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State v. Jarreau

Court of Criminal Appeals of Texas

March 1, 2017

THE STATE OF TEXAS
v.
JAMES BURKE JARREAU, Appellee

         ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS GILLESPIE COUNTY

          OPINION

          Keel, J.

         Appellee was charged with delivery of a dangerous drug under Texas Health and Safety Code Section 483.042(a). The trial court granted his motion to quash the indictment. The State appealed, and the court of appeals affirmed the order quashing the indictment. State v. Jarreau, No. 04-15-00313-CR, 2016 Tex.App. LEXIS 6559 (Tex. App.-San Antonio June 22, 2016) (mem. op., not designated for publication). We granted the State Prosecuting Attorney's petition for discretionary review to consider whether a charging instrument alleging delivery of a named dangerous drug must also specify whether it is a device or drug. Concluding that it need not, we remand to the court of appeals for disposition of the State's remaining points of error.

         BACKGROUND

         "A person commits an offense if the person delivers or offers to deliver a dangerous drug." Tex. Health & Safety Code § 483.042(a). A dangerous drug is "a device or a drug that is unsafe for self-medication" and is not included in Chapter 481's schedules or penalty groups. Id. at §483.001(2) (emphasis added). It includes a device or drug that bears a legend cautioning against dispensing without a prescription. Id. Delivery by pharmacists or health care practitioners under customary medical practices is not an offense. Id. at § 483.042(a).

         The indictment in this case alleged that Appellee "did then and there intentionally or knowingly deliver or offer to deliver to [M.J.] a dangerous drug, specifically 25B-NBOMe." Appellee moved to quash the indictment because, among other things, it failed to allege which of the two statutory definitions of dangerous drug the State intended to rely upon, i.e., device or drug. The trial court granted the motion to quash the indictment on that and three other grounds, [1] and the State appealed.

         The Fourth Court of Appeals held that the State had to specify which definition of "dangerous drug" it would rely upon at trial. Jarreau, 2016 Tex.App. LEXIS 6559 at *12-*15. The court held that 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." Id. at *17-*18. The court further held that "including the descriptor '25B-NBOMe' does nothing to alleviate the notice deficiency." Id. at *18.

         EVALUATING THE SUFFICIENCY OF AN INDICTMENT

         An indictment is sufficient if it

charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment[.]

Tex. Code Crim. Proc. art. 21.11.

         An indictment that tracks the language of a statute usually gives sufficient notice. State v. Mays, 967 S.W.2d 404, 406-07 (Tex. Crim. App. 1998) (citing Daniels v. State, 754 S.W.2d 214, 218 (Tex. Crim. App. 1988)). But "this rule applies only where the [pleading] is framed under a statute which defines the act constituting the offense in a manner that will inform the accused of the nature of the charge." Mays, 967 S.W.2d at 406 (quoting Haecker v. State, 571 S.W.2d 920, 921 (Tex. Crim. App. 1978)(panel op.). "Generally, the State need not plead with additional specificity those matters which are statutorily defined in the alternative where the matter is not an act or omission of the defendant." DeVaughn v. State, 749 S.W.2d 62, 68 (Tex. Crim. App. 1988).

         Appellate review of an order quashing an indictment is de novo. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). The 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." DeVaughn, 749 S.W.2d at 68.

         Barbernell v. State, 257 S.W.3d 248 (Tex. Crim. App. 2008), prescribed a two-step analysis for evaluating the adequacy of an indictment's allegations. "First, a court must identify the elements of an offense." Id. at 255. Second, if an element of the offense describing an act or omission by the defendant has been defined by the Legislature, a court must ask whether the statute provides "alternative manners or means in which the act or omission can be committed." Id. If so, then the pleading "will supply adequate notice only if, in addition to setting out the ...


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