Benoit v. State
In Benoit v. State, 561 S.W.2d 810 (Tex. Crim. App. 1977), the defendant was charged with delivery of a controlled substance, namely codeine, but the indictment did not allege a penalty group that included codeine. Benoit, 561 S.W.2d at 812.
At the time of the offense charged, codeine was listed in three different penalty groups based on the amount possessed, and the applicable statutory scheme provided for both felony and misdemeanor punishments. Id. at 814.
The court held that "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." Id. at 815.