dissenting.
I respectfully dissent to the majority’s opinion.
Appellant was charged and convicted of delivery of a controlled substance, by offer to sell, to wit: heroin, pursuant to the Controlled Substances Act, TEX.REV.CIV. STAT.ANN. art. 4476-15, § 1.02(8) and § 4.03(a) (Vernon 1976 and Supp.1984). Section 4.03(a) provides, in part, that a person commits an offense if he knowingly or intentionally delivers or possesses with intent to deliver a controlled substance. Section 1.02(8) defines “deliver” or “delivery” as the actual or constructive transfer from one person to another of a controlled substance, including an offer to sell a controlled substance.
The State concedes that there was no evidence that the substance Appellant offered to sell was, in fact, heroin. The State does not rely on the actual transfer of heroin to narcotics officer, W.C. Pudifin. Rather, it places emphasis on the words, “offer to sell,” as controlling in the statutory phrase, “offer to sell a controlled substance.” It is the State’s contention that it was unnecessary to prove that the substance Appellant offered to sell was actually a controlled substance; rather, it was only required to prove that Appellant offered to sell to Officer Pudifin a “substance” which Appellant claimed was heroin.
While the majority supports the State’s contention, I strongly disagree. The language contained in Sections 1.02(8) and 4.03(a) of the Controlled Substances Act, discussed above, clearly shows that the behavior the legislature sought to control was the transfer of controlled substances only. This conclusion is further strengthened by the fact that in September 1983, the legislature enacted Article 4476-15b, entitled “Simulated Controlled Substances,” which states, in pertinent part:
Sec. 2.(a) A person commits an offense if the person knowingly or intentionally manufactures with the intent to deliver or delivers a simulated controlled substance and the person:
(1) expressly represents the substance to be a controlled substance;
(2) represents the substance to be a controlled substance in a manner that would lead a reasonable person to believe that the substance is a controlled substance, ... (Emphasis added.)
Article 4476-15b, § 1(4) defines “simulated controlled substance” as “a substance that is purported to be a controlled substance, but is chemically different from the controlled substance it is purported to be.” (Emphasis added.)
If the Controlled Substances Act, prior to September, included offenses relating to simulated controlled substances, no real purpose would be served by the enactment of Article 4476-15b. By enacting this statute, it seems clear that the legislature intended to cover certain behavior which had previously been excluded from the Controlled Substances Act. It is a general rule of statutory construction that the legislature is never presumed to do a useless act. Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547 (Tex.1981).
I, therefore, would hold the evidence insufficient to convict Appellant of the offense charged.