State v. Jarreau
2017 Tex. Crim. App. LEXIS 219
| Tex. Crim. App. | 2017Background
- Appellee was indicted for delivering a dangerous drug (Texas Health & Safety Code § 483.042(a)); the indictment named the substance as 25B‑NBOMe.
- Appellee moved to quash the indictment, arguing it failed to specify whether the alleged "dangerous drug" was a "device" or a "drug" as defined in statute; the trial court granted the motion.
- The State appealed; the Fourth Court of Appeals affirmed, holding the State must elect which statutory definition of "dangerous drug" it would rely on.
- The State Prosecuting Attorney sought review on whether an indictment naming a dangerous drug must also specify whether it is a device or a drug.
- The Court evaluated sufficiency of indictments under the two‑step Barbernell framework: identify elements, then determine whether statutory alternatives that describe the defendant’s act must be alleged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an indictment alleging delivery of a named dangerous drug must specify whether it is a "device" or a "drug" | State: Not required; definitions of device/drug do not describe the defendant’s act of delivery | Appellee: Must specify because definitions affect the nature of the offense and give notice | Held: Not required; device/drug definitions do not concern the act of delivery and need not be pled |
| Whether the court of appeals properly relied on Saathoff and Olurebi | State: Those cases do not control; Saathoff was disavowed by Barbernell and Olurebi is distinguishable | Appellee: Saathoff and Olurebi support the need for specificity | Held: Court of appeals erred to rely on Saathoff and Olurebi; Barbernell controls |
| Whether naming 25B‑NBOMe in the indictment gave adequate notice | State: Naming the substance provided sufficient notice to investigate/defend | Appellee: Name alone insufficient because statute differentiates device versus drug | Held: Naming the substance supplied adequate notice for present purpose; regardless, specification of device/drug not required |
| Whether the State must plead which statutory manner of delivery it will prove | State: Conceded it must and sought amendment | Appellee: Challenged other grounds including manner of delivery omission | Held: Manner of delivery (sell/dispense/give/supply) must be alleged; trial court previously denied State's amendment motion (remand for remaining issues) |
Key Cases Cited
- Barbernell v. State, 257 S.W.3d 248 (Tex. Crim. App. 2008) (two‑step test for indictment adequacy; plead specific manner/means when statutory alternatives describe defendant’s act)
- DeVaughn v. State, 749 S.W.2d 62 (Tex. Crim. App. 1988) (statutory alternatives need not be pleaded when they are not acts or omissions of the defendant)
- Mays v. State, 967 S.W.2d 404 (Tex. Crim. App. 1998) (tracking statutory language generally gives sufficient notice when statute describes the offense)
- Saathoff v. State, 891 S.W.2d 264 (Tex. Crim. App. 1994) (intoxication definitions required pleading — later limited/disavowed by Barbernell)
- Olurebi v. State, 870 S.W.2d 58 (Tex. Crim. App. 1994) (indictment deficient where undefined statutory term could mean two distinct things and required specification)
- Thomas v. State, 621 S.W.2d 158 (Tex. Crim. App. 1981) (indictment need not specify statutory definition of "owner" because it does not describe defendant’s act)
- Geter v. State, 779 S.W.2d 403 (Tex. Crim. App. 1989) (insufficiency where omitted factual mode went to defendant’s acts; limited to its facts)
- Moff v. State, 154 S.W.3d 599 (Tex. Crim. App. 2004) (appellate review of order quashing indictment is de novo; notice standard explained)