Foster v. State

This is an appeal from a conviction for the possession of cocaine; the punishment is imprisonment for six years and a fine of $1,000, probated.

The indictment alleges that on or about August 24,1977, the appellant “intentionally and knowingly possess[ed] a controlled substance, namely, cocaine.” At the time alleged cocaine was not specifically named in the penalty group of the Controlled Substance Act. The pleading fails to allege an offense; such a pleading in Crowl v. State, 611 S.W.2d 59 (Tex.Cr.App.1981) was held to be fundamentally defective. Since the pleading is fundamentally defective the court did not have jurisdiction; Daniels v. State, 573 S.W.2d 21 (Tex.Cr.App.1978); Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975). The appellant’s argument that jeopardy attached is without merit. Ward v. State, 520 S.W.2d 395 (Tex. Cr.App.1975); Hill v. State, 171 S.W.2d 880 (Tex.Cr.App.1943).

Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978) cited and relied upon by the appellant are not in point. In those cases the Supreme Court of the United States granted certiorari to decide whether a defendant may be retried after his conviction has been reversed by an appellate court on the ground that the evidence introduced at a prior trial was insufficient as a matter of law. These were not cases in which the trial court did not have jurisdiction of the particular offense because of a fatally defective pleading.

The judgment is reversed and the indictment is ordered dismissed.