State v. Jarreau

• Decision Date: 31 October 2018
• Docket Number: No. 04-15-00313-CR,04-15-00313-CR
• Citation: 563 S.W.3d 477
• Parties: The STATE of Texas, Appellant/Cross-Appellee v. James Burke JARREAU, Appellee/Cross-Appellant
• Court: Texas Court of Appeals

563 S.W.3d 477

The STATE of Texas, Appellant/Cross-Appellee

v.James Burke JARREAU, Appellee/Cross-Appellant

No. 04-15-00313-CR

Court of Appeals of Texas, San Antonio.

Delivered and Filed: October 31, 2018

Discretionary Review Refused April 10, 2019

APPELLANT ATTORNEY: Steven A. Wadsworth, Asst. District Atty. - 216th Judicial District, 200 Earl Garrett St., Suite 202, Kerrville, TX 78028.

APPELLEE ATTORNEY: Alan Brown, Jay Norton, Law Offices of Brown & Norton, 222 Main Plaza East, San Antonio, TX 78205, Mark Stevens, Law offices of Mark Stevens, 310 South St. Mary's, Ste. 1920, San Antonio, TX 78205-3154.

Sitting: Karen Angelini, Justice, Marialyn Barnard, Justice, Luz Elena D. Chapa, Justice

Opinion by: Marialyn Barnard, Justice

Appellant James Burke Jarreau was charged with delivery or offer of delivery of a dangerous drug, specifically 25B-NBOMe. Jarreau moved to quash the indictment alleging, among other things, that it failed to allege which of the two statutory definitions of "dangerous drug" the State intended to rely on, i.e., "device" or "drug." The trial court granted the motion to quash on that ground as well as three others. On original submission to this court, we held the trial court did not err in granting the motion to quash because the State was required to specify which definition of "dangerous drug" it intended to rely upon at trial. State v. Jarreau , No. 04-15-00313-CR, 2016 WL 3440481, at *4–*5 (Tex. App.—San Antonio June 22, 2016) (mem. op., not designated for publication), rev'd , 512 S.W.3d 352 (Tex. Crim. App. 2017). We held that because the indictment "did not ‘elect[ ] among the alternate statutory manner or means’ of committing the offense of deliver or offer to deliver a dangerous drug — by device or by drug that is unsafe for self-medication" — it failed to provide sufficient notice to inform Jarreau of the specific acts for which he was charged. Id. at *6–*7. The State filed a petition for discretionary review. The Texas Court of Criminal Appeals granted the State’s petition and reversed our judgment, holding "[t]he nature of 25B-NBOMe as a device or drug is not a manner or means of delivery of a dangerous drug and does not describe, concern, involve or go to the act of delivery; thus, the charging instrument did not have to specify ‘device’ or ‘drug.’ " Jarreau , 512 S.W.3d at 356. The court remanded the matter back to this court "for consideration of the State’s remaining points of error." Id. at 356–57. On remand, we reverse the trial court’s order granting the motion to quash and remand this matter to the trial court for further proceedings consistent with our opinion. In addition, we grant the State’s motion to dismiss Jarreau’s cross-appeal and order the cross-appeal dismissed.

BACKGROUND

The State indicted Jarreau for delivery or offer of delivery of a dangerous drug. The indictment alleged Jarreau "did then and there intentionally or knowingly deliver or offer to deliver to [M.J.] a dangerous drug, specifically 25B-NBOMe."¹ Jarreau filed two motions to quash the indictment. In thE first motion, he alleged the indictment fails to provide adequate notice or define the term "dangerous drug." Approximately a month later, Jarreau filed a second motion to quash. In his second motion, which is the motion ruled upon by the trial court, Jarreau complained the indictment is defective because it: (1) fails to allege why 25B-NBOMe is a dangerous drug under section 483.001(a) of the Texas Health and Safety Code ("the Code"); (2) fails to state an offense because 25B-NBOMe did not bear and was not required to bear the legends required by subsections (A) and (B) of section 483.001(2) of the Code; (3) fails to allege which of the various statutory definitions of "dangerous drug" under section 483.001(2) of the Code — drug or device — the State intends to rely on in its prosecution, thereby failing to provide adequate notice; (4) fails to allege which of the various statutory definitions of "dangerous drug" under section 481.002(16) of the Code the State intends to rely on in its prosecution, thereby failing to provide adequate notice; (5) alleges a delivery or offer to deliver, but does not state whether the delivery in question was by actual or constructive transfer; (6) alleges Jarreau delivered or offered to deliver a dangerous drug, but does not allege the manner and means of the purported delivery or offer to deliver; (7) the statute underlying the indictment — section 483.042(a) of the Code, which makes delivery or an offer of delivery of a dangerous drug a criminal offense — is unconstitutionally vague, facially and as applied; and (8) alleges Jarreau delivered or offered to deliver a dangerous drug, but does not allege he knew the thing delivered was a dangerous drug or any kind of contraband.

After a hearing, the trial court took the matter under advisement. A subsequent hearing was scheduled. On the day of the hearing, but before the trial court ruled on the motion to quash, the State filed a motion to amend the indictment, seeking to include more specificity regarding the manner and means of delivery. At the hearing, the trial court verbally denied the State’s motion to amend and thereafter, granted Jarreau’s second motion to quash. At the State’s request, the trial court stated on the record it was granting Jarreau’s motion because the indictment failed to allege:

• why 25B-NBOMe is a dangerous drug under section 483.001(a) of the Code;

• which of the various statutory definitions of "dangerous drug" the State intended to rely on;

• whether the delivery in question was by actual or constructive transfer; and

• the manner and means of the purported delivery or offer to deliver.

Thereafter, the trial court signed the order granting Jarreau’s motion to quash. The State filed a notice of appeal. After the State filed its notice of appeal, Jarreau filed a cross-notice of appeal, seeking to affirm the trial court’s order on the grounds the trial court denied, expressly or by implication. In response, the State filed a motion to strike Jarreau’s cross-appellant’s brief and the points therein — which we interpreted as a motion to dismiss for want of jurisdiction. Jarreau filed a response. After reviewing the motion and the response, we ordered the motion and response carried with the appeal.

As set out above, we held the trial court did not err in granting the motion to quash because the State was required to specify which definition of "dangerous drug" it intended to rely upon at trial, thereby failing to provide Jarreau with sufficient notice of the specific acts with which he was charged. Jarreau , 2016 WL 3440481, at *4–*7. Based on our decision, we denied as moot the State’s motion to dismiss Jarreau’s cross-appeal. However, the court of criminal appeals reversed our judgment, holding that because the type of drug involved is not a manner or means of delivery of a dangerous drug and does not describe, concern, involve, or go to the act of delivery, the State is not required to specify the specific type of drug involved. Jarreau , 512 S.W.3d at 356. The court remanded the matter back to this court. Id. at 356–57.

On remand, we permitted the parties to file supplemental briefs. In addition to filing a supplemental brief, the State also filed a motion reurging its prior motion to dismiss for want of jurisdiction. We once again ordered the motion taken with the case. Based on the court of criminal appeals' decision, we now address: (1) the State’s contention that the trial court erred in granting the motion to quash — specifically, the remaining grounds upon which the trial court based its decision to quash; (2) the State’s issue challenging the denial of its motion to amend; and (3) the State’s motion to dismiss Jarreau’s cross-appeal.

ANALYSIS

As noted above, the State contends the trial court erred in granting Jarreau’s motion to quash and denying its motion to amend. We begin with the propriety of the trial court’s order granting the motion to quash, specifically with regard to the three remaining grounds upon which the trial court based its decision.

Motion to Quash

As noted above, the trial court granted the motion to quash because the indictment failed to state: (1) why 25B-NBOMe is a dangerous drug under section 483.001(a) of the Code; (2) which of the various statutory definitions of "dangerous drug" the State intended to rely on; (3) whether the delivery in question was by actual or constructive transfer; and (4) the manner and means of the purported deliveryor offer to deliver. The second basis relied upon by the trial court, and upon which we based our prior opinion, is no longer viable given the decision of the court of criminal appeals. See id. at 356. We must now address the remaining grounds relied upon by the trial court in support of its order granting Jarreau’s motion to quash.

Standard of Review

A trial court’s ruling on a motion to quash is subject to de novo review. Id. at 354 (citing Moff v. State , 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) ); State v. Castorena , 486 S.W.3d 630, 632 (Tex. App.—San Antonio 2016, no pet.). We conduct a de novo review because the sufficiency of an indictment is a question law. Castorena , 486 S.W.3d at 632 (citing State v. Rosseau , 396 S.W.3d 550, 555 n.6 (Tex. Crim. App. 2013) ). Our analysis is " ‘contingent upon a variety of factors, including, but not limited to, the statutory description of the prohibited conduct and whether the notice deficiency complained of describes an act or omission by the accused.’ " Jarreau , 512 S.W.3d at 354 (quoting DeVaughn v. State , 749 S.W.2d 62, 68 (Tex. Crim. App. 1988) ).

Applicable Law — Charging Instruments

Criminal defendants are constitutionally entitled to fair notice of the specific offense with which they are charged. U.S. CONST. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to ... be informed of the nature and cause of the accusation ..."); TEX. CONST. art. I, §...