Queen v. State
662 S.W.2d 338
Tex. Crim. App.
1983
Check Treatment

Darrell Eugene QUEEN, Appellant, v. The STATE of Texas, Appellee.

No. 123-83.

Court of Criminal Appeals of Texas, En Banc.

Nov. 23, 1983.

then, is the Bank entitled to such recovery? The majority does not enlighten us. The only authority it gives is

, a case decided before the enactment of the UCC. Moreover, in thаt case, this Court explained in detail that the promissory note in question was a negotiable instrument,
, and that the Continental National Bank was a holder in due course,
, thus giving the bank the right of recovery that it otherwise would not have enjоyed.
. This Court observed that the note did not “contain the words ‘burdened with,’ ‘subject to,’ or their equivalent,” which would have caused it to be non-negotiable.
. Additionally, we went on to hold that insofar as the bank was not a holder in due course, it could “recover from the [makers of the note] only to the extent that [the contractor/payee] himself could recover for his work done under the mechanic‘s lien contract.”
. Thus, contrary to the majority opinion here, Conner dictates that the Bank can recover from the Ogdens only to the extent that Thayer could have recovered from them under his mechanic‘s lien contract. The majority does not cite any authority that says the Bank should recover on the Ogdens’ note. I have been ‍​‌‌​​​​​​‌‌‌​‌​‌​​​​​‌‌‌‌‌‌‌​‌​​​​‌‌​​​​​‌‌‌‌‌​​‍unable to find any such authority, in this state or any other, for this Court‘s treatment of the Ogden family. As a result, it appears that the Court‘s action in this case is not only unwise and contrary to the Texas UCC, but is also unprecedented.

If Thayer, the defaulting contractor, instead of his transferee, the Bank, were seeking recovery from the Ogdens, I cannot believe this Court would allow him to foreclose on the Ogdens’ property and then obtain a deficiency judgment for the remainder of the amount of the note. To do so would allow a party who breaches his contract to get his full contract price, the entire benefit of his bargain, without performing his part of the deal.

Nevertheless, this Court has ordered such a recovery for the Bank, who for purposes of this suit, stands in Thayer‘s shoes and has only the rights against the Ogdens that he had. In my opinion, banks should be accorded no rights, privileges, or special treatment that others do not rеceive. We should treat them neither less nor more favorably than anyone else.

RAY, ROBERTSON and KILGARLIN, JJ., join in this dissenting opinion.

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.

OPINION ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

This is an аppeal 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 petitiоn 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 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 tо 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

, 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 accоmplished in three distinct situations: actual transfer, constructive transfer, and offer to sell. See
. 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
.

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

;
;
;
;
, 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 type1 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 sеnse 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 threе types of “delivery” are contemplated by Art. 4476-15, Sec. 1.02(8), V.A.C.S.: (1) an actual transfer, (2) a constructive transfer, (3) an offer to sell. See

. As we noted in
, a constructive transfer may take several forms: the actor may constructively transfer narcotiсs 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 locаtion 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 сritical factor is that “prior to the delivery the substance involved was directly or indirectly under the defendant‘s control.”
.

Keeping the foregoing principles in mind, we turn now to the specific allegations contained in the instant indiсtment. 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 mаrihuana 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

.

Appellant seems to urge that the indictment before us is fatally defective because it does not usе 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

;
; and
.

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 refleсts 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 fоr 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.

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

, 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 offеr to sell.
. See also Art. 4476-15, § 1.02(8), V.A.C.S. Appellant‘s complaint was properly asserted and calls into question the adequacy of the constitutional requisite of notice to the accused. The adequacy of the notice must be considerеd from the perspective of the accused. See
.

The indictment does not indicate whether the State intended to pursue a legal theory of actual transfer or constructive transfer. The majority opinion erronеously 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 delivеry.” 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 beеn 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.

.

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

TEAGUE and MILLER, JJ., join this dissent.

Phillip Jerrell PATTERSON, Appellant, v. The STATE of Texas, Appellee.

No. 63902.

Court of Criminal Appeals of Texas, En Banc.

Dec. 21, 1983.

Rehearing Denied Jan. 25, 1984.

Harold Klein, Houston, for appellant.

Notes

1
All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.