Queen v. State, 662 S.W.2d 338 (Tex. Crim. App. 1983). · Go Syfert
Queen v. State, 662 S.W.2d 338 (Tex. Crim. App. 1983). Cases Citing This Book View Copy Cite
135 citation events (49 in the last 25 years) across 4 distinct courts.
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Cited for
At page 340 Determining sufficiency of indictment for delivery charges22 citing casesan indictment for the delivery of a controlled sub stance must specify type or types of delivery the State would rely upon and need not allege the precise manner by which a specified type of delivery was performed3 citing courts put it this way · 20 listed here
  • Ward v. State, 188 S.W.3d 874 (Tex. App.—Amarillo 2006).published
    (stating that the “critical factor” in a constructive delivery is that prior to the delivery “the substance involved was directly or indirectly under the defendant’s control)
  • Tracy Yolanda Ward v. State, No. 07-04-00457-CR (Tex. App.—Amarillo Mar. 29, 2006).published 3 cites
    (stating that the "critical factor" in a constructive delivery is that prior to the delivery "the substance involved was directly or indirectly under the defendant's control)
  • Hartis v. State, 183 S.W.3d 793 (Tex. App.—Houston [14th Dist.] 2005).published 2 cites
    Panel consists of Justices Edelman, Seymore, and Guzman. [1] Appellant = s sentence was suspended and he was placed on community supervision for 180 days. [2] The State abandoned the allegation that appellant resisted a search. [3] See Car…
  • Sims, Michael, No. PD-1313-02 (Tex. Crim. App. Oct. 8, 2003).published
    Both situations are examples of "constructive" transfer, as described by Queen v. State , 662 S.W.2d 338, 340 (Tex. Crim.
  • Sims v. State, 117 S.W.3d 267 (Tex. Crim. App. 2003).published 10 cites
    Both situations are examples of “constructive” transfer, as described by Queen v. State, 662 S.W.2d 338, 340 (Tex.Crim.App.1983).
  • Marable v. State, 85 S.W.3d 287 (Tex. Crim. App. 2002).published 2 cites
    See, e. g., Heberling v. State, 834 S.W.2d 350, 352-53 (Tex.Crim.App.1992); Thomas v. State, 832 S.W.2d 47, 49-50 (Tex.Crim.App.1992); Nevarez, 767 S.W.2d at 766 ; Daniels v. State, 754 S.W.2d 214, 219 (Tex.Crim.App.1988) (en banc); Conawa…
  • Warren v. State, 15 S.W.3d 168 (Tex. App.—Texarkana 2000).published 6 cites
    Queen v. State, 662 S.W.2d at 340 (emphasis added) (citing Rasmussen v. State, 608 S.W.2d at 210 ).
  • Stolz v. State, 962 S.W.2d 81 (Tex. App.—Houston [1st Dist.] 1997).published
    (holding indictment sufficient to notify defendant of form of delivery alleged)
  • Thomas v. State, 832 S.W.2d 47 (Tex. Crim. App. 1992).published
    Daniels v. State, 754 S.W.2d 214 (Tex.Cr.App.1988); Whaley v. State, 717 S.W.2d 26, 31 (Tex.Cr.App.1986); Queen v. State, 662 S.W.2d 338, 340-41 (Tex.Cr.App.1983).
  • Thomas v. State, 817 S.W.2d 346 (Tex. App. 1991).published
    Daniels v. State, 754 S.W.2d 214, 217 (Tex.Crim.App.1988); Queen v. State, 662 S.W.2d 338, 340 (Tex.Crim.App.1983); Ferguson v. State, 622 S.W.2d 846, 848 (Tex.Crim.App.1980).
Show 10 more citing cases
  • State v. Garrett, 798 S.W.2d 311 (Tex. App.—Houston [1st Dist.] 1991).published
    “an indictment for the delivery of a controlled substance must specify which type 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”
  • Williams v. State, 783 S.W.2d 301 (Tex. App.—Corpus Christi 1989).published
    In Queen v. State, 662 S.W.2d 338, 340-41 (Tex.Crim.App.1983), our Court of Criminal Appeals stated that the critical factor in cases involving constructive transfer is that “prior to the delivery the substance involved was directly or ind…
  • Daniels v. State, 754 S.W.2d 214 (Tex. Crim. App. 1988).published 8 cites
    (an indictment for the delivery of a controlled sub stance must specify type 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)
  • Woods v. State, 734 S.W.2d 414 (Tex. App.—Houston [1st Dist.] 1987).published
    (an indictment for the delivery of a controlled substance must specify which type 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)
  • Moncivalles v. State, 733 S.W.2d 601 (Tex. App.—San Antonio 1987).published
    The critical factor that “prior to the delivery the substance was directly or indirectly under the defendant’s control,” Queen v. State, 662 S.W.2d 338, 340-41 (Tex.Crim.App.1983), has not been proved.
  • Whaley v. State, 717 S.W.2d 26 (Tex. Crim. App. 1986).published
    We followed other jurisdictions and interpreted a constructive transfer to be the transfer of a controlled substance either belonging to the defendant or under his direct or indirect control, by some other person or manner at the instance…
  • Daniels v. State, 674 S.W.2d 388 (Tex. App.—Austin 1984).published 2 cites
    In Queen v. State, 662 S.W.2d 338, 340 (Tex.Cr.App.1983), the indictment omitting formal parts alleged that the defendant did then and there unlawfully, knowingly and intentionally deliver a usable quantity of marihuana to Ben Neel in an a…
  • Mihnovich v. State, 301 S.W.3d 354 (Tex. App.—Beaumont 2009).published 2 cites
    See Queen v. State, 662 S.W.2d 338, 340 (Tex.Crim.App.1983); Ferguson v. State, 622 S.W.2d 846, 848-49 (Tex.Crim.App.1980).
  • Albert John Mihnovich v. State, No. 09-08-00209-CR (Tex. App.—Beaumont Nov. 12, 2009).published
    See Queen v. State , 662 S.W.2d 338, 340 (Tex. Crim.
  • Valladares v. State, 800 S.W.2d 274 (Tex. App.—Texarkana 1990).published
At page 341 Determining indictment sufficiency regarding multiple delivery methods12 citing cases“the substance involved was directly or indirectly under the defendant's control”the opinion's own words at *341, quoted by 3 later opinions · 11 listed here
  • State of Texas v. James Oakley, 706 S.W.3d 492 (Tex. App.—Austin 2024).published 2 cites
    As the Court of Criminal Appeals has explained when rejecting the requirement that a charging instrument use a “magic phrase”: [W]here there is not a material difference between the language of the statute and the language of the indictmen…
  • United States v. Wayland Hinkle, 832 F.3d 569 (5th Cir. 2016).published
    Thus, notwithstanding that the State could have alleged both actual and constructive delivery, see Queen v. State, 662 S.W.2d 338, 341 (Tex. Crim.
  • Ryan Adam Fritz v. State, No. 02-08-00432-CR (Tex. App.—Fort Worth July 16, 2009).unpublished 2 cites
    App. 1990) (explaining that if “a statute provides more than one way for the defendant to commit the act or omission, then on timely request the State must allege the manner and means it seeks to establish, either separately or in some dis…
  • Al Haj v. State, 916 S.W.2d 660 (Tex. App.—Houston [14th Dist.] 1996).published
    Geter v. State, 779 S.W.2d 403, 406 (Tex.Crim.App.1989); Queen v. State, 662 S.W.2d 338, 341 (Tex.Crim.App.1983).
  • James Shelley v. State, No. 03-90-00284-CR (Tex. App.—Austin Jan. 15, 1992).unpublished
    Queen v. State , 662 S.W.2d 338, 341 (Tex. Crim.
  • Tejerina v. State, 786 S.W.2d 508 (Tex. App.—Corpus Christi 1990).published 2 cites
    Conaway v. State, 738 S.W.2d 692, 694 (Tex.Crim.App.1987); Queen v. State, 662 S.W.2d 338, 341 (Tex.Crim.App.1983).
  • Conaway v. State, 738 S.W.2d 692 (Tex. Crim. App. 1987).published 2 cites
    Thus, notwithstanding that the State could have alleged both actual and constructive delivery, see Queen v. State, 662 S.W.2d 338, 341 (Tex.Cr.App. 1983), it chose only to allege that the delivery occurred by "actual delivery." It was thus…
  • Carrasco v. State, 712 S.W.2d 623 (Tex. App.—Corpus Christi 1986).published
    King v. State, 675 S.W.2d 514, 516 (Tex.Crim.App.1984); Queen v. State, 662 S.W.2d 338, 341 (Tex.Crim.App.1983); Ruiz v. State, 654 S.W.2d 488, 491-92 (Tex.App. — Corpus Christi 1983, no pet.); TEX.
  • Perryman v. State, 687 S.W.2d 371 (Tex. App.—Houston [14th Dist.] 1984).published
    Queen v. State, 662 S.W.2d 338, 341 (Tex.Crim.App.1983) (en banc).
  • Perryman v. State, 687 S.W.2d 370 (Tex. App. 1984).published
    Queen v. State, 662 S.W.2d 338, 341 (Tex.Crim.App.1983) (en banc).
Show 1 more citing case
  • Pena v. State, 776 S.W.2d 746 (Tex. App.—Corpus Christi 1989).published
    See Queen v. State, 662 S.W.2d 338, 341 (Tex.Crim.App.1983); Flores, 754 S.W.2d at 421 ; *749 Johnson v. State, 737 S.W.2d 923, 925-26 (Tex.App.—Beaumont 1987, no pet.).
Other citing cases4 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
Darrell Eugene QUEEN, Appellant,
v.
the STATE of Texas, Appellee
123-83.
Court of Criminal Appeals of Texas.
Nov 23, 1983.
Published opinion
662 S.W.2d 338
1983 Tex. Crim. App. LEXIS 1245
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.
Campbell, Odom, Clinton, Teague, Miller.
Cited by 70 opinions  |  Published

Lead Opinion

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[*340] 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. 44:76-15, Sec. 1.02(8), V.A.C.S.: (l) 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[*341] 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. The record reflects that this transfer took place in a motel room and that appellant personally handed the bag to Ben Neel. The record further reflects that the purpose of this particular transfer was for Officer Neel to determine if the marihuana was of sufficient quality. After Neel approved the four pound sample, the record reflects that Neel gave the appellant the keys to his van and that appellant drove the van to a co-defendant’s house and loaded the remainder of the one hundred pounds of marihuana that was agreed upon for sale. Appellant then drove the van back to the parking lot of the motel, parked it, re-entered Neel’s motel room, and handed the keys back to Neel. Thus, as alleged in the indictment, appellant effectuated a second “constructive” transfer to Neel. We find that the instant indictment clearly alleged the appellant delivered the marihuana by utilizing both an actual and constructive transfer as contemplated by the statute, and we further note that the indictment is supported by the evidence.

The judgments of the Court of Appeals and the trial court are affirmed.

CLINTON, J., concurs in result.
1

All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

Dissent

ODOM, Judge,

dissenting.

Appellant contends the trial court erroneously denied his motion to quash the indictment. 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, for his claim that the above language is insufficient to notify him of which legal theory of delivery the State would pursue. Ferguson stated that delivery of a controlled substance might be accomplished in three quite different situations: actual transfer, constructive transfer and offer to sell. Ferguson v. State, supra at 848. See also Art. 4476-15, § 1.02(8), V.A.C.S. Appellant’s complaint was properly asserted and calls into question the[*342] adequacy of the constitutional requisite of notice to the accused. The adequacy of the notice must be considered from the perspective of the accused. See Cruise v. State, 587 S.W.2d 403, 404.

The indictment does not indicate whether the State intended to pursue a legal theory of actual transfer or constructive transfer. The majority opinion erroneously asserts that the indictment alleges both a constructive transfer and an actual transfer. The recitation in the indictment of a transfer “to the actual custody” of the recipient does not allege an “actual delivery.” One may constructively deliver to the actual custody of another, e.g., by use of an agent. Similarly, the alleged transfer “into a motor vehicle within the care and control and custody of the said Ben Neel” could have been committed by actual or constructive transfer from appellant. The majority confuse actual versus constructive transfer with a transfer to actual or constructive custody of the recipient. The issue is a matter of the conduct of the accused, not of the recipient. The appellant is left to guess what conduct the State will attempt to prove. On motion to quash, however, the State must allege the particular manner or means it seeks to establish when a statutory definition provides for more than one manner or means to commit that act or omission. Ferguson v. State, 622 S.W.2d 846, 851.

Because appellant was not given his constitutional right to notice of the conduct charged, I must dissent.

TEAGUE and MILLER, JJ., join this dissent.