Opinion
No. 52313.
November 16, 1977. State's Motion for Rehearing Denied February 8, 1978.
Appeal from the 42nd Judicial District Court, Taylor County, Donald H. Lane, J.
Jack M. Sessom, San Angelo, for appellant.
Ed R. Paynter, Dist. Atty. and Jim H. Smart, Jr., Asst. Dist. Atty., Abilene, Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
This is an appeal from a conviction for sale of phentermine. After finding appellant guilty, the jury assessed appellant's punishment at nine years' confinement.
On September 15, 1976, in an unpublished opinion, this appeal was dismissed for want of jurisdiction. The appeal is now reinstated.
In reviewing the record we have determined that the judgment must be reversed because of unassigned error. Art. 40.09(13), Vernon's Ann.C.C.P.
In Riddle v. State, 560 S.W.2d 642 (Tex.Cr.App. 1977); the defendant was charged with delivery of phentermine. In Riddle we held that there is no longer any penalty provided for the possession or delivery of phentermine. For the reasons stated in Riddle this rule also applies to this appellant's sale of phentermine.
As in Riddle, the appellant was alleged to have committed the offense after the date phentermine was added to Schedule IV of the Controlled Substances Act. See footnote 2 of the Riddle opinion.
Therefore, as in Riddle, the judgment must be reversed and the prosecution ordered dismissed.