STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH
COURT OF APPEALS GILLESPIE COUNTY
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
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).
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,  and the State appealed.
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.
THE SUFFICIENCY OF AN INDICTMENT
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.
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).
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
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 ...