David Cohenour v. The State of Texas--Appeal from 85th District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-95-201-CR

DAVID COHENOUR,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 85th District Court

Brazos County, Texas

Trial Court # 22,905-85

O P I N I O N

David Cohenour pleaded no-contest to a class B misdemeanor offense of delivery of marihuana in exchange for a recommendation from the State that his punishment be assessed at six months deferred adjudication. Tex. Health & Safety Code Ann. 481.120 (Vernon Supp. 1995). After denying Cohenour's written motion to dismiss, where he argued that the laws prohibiting the delivery of marihuana violated his constitutional rights, the court accepted the plea bargain and assessed punishment accordingly. We will affirm.

Cohenour appeals on three points of error, claiming that the prohibition of marihuana violates his rights to freely exercise his religion, to equal protection under the law, and to privacy. Both of his first two arguments have been considered and rejected by the courts, a fact he recognizes. Olsen v. Drug Enforcement Admin., 878 F.2d 1458, 1461-62 (D.C. Cir. 1989), cert. denied, 495 U.S. 906, 110 S. Ct. 1926, 109 L. Ed. 2d 290 (1990); Olsen v. Iowa, 808 F.2d 652, 653 (8th Cir. 1986); Archer v. State, 474 S.W.2d 484, 486 (Tex. Crim. App. 1971). Thus, we overrule points one and two. In his third point he argues that his right to privacy shields his possession of marihuana in his own home. See Stanley v. Georgia, 394 U.S. 557, 89 S.Ct 1243, 22 L. Ed. 2d 542 (1969). However, he admitted that he delivered the marihuana, not that he merely possessed it. Additionally, this argument has been rejected by the Court of Criminal Appeals. Miller v. State, 458 S.W.2d 680, 684 (Tex. Crim. App. 1970). Thus, we overrule his third point.

Having overruled all of Cohenour points, we affirm the judgment.

PER CURIAM

Before Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed May 8, 1996

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