Lumberas v. State

560 S.W.2d 644 (1977)

Manuel Martinez LUMBERAS, Appellant, v. The STATE of Texas, Appellee.

No. 52313.

Court of Criminal Appeals of Texas.

November 16, 1977.

Motion for Rehearing Denied February 8, 1978.

Jack M. Sessom, San Angelo, for appellant.

Ed R. Paynter, Dist. Atty. and Jim H. Smart, Jr., Asst. Dist. Atty., Abilene, Jim D. Vollers, State's Atty., Austin, for the State.

State's Motion for Rehearing Denied February 8, 1978.

ROBERTS, Judge.

This is an appeal from a conviction for sale of phentermine.[1] After finding appellant guilty, the jury assessed appellant's punishment at nine years' confinement.

In reviewing the record we have determined that the judgment must be reversed because of unassigned error. Art. 40.09(13), Vernon's Ann.C.C.P.

In Riddle v. State, 560 S.W.2d 642 (Tex. Cr.App.1977), the defendant was charged with delivery of phentermine. In Riddle we held that there is no longer any penalty provided for the possession or delivery of phentermine. For the reasons stated in Riddle this rule also applies to this appellant's sale of phentermine.[2]

Therefore, as in Riddle, the judgment must be reversed and the prosecution ordered dismissed.

[1] On September 15, 1976, in an unpublished opinion, this appeal was dismissed for want of jurisdiction. The appeal is now reinstated.

[2] As in Riddle, the appellant was alleged to have committed the offense after the date phentermine was added to Schedule IV of the Controlled Substances Act. See footnote 2 of the Riddle opinion.