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 *820or 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.