Miguel Guiterrez Bruno v. The State of Texas--Appeal from 12th District Court of Madison County

IN THE

TENTH COURT OF APPEALS

No. 10-92-155-CR

MIGUEL GUTIERREZ BRUNO,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 12th District Court

Madison County, Texas

Trial Court # 8946

O P I N I O N

Miguel Bruno appeals his conviction for possession of a controlled substance in a penal institution. // Bruno was found guilty by a jury, and, as a result of two prior convictions that enhanced the range of punishment, the jury assessed punishment at thirty-five years in prison.

Bruno was charged by indictment with "possess[ing] a controlled substance, to wit: MARIJUANA, on the confines of property belonging to the Texas Department of Corrections." On the date of the offense, section 499.004(c) of the Texas Government Code provided, "A person commits an offense if the person possesses a controlled substance or dangerous drug while in the confines of property belonging to the department." // A controlled substance means "a substance . . . listed in Schedules I through V or Penalty Groups 1 through 4" of the Texas Controlled Substances Act. // Marihuana is listed as a controlled substance in Schedule I of the Act. // Because marihuana is not listed in Penalty Groups 1 through 4, however, the offense of possession of marihuana is uniquely defined by the Controlled Substances Act. // As a result, mere "possession" of any amount of a controlled substance listed in Penalty Groups 1 through 4 constitutes an offense, while possession of marihuana constitutes an offense under the Controlled Substances Act only if a person "possesses a usable quantity of marihuana." //

In a single point of error Bruno contends that the trial court erred in failing to quash the indictment, arguing that, because it failed to allege possession of "a usable quantity," he was deprived of equal protection of the law under the federal and state constitutions. According to Bruno, he was deprived of equal protection because, as a prisoner, he could be convicted of mere possession of marihuana, whereas a member of the general public was subject to prosecution only if he possessed a usable quantity of marihuana.

Although Bruno filed a motion to quash the indictment and brought it to the attention of the court before trial, he failed to raise the equal-protection argument. Bruno's form motion was a general allegation of inadequate notice and that the indictment failed to allege all the essential elements necessary to constitute an offense. At the pretrial hearing, Bruno's attorney informed the court that the motion to quash "was based on the fact that only usable quantities of marijuana are controlled substances and that is not alleged in the indictment." The prosecutor correctly informed the court, however, that the Controlled Substances Act defined marihuana as a controlled substance without any reference to quantity and that, because the State was proceeding under section 409.004 of the Government Code, "a usable amount of marihuana" was not necessary. Indeed, the indictment alleged every element of the statutory offense possession of a controlled substance in a penal institution.

Because Bruno's motion to quash did not raise the equal-protection challenge to prosecution under section 409.004 of the Government Code, he has waived the right to complain on that basis and may not raise the objection for the first time on appeal. // Accordingly, Bruno's sole point of error is overruled.

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed January 27, 1993

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