Garza v. State

622 S.W.2d 85, 1981 Tex. Crim. App. LEXIS 1144

• Court: Court of Criminal Appeals of Texas
• Decided: September 23, 1981
• Docket: 58517
• 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 thirty-five years.

Appellant presents ten grounds of error for our consideration: that the trial court erred in failing to grant his motion to quash the indictment; that a timely requested charge on circumstantial evidence was erroneously refused; that the trial court incorrectly applied the law to the facts of the case in charging the jury; that the trial court erred in refusing to permit appellant to call jurors on his motion for new trial to demonstrate purported jury misconduct; that the trial court erred in failing to excuse juror Clark for cause upon timely request; that a motion for severance was erroneously overruled; that the trial court erred in refusing to allow discovery and inspection of a tape recording between appellant and undercover agents; that the prosecutor engaged in improper argument during the punishment phase of the trial; that the evidence is insufficient to support the jury verdict; and that appellant was a victim of prosecutorial vindictiveness when, after refusing to plead to possession of heroin, he was reindicted on the more serious charge of delivery of heroin. We find the first ground is dispositive of this appeal. It will be granted and the judgment reversed.

The indictment is simple enough — paraphrasing it, that appellant did deliver heroin to Jerry Powell. But “deliver” now carries several connotations.¹

In his motion to quash appellant asserted that its 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] . .. 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,² calls into question the adequacy of the constitutional requisite of notice to the accused and, therefore, requires our consideration of it from his perspective.” Recent cases have considered the issue of adequate notice when raised by a motion. Their common thread is that when the underlying statute denouncing the offense prescribes, or 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, 387⁴ (Tex.Cr.App.1977). Also Cruise v. State, supra, at 405.⁵

So here, 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. More so, then, than in the prior decisions of the Court discussed above, our appellant needed the notice he sought. Unlike Drumm, Amaya and Cruise, where some allegation of a factual matter was called for, what appellant wanted the State to interline was its legal theory of just which kind of delivery was going to be shown by the facts it did prove.

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 notice of precisely what he is charged with nor to bar a subsequent prosecution for the same offense. Terry v. State, 471 S.W.2d 848, 852 (Tex.Cr.App.1971); Haecker v. State, 571 S.W.2d 920 (Tex.Cr.App.1978); Cruise v. State, supra; Amaya v. State, supra; Drumm v. State, supra; cf. Pollard v. State, 567 S.W.2d 11, 13 (Tex.Cr.App.1978). Ground of error one must be sustained.

Several of the other grounds of error arise from the same problem and upon a retrial are not likely to occur.⁶

The judgment is reversed and the indictment is ordered dismissed.

Before the court en banc.

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

2 . As to the State’s contention that the motion was untimely filed, we note that Article 28.10, V.A.C.C.P., provides that any matter of form may be amended at any time before announcement of ready for trial upon the merits, and Article 28.09, id,, contemplates that the defect will be cured by amendment and the trial shall proceed upon the amended indictment— amendment by immediate interlineation being permissible, Fiores v. State, 82 Tex.Cr.R. 107, 198 S.W. 575, 577 (Tex.Cr.App.1917); see also Amaya v. State, 551 S.W.2d 385, 387 (Tex.Cr.App.1977).

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 serious bodily injury, an accused must be informed of the precise manner which the State claims caused the bodily injury.

6 . As to the failure to charge on circumstantial evidence, since we cannot know for what legal theory the State will exercise its option, we merely invite attention to the doctrine that instructing on the law of parties is not sufficient to protect the rights of an accused if circumstantial evidence is relied on by the State to establish his guilt as a party; see, e. g., McBride v. State, 486 S.W.2d 318, 320 (Tex.Cr.App.1972).