Simpson v. State

COHEN, Justice,

concurring.

I agree with the majority that the evidence is sufficient, there is no fatal variance, and there is no denial of due process here because the State presented evidence from an expert that “hash” or “hashish” is the street name for tetrahydraeannabinols. In my opinion, that is all that is needed to affirm this judgment.

*544 I do not agree that the defendant has misinterpreted the indictment, nor do I agree that the State did not have to allege there was an “express” representation. Clearly, it did have to do so, if it intended to allege an offense under section 482.-002(a)(1). Finally, no case cited by the majority holds that the State did not have to allege the particular controlled substance that appellant claimed he was selling. The majority opinion cites two cases for the proposition that an indictment is sufficient if it tracks the statute, and that terms used in indictments need not be further alleged if defined by statute. See Garcia v. State, 747 S.W.2d 379, 380 (Tex.Crim.App.1988); Moreno v. State, 721 S.W.2d 295, 300 (Tex.Crim.App.1986). Moreno was a capital murder prosecution, and Garcia was a drunk driving prosecution. Although both cases stand for the general propositions for which they are cited, neither case construed the statute before us or one similar to it.

In my opinion, it is unnecessary to the decision of this case for us to decide whether an express representation was necessary and whether the indictment had to allege the particular controlled substance that appellant purportedly sold. Because these holdings are unnecessary, and also debatable, I choose to concur in the result.