Ferguson v. State

622 S.W.2d 846, 1981 Tex. Crim. App. LEXIS 1148

• Court: Court of Criminal Appeals of Texas
• Decided: September 23, 1981
• Docket: 58518
• Status: Published

Opinions

OPINION

CLINTON, Judge.

This is an appeal from a conviction for the offense of delivery of heroin wherein the jury assessed appellant’s punishment at confinement in the Texas Department of Corrections for a term of forty-five years.

By his first ground of error, appellant contends that the trial court erred in overruling his motion to quash the indictment returned against him. Omitting the formal portions, the indictment on which appellant was tried alleged that he, on April 25, 1975, did:

... unlawfully, intentionally and knowingly deliver to Jerry Powell, a controlled substance namely Heroin.

By timely filed motion to quash¹ appellant asserted that the indictment’s allegations “are insufficient to put the Defendant on notice of what type of delivery the State will rely on to prove its accusation. . .; [and] it is therefore... impossible for the Defendant to know against what proof he must prepare his defense.”

As we characterized it in Cruise v. State, 587 S.W.2d 403, 404 (Tex.Cr.App.1979), “This complaint, having been properly asserted, calls into question the adequacy of the constitutional requisite of notice to the accused² and, therefore, requires our consideration of it from his perspective.” Recent cases have considered the issue of adequate notice when raised by a motion to quash. Their common thread is that when the underlying statute denouncing the offense permits conviction on more than one set of circumstances, “the accused is not required to anticipate any and all variant facts the State might hypothetically seek to establish,” Drumm v. State, 560 S.W.2d 944, 947³ (Tex.Cr.App.1977), but by his motion or exception, may insist on “a specific allegation of what the State will rely upon to convict,” Amaya v. State, 551 S.W.2d 385, 387 ⁴ (Tex.Cr.App.1977). See also Cruise v. State, supra, at 405.⁵

Delivery of a controlled substance may be accomplished in at least three quite different situations: actual transfer, constructive transfer and the entirely distinct offer to sell.⁶ Thus, the information appellant sought to have the State provide was the legal theory of just which kind of delivery was going to be established by the proof.

While the indictment alleges facially that an offense against the law was committed, in this controlled substance case it does not show on its face facts necessary to give appellant precise notice of the “nature . . . of the accusation against him.” Tex.Const. Art. I, § 10. Nor does the indictment as drafted serve to distinguish the conduct alleged from other conduct by the accused, which is required to ensure a bar to a subsequent prosecution for the same offense. Article 21.04, V.A.C.C.P.; Haecker v. State, 571 S.W.2d 920 (Tex.Cr.App.1978); Cruise v. State, supra; Amaya v. State, supra; Drumm v. State, supra; Terry v. State, 471 S.W.2d 848 (Tex.Cr.App.1971); cf. Pollard v. State, 567 S.W.2d 11, 13 (Tex.Cr.App.1978). Ground of error one must be sustained.

The judgment is reversed and the indictment is ordered dismissed.

Before the court en banc.

1 . The State erroneously asserts that the motion to quash was not timely. The record before us reveals, however, that the motion was filed by appellant, and considered by the trial court, before trial proceedings commenced.

2 . See Tex.Const. Art. I, § 10.

3 . The particular ground for prior suspension of driver’s license was required to provide adequate notice to one accused of driving while license suspended.

4 . One accused of welfare fraud is entitled to notice of the content of the particular willfully false statement the State intends to prove.

5 . Charged with the offense of robbery by causing bodily injury an accused must be informed of the precise conduct which the State claims caused the bodily injury.

6 . “Delivery” means “the actual or constructive transfer from one person to another of a controlled substance... [and] includes an offer to sell a controlled substance.” Article 4476-15, § 1.02(8), V.A.C.S. [All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.]