Robert Earl Breckenridge, Plaintiff-appellant, v. Governor Preston Smith, et al., Defendants-appellees, 476 F.2d 288 (5th Cir. 1973)

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U.S. Court of Appeals for the Fifth Circuit - 476 F.2d 288 (5th Cir. 1973) April 3, 1973

Robert Earl Breckenridge, pro se.

Crawford Martin, Atty. Gen., Austin, Tex., for defendants-appellees.

Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.


This appeal is taken from an order of the district court denying the petition of a Texas state prisoner for a "declaratory judgment" and for the writ of habeas corpus. We affirm.

Appellant was convicted upon trial by jury of possession of marijuana, a narcotic drug, puruant to Article 725b, Vernon's Ann.Texas Penal Code. He was sentenced to 18 years imprisonment. In his petition filed below, appellant requested the impanelling of a three-judge court to consider the constitutionality of Article 725b. He urged that the law is constitutionally unsound in that it erroneously classifies marijuana as a narcotic drug and sought to have the crime reduced to misdemeanor status and the penalty reduced in addition to his immediate release.

This Court has previously found Article 725b to be constitutionally sound, rejecting the same arguments which appellant offers. Rener v. Beto, 5th Cir. 1971, 447 F.2d 20. Appellant is not entitled to relief. The judgment below is affirmed.


Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I