Queen v. State

Decision Date23 November 1983
Docket NumberNo. 123-83,123-83
Citation662 S.W.2d 338
PartiesDarrell Eugene QUEEN, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Douglas W. Skemp, Dallas, for appellant.

Henry Wade, Dist. Atty., Jeffrey B. Keck, Knox Fitzpatrick and Bob Smith, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Cathleen R. Riedel, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

This is an appeal from a conviction for delivery of marihuana, a controlled substance. Punishment was assessed by the jury at eight years confinement in the Texas Department of Corrections and a fine of $5,000. Appellant's petition for discretionary review was granted in order for this Court to consider appellant's first ground of error, stated as follows:

"The Court of Appeals incorrectly held that the trial court properly overruled appellant's motion to set aside the indictment for failure to state the type of delivery that the State would rely on for conviction."

We disagree with appellant's contention and affirm.

Omitting the formal portions, the indictment on which appellant was tried alleged that he:

"... did then and there unlawfully, knowingly and intentionally deliver a usable quantity of marihuana to Ben Neel in an amount more than one-fourth ounce and for remuneration by transferring the said marihuana into a motor vehicle within the care and control and custody of the said Ben Neel and by transferring the said marihuana to the actual custody of the said Ben Neel."

Appellant relies on Ferguson v. State, 622 S.W.2d 846 (Tex.Cr.App.1980), for his claim that the above indictment is insufficient to notify him of which legal theory of delivery the State would pursue. In Ferguson, supra, we noted that delivery of a controlled substance might be accomplished in three distinct situations: actual transfer, constructive transfer, and offer to sell. See Ferguson, supra, at p. 848. See also Art. 4476-15, Sec. 1.02(8), V.A.C.S. Appellant's contention was properly asserted in a timely filed motion to quash and called into question the adequacy of the constitutional requisite of notice to the accused. We must consider the adequacy of the notice from the perspective of the accused. See Cruise v. State, 587 S.W.2d 403, p. 404 (Tex.Cr.App.1979).

In Ferguson, supra, this Court reversed the defendant's conviction for delivery of heroin, holding that the trial court erred in overruling the defendant's motion to quash the indictment. The indictment in Ferguson, supra, alleged in pertinent part that the defendant did:

"unlawfully, intentionally, and knowingly, deliver to Jerry Powell, a controlled substance, namely heroin ...."

This Court, relying on the provisions of Arts. 21.03, 21.04, and 21.12, V.A.C.C.P., as well as our prior rulings in Cruise, supra; Haecker v. State, 571 S.W.2d 920 (Tex.Cr.App.1978); Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1977); Lindsay v. State, 588 S.W.2d 570 (Tex.Cr.App.1979); Amaya v. State, 551 S.W.2d 385 (Tex.Cr.App.1977), held that the indictment's failure to specify which of the three types of delivery the State would attempt to prove at trial rendered the indictment subject to a motion to quash, and that the trial court's failure to grant the appellant's motion to quash was reversible error. We observe then that the Ferguson opinion stands for the proposition that an indictment for the delivery of a controlled substance must specify which type 1 or types of delivery the State would rely upon and need not allege the precise manner by which a specified type of delivery was performed.

The threshold question in the instant cause thus becomes whether or not, from the perspective of the appellant, a common sense reading of the indictment would have put appellant on notice as to what type of delivery the State was relying upon.

While the term "delivery" is not precisely defined in the Controlled Substance Act, it should be noted that three types of "delivery" are contemplated by Art. 4476-15, Sec. 1.02(8), V.A.C.S.: (1) an actual transfer, (2) a constructive transfer, (3) an offer to sell. See Ferguson, supra, at p. 848. As we noted in Rasmussen v. State, 608 S.W.2d 205 (Tex.Cr.App.1980), a constructive transfer may take several forms: the actor may constructively transfer narcotics to the intended recipient by entrusting the narcotics to an associate or the postal service for the delivery to the recipient, or the actor may place the contraband in a particular location and then advise the recipient of this location so that the recipient can retrieve the narcotics. While other possible forms of constructive transfer can be postulated as a method of "delivery" the critical factor is that "prior to the delivery the substance involved was directly or indirectly under the defendant's control." Rasmussen, supra, at p. 210.

Keeping the foregoing principles in mind, we turn now to the specific allegations contained in the instant indictment. Appellant concedes the instant indictment clearly alleged that he "transferred" marihuana and thus it clearly excluded the "offer to sell" type of "delivery." The indictment alleges an actual transfer (by transferring the said marihuana to the actual custody of the said Ben Neel) and a constructive transfer (by transferring the said marihuana into a motor vehicle within the care and control and custody of Neel.) We note the State was not required to allege a single type of delivery, rather all types of delivery could have been placed in the indictment. See Ferguson, supra.

Appellant seems to urge that the indictment before us is fatally defective because it does not use the magic phrase "actual transfer" or "constructive transfer." We note, however, that where there is not a material difference between the language of the statute and the language of the indictment, an indictment which alleges all of the requisite elements of the particular offense in question will not be found to be deficient simply because it fails to precisely track the language of the statute. See Rincon v. State, 615 S.W.2d 746 (Tex.Cr.App.1981); Ross v. State, 594 S.W.2d 100 (Tex.Cr.App.1980); and Roach v. State, 586 S.W.2d 866 (Tex.Cr.App.1979).

That the indictment in the instant cause alleges both an actual and constructive transfer is borne out by the record. Chronologically, the indictment alleges the transfers in reverse sequence. The record reveals that on the date in question the appellant initially delivered four pounds of marihuana in a brown leather bag to Ben Neel....

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39 cases
  • Daniels v. State
    • United States
    • Texas Court of Criminal Appeals
    • June 1, 1988
    ...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 The indictment presented ......
  • Marable v. State
    • United States
    • Texas Court of Criminal Appeals
    • September 18, 2002
    ...(en banc); Conaway v. State, 738 S.W.2d 692, 693-94; Davila v. State, 664 S.W.2d 722, 723 (Tex.Crim.App. 1984); Queen v. State, 662 S.W.2d 338, 340 (Tex.Crim.App.1983); Sheffield v. State, 623 S.W.2d 403, 404-05 (Tex.Crim.App.1981); Rasmussen v. State, 608 S.W.2d 205, 207 (Tex.Crim.App. 198......
  • Castillo v. State, 014-84
    • United States
    • Texas Court of Criminal Appeals
    • October 24, 1984
    ...J., not participating. 1 Our original opinion on State's petition for discretionary review is hereby withdrawn.2 In Queen v. State, 662 S.W.2d 338 (Tex.Cr.App.1983), it was held that the indictment alleging that the defendant delivered marihuana was sufficient to put the defendant on notice......
  • State v. Drennen
    • United States
    • West Virginia Supreme Court
    • July 31, 1991
    ...1976); State v. Howell, 196 Neb. 832, 246 N.W.2d 479 (1976); State v. McHorse, 85 N.M. 753, 517 P.2d 75 (App.1973); Queen v. State, 662 S.W.2d 338 (Tex.Crim.App.1983); State v. Campbell, 59 Wash.App. 61, 795 P.2d 750 The obvious purpose of the constructive transfer doctrine is to prevent th......
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2 books & journal articles
  • Table of cases
    • United States
    • James Publishing Practical Law Books Texas Criminal Jury Charges. Volume 1-2 Volume 2
    • May 4, 2021
    ...Prystash v. State 3 S.W.3d 522 (Tex. Crim. App. 1999) 1:160 Pyka v. State 192 S.W. 1066 (Tex. Crim. App. 1917) 11:50 Q Queen v. State 662 S.W.2d 338 (Tex. Crim. App. 1983) 13:50 Quinn v. State 123 S.W.2d 890 (Tex. Crim. App. 1938) R Raby v. State 970 S.W.2d 1 (Tex. Crim. App. 1998) 3:1250 R......
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    • United States
    • James Publishing Practical Law Books Texas Criminal Jury Charges. Volume 1-2 Volume 2
    • May 4, 2021
    ..., 622 S.W.2d 846 (Tex.Crim.App. 1981). The State may properly allege all types of delivery in the same indictment. See, Queen v. State , 662 S.W.2d 338 (Tex.Crim.App. 1983). §13:60 Delivery and Motions to Quash A motion to quash should be granted where the pleadings do not allege the specif......

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