Daniels v. State

Decision Date01 June 1988
Docket NumberNo. 767-84,767-84
Citation754 S.W.2d 214
PartiesJames E. DANIELS, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Charles M. Hineman, on appeal only, Austin, for appellant.

Louis Crump, Dist. Atty., San Saba, Sam Oatman, Asst. Dist. Atty., Llano, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was found guilty by a jury of the offense of unlawful delivery of marihuana. The trial court assessed the punishment at five years' imprisonment. The conviction was based on a violation of the Texas Controlled Substances Act, Article 4476-15, § 4.05(a) and (b)(3), V.A.C.S. (as amended in 1981). 1

On appeal, inter alia, the appellant contended the trial court erred in overruling his motion to quash the indictment because the term "constructive transfer" was an ambiguous term that did not give notice of the acts charged and violated his right to adequate notice under the federal and state constitutions and the Code of Criminal Procedure. Appellant further contended the trial court committed fundamental error in the charge in allowing the jury to convict on a theory not alleged in the indictment. The Court of Appeals agreed "with both assignments of error" and reversed and remanded with instructions to dismiss the indictment. Daniels v. State, 674 S.W.2d 388 (Tex.App.--Austin 1984). We granted the State's petition for discretionary review to determine the correctness of the Court of Appeals' decision. Texas Rules of Appellate Procedure, Rule 200(c)(2).

Briefly, the record shows that Kimberly Hughes, a member of the Austin Organized Crime Unit, worked as an undercover agent-officer in Burnet County at the time of the alleged offense. In early October 1982, Hughes met appellant in the parking lot of Cochran's Grocery Store and later went to his residence in Marble Falls indicating she wanted to buy drugs. Appellant stated he didn't have any drugs to sell, but according to Hughes, he rolled her a marihuana cigarette and she "simulated" smoking part of it.

On the evening of October 12, 1982, Hughes was with Tim Martinez, James Brooks and James Whited at the Relax Bar I outside Granite Shoals drinking beer. The three men later accompanied Hughes in her car and directed her to appellant's home which she had previously visited. She testified that marihuana was smoked in the car en route to appellant's house and she again simulated smoking a joint.

Upon arrival Brooks entered appellant's house and then returned to the car. Thereafter Hughes related she gave James Whited a $100 bill and he gave her $40 in change. In order to be able to get into the house Hughes insisted she had to use the bathroom, and she accompanied the three men into the house. Upon entering she saw appellant seated on a stool behind the bar and also observed a large white man with blond hair watching television. Hughes proceeded to the bathroom. Upon her return she saw Whited in the kitchen area with a bag of marihuana. He handed the bag to Hughes and asked her if "it looked all right." She responded "Yes." Hughes testified that Whited then "handed my $100 bill plus $15 to James Daniels (appellant)."

The group then left the house. The bag of marihuana was apparently split and Hughes received one half which the next day she delivered to Chemist Bob Urbanovsky of the Austin Police Department, who testified that he analyzed and determined that the substance given him by Hughes was in fact marihuana weighing 10.8 grams or 0.38 ounces.

On cross-examination Hughes admitted she was not present when the marihuana was "delivered." She did not see where the marihuana came from because the first time she observed the bag of marihuana it was in the possession of Whited.

Hughes and Urbanovsky were the only State's witnesses. Hughes indicated in her testimony that Whited, Brooks and Martinez all had charges filed against them.

At the close of the State's case-in-chief appellant's motion for an instructed verdict of "not guilty" was denied.

Charles Eugene Van Buskirk for the defense testified he was at appellant's house on the occasion in question, and was watching television when the group entered the house. He stated that appellant was leaving the house at the very time to go get a six pack of beer for which he (Van Buskirk) had given appellant money. Van Buskirk recalled that Hughes, upon entering, went directly to the bathroom and that in her absence Brooks and Whited asked Juanita Armstrong, who was present, about some "pot," and they bought some marihuana from Armstrong, who placed the money "underneath the bar." He later observed a purse behind the bar and thought it belonged to Armstrong. It was Van Buskirk's testimony that Hughes was in the bathroom during this transaction, and that after Hughes came out Brooks and Whited showed her the "pot," that Whited then rolled a marihuana cigarette and "a few of them" were smoking it when the appellant returned with the beer. Appellant asked the group to leave as he had to work the next morning and the group left.

Juanita Armstrong, when called by the defense, testified that she was present at the time in question, and that the appellant was not present when the alleged transaction took place. As to her participation in the transaction, she took the Fifth Amendment and was permitted to do so without objection. On cross-examination she related she was living with appellant at the time, and reiterated that appellant, on the occasion in question, had gone to get beer for Van Buskirk. Clifton Daniels, appellant's cousin, testified he was present, that appellant left the house as the group entered, and that the "deal" made was with Armstrong.

The pertinent portions of the Texas Controlled Substances Act in effect at the time of the instant offense provided:

"Sec. 4.05(a) Except as authorized by this Act, a person commits an offense if he knowingly or intentionally delivers marihuana.

"(b) An offense under Subsection (a) of this section is:

* * *

* * *

"(3) a felony of the third degree if the amount of marihuana delivered is four ounces or less but more than one-fourth ounce[.]"

"Sec. 1.02

"(8) 'Deliver' or 'delivery' means the actual or constructive transfer from one person to another of a controlled substance or drug paraphernalia, whether or not there is an agency relationship. For purposes of this Act, it also includes an offer to sell a controlled substance or drug paraphernalia."

As can be seen from the definition of "deliver" or "delivery" in said § 1.02(8), three types of "delivery" are contemplated: (1) an actual transfer; (2) a constructive transfer; and (3) an offer to sell. See Queen v. State, 662 S.W.2d 338, 340 (Tex.Cr.App.1983); Ferguson v. State, 622 S.W.2d 846, 848 (Tex.Cr.App.1980); Conaway v. State, 738 S.W.2d 692, 694 (Tex.Cr.App.1987).

The indictment presented in this case charged in pertinent part that on or about October 12, 1982, "... James E. Daniels ... did then and there unlawfully, intentionally and knowingly deliver to Kimberley Hughes by contructive (sic) transfer a quantity of marihuana in excess of one-fourth ounce[.]"

In his amended motion to quash appellant urged three reasons why the indictment in this case is defective. First, that it does not set forth the offense charged in plain and intelligible words; second, it fails to allege the manner and means whereby the alleged acts were committed; and third, that "constructive transfer" is an ambiguous and conclusory legal term which is insufficient to give him proper notice of the offense charged and the acts constituting the offense.

The trial court overruled the motion to quash. On appeal the Court of Appeals concluded the trial court erred, although it noted that if the appellant had been charged with "actual transfer," the allegation tracking the statute would have been sufficient. Daniels, supra at 392.

An accused's right to notice of the accusation against him is premised upon constitutional principles, both federal and state. The Sixth Amendment to the Constitution of the United States provides in part:

"In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation...." 2

Article I, § 20 of the Texas Constitution states in part:

"[In all criminal prosecutions the accused] shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof."

There are also pertinent Code of Criminal Procedure provisions. See Articles 21.02(7), 21.03, 21.04, 21.11 and 21.12, V.A.C.C.P.

The defendant is thus entitled to notice of the acts or omissions he is alleged to have committed. Gorman v. State, 634 S.W.2d 681 (Tex.Cr.App.1982).

When considering a motion to quash, it is insufficient to say the accused knew with what offense he was charged; rather the question presented is whether the face of the instrument sets forth in plain and intelligible language sufficient information to enable the accused to prepare his defense. McManus v. State, 591 S.W.2d 505 (Tex.Cr.App.1979); Haecker v. State, 571 S.W.2d 920 (Tex.Cr.App.1978). The motion to quash should be granted where the language in the charging instrument concerning the defendant's conduct is so vague or indefinite as to deny the defendant effective notice of the acts he allegedly committed. Haecker v. State, supra. Cf. Adams v. State, 707 S.W.2d 900 (Tex.Cr.App.1986).

While all essential elements of an offense must be alleged in the indictment, an indictment drafted in the language of the statute creating and defining an offense is ordinarily sufficient. Beck v. State, 682 S.W.2d 550, 554 (Tex.Cr.App.1985), and cases there cited.

It is a rare exception when an indictment drafted in the language of the penal statute is legally insufficient to provide an accused with notice of the offense charged. Beck, ...

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