search, and no evidence defendant occupied premises or fled
  • Opinion on appellant's motion for rehearing

Written by the judges who cited it.

The opinion

*711 OPINION

DALLY, Judge.

This is an appeal from a conviction for the possession of cocaine; the punishment is imprisonment for six years and a fine of $1,000, probated.

The indictment alleges that on or about August 24,1977, the appellant “intentionally and knowingly possess[ed] a controlled substance, namely, cocaine.” At the time alleged cocaine was not specifically named in the penalty group of the Controlled Substance Act. The pleading fails to allege an offense; such a pleading in Crowl v. State, 611 S.W.2d 59 (Tex.Cr.App.1981) was held to be fundamentally defective. Since the pleading is fundamentally defective the court did not have jurisdiction; Daniels v. State, 573 S.W.2d 21 (Tex.Cr.App.1978); Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975). The appellant’s argument that jeopardy attached is without merit. Ward v. State, 520 S.W.2d 395 (Tex. Cr.App.1975); Hill v. State, 171 S.W.2d 880 (Tex.Cr.App.1943).

Burks v. United States, 437 U.S. 1 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978) and Greene v. Massey, 437 U.S. 19 , 98 S.Ct. 2151 , 57 L.Ed.2d 15 (1978) cited and relied upon by the appellant are not in point. In those cases the Supreme Court of the United States granted certiorari to decide whether a defendant may be retried after his conviction has been reversed by an appellate court on the ground that the evidence introduced at a prior trial was insufficient as a matter of law. These were not cases in which the trial court did not have jurisdiction of the particular offense because of a fatally defective pleading.

The judgment is reversed and the indictment is ordered dismissed.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.