Arturo G. Garza v. The State of Texas--Appeal from 216th Judicial District Court of Kerr County

No. 04-97-00790-CR
Arturo G. GARZA,
Appellant
v.
The STATE of Texas,
Appellee
From the 216th Judicial District Court, Kerr County, Texas
Trial Court No. A96-186
Honorable Stephen B. Ables, Judge Presiding

PER CURIAM

Sitting: Alma L. L pez, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: October 30, 1998

AFFIRMED

A jury convicted Arturo G. Garza of possession of less than one gram of heroin and assessed a twenty-year prison sentence plus a $10,000 fine. On appeal, Garza contends the trial court erred in overruling his motion for directed verdict based on a variance between the State's indictment and proof. Because the trial court granted Garza's motion, we affirm.

Garza was charged with possessing, with the intent to deliver, between one and four grams of heroin. The State's indictment did not allege that the weight of the controlled substance included adulterants and dilutants. At trial, a Department of Public Safety chemist testified for the State the heroin in question weighed approximately 0.123 grams in its pure form.

At the close of the State's evidence, Garza moved for a directed verdict on the ground the State failed to produce evidence he possessed between one and four grams of heroin exclusive of any adulterants or dilutants.(1) Without explicitly denying Garza's motion, the trial court acknowledged the deficiency in the State's proof and announced it would submit to the jury only the lesser included offense of possession of less than one gram. Although Garza's attorney expressed concern about the propriety of submission of the lesser included offense, he did not object.

In two interrelated points of error, Garza argues the trial court erred in denying his motion for directed verdict because the State failed to prove each element of the offense as charged. (2) Garza does not challenge the propriety of the trial court's submission to the jury of the lesser included offense. Because the trial court did not overrule Garza's motion, his points are without merit. We therefore overrule Garza's points of error and affirm the judgment.

PER CURIAM

DO NOT PUBLISH

1. When Garza was indicted and tried, the definition of "controlled substance" did not include adulterants and dilutants as it does now. See Act of June 1, 1987, 70th Leg., R.S., ch. 388, 1, 1987 Tex. Gen. Laws 1901, amended by, Act of 1997, 75th Leg., R.S., ch. 745, 1, 1997 Tex. Gen. Laws 2411 (current version at Tex. Health & Safety Code Ann. 481.002(5) (Vernon Supp. 1998)).

2. After hearing argument on Garza's motion, the court announced, "The ruling I'm going to make right now is that the State has only proven that we've got a fact issue on .123 grams, and so I'm not going to let it go to the jury on the over one gram . . . . We do have a fact question for the jury. . . a lesser included offense under the original indictment."

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