On appellant's motion for rehearing en banc this Court reversed appellant's conviction for the offense of delivery of hydromorphone, reasoning that because appellant was a licensed "practitioner" under the Controlled Substances Act,1 he may be held criminally liable only for "dispensing" a controlled substance unlawfully, and may not be convicted of a "delivery" offense under the Act. This Court concluded, therefore, that the State's evidence, which established an unlawful "dispensing," fatally varied from the indictment which alleged a "delivery," and held the evidence insufficient to sustain the conviction. The State thereafter was granted leave to file a motion for rehearing; we are persuaded that the State's motion for rehearing must be sustained. Opinion on appellant's motion for rehearing is withdrawn.
At trial the State presented the testimony of Department of Public Safety undercover agent Brantley Foster, who on February 14, 1976 arranged to meet with appellant, a licensed pharmacist, at the pharmacy owned and operated by the latter on February 17, 1976. Upon Foster's arrival he was told by appellant to wait until closing time. After appellant closed his business at 6:00 p. m., he and Foster went into a back room where they discussed appellant's selling a number of controlled substances to Foster. After the two had talked for approximately an hour, Foster purchased from appellant 100 tablets of preludin, 250 tablets of quaalude and 50 dilaudid tablets at one dollar per tablet. The dilaudid tablets were determined by chemical analysis to contain hydromorphone.
It was further established that appellant was a licensed pharmacist and that he was licensed under the Texas Controlled Substances Act at the time of the transaction. Under the Act, § 1.02(24), "practitioner" means:
(A) a physician, dentist, veterinarian, scientific investigator, or other person licensed, registered, or otherwise permitted to distribute, dispense, analyze or conduct research with respect to, or to administer a controlled substance IN THE COURSE OF PROFESSIONAL PRACTICE or research in this state; or
(B) a pharmacy, hospital, or other institution licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to, or administer a controlled substance IN THE COURSE OF PROFESSIONAL PRACTICE or research in this state.2
Section 1.02(10) provides that "Dispense" means *Page 414
to deliver a controlled substance to an ultimate user3 or research subject by, or pursuant to the LAWFUL ORDER of, a practitioner (in the course of, professional practice or research), including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for SUCH DELIVERY.
Finally, Section 3.08 mandates in part that:
(a) No controlled substance in Schedule II4 may be dispensed without the WRITTEN PRESCRIPTION of a practitioner, except when dispensed directly to an ultimate user by a practitioner, other than a pharmacy.5
These statutes provide the acts which appellant was authorized to carry out under the Act as a licensed practitioner of pharmacy. Clearly, if a practitioner of pharmacy transfers a controlled substance to another under any circumstances other than on the lawful order of a physician, dentist, veterinarian, etc., in the course of his professional practice, he has exceeded the metes of his authority under the Act, and his conduct falls within the bounds of criminality.
The statute under which appellant was prosecuted, § 4.03, prescribes:
(a) EXCEPT AS AUTHORIZED BY THIS ACT, a person commits an offense if he knowingly or intentionally manufactures, delivers6 or possesses with intent to deliver a controlled substance listed in Penalty Group 1, 2, 3, or 4.7
(b) An offense under Subsection (a) of this Section with respect to:
(1) a controlled substance in Penalty Group 1 is a felony of the first degree; . . .
It is apparent that the Act nowhere authorizes a practitioner of pharmacy to deliver a controlled substance to another under the circumstances proved by the State in the instant case. Conceivably, a combination of §§ 4.08 and 3.08,8 denouncing commercial offenses of prescriptionless distribution and dispensation of a controlled substance, may preempt the unlawful delivery concept but not here.9 *Page 415
We find nothing in the Act which compels any conclusion other than that appellant's prescriptionless sale of fifty dilaudid tablets containing hydromorphone, to an undercover narcotics officer for $50.00, after hours in his pharmacy, constitutes a delivery under the Act. Appellant's status as a licensed pharmacist "practitioner" bestows no immunity upon him from commission of the offense for which he was convicted under the facts of this case, and we so hold.
We further hold that the prosecutor permissibly exercised his discretion in charging this appellant with delivery of a controlled substance, and we find no variance between the evidence adduced and the offense charged by indictment. The evidence is sufficient to support the jury's verdict.
Grounds of error four, five and six are without merit for they are each based on the legal premise that we have found faulty and rejected.
The first three grounds of error complain of admission of testimony of extraneous acts of misconduct. The testimony was from agent Foster as he recounted the face-to-face conversation with appellant that led to delivery of the substances during which the latter related the instances of misconduct of which appellant now complains. But as part and parcel of the very transaction at issue content of the conversation was admissible to permit the jury realistically to evaluate the other evidence before it. Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App. 1972) and cases following it demonstrate that these grounds of error are untenable. On that authority, then, they are overruled.
The State's Motion for Rehearing is granted; all grounds of error are overruled; the judgment of conviction is affirmed.
"Ultimate user" means a person who has LAWFULLY OBTAINED and possesses a controlled substance for his own use or for the use of a member of his household or for administering to an animal owned by him or by a member of his household.
"Deliver" or "delivery" means the actual or constructive transfer from one person to another of a controlled substance, whether or not there is any agency relationship. For purposes of this Act, it also includes an offer to sell a controlled substance. * * *
"(a) It is unlawful for any person:
(1) who is a practitioner knowingly or intentionally to distribute or dispense a controlled substance in violation of section 3.08. (Entitled 'Prescriptions.')
(b) An offense under this section is a felony of the second degree."
"Where a practitioner dispenses a controlled substance listed in Schedule II (as in the instant case) upon written prescription (not without written prescription) has he violated the provisions of said Section 3.08?"
and at 387:
" . . . Under the applicable facts involving a Schedule II substance and evidence reflecting that in each instance the appellant issued a written prescription for preludins (phenmetrazine) to Garner, we can perceive no violation of Section 3.08 as enacted by the Legislature."
Given the context in which Haney was decided, its question and answer are inapposite here. Where, as here, a practitioner of pharmacy, unlike a physician, is prohibited by § 3.08(a) from dispensing directly to an ultimate user, we decline to follow the majority response to the dissent inHaney, n. 1 at 388, discussing delivering and dispensing and, to the extent that it may be read to conflict with our holding regarding a pharmacist, it is considered not controlling.