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.