Ex Parte Rogers

366 S.W.2d 559 (1963)

Ex parte Ben H. ROGERS.

No. 35748.

Court of Criminal Appeals of Texas.

April 3, 1963.

Ben H. Rogers, pro se.

Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Presiding Judge.

The relator is confined in the penitentiary under a conviction in Cause No. 23345 in Criminal District Court of Jefferson County. The indictment, drawn under Art. 725c Vernon's Ann.P.C., alleged that he was "addicted to the use of narcotic drugs", he not being a person who had a medical need for narcotic drugs and not being a person who *560 obtains narcotic drugs required for such medical need in accordance with the laws of the State of Texas and of the United States.

Upon a plea of guilty to said indictment, relator was assessed a term of 5 years. Probation was granted but thereafter revoked, and the term of punishment was reduced to 4 years.

The statute under which this prosecution was had, insofar as it makes it a crime for a person to be addicted to the use of narcotic drugs, is invalid. Salas v. State, Tex. Cr.App., 365 S.W.2d 174; Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758.

The statute being void, the conviction cannot stand.

We observe, also, that the punishment assessed against the relator is in excess of the maximum punishment provided for violation of Art. 725c V.A.P.C., which is 3 years.

The writ of habeas corpus is granted and the relator is ordered discharged from further restraint under the conviction above described.