Garza v. State

• Decision Date: 30 January 1980
• Docket Number: No. 2,No. 58517,58517,2
• Citation: 622 S.W.2d 85
• Parties: Daniel GARZA, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 85

622 S.W.2d 85

Daniel GARZA, Appellant, v. The STATE of Texas, Appellee.

No. 58517.

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

Jan. 30, 1980.

On Rehearing Sept. 23, 1981.

Rehearing Denied Oct. 28, 1981.

Jimmy Phillips, Jr., Angleton, for appellant.

Carol S. Vance, former Dist. Atty., John B. Holmes, Jr., Dist. Atty., Calvin A. Hartmann and Richard Cobb, Asst. Dist. Attys., Houston, Robert Huttash, 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 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, 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). 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.

OPINION ON STATE'S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Appeal is from conviction for delivery of heroin. The jury assessed punishment at 35 years. Upon original submission the panel reversed the conviction and dismissed the indictment holding that the trial court erred by denying appellant's motion to quash the indictment for failure to specify manner of "delivery." ¹

In its motion for rehearing the State contends that appellant filed no motion to quash the indictment. Appellant was tried jointly with codefendant Aaron Ferguson. At trial appellant was represented by the Honorable John J. Herrera and Ferguson was represented by the Honorable Jimmy Phillips, Jr. Appellant timely filed a bill of exception averring inter alia that the trial court had granted appellant's motion "that for the purposes of Appeal, any objection made by the Attorney for the Defendant, Aaron D. Ferguson, whether through pretrial or trial motions and whether in the form of formal motions or objections during the course of trial ... (be) taken as if the Defendant, Daniel Garza, or his attorney had made such objections and motions...." The bill was not acted upon by the trial court.

A timely filed bill of exception not acted upon by the trial court is deemed approved without qualification. Art. 40.09, Sec. 6(a), V.A.C.C.P.; see Herrin v. State, Tex.Cr.App., 525 S.W.2d 27; Dickhaut v. State, Tex.Cr.App., 493 S.W.2d 223. Nevertheless, a bill of exception must be complete within itself and must stand or fall by its own allegations. Herrin v. State, supra. The bill must plainly set out any error sought to be preserved for review. Herrin v. State, supra. The bill of exceptions before us contains no motion to quash the indictment. It does not even contain any specific reference to a motion to quash. The instant bill of exceptions presents nothing for review. See McClelland v. State, Tex.Cr.App., 389 S.W.2d 678 (motion to quash not attached to a bill of exceptions nor incorporated by reference nothing presented for review); Andres v. State, 229 S.W. 503, 89 Tex.Cr.R. 18 (bill of exceptions complaining of court's action overruling motion to quash indictment cannot be considered where record fails to show motion to quash was filed).

The record before us contains no motion to quash the indictment. While appellant filed objections to the record on two separate occasions pursuant to Art. 40.09, Sec. 7, V.A.C.C.P., none of these objections relate to the omission of a motion to quash the indictment. In Lynch v. State, Tex.Cr.App., 502 S.W.2d 740 we stated: "(W)here the absence of material from the record is occasioned by the oversight or non-objection of the accused, it has generally been held that any error in the record has been waived." Id. at 741 (on motion for rehearing). See Paige v. State, Tex.Cr.App., 573 S.W.2d 16; Stockton v. State, Tex.Cr.App., 487 S.W.2d 69; Johnson v. State, Tex.Cr.App., 466 S.W.2d 744. In his brief, appellant has directed us to the appellate record of his codefendant for a copy of the motion to quash the indictment. See Ferguson v. State, --- S.W.2d ---- (No. 58,518, del. 7/2/80, rehearing pending). We decline to review the records of another case to find support for contentions raised in this appeal. See Parker v. State, Tex.Cr.App., 545 S.W.2d 151 n. 6; Salinas v. State, Tex.Cr.App., 542 S.W.2d 864 ("the general rule is that an appellate court cannot go to the record of another case for the purpose of considering testimony not shown in the record of the case before it."); Hale v. State, Tex.Cr.App., 509 S.W.2d 637; Jones v. State, Tex.Cr.App., 478 S.W.2d 937; Donahue v. State, 277 S.W. 657, 102 Tex.Cr.R. 151 (agreement of counsel, approved by trial court, that testimony from one case be considered as in record of second case will be disregarded by Court of Criminal Appeals). Nothing is presented for review.

In his ninth ground of error appellant challenges the sufficiency of the evidence to support conviction. Initially we note that this Court must examine the evidence in the light most favorable to the verdict. The jury is the exclusive judge of the facts, the credibility of witnesses, and the weight to be afforded testimony. E. g., Miller v. State, Tex.Cr.App., 566 S.W.2d 614.

Art. 4476-15, Sec. 4.03(a), V.A.C.S., provides in pertinent part that "a person commits an offense if he knowingly or intentionally ... delivers ... a controlled substance listed in Penalty Group 1, 2, 3, or 4." Heroin is listed in Penalty Group 1, and delivery of heroin is classified as a felony of the first degree. See id. Secs. 4.02(b)(2)(K) and 4.03(b)(1). "Delivery" is statutorily defined in pertinent part as "the actual or constructive transfer from one person to another of a controlled substance, whether or not there is an agency relationship." Id. Sec. 1.02(8).

The evidence shows that Jerry Powell was a narcotics agent employed by the Department of Public Safety on April 25, 1975 the date of the offense. Powell testified that he and another undercover police officer, Don Bush, were posing as heroin buyers. The two officers met appellant on a motel parking lot in Harris County. Following a discussion concerning a purchase of heroin, appellant left the officers and reentered the motel. The appellant returned a short time later and gave Agent Powell a small package containing a substance Powell believed to be heroin....