author: BARROW, Justice.

text:
    BRISTOL-MYERS COMPANY, Petitioner, v. Ramon GONZALES et al., Respondents.
    No. B-6707.
    Supreme Court of Texas.
    Feb. 1, 1978.
    Rehearing Denied March 8, 1978.

      Graves, Dougherty, Hearon, Moody & Garwood, William L. Garwood, Austin, Meredith & Donnell, M. William Meredith, Jr., Corpus Christi, for petitioner.
    William R. Edwards, Charles R. Cunningham, Corpus Christi, for respondents.
   BARROW, Justice.

Ramon Gonzales sued Bristol-Myers Company, the Upjohn Company, and Dr. Rufino Gonzalez for deafness resulting from administration by Dr. Gonzalez of Bristol-Myers’ Kantrex and Upjohn’s neomycin. Bristol-Myers and Upjohn were sued in strict liability for improper warnings, and Dr. Gonzalez was sued in negligence for improper treatment. Shortly before the trial, plaintiff Gonzales entered into a settlement agreement with Dr. Gonzalez and non-suited both Dr. Gonzalez and Upjohn. Dr. Gonzalez remained in the case as a third party defendant to Bristol-Myers’ claim for indemnity or contribution. Dr. Gonzalez also filed a third party complaint against Bristol-Myers seeking indemnity or contribution. The trial court rendered judgment for plaintiff on the jury verdict against Bristol-Myers for $800,000 and denied Bristol-Myers any relief from Dr. Gonzalez. The court of civil appeals reformed the judgment by granting Bristol-Myers contribution from Dr. Gonzalez by reducing the award for plaintiff Gonzales against Bristol-Myers to $400,000. 548 S.W.2d 416. Applications for writ of error were filed by Bristol-Myers, Dr. Gonzalez, and plaintiff Gonzales. We reverse the judgment of the courts below and remand the cause for another trial.

Plaintiff, then 25 years of age, was admitted to the Memorial Medical Center in Corpus Christi on November 22, 1970, as a patient of Dr. Gonzalez because of a severe, but undiagnosed, pain in his left leg. The pain was traced to an infection in his left hip and, on December 20th, Dr. Gonzalez started plaintiff on Kantrex tablets. On December 22nd, Dr. Gonzalez changed the administration of Kantrex to intramuscular injection; and between December 22nd and January 5, 1971, a total of 20.5 grams were administered in this way, according to the nurses’ notes. On December 23rd, Dr. Gonzalez made a deep six-to-eight inch incision in the hip and removed the infected tissue. Following the surgery, Dr. Gonzalez started continuous irrigation (washing) of the wound with alternating solutions of Kantrex and Upjohn’s neomycin. It is not known how much of these solutions was absorbed into plaintiffs body, but it is un-contradicted that plaintiff’s deafness was produced by excessive administration, by tablets, injections, and irrigation, of these two drugs. Plaintiff did not contend that Bristol-Myers’ drug, Kantrex, was adulterated or was itself defective, but rather that the drug was “ototoxic” (having the potential to cause deafness) and that the warnings given by Bristol-Myers for its use were inadequate and improper.

Kantrex is the trade name for kanamycin sulfate and is one of about seven antibiotics which may be used to treat the type of bacteria discovered in plaintiff’s infection. It is manufactured exclusively in this country by Bristol-Myers and has been sold by it since 1958. Neomycin, another of the antibiotics used to treat the type bacteria found in plaintiff, is manufactured by several drug companies, but the neomycin used by Dr. Gonzalez on plaintiff was distributed by Upjohn. Both Kantrex and neomycin are prescription drugs and, as such, must have package inserts, which are approved by the Food and Drug Administration (FDA), describing the drug and its use. See 21 Code of Federal Regulations 130.9 (1970). The description of each drug is prepared by the drug manufacturer, although it must be approved by the FDA.

These package inserts, in addition to being placed in each package at the time of manufacture, are compiled and published annually by a private company in the Physicians’ Desk Reference (PDR). The PDR, published primarily for the guidance of physicians, is distributed to all members of the American Medical Association (AMA), hospitals and other interested persons. The PDR is kept reasonably current through distribution of periodic supplements each year which reflect any change in the package insert. The Kantrex package insert was changed several times between 1958 and the time of the trial as additional information was learned concerning the use and dangers of the drug. There was evidence that a package of Kantrex would retain its effectiveness and could be used from four to five years after its manufacture. Accordingly, the insert in a package could have been published long before use of the drug and could be inaccurate.

The jury found that Bristol-Myers failed to give Dr. Gonzalez adequate warnings and specific instructions in the 1970 PDR with respect to the use of Kantrex. They also found that a statement in the 1970 PDR reasonably implied to Dr. Gonzalez that he could use Kantrex in concentrations of 0.25 percent for the continuous irrigation of plaintiff’s wound without fear of hearing damage. The jury further found that this statement was false and that it was relied upon by Dr. Gonzalez. The inadequate warnings and the false statement were each found to be a producing cause of plaintiffs deafness. These findings support a recovery against Bristol-Myers on strict liability under Sections 402A and 402B of the Restatement (Second) of Torts. The jury also found that Dr. Gonzalez’ failure to use ordinary care in treating plaintiff with Kantrex and neomy-cin was a proximate cause of plaintiff’s deafness. No complaint was raised by anyone as to the findings against Dr. Gonzalez.

Bristol-Myers seeks by its first two contentions a reversal of the judgment and rendition of a take nothing judgment against plaintiff on the ground that there is no evidence to sustain a recovery under strict liability as set forth in Section 402A or Section 402B. In considering these no evidence points we must consider the evidence in the light most favorable to the jury findings, considering only the evidence and inferences which support the findings, and rejecting the evidence and inferences contrary to the findings. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974).

Nine expert witnesses testified regarding the proper use of ototoxic drugs and the adequacy of the warnings and instructions contained in the 1970 PDR regarding the use of Kantrex. This testimony, much of which came from experts associated with Bristol-Myers, clearly constitutes evidence which supports the findings of the jury that the warnings were inadequate and in part false. There was evidence that the PDR entry should have warned a physician to treat the infection, if possible, with a drug less noxious than Kan-trex and that the wound should be irrigated one time only, as a post-surgical wash, because significant amounts of the drug would otherwise be absorbed in continuous irrigation. There was also evidence that the warnings were inadequate as to the necessity of testing a patient’s hearing and kidney function to determine the dosage of Kantrex that might safely be given. The evidence shows Bristol-Myers knew of the potential dangers to the users of this drug prior to its use by Dr. Gonzalez. If a manufacturer knows or should know of potential harm to a user because of the nature of its product, the manufacturer is required to give an adequate warning of such dangers. Crocker v. Winthrop Laboratories, 514 S.W.2d 429, 433 (Tex.1974). The jury found that Bristol-Myers did not do so and the findings are supported by the evidence.

We agree with the holding of the court of civil appeals that the fact that the package insert which was published in the 1970 PDR had been approved by the FDA did not relieve Bristol-Myers of its obligation to communicate an adequate warning to the users of this dangerous drug. The fact that the approved insert did not adequately warn of potential dangers to the users of this drug was known to the proper officials of Bristol-Myers long before the inadequacy became known to the government officials and a change in the warnings and instructions was required in the package insert.

Bristol-Myers asserts by its third contention that the trial court erred in excluding evidence concerning the settlement agreement entered into between plaintiff and Dr. Gonzalez. It was established outside the presence of the jury that a few days before the trial commenced plaintiff entered into a settlement agreement whereby Dr. Gonzalez advanced to plaintiff the sum of $100,000 (which was actually paid by Aetna Casualty and Surety Company, the insurer of Dr. Gonzalez) in full and final satisfaction of any claim of plaintiff against Dr. Gonzalez. The agreement further provides that plaintiff agrees to repay this amount to Dr. Gonzalez or to those persons making the payment on his behalf (Aetna Casualty) out of any recovery against Bristol-Myers. This type agreement is known as a “Mary Carter” agreement and in General Motors Corp. v. Simmons, 558 S.W.2d 855 (1977), we held it was reversible error to exclude from the jury evidence of such an agreement.

Plaintiff and Dr. Gonzalez would have us distinguish this agreement from the one considered by this Court in Simmons on two grounds: (1) Dr. Gonzalez did not personally retain any financial interest in plaintiff’s recovery; and (2) Dr. Gonzalez did not remain a defendant through any action of his own or plaintiff’s.

It is true that the $100,000 was advanced to plaintiff by Dr. Gonzalez’ insurer and this sum was to be repaid to the insurer out of any recovery. However, this payment was made on behalf of Dr. Gonzalez, and therefore, Aetna Casualty and Dr. Gonzalez should stand in the same shoes. No distinction was drawn in Simmons between the employer, Feld Truck Leasing Corporation, and the employee, Johnson, although only Johnson was a witness and only Feld Truck acquired the financial interest.

Nor is it a valid distinction that plaintiff took a non-suit against Dr. Gonzalez in this case and that Dr. Gonzalez remained in the case as a defendant only by virtue of Bristol-Myers’ plea for indemnity or contribution. In Simmons, the attorneys for all parties advised the jury that Simmons, Feld and Johnson were not adverse to each other and that all were allies against General Motors.

We conclude that the trial court erred in excluding evidence of the settlement agreement which was properly offered by Bristol-Myers for the purpose of showing the bias or credibility of Dr. Gonzalez. Furthermore, we conclude from an examination of the entire record of this three-week trial that this error amounted to such a denial of the rights of Bristol-Myers as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Therefore, the judgment of the court of civil appeals must be reversed and the cause remanded to the district court for a new trial. Rule 503, Tex.R. Civ.P.

Bristol-Myers’ other points complain of procedural errors occurring during the trial which, if sustained, would require a remand for a new trial. Since it is unlikely that these errors will reoccur, at least in the same manner, during the second trial it is unnecessary to consider these points.

The applications for writ of error filed by Dr. Gonzalez and plaintiff complain of the judgment of the court of civil appeals which granted Bristol-Myers contribution from Dr. Gonzalez on the jury verdict under the doctrine of Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764 (Tex.1964), by reducing the amount of recovery by plaintiff from Bristol-Myers. In view of a remand of the case, these applications are now immaterial.

The judgments of the lower courts are reversed and the cause is remanded for trial on the merits.

SAM D. JOHNSON, J., concurs in the result.

      . Plaintiff’s attorney stated outside the presence of the jury that Upjohn was non-suited because he did not believe it was liable.

      . The 1970 Physicians’ Desk Reference (PDR) states in part regarding the dosage of Kantrex:
      “In well-hydrated adult patients with normal kidney function, receiving a total dose of 15 grams or less, the risk of ototoxic reactions is minimal.”

      . The 1970 PDR stated in part:
      “Kantrex injection in concentrations of 0.25 percent (2.5 mg./ml.) has been used satisfactorily as an irrigating solution in abcess cavities,


source: Caselaw Access Project

author: GREENHILL, Chief Justice.

license: Public Domain

text:
    AMOCO PRODUCTION COMPANY et al., Petitioners, v. Morris BRASLAU et al., Respondents.
    No. B-6786.
    Supreme Court of Texas.
    Feb. 1, 1978.

      Clark & Tartaglia, W. Scott Clark, Fort Worth, for petitioners.
    James E. Klager, Corpus Christi, Ellis, Andrews & Lawrence, Thomas M. Andrews, Aransas Pass, for respondents.
   GREENHILL, Chief Justice.

In this oil and gas case, the problem is whether term royalties expired because there was a cessation of production after the expiration of the primary terms of the term royalty deeds. Our holding is that while production did cease, there is evidence to support the trial court’s finding that there was but a temporary cessation; and consequently the term royalties did not expire. As will be indicated below, the holding under the particular facts is one of first impression; and it extends our previous holdings on temporary cessation of production.

Amoco Production Company and others [Amoco] are the owners of term royalties in Frank Braslau Gas Unit in Live Oak County. They brought a declaratory judgment to determine whether the cessation of production after the primary term had caused their term royalties to expire. If they did expire, these interests reverted to the Bras-laus and the Kugerls.

Trial was to the court without a jury. The judgment included findings that reworking operations on the well in question were begun and continued with diligence and good faith; that production from the gas unit was restored within a reasonable time, and that the cessation of production was temporary. The holding was that the term royalty interest did not expire.

The Court of Civil Appeals reversed. It rendered judgment that because of the cessation of production, the term royalties expired. 549 S.W.2d 260. We granted the writ of error of the Amoco group.

There is little dispute in the facts, and most of them are stipulated. By instruments dated September 2, 1946, and February 4, 1958, Frank and Morris Braslau conveyed the term royalties now owned by the Amoco group. Also on February 4, 1958, John and Anna Kugerl executed a term royalty deed to other property within the same Frank Braslau Gas Unit. Each of the grants was for a period of 15 years and as long as oil or gas was produced from the lands described. If at the end of the 15 year term there was no such production from “the lands described,” the term royalties terminated.

The unit operator, Atlantic Richfield Company [Arco], drilled and completed what we will call Well Number One. During the drilling of the well, the well logs contained “positive showings” of four producing sands. We shall call the four sands A, B, C, and D, and their depths are here approximated.

Sand A [the Wilcox] was at 7,700 feet. Sand B [the Slick] was at 7,800 feet. Sand C [the Mackhank] was at 8,500 feet; and Sand D [the Massive] was at 8,800 feet.

As Well Number One was being drilled, it reached the 8,550 foot sand, Sand C. When this depth was reached, the testimony is that the well “started to kick and started to blow out.” That meant to the testifying consulting geologist that these occurrences were “a very good show” of a producing sand. He further testified that the drillers “tried to balance the drilling, to hold back the pressure so they could go ahead and penetrate the sand.” This meant to the witness that these occurrences gave “an indication of production.”

The drillers were able to control the well, and they drilled through Sand C to the deeper Sand D at 8,800 feet.

The witness further testified, and his testimony is undisputed, that there were “probably four sands [capable of production] in the well at that time.”

The well was ultimately completed in Zones B and D; i. e., in the 7,800 foot [Slick] sand and in the deepest sand, the 8,800 foot [Massive] sand. The well was not then completed in the shallowest sand, Sand A, or in the 8,500 foot Sand C [the Mackhank].

The testimony is that the operators intended ultimately to produce from all four sands sequentially through the same well bore of Well Number One.

Production from Sands B and D commenced during the 15 year primary term of the term royalties in question and continued until August of 1971. At that time, the production from Zone B was depleted. On October 9,1972, Arco, the operator, notified the owner of the working interest that production from Zone D, the deepest sand, was becoming marginal because of the high cost of handling the water produced with the oil. So at that time, Arco decided to complete the same well in the other two zones, A and C.

Production ceased from the deepest Zone D on November 13, 1972; and work was begun the next day to recomplete the well in the other two zones.

However, Well Number One was “lost” due to mechanical difficulties in trying to recomplete the well. The casing collapsed inside the well bore.

Without delay, Arco obtained permission from the Railroad Commission to “move over” 700 feet on the same “said land” in order to produce from Zone C, the Mack-hank sand at approximately 8,500 feet. This Well Number Two, begun on January 12, 1973, was completed in Zone C on February 17,1973. Commercial production was begun from Zone C on February 24, 1973, approximately 20 days after the expiration of the last of the 15 year primary terms provided for in the term royalty agreements.

Subsequently, a third well was completed on “said land” by Arco to produce from Zone A, the shallowest of the sands. Both these wells produced continuously, and were producing at the time of this suit. There is also evidence that Zone A was productive in the immediate area because of production from a well on an adjacent tract. The problem, then, is whether there was a termination of the term royalties because there was no production for 103 days or approximately three and a half months, and because production, when resumed, was from a different sand.

The owners of the term royalties contend, as the trial court held, that there was but a temporary cessation of production from known sands or zones. The owners of the reversionary interests contend that there had not been any production from Zones A and C; and that it is impermissible to call it a temporary cessation of production if it is necessary to drill a second well to produce from a separate zone.

Our view is that the term royalty agreement speaks in terms of production from “said land,” or “the lands described,” and not from any particular zone or sand. But the term royalty is in the nature of a determinable fee; and if “production” ceases, the interest terminates by its own terms. The courts have ingrafted upon that concept the holding that temporary cessation of production will not trigger the extinction of the interest.

We turn now to the cases. If there is a cessation of production after the primary term, which is not a temporary one, the estate terminates. This was the holding of Watson v. Rockmill, 137 Tex. 565, 155 S.W.2d 783 (1941), in which there was a cessation of two years and seven months. The cause was not any mechanical failure but a severe depression in the price of oil.

In Kolchak v. Clark, 284 S.W.2d 399 (Tex.Civ.App.1955, writ refused), oil was “discovered” (a favorable drill stem test) during the primary term, but there was no production in paying quantities during the primary term. After the primary term had expired, a second well was drilled into another sand or zone, and it was productive. The holding was that the royalty interest terminated. The emphasis was upon the difference between oil “discovered” during the primary term, and oil “produced.” There being no production during, or upon the expiration of the primary term, the royalty interest terminated. The opinion commented upon the absence of a “continuous drilling” provision in the instrument; i. e., that if oil were discovered, it would be sufficient if the operator thereafter proceeded with diligence until production was obtained even after the expiration of the primary term. The court would not write such a provision into the contract for the parties; and the Court of Civil Appeals in this case considered the Holchak case and that language to be determinative of this case.

Also helpful to Braslau, et al., are Gulf Oil Co. v. Reid, 161 Tex. 51, 337 S.W.2d 267 (1960), and Archer County v. Webb, 161 Tex. 210, 338 S.W.2d 435 (1960). In Gulf v. Reid, the lease had a 5 year primary term. Gulf began a well toward the end of the term and completed it as a gas well after the end of the term. The well was capped because there was no pipeline connection or ready market for the gas. Shut-in royalties were tendered four months after the end of the primary term, and a pipeline connection was secured some five months after the well was completed. By a divided court, it was held that the lease was terminated. The interest conveyed was a determinable fee; and since there was no production at the end of the term, and no prompt tender of the shut-in royalty, the lease terminated.

In Archer County v. Webb, cited above, the oil and gas lease was for a primary term of 10 years, and contained a provision that if gas were discovered, the lessee could pay $50 per well per year in lieu of production. A separate instrument, a term royalty, provided for a share of the production for 15 years and as long as oil or gas was produced. The term royalty did not contain the shut-in gas royalty provision. Gas production was obtained; the well or wells were capped; and the shut-in royalties were paid or tendered. The holding was that term royalty, a determinable fee interest, terminated because there was no actual production after the primary term. Shut-in royalty payments were not “production” after the primary term as far as the term royalty was concerned. The Archer County case and Gulf v. Reid are illustrative of this court’s view of holding the parties to their agreements rather strictly.

The main cases for the opposing view are Midwest Oil Corp. v. Winsauer, 159 Tex. 560, 323 S.W.2d 944 (1959); and Stuart v. Pundt, 338 S.W.2d 167 (Tex.Civ.App.1960, writ refused). Both of these cases distinguish the Holchak opinion discussed above.

In Midwest v. Winsauer, the mineral interest was a term royalty, as we have here. The term royalty was for a primary term of 15 years, and as long thereafter as oil or gas were produced. There was production beyond the temporary term followed by a cessation of production due to mechanical problems and litigation. The trial court had rendered a judgment that the term royalty had expired. This court held that from the facts adduced, the cessation, as a matter of law, was temporary; and that the term royalty did not terminate. The opinion says,

“Although the royalty deed does not expressly provide that the term royalty will not terminate because of temporary interruptions, we hold that such a provision is necessarily implied.” 323 S.W.2d at 946.

This court then distinguished Holchak and another case. Referring to those cases, our opinion states,

“Neither of these cases deal with the question of cessation of production, either temporary or permanent. The question in the Holchak case, supra, was ‘whether there was paying production from the land [at the end of the primary term]’. . The court simply held [in Hol-chak] there was no production whatever from the premises.” 323 S.W.2d at 948.

The same could be said of the opinion in Gulf v. Reid and in Archer County v. Webb. Accordingly those cases are distinguished.

Finally we come to Stuart v. Pundt, 338 S.W.2d 167 (1960), an opinion of the San Antonio Court of Civil Appeals in which a writ was refused. It is regarded as the case nearest in point. While there are some distinguishing facts, we base the decision in this case upon that opinion and upon the Winsauer case discussed above.

In Stuart v. Pundt, the mineral interest involved was also a term royalty. There was substantial gas production during the primary term. Then the well became clogged, and gas could not be produced. As here, during the reworking operations of the well, the casing in the well collapsed. About' a month after the casing collapsed, the operator obtained a permit to drill a new well on the same land. The new well was completed without delay in the same sand or zone from which the first well had produced, — and that is a distinguishing feature between that case and this case.

The holding in Stuart v. Pundt was that the mechanical difficulties and the prompt drilling of the new well constituted a temporary cessation of production; i. e., that there was no termination of the mineral interest (the term royalty) even though production was from a new or different well. That court again distinguished Holchak and Archer County v. Webb.

We are persuaded that the holding in Stuart v. Pundt should be followed even though the new well here was completed in a sand or zone different from that from which the first well was actually produced. The production must have been from “said land,” or “the lands described,” as it was.

We do not have before us the extension or preservation of a term royalty during a period of further or deeper exploration. The Sand or Zone C, the Mackhank, was definitely encountered during the drilling of Well Number One to the extent that the driller feared a blowout of the well.' While there was no production from that zone or sand in Well Number One, the reasoning of Stuart v. Pundt convinces us that the term royalty should not be terminated due to a temporary cessation of production when the operator was attempting to move up in the well and to obtain production in Well Number One in Zone C. The well was lost, and the operator promptly moved over and obtained production from “said land” in Zone C. As stated, the fact findings of the trial court are that there was a temporary cessation and due diligence; and there is ample evidence to support these findings.

Accordingly, the judgment of the Court of Civil Appeals is reversed, and the judgment of the trial court is affirmed.

       While the unit involved is designated as a Gas Unit, some oil was produced from Well Number One. What was produced is immaterial here, whether oil or gas.

      . Watson v. Rockmill and the problems of temporary cessation of production are discussed in Williams, 30.1 Oil and Gas Law Sections 602 and 604 (1977); and in Hazlett, “Effect of Temporary Cessation on Leases and Term Royalties,” Southwestern Legal Foundation, Tenth Annual Institute on Oil and Gas Law and Taxation 201 (1959), where the author suggests a “rule of reason.”

      . This writer and two other justices were in dissent in Gulf v. Reid. The same three justices dissented also in Archer County v. Webb, a 5 to 3 decision. These two opinions are assumed to be the law in this case.


author: ONION, Presiding Judge. DOUGLAS, Justice,

text:
    Shirley Richter BENOIT, Appellant, v. The STATE of Texas, Appellee.
    Nos. 54296-54300.
    Court of Criminal Appeals of Texas.
    May 25, 1977.
    Rehearing Denied June 22, 1977.
    States Motion for Rehearing Denied Sept. 21, 1977.

      Walter F. Splawn, Austin, for appellant.
    Robert O. Smith, Dist. Atty., and Richard E. Banks, Asst. Dist. Atty., Austin, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

These are appeals from an order revoking probation (# 54,296), two convictions for delivery of codeine (# 54,297 and # 54,-298), a conviction for delivery of pentazo-cine (# 54,299) and a conviction for delivery of diazepam (# 54,300).

The record reflects that on May 18, 1972 appellant pled guilty to assault with intent to rob and was given five (5) years, probated. One of the conditions of probation was that she “commit no offense against the laws of this or any State or of the United States.”

On April 3, 1975 the State filed an amended motion for revocation alleging that she delivered codeine to John Aycock on May 24 and on May 30, 1974, that she had delivered pentazocine to Aycock on May 20, 1974 and that on May 21, 1974 she delivered diazepam. These alleged offenses were also the subject of the indictments herein.

A hearing on the revocation motion was conducted on April 17, 1975, and appellant pled “true” to the allegations in the motion. She also judicially confessed the offenses made the basis of the revocation motion. Her probation was revoked.

On the same date she entered guilty pleas to the indictments charging the offenses described above. In each case she took the witness stand and made a judicial confession. She was assessed five (5) years’ imprisonment in each case. Notice of appeal was given in each case.

Appellant complains that indictments in # 54,297 and_# 54,298 for delivery of codeine do not allege an offense against the law and are fundamentally defective.

Omitting the formal parts, the indictments charged that on May 24 and May 30, 1974 the appellant did:

“then and there knowingly and intentionally deliver to John Aycock a controlled substance, namely: Codiene (sic)

Appellant urges that there is no allegation as to the penalty group within which the alleged codeine falls. Under Article 4476-15, Vernon’s Ann.C.S. (Controlled Substances Act), appellant contends that codeine falls within Penalty Group 1, 3 or 4 depending upon the amount of codeine involved, and that delivery of codeine could be either a first degree felony, a third degree felony or a Class A misdemeanor.

Article 4476-15, § 4.02, Vernon’s Ann. C.S., establishing criminal penalties, mentions codeine in subsections (b)(3)(A)(viii), (d)(5)(A), (B) and (e)(1). They read as follows:

“(b) Penalty Group 1. Penalty Group 1 shall include the following controlled substances:
“(3) Any of the following substances, except those narcotic drugs listed in another group, however produced:
“(A) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate, including the following:
“(viii) Codeine.’’ (Emphasis supplied.)
“(d) Penalty Group 3. Penalty Group 3 shall include the following controlled substances:
“(5) Any material, compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs, or any salts thereof:
“(A) not more than 1.8 grams of codeine, or any of its salts, per 100 milliliters or not more than 90 milligrams per dosage unit, with an equal or greater quantity of an isoquinoline alkaloid of opium;
“(B) not more than 1.8 grams of codeine, or any of its salts, per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.” (Emphasis supplied.)
“(e) Penalty Group 4. Penalty Group 4 shall include any compound, mixture, or preparation containing any of the following limited quantities of narcotic drugs, which shall include one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer upon the compound, mixture, or preparation valuable medicinal qualities other than those possessed by the narcotic drug alone:
“(1) not more than 200 milligrams of codeine per 100 milliliters or per 100 grams.” (Emphasis supplied.)

Punishment for delivery of a Penalty Group 1 substance in § (b) is a first degree felony under the provisions of § 4.03(b)(1). Delivery of a Penalty Group 3 substance in § (d) is a third degree felony under § 4.03(b)(3). Also, delivery of a Penalty Group 4 substance in § (e) is a Class A misdemeanor under § 4.03(b)(4).

§ 4.01(b)(l)(3) of the Controlled Substances Act provides that an individual adjudged guilty of a felony of the first degree shall be punished by confinement in the Texas Department of Corrections for life or for a term of not more than 99 years or less than 5 years, and one guilty of a third degree felony shall be confined in the Department of Corrections for a term of not more than 10 years or less than 2 years, and in addition may be punished by a fine not to exceed $5,000.00. § 4.01(a)(1) provides that a person guilty of a Class A misdemeanor shall be punished by confinement in jail not to exceed one year or a fine not to exceed $2,000.00, or both such fine and imprisonment.

It is the intent of Article I, § 10 of the Texas Constitution, Vernon’s Ann.St., that the accused in a particular case be given information upon which he may prepare his defense, and this information must come from the face of the indictment. Wilson v. State, 520 S.W.2d 377 (Tex.Cr.App.1975); Voelkei v. State, 501 S.W.2d 313 (Tex.Cr.App.1973).

It is, of course, not sufficient to say that the accused knew with what offense he was charged, but the inquiry must be whether the charge in writing furnished that information in plain and intelligible language. Wilson v. State, supra; Moore v. State, 473 S.W.2d 523 (Tex.Cr.App.1971).

Further, the rule is that an offense should be charged in plain and intelligible words with such certainty as to enable the accused to know what he will be called upon to defend against and to enable him to plead the judgment that may be given on it in bar of any further prosecution for the same offense. Wilson v. State, supra; Gaines v. State, 501 S.W.2d 315 (Tex.Cr.App.1973).

This court was faced with a somewhat analogous situation to the one in the present case in Wilson v. State, supra. The indictment in Wilson alleged that the defendant “ ‘did then and there knowingly and intentionally deliver to W. D. West a controlled substance, namely: Marihuana. . ’ ” We noted that delivery of marihuana could be either a third degree felony under article 4476-15, § 4.05(d), or a Class B misdemeanor if the actor delivered one-fourth ounce or less without receiving remuneration under § 4.05(f), supra. This court held that:

“We conclude that the failure of the indictment in the instant case to allege the amount of marihuana delivered or other allegations of remuneration' so as to reflect what punishment was involved, whether the offense is a misdemeanor or felony, or whether the District Court had jurisdiction, renders the indictment fundamentally defective. .
“The provision of Subsection (f) of Section 4.05 creating a misdemeanor offense is not such an exemption or exception which need not be negated as contemplated by Section 5.10 of the Controlled Substances Act, so that section does not apply.” See also Mears v. State, 520 S.W.2d 380 (Tex.Cr.App.1975); Suarez v. State, 532 S.W.2d 602 (Tex.Cr.App.1976); Durham v. State, 532 S.W.2d 606 (Tex.Cr.App.1976); Finley v. State, 528 S.W.2d 854 (Tex.Cr.App.1975); Saunders v. State, 528 S.W.2d 843 (Tex.Cr.App.1975); Tribble v. State, 525 S.W.2d 29 (Tex.Cr.App.1975).

Reliance was had in the Wilson decision upon the case of Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975). In Standley an indictment failed to allege whether the offense of conversion by bailee was under the value of $50, or $50 and over. The effect of not alleging the value was to place the appellant in the position of not having notice as to whether he was being charged with a felony or misdemeanor.

In Standley this court stated:

“It is well established that the value of the property must be alleged if it affects penalty. 5 Branch’s Ann.P.C., 2d ed., Sec. 2674, p. 120.
“In 30 Tex.Jur.2d, Indictment and Information, Sec. 38, p. 604, it is written:
“ ‘An indictment or information should allege every fact which may affect the degree or kind of punishment. A prior conviction must be alleged where a higher penalty is sought by reason of such conviction; the value of property must be stated where it is made the basis of punishment; and the injury done to the owner of property must be averred where the amount of injury is an essential element in the punishment.’ (Emphasis Supplied)
“In Hawkins v. State, 383 S.W.2d 416 (Tex.Cr.App.1964), this court said in a prosecution under Article 1429, Sec. 1, Vernon’s Ann.P.C.:
“ ‘Without such an allegation the punishment cannot be determined.’ See also Price v. State, 165 Tex.Cr.R. 326, 308 S.W.2d 47 (1957), and cases cited.
“It is clear from what has been said that the indictment in the instant case is fundamentally defective for the failure to allege value. The indictment omits a necessary element of the offense attempted to be alleged, does not show whether it was a misdemeanor or felony, and there is no way to determine from the face of the indictment if the District Court of Lippscomb (sic) County had jurisdiction of the offense sought to be alleged. We conclude that the judgment of the conviction based thereupon is void, rather than voidable.”

In Pave v. State, 546 S.W.2d 317 (Tex.Cr.App.1977), it was held that information charging the offense of driving while license suspended was fatally defective for failing to allege whether the operator’s license was suspended under the provisions of Article 6701h (Safety Responsibility Act) or under Article 6687b, § 22(b), providing for suspension of an operator’s license for numerous reasons. It was essential that the proper statute be pled because the statutes carried different penalties.

A similar contention was raised by the defendant in Bailey v. State, 543 S.W.2d 653 (Tex.Cr.App.1976), where he asserted that the indictment charging him with possession of a controlled substance was defective for failure to state an offense over which the trial court had jurisdiction. His premise was based on the fact that the indictment did not state what penalty group the alleged controlled substance was listed under in § 4.04 of Article 4476-15, supra.

The defendant in Bailey was charged with possession of lysergic acid diethyli-mide, which was only one penalty grade and one punishment. We observed that:

“. . . Possession of any amount of this substance is a felony of the second degree. Our situation is distinguishable from those cases where the amount of the substance possessed by the accused determines whether the offense is a felony or a misdemeanor. . . . ” (Emphasis supplied.)

We noted, “[t]he trial court had jurisdiction over the offense charged in the indictment. The failure of the indictment to specify the penalty group (was) not a defect in (that) case.”

The present case, unlike Bailey, involves a controlled substance included in three separate penalty groups based upon the amount possessed. Further, the three separate punishments provided for delivery include that of both felony and misdemean- or. The failure to allege in the indictment the amount involved or penalty group so as to reflect what punishment is involved, whether the offense is a misdemeanor or felony, or whether the District Court had jurisdiction renders the indictment fatally defective. Cf. Wilson v. State, supra; Mears v. State, supra; Standley v. State, supra; Bailey v. State, supra. Indeed, the trial court was probably even misled by the ambiguity of the possible offense alleged by the indictment for delivery of codeine when he admonished appellant the range of punishment was 2 to 10 years or that of a Penalty Group 3 delivery.

The judgments are reversed and prosecutions ordered dismissed.

Next, appellant urges that the indictment charging her with the delivery of diazepam is fundamentally defective since it did not allege an offense against the laws of this State.

Omitting the formal parts, the indictment charged that the appellant on or about May 21, 1974:

“. . . did then and there knowingly and intentionally deliver to John Ay-cock, a dangerous drug, namely: Diazep-am, a drug which bears the legend: Caution: Federal Law prohibits dispensing without prescription . . . .”

Appellant’s argument is that diazepam was not subject to the requirement that it bear the legend: “Caution: Federal Law prohibits dispensing without prescription” until July 2, 1975, and the evidence shows that she delivered the drug in question on May 21, 1974.

Diazepam was not included in Schedules I through V of Article 4476-15, Vernon’s Ann.C.S. (Controlled Substances Act), at the time of the alleged offense, so prosecution was under Article 4476-14, Vernon’s Ann.C.S. (Dangerous Drugs), which provided in § 2(a) as follows:

“Sec. 2. For the purposes of this Act:
“(a) The term ‘dangerous drug’ means any drug or device that is not included in Schedules I through V of the Texas Controlled Substances Act and that is unsafe for self-medication, and includes the following:
“(1) Tranquilizers.
“(2) Procaine, its salts, derivatives, or compounds or mixtures thereof except ointments and creams for topical application containing not more than two and one-half percent (2½%) strength. “(3) Any drug or device which bears the legend: Caution: federal law prohibits dispensing without prescription, or the legend: Caution: federal law restricts this drug to use by or on the order of a licensed veterinarian.
“(4) Phendimetrazine, its salts, derivatives, or compounds or mixtures thereof.
“(5) Pentazocine, its salts, derivatives, or compounds or mixtures thereof.

See also Article 4476-15, § 2.17, Vernon’s Ann.C.S.

It is obvious from the above that the indictment in question was drafted under § 2(a)(3) of Article 4476-14, supra.

Our review of federal law reveals that it was not until July 2, 1975 that diazepam by name could be dispensed by prescription only. 40 Federal Register 23998-24002 (June 4, 1975). Title 21, § 1308.14(7) of the Code of Federal Regulations was thereby amended to include diazepam as a depressant.

The Texas State Department of Health has likewise added diazepam to Schedule IV of the Texas Controlled Substances Act, Article 4476-15, § 2.06, effective July 10, 1975, pursuant to its authority under § 2.09(e) of the Act.

It would thus appear that federal law did not prohibit dispensing without a prescription at the time of the alleged offense.

A similar issue was raised in Jackson v. State, 518 S.W.2d 371 (Tex.Cr.App.1975). There Jackson was charged with selling a dangerous drug, to wit: methaqualone. Such drug was not included in one of the classes of substances specified as a dangerous drug in then Article 726d, Vernon’s Ann.P.C., and there had to be proof to support the allegations in the indictment that it was “a drug which bears the legend: Caution: federal law prohibits dispensing without a prescription.” The alleged offense was shown to have occurred on January 17, 1973, and it was observed in the court’s opinion that it was not until October 1,1973 that federal law provided that meth-aqualone by name could be dispensed by prescription only.

In Jackson this court stated:

“The proper interpretation of this statute is that a drug or device is not a dangerous drug even though it bears the legend ‘Caution: Federal law prohibits dispensing without prescription’ unless the federal law did provide that that drug or device be dispensed by prescription. Certainly it would not constitute a criminal offense under Article 726d, Section 2(a)(20), V.A.P.C., to dispense a drug or device bearing the legend ‘Caution: Federal law prohibits dispensing without prescription’ unless the federal law did provide that that drug or device be dispensed only by prescription.”

We conclude in the instant case that the indictment did not charge an offense under the laws of Texas. The prosecution in Cause No. 54,300 thus must be dismissed.

In connection with the revocation of probation and the conviction for delivery of pentazocine, appellant raises two grounds of error common to all five appeals.

Appellant urges the court erred in refusing to permit her appellant counsel to develop the testimony of her trial counsel on a hearing on objections to the appellate record. In a related matter appellant contends that the court accepted the “bill of exception” and it reflected the court erred in overruling the motion for continuance.

The sentences were pronounced on April 17, 1975, and notice of appeal was given in each case at the same time. Notice of completion of the record was given on July 16, 1974. On July 17, 1974, appellant filed an unsworn “bill of exception” stating that prior to trial the court had overruled her motion for continuance. In such bill it was stated trial counsel had been forced to obtain a recess in a county court trial in which he was engaged and come to district court, that witnesses who had been subpoenaed were not available at the time, but the court ordered him to trial without witnesses and adequate time to prepare for trial or to locate witnesses, some of whom would testify the appellant had prescriptions for the drugs allegedly delivered. The “bill” further related that counsel discussed the seriousness of the cases with appellant and authorized counsel to plea bargain for her and the five year concurrent sentences followed.

The “bill” was presented on the same date to a district judge other than the judge who tried the case, who took no action because the trial judge “was out of town” but who extended time for filing the bill until August 11, 1975.

On July 25, 1974 a “Defendant’s Objections to Records on Appeal” was filed, and on August 7, 1975 an “Amended Bill of Exception” was filed with the identical contentions as the first “bill.”

On August 19, 1975 a hearing on the objections to the appellate record was held. Appellant’s trial counsel was called as a witness. When it was attempted to be elicited from him what he was engaged in doing when the instant cases were called for trial, the State’s objection that the testimony did not relate to matters or events that occurred during trial was sustained. Roy Wiese, Jr., from the State Department of Public Welfare was then called. It was established through him that the appellant had the various drugs she was accused of delivering by virtue of prescriptions and the Welfare Department had paid for them.

It appears that the appellant attempted to use the hearing on the objections to the record to enlarge upon the contentions advanced in the “bills of exceptions” and which were not a part of the record. See Article 40.09, § 4, Vernon’s Ann.C.C.P. We find no error in the court’s action in sustaining the State’s objection to appellant’s trial counsel’s testimony.

As to the related contention, we observe that if the “bills of exceptions” are properly before us the court did not err in overruling the motion for continuance, if one was in fact made. There is no written motion in the record before us and even the “bills” indicate that the motion was not in compliance with Article 29.03, Vernon’s Ann.C.C.P. It is well established that where the motion is not in writing and signed and sworn to by the appellant it is not error to overrule such oral motion for continuance. See Gaines v. State, 468 S.W.2d 853 (Tex.Cr.App.1971); Carpenter v. State, 473 S.W.2d 210 (Tex.Cr.App.1971); Allen v. State, 505 S.W.2d 923 (Tex.Cr.App.1974). See also Zanders v. State, 515 S.W.2d 907 (Tex.Cr.App.1974); Thrash v. State, 515 S.W.2d 122 (Tex.Cr.App.1974); Ellard v. State, 507 S.W.2d 198 (Tex.Cr.App.1974).

Further, it is observed that there was no motion for new trial assigning as error the overruling of the motion for continuance. It is well settled that a motion for new trial must be made to preserve complaint of the overruling of a motion for continuance and should have the affidavit of the missing witness or a showing under oath from some source that the witness would actually testify as to the facts set forth in the motion. See Allen v. State, supra; McCloud v. State, 494 S.W.2d 888 (Tex.Cr.App.1973); Walker v. State, 543 S.W.2d 634 (Tex.Cr.App.1976).

The witness Wiese testified that appellant had obtained prescriptions for the drugs involved and that the Welfare Department paid for them. This testimony was before the court by virtue of appellant’s own testimony and was undisputed. Wiese’s testimony would not only have been cumulative but immaterial. The Controlled Substances Act only makes possession of controlled substances lawful where obtained by a prescription. See § 4.04(a). However, an accused’s unlawful delivery of a controlled substance is not made lawful because she had originally obtained such substance by virtue of a prescription. See § 4.03(a).

Next, appellant complains that she was denied effective assistance of counsel under the due process clause of the Fourteenth Amendment.

Any claim of ineffective assistance of counsel must be determined upon the particular circumstances of each individual case. Ex parte Prior, 540 S.W.2d 723 (Tex.Cr.App.1976); Ex parte Gallegos, 511 S.W.2d 510 (Tex.Cr.App.1974).

The adequacy of an attorney’s services must be gauged by the totality of the representation, Williams v. State, 513 S.W.2d 54 (Tex.Cr.App.1974); Coble v. State, 501 S.W.2d 344 (Tex.Cr.App.1973), and the allegations of ineffective representations will be sustained only if they are firmly founded. Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.1974); Long v. State, 502 S.W.2d 139 (Tex.Cr.App.1973).

It must be remembered that the constitutional right to counsel, whether counsel be appointed or retained, does not mean errorless counsel, and counsel is not to be judged ineffective by hindsight. Ex parte Prior, supra; Duran v. State, 505 S.W.2d 863 (Tex.Cr.App.1974); Pete v. State, 501 S.W.2d 683 (Tex.Cr.App.1973).

An attorney must apprise a case and do the best he can with the facts, and the fact that other counsel might have tried the case differently does not show inadequate representation. Ex parte Prior, supra; Rockwood v. State, 524 S.W.2d 292 (Tex.Cr.App.1975).

Where counsel is retained, as here, the test is whether the misconduct of counsel, if any, amounts to a breach of a legal duty. See Ex parte Raley, 528 S.W.2d 257 (Tex.Cr.App.1975), and cases there cited. Steel v. State, 453 S.W.2d 486 (Tex.Cr.App.1970).

Here, appellant could have received two life sentences, two ten year sentences as well as a five year sentence upon revocation of probation. Counsel was able to extract a plea bargain from the State so that the appellant received five concurrent five year sentences.

In Bullard v. State, 548 S.W.2d 13 (Tex.Cr.App.1977), it was held that an allegation of ineffective assistance of counsel may not be founded solely on the fact that appellant pled guilty on the advice of counsel, particularly where the advice of counsel was sound under the circumstances and penalty assessed.

It is noted that three of the indictments have been held fatally defective. Does this render appellant’s counsel ineffective? These defects were clearly not evident upon the face of the indictments. Further, the State could have easily re-indicted for delivery of diazepam alleging that it was a tranquilizer and the plea bargain may then have been no longer available. The question of the defective nature of the indictments for delivery of codeine is one of first impression for this court with no past definitive precedent. Even if counsel had advanced the argument that the indictments were defective on the grounds assigned in these appeals, the State could have re-indicted correcting the defects. Counsel may well have considered this factor when he evaluated appellant’s situation and determined to accept the plea bargain of five concurrent five years. This may have been the wiser course than facing the uncertainty of three re-indictments and the punishments that could then be inflicted.

In viewing all of the circumstances, we cannot conclude there has been a breach of legal duty. See Trotter v. State, 471 S.W.2d 822 (Tex.Cr.App.1971). Even if we used the “reasonably effective assistance” standard of Ex parte Gallegos, supra, applied to appointed counsel, we would reach the same result. We cannot conclude that appellant has been deprived of due process of law.

Lastly, appellant contends the trial court erred in holding that she violated probationary condition No. 3 because applied to the instant facts such probationary condition is unconstitutionally overbroad. Condition No. 3 was that she “avoid injurious or vicious habits (including the use of narcotics or habit forming drugs and alcoholic beverages).

It is observed that the amended revocation motion alleged that appellant violated not only condition No. 3 but also probationary condition No. 2 that she “commit no offense against the laws of this or any other State or of the United States.”

It is observed that in the written order revoking probation the court revoked solely upon violation of condition No. 2. Therefore, we do not reach the contention advanced by the appellant.

It is observed that at the hearing on the motion to revoke probation the appellant entered a plea of “true,” which standing alone is sufficient to support a revocation of probation. Mitchell v. State, 482 S.W.2d 221 (Tex.Cr.App.1972); Guillot v. State, 543 S.W.2d 650 (Tex.Cr.App.1976). Further, the appellant took the witness stand and made a judicial confession to all the allegations in the revocation motion. While three of the indictments have been held defective, we need not determine what effect such holdings would have on the revocation because the judicial confession to the delivery of pentazocine would afford a sufficient basis for revocation since a revocation order can be supported by proof of one violation alone. See Ross v. State, 523 S.W.2d 402 (Tex.Cr.App.1975); Gobell v. State, 528 S.W.2d 223 (Tex.Cr.App.1975).

The judgments in Causes # 54,297 and # 54,298 (involving the delivery of codeine) and the judgment in Cause # 54,300 (delivery of diazepam) are reversed and prosecutions under the indictments therein ordered dismissed. The judgments in Causes # 54,-296 and # 54,299 are affirmed.

ON STATE’S MOTION FOR REHEARING

DOUGLAS, Justice,

dissenting.

The State’s motion for rehearing has been overruled without written opinion. We originally held that the allegation in two indictments that Shirley Benoit possessed codeine was insufficient to allege a felony offense. We should conclude that the indictments allege a felony.

The Controlled Substances Act specifically provides that a person commits a felony of the first degree if he knowingly or intentionally delivers a controlled substance listed in Penalty Group 1 (Section 4.03). Penalty Group 1 lists codeine [Section 4.02(b)(3)(viii)].

Wilson v. State, 520 S.W.2d 377 (Tex.Cr.App.1975), is not in point because that indictment charged the delivery of marihuana and the Controlled Substances Act does not make it a felony to deliver marihuana. The same Act does make it a felony to deliver codeine.

Sections (d), (e) and (f) of the Texas Controlled Substances Act, Article 4476-15, Sec. 4.05, V.A.C.S., provide:

(d) Except as otherwise provided by this Act, a person commits an offense if he knowingly or intentionally delivers marihuana.
“(e) Except as provided in Subsection (f) of this section, an offense under Subsection (d) of this section is a felony of the third degree.
“(f) An offense under Subsection (d) is a Class B misdemeanor if the actor delivers one-fourth ounce or less without receiving remuneration.”

From our past decisions, to allege a felony for the delivery of marihuana the indictment or information must allege that the amount delivered was more than one-fourth of an ounce or that it was delivered for remuneration.

In Suarez v. State, 532 S.W.2d 602 (Tex.Cr.App.1976), the indictment alleged the delivery of marihuana. This Court held that it alleged a misdemeanor offense even though the amount was not mentioned and that the court had jurisdiction to try the case.

The provisions of the controlled Substances Act in this case concerning the delivery of codeine are not like provisions of marihuana. To allege a felony offense for the possession of marihuana the indictment or information must under the present code recite that more than four ounces were possessed.

The Act makes the delivery of codeine a felony without regard to the amount or if it was with remuneration. There are some lesser offenses where there is a mixture of a small amount of codeine with other substances. These would be misdemeanors.

In order for the offense alleged to be within the definition of substances in Penalty Group 3 there is a requirement that the codeine be in a compound mixture or preparation containing a limited mixture of codeine with an equal or greater quantity of isoquinoline alkaloid of opium or non-narcotic ingredients in recognized therapeutic amounts. To be within Penalty Group 4 the codeine must be in a compound mixture or preparation containing one or more nonnarcotic active medicinal ingredients in sufficient portion to confer valuable medicinal qualities upon the compound and be in a limited physical quantity.

These other penalty group compounds containing codeine do not contain codeine alone but prohibit a combination of ingredients including codeine. It would appear that the allegation of codeine brings it within the provisions of a Penalty Group 1 offense and the proof that the codeine was in a limited quantity in the mixture or compound prohibited by other penalty groups would simply raise the issue of whether or not there was a lesser penalty or a lesser included offense involved in the prosecution.

To uphold appellant’s contention that the indictment is fundamentally defective, a pleader would have to allege the delivery of codeine which was not mixed with other substances named in the act or allege a specific amount of codeine not required by the statute or he would have to allege more than the amounts that are mixed with other substances to constitute a misdemeanor offense.

There is no requirement that an indictment allege in an assault with intent to murder case that the offense was not a simple assault. Proof of a simple assault only does not oust the district court of jurisdiction. In such a case the judge submits the cause to the jury on simple assault.

In the delivery of a codeine case, if the proof shows a mixture of compounds with codeine as set out in the statute to be misdemeanor offenses, the judge may submit the case upon or give an instruction in regard to a lesser included offense.

Under the former penal code the possession or delivery of marihuana or heroin was a felony offense regardless of the amount involved. In Pelham v. State, 164 Tex.Cr.R. 226, 298 S.W.2d 171 (1957), the Court held that a very small amount of marihuana was insufficient to support the conviction. The Court held:

“. . . to constitute the unlawful act of possessing marijuana, there must be possessed an amount sufficient to be applied to the use commonly made thereof. In other words, unless the amount of marijuana possessed is such as is capable of being applied to the use commonly made thereof, it does not constitute marijuana within the meaning of the statute.”

Greer v. State, 163 Tex.Cr.R. 377, 292 S.W.2d 122, (1956), held that a trace of heroin on a moist piece of cotton was insufficient to warrant conviction for possessing heroin.

After these holdings, this Court did not, under the former code, require the pleader to allege that the accused possessed a narcotic in an amount sufficient to be applied to the use commonly made thereof. In other words, there was no requirement then that a usable amount be alleged. All that was necessary was that the possession of a narcotic be alleged. If a usable amount was not proved, the evidence was insufficient to support a conviction. If appellant’s contention be correct, then a usable amount should have been alleged in narcotic cases or the indictment would not show jurisdiction.

As in the present case, if the delivery of codeine is alleged, this is sufficient. If the proof does not show the possession of codeine, the evidence is insufficient. If the proof shows a smaller amount of codeine compounded with other substances under the Controlled Substances Act, then a lesser offense could be submitted to the jury. This, like the Pelham case, concerns the proof not the pleading. See Suarez v. State, supra.

The State’s motion for rehearing should be granted in Causes Nos. 54,297 and 54,298 and the judgments should be affirmed.

      . Appellant also urges that if the offense was a misdemeanor the District Court did not have jurisdiction.

      . In § 4.02(b)(2)(D), (E), supra, codeine methyl-bromide and codeine-N-Oxide are listed as being in Penalty Group One.

      . It is observed that in Morrison and Blackwell’s New Texas Penal Code Forms (Texas Controlled Substances Act), § 4.03, it is recommended that in alleging unlawful delivery of a controlled substance that the penalty group in which the controlled substance alleged falls be pled in the indictment. If that had been done in the instant case the question raised would have been avoided.

      . “Sec. 2.17. The following substances are dangerous drugs regulated by the provisions of Chapter 425, Acts of the 56th Legislature, Regular Session, 1959, as amended (Article 726d, Vernon’s Texas Penal Code):
      “(1) tranquilizers;
      “(2) procaine, its salts, derivatives, or compounds or mixtures thereof;
      “(3) any substance that bears the legend: Caution: federal law prohibits dispensing without prescription; or the legend: Caution: federal law restricts this drug to use by or on the order of a licensed veterinarian;
      “(4) phendimetrazine, its salts, derivatives, or compounds or mixtures thereof;
      “(5) pentazocine, its salts, derivatives, or compounds or mixtures thereof.”

      . It does appear that if the State had alleged that diazepam was a dangerous drug because it was a tranquilizer under Article 4476-14, § 2(a)(1), supra, it would have been able to prove the same and obtain a conviction. Diazepam or valium is a tranquilizer. Physicians’ Desk Reference, pp. 1337-1340 (28th ed. 1974). See and cf. Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976).


author: ROBERTS, Judge.

text:
    Keith V. MURRAY, Appellant, v. The STATE of Texas, Appellee.
    Nos. 54475, 54476.
    Court of Criminal Appeals of Texas.
    Oct. 5, 1977.
    State’s Motions for Rehearing Denied Nov. 2, 1977.
    Mark M. Cleaves, San Antonio, for appellant.
    Ted Butler, Dist. Atty., and Gordon V. Armstrong, Sharon S. Macrae and Douglas C. Young, Asst. Dist. Attys., San Antonio, and Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

These are appeals from two convictions for aggravated robbery. In both cases appellant pleaded guilty before the court, which subsequently assessed punishment at ten years in each case.

Appellant contends in both cases that the trial court failed to admonish him as to the range of punishment, as required by Article 26.13, Vernon’s Ann.C.C.P. We agree and reverse.

The record in these cases reveals no admonishment by the trial court as to the range of punishment for the offense of aggravated robbery. The State concedes this point but directs our attention to the appellant’s “Affidavit[s] of Admonitions and Jury Waiver,” which were filed and made a part of the record in each case. These affidavits both provide in part:

“I, Keith Vernon Murray hereby enter a plea of guilty to this charge, the penalty for which as prescribed by law is: FIRST-DEGREE FELONY-LIFE OR TO 99 YEARS.

The State, relying principally upon Williams v. State, 522 S.W.2d 483 (Tex.Cr.App.1975), as well as three other cases decided by this Court on April 30, 1975, contends that the appellant’s written affidavits were sufficient to show compliance with Article 26.13. We cannot agree.

In 1975 the Legislature amended Article 26.13 of our Code of Criminal Procedure. It now provides as follows:

“Art. 26.13 Plea of Guilty
“(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
“(1) the range of punishment attached to the offense; and
“(2) the fact that any recommendation of the prosecuting attorney as to punishment is not binding on the court.
“(b) No plea of guilty or plea of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.
“(c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.” Acts 1975, 64th Leg., p. 909, ch. 341, Sec. 3, eff. June 19, 1975.

Prior to this 1975 amendment Article 26.-13 provided:

“If the defendant pleads guilty, or enters a plea of nolo contendere, he shall be admonished by the court of the consequences; and neither of such pleas shall be received unless it plainly appears that he is mentally competent, and is uninfluenced by any consideration of fear, or by any persuasion, or delusive hope of pardon, prompting him to confess his guilt.” See Acts 1973, 63rd Leg., p. 968, ch. 399, Sec. 2(A), eff. Jan. 1, 1974.

As can be seen from a comparison of the statutes, several changes were effected by the 1975 amendment. It cannot be denied that one of the most significant of these changes is contained in subsection (c): This portion of the statute provides that the trial court’s admonishment shall not be subject to challenge if there is “substantial compliance” with subsections (a) and (b) of Article 26.13.

However, even though “substantial compliance” is now sufficient, it does not follow that the trial court — or this Court — may ignore the plain language of the statute.

The statute provides that it is the trial court which must admonish the accused of the range of punishment attached to the offense. The statute is mandatory: It does not allow the defense attorney, or the prosecutor, or the clerk of the court, or anyone but the judge himself, to admonish the accused of the range of punishment.

It follows that the only admonishment which can be considered by this Court is that given by the trial court. The “Defendant’s Affidavit of Admonitions and Jury Waiver,” sworn to before the deputy clerk of the trial court, cannot be considered in determining whether the trial court sufficiently complied with the requirements of Article 26.13.

We have before us a full and complete transcription of appellant’s guilty pleas in these two cases. This transcription makes it evident that at no time did the trial court admonish appellant as to the range of punishment for the offense of aggravated robbery. In such a case, we are squarely within this Court’s holding in Walker v. State, 524 S.W.2d 712 (Tex.Cr.App.1975), which requires that the judgments in appellant’s cases be reversed.

The judgments are reversed and the causes remanded.

      . Williams v. State, 522 S.W.2d 488 (Tex.Cr.App.1975); Guster v. State, 522 S.W.2d 494 (Tex.Cr.App.1975); Tellez v. State, 522 S.W.2d 500 (Tex.Cr.App.1975). And see Vavra v. State, 171 Tex.Cr.R. 24, 343 S.W.2d 709 (1961), upon which the State also relies.

      . We observe that Article 26.13 was again amended in 1977. See Acts 1977, 65th Leg., p. 748, ch. 280, Sec. 1, eff. Aug. 29, 1977, which amends subsection (a)(2) of Article 26.13.