Ferguson v. State

• Decision Date: 02 July 1980
• Docket Number: No. 58518,No. 2,58518,2
• Citation: 622 S.W.2d 846
• Parties: Aaron Delbert FERGUSON, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 846

622 S.W.2d 846

Aaron Delbert FERGUSON, Appellant, v. The STATE of Texas, Appellee.

No. 58518.

Court of Criminal Appeals of Texas, Panel No. 2.

July 2, 1980.

On Rehearing Sept. 23, 1981.

Rehearing Denied Nov. 4, 1981.

Jimmy Phillips, Jr., Angleton, for appellant.

Carol S. Vance, Dist. Atty., John B. Holmes, Jr., Dist. Atty. and Calvin A. Hartmann and Richard Cobb, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty Alfred Walker, Asst. State's Atty., Austin, for the State.

Before ODOM, TOM G. DAVIS and CLINTON, JJ.

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 quash ¹ 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 accused ² 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, 947 ³ (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.

OPINION ON STATE'S MOTION FOR REHEARING

W. C. DAVIS, Judge.

On original submission, this cause was reversed because of the trial court's failure to grant a motion to quash. We granted rehearing and now must review that decision, especially in light of our recent decision in Thomas v. State, 621 S.W.2d 158 (1981) (Opinion on State's Motion for Rehearing).

In the present case, the indictment alleged, in pertinent part, that the appellant on April 25, 1975, did "unlawfully, intentionally and knowingly deliver to Jerry Powell, a controlled substance, namely Heroin."

In his motion to quash, the appellant argued that the allegation in the indictment "fails to allege how the controlled substance was delivered" and is "insufficient to put the Defendant on notice of what type of delivery the state will rely on to prove its accusation against the defendant; that it is therefore responsible for the Defendant to know against what proof he must prepare his defense."

In our panel decision we noted that delivery is statutorily defined and can be accomplished in three distinct manners: actual transfer, constructive transfer, and by an offer to sell, Article 4476-15, Sec. 1.02(8), V.A.C.S. We concluded that the failure to specify which legal theory or theories of delivery were going to be established by the proof denied the appellant precise notice of the nature of the accusation against him and failed to act as a bar against subsequent prosecutions since the conduct alleged was not distinguished from other conduct of the appellant.

The State in its motion argues that since the term "delivery" is statutorily defined, there is no need to specify which type of delivery was committed; the appellant had already received adequate notice of the offense with which he is charged.

Initially, we must note that the indictment did allege the commission of the offense of delivery of a controlled substance; it was sufficient to confer jurisdiction upon the trial court. Our inquiry, therefore, is limited to the issue of whether, upon timely specific request, this indictment was adequate to provide notice of the accusations against the accused.

Any inquiry about the adequacy of notice must begin by observing that the accused's right to notice of the accusations against him is premised upon constitutional principles. The Sixth Amendment to the Constitution of the United States provides:

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

Section 10 of Article 1 of the Texas Constitution states:

"(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."

The Legislature has also sought to provide guidance as to the adequacy of notice through the enactment of Chapter 21 of the Texas Code of Criminal Procedure. Article 21.02(7) provides:

"7. The offense must be set forth in plain and intelligible words."

Article 21.03, V.A.C.C.P. states:

"Everything should be stated in an indictment which is necessary to be proved."

Article 21.04, V.A.C.C.P. adds:

"The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense."

Article 21.12, V.A.C.C.P. also states, in part:

"When a statute defining any offense uses special or particular terms, indictment on it may use the general term which, in common language, embraces the special term."

With the Constitutional provisions and the statutes in mind, we now address the State's motion.

Generally, a motion to quash will be granted if the facts sought are essential to giving notice. However, as we stated in Thomas v. State, supra, usually when terms and elements in the indictment are statutorily defined, the definitions are essentially evidentiary and need not be further alleged in the indictment.

In Thomas, which involved a theft indictment, we held that while the term "owner" was defined in three different possible ways, it was unnecessary for the State to specify which type of "owner" the State was going to prove. We stated the "owner" was neither vague nor indefinite because of the definitions found in the statute. We concluded that there was no need to specify the type of owner because by so doing, it would not assist or affect the defendant's preparations for trial. Finally, we stressed that, "More importantly, the term 'owner' does not go to an act or omission of the appellant."

In the present case, while "delivery" is statutorily defined, the statute does not present a single definition. Rather, the definition allows three different and distinct ways of establishing the accused's criminal conduct. This is not like the situation of requesting the type of "owner" to be alleged, for in that situation, as was stated above, the specific allegation would not affect the defendant's defense preparations. Here, however, "delivery" is the very heart of the offense . Which type of "delivery" the State will attempt to prove would be critical to the appellant's defense. The "delivery" is the act by the appellant which constitutes the criminal conduct.

The State argues that while there is more than one type of "delivery," there are only three possible definitions. They contend that the appellant is "not confronted with a myriad of manner and means of committing delivery." However, if we accept the State's argument, then are we to assume that if a term of describing the appellant's act or omission is defined, then no matter how many ways the possible conduct is defined, the accused has nonetheless received adequate notice of the charges against him? Or if that is unacceptable, then are there a certain number of possible definitions of the accused's conduct beyond which the appellant will not have received notice to prepare his defense for trial? We must conclude that such an approach is untenable.

In Cruise v. State, 587 S.W.2d 403 (Tex.Cr.App.1979), this Court concluded 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. The term "cause bodily injury" was susceptible to an almost endless list of possible meanings and it would have been impossible for the State to prove the...