Daniels v. State
Decision Date | 30 May 1984 |
Docket Number | No. 3-83-150-CR,3-83-150-CR |
Citation | 674 S.W.2d 388 |
Parties | James E. DANIELS, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Appeals |
Charles M. Hineman, Austin, for appellant.
Louis Crump, Dist. Atty., San Saba, Sam Oatman, Asst. Dist. Atty., Llano, for appellee.
Before SHANNON, EARL W. SMITH and GAMMAGE, JJ.
James E. Daniels was found guilty by a jury of the offense of constructive delivery of more than one-fourth ounce of marijuana. Texas Controlled Substances Act, Tex.Rev.Civ.Stat.Ann. art. 4476-15, § 4.05(d) & (e) (1976). Punishment was assessed by the court at confinement in the Texas Department of Corrections for five years.
Daniels contends that the court erred in overruling his motion to quash the indictment in that it does not give adequate notice of the acts constituting the offense charged; he argues, also, that the trial court committed fundamental error in the charge to the jury by authorizing the jury to convict on a theory not alleged in the indictment. We agree with both assignments of error.
The Texas Controlled Substances Act, as it was in effect at the time of the alleged offense, in pertinent parts provided:
(d) Except as otherwise provided by this Act, a person commits an offense if he knowingly or intentionally delivers marihuana.
(e) ... an offense under Subsection (d) of this section is a felony of the third degree.
(8) "Deliver" or "delivery" means the actual or constructive transfer from one person to another of a controlled substance, whether or not there is an agency relationship. For purposes of this Act, it also includes an offer to sell a controlled substance.
Omitting the formal parts, the indictment charges that "James E. Daniels ... did then and there unlawfully, intentionally, and knowingly deliver to Kimberley Hughes by con[s]tructive transfer a quantity of marihuana in excess of one-fourth ounce." (emphasis added). In his "Amended Motion to Quash Indictment," Daniels alleged that the indictment is defective in that it does not set forth the offense charged in plain and intelligible words, that it fails to allege the manner and means whereby the alleged acts were committed, and 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 such offense. Timely presented, the motion was overruled.
The indictment on its face must charge the offense in plain and intelligible words so as to enable a person of common understanding to know what is meant. It must allege the offense with such certainty as to enable the accused to know what offense he will be required to defend himself against and to enable him to plead any judgment that may be pronounced on it as a bar to any further prosecution for the same offense. Tex. Const.Ann. art. I, § 10 (1955); Tex.Code Cr.P.Ann. arts. 21.02(7), 21.04, and 21.11 (1966).
In Lewis v. State, 659 S.W.2d 429, 431 (Tex.Cr.App.1983), the Court emphasized the above constitutional and code requirements:
When considering a motion to quash the indictment, it is not sufficient to say the defendant knew with what offense he was charged; rather, the question presented is whether the face of the indictment or charging instrument sets forth in plain and intelligible language sufficient information to enable the accused to prepare his defense. Marrs v. State, 647 S.W.2d 286, 289 (Tex.Cr.App.1983); 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 State alleged the offense in the terms of the statute. Ordinarily, this is legally sufficient. Marrs v. State, supra; Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.1980); Parr v. State, 575 S.W.2d 522 (Tex.Cr.App.1978). However, even where an act or omission of the defendant is statutorily defined, if that definition provides for more than one manner or means to commit that act or omission, upon timely request, the State must allege the particular manner or means it seeks to establish. In Ferguson v. State, 622 S.W.2d 846, 851 (Tex.Cr.App.1980), where the indictment failed to allege which of the three statutory methods of delivery of heroin it relied upon, the Court held that the motion to quash the indictment was improperly overruled. Cf. Coleman v. State, 643 S.W.2d 124 (Tex.Cr.App.1982); McBrayer v. State, 642 S.W.2d 504 (Tex.Cr.App.1982); and Gorman v. State, 634 S.W.2d 681 (Tex.Cr.App.1982) where in each case the Court held that it was error to overrule a motion to quash the indictment for failure to specify which of the statutorily defined types of appropriation the defendant resorted to.
Also, where the statutory language is not completely descriptive, so that particularity is required to afford the defendant notice, merely tracking the language of the statute is insufficient. In Haecker v. State, 571 S.W.2d 920, 921 (Tex.Cr.App.1978), the information alleged that the defendant "did then and there unlawfully, intentionally, and knowingly torture an animal, namely a dog." The defendant's motion to quash, overruled by the court, claimed that the information provided inadequate notice; he contended on appeal that the information failed to apprise him of the charge against him with sufficient particularity to prepare his defense. The State argued that the legislative definition of torture as defined in Tex.Rev.Civ.Stat.Ann. art. 180 (1969), to wit: "the words 'torture' and 'cruelty' include every act, omission or neglect whereby unnecessary or unjustifiable pain or suffering is caused, permitted or allowed to continue when there is a reasonable remedy or relief," makes the inclusion of a definition in the information unnecessary. The Court, holding that the information was insufficient to give the defendant adequate notice to enable him to adequately prepare his defense, said at p. 921:
In many cases, an information will be considered sufficient if it follows the language of the statute. However, this rule applies only where the information is framed under a statute which defines the act constituting the offense in a manner that will inform the accused of the nature of the charge. In other words, if the language of the statute is itself completely descriptive of the offense, an information is sufficient if it follows the statutory language. Lopez v. State, 494 S.W.2d 560 (Tex.Cr.App.1973); Bush v. State, 97 Tex.Cr.R. 219, 260 S.W. 574 (1923). By the same test, if the language of the statute is not completely descriptive, then merely tracking the statutory language would be insufficient. As was pointed out in Conklin v. State, 144 Tex.Cr.R. 343, 162 S.W.2d 973 (1942),
In Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1977), the State alleged that the defendant drove his vehicle while his license was suspended under Tex.Rev.Civ.Stat.Ann. art. 6687b, § 24 (1977). Section 24 provided five different ways in which the accused's license could have been suspended. Defendant, by motion to quash, sought a specific allegation as to which subsection of Section 24 the State would rely on. The Court held that the trial court erred in overruling the motion to quash and stated, that in order for the defendant to prepare his defense, he was entitled to notice of the particular suspensions upon which the State was going to rely. Id. at 947.
The defendant, in Cruise v. State, 587 S.W.2d 403 (Tex.Cr.App.1979) was charged with robbery. The Court held that the term "cause bodily injury" in a robbery indictment did not, upon a timely motion to quash, give precise notice of the offense with which the defendant was charged, noting that the term "cause bodily injury" was susceptible to an almost endless list of possible meanings and that it would have been impossible for the State to prove the element without also showing the manner in which it was done. Id. at 404. Generally, a motion to quash will be granted if the facts sought are essential to giving notice. See Ellis v. State, 613 S.W.2d 741 (Tex.Cr.App.1981); Brasfield v. State, 600 S.W.2d 288, 295 (Tex.Cr.App.1980); Lindsay v. State, 588 S.W.2d 570, 572 (Tex.Cr.App.1979); and Amaya v. State, 551 S.W.2d 385, 387 (Tex.Cr.App.1977).
Applying the above principles, we turn to the indictment in this case, which alleges that the appellant "did ... deliver to Kimberley Hughes by con[s]tructive transfer a quantity of marihuana." The thrust of Daniels' argument is that the term "constructive transfer" is too vague to afford him adequate notice to prepare his defense. We agree. It is true that "deliver" is defined to mean actual or constructive transfer. Had Daniels been charged with actual transfer, the allegation, tracking the statute, would be sufficient. But what is meant by "constructive transfer"? Is that term a sufficient definition of "deliver" so as to afford adequate notice to Daniels and enable him to prepare his defense? We do not think so.
Nowhere in the Penal Code is "constructive transfer" or "constructive delivery" defined. When statutory words are not defined, they are ordinarily given their plain meaning without regard to distinction between construction of penal laws and laws on other subjects, unless the act clearly shows that they were used in some other sense. Campos v. State, 623 S.W.2d 657, 658 (Tex.Cr.App.1981); Sanford v. State, 492 S.W.2d 581, 582 (Tex.Cr.App.1973); Taylor v. Firemen's and Policemen's Civil Service Commission of City of Lubbock, 616 S.W.2d 187, 189 (Tex.1981). The statute must be construed as written. Jones v. State, 610 S.W.2d 535, 536 (Tex.App.1980, no pet.).
Applying these standards, what is meant by delivery by constructive transfer, or constructive delivery? Actual and...
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