# Ferguson v. State

> Court of Criminal Appeals of Texas · September 23, 1981 · 622 S.W.2d 846

URL: https://www.frixlaw.com/law-library/cases/9684573

## Case

- **Full name:** Aaron Delbert FERGUSON, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** September 23, 1981
- **Citations:** 622 S.W.2d 846; 1981 Tex. Crim. App. LEXIS 1148
- **Precedential status:** Published
- **Opinion:** On rehearing by Roberts
- **Judges:** Roberts, Odom, Davis, Clinton
- **Cited by:** 172 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9684573

## How later opinions describe it (automated extraction)

- holding in controlled substance case that greater particularity was needed where indictment failed to specify the legal theory of delivery, the statute described various means of delivery, and delivery is “the very heart of the offense”
- finding defendant may not be left to guess whether State would seek to prove one or all types *747 of defined conduct

## Opinion text

ON STATE’S MOTION FOR REHEARING
ROBERTS, Judge,
concurring.
I agree with the Court that the appellant’s motion to quash should have been granted because the indictment failed to *852 specify “what type of delivery.” The Court’s opinion, like the panel’s, focusses on the distinctions among actual transfer, constructive transfer, and an offer to sell. These distinctions certainly exist, but they are not so significant as the distinctions among administering, dispensing, and distributing. As the Court held in Santoscoy v. State, 596 S.W.2d 896, 899 (Tex.Cr.App.1980):
“ ‘Deliver’ includes every kind of transfer of a controlled substance. See Texas Controlled Substances Act, Section 1.02(8). Delivering, like Gaul, is divided into three forms: administering, dispensing, and distributing. Every delivery must be in one of those three forms (or an offer to sell; see id.). ‘Administer’ refers to the direct application of a controlled substance to a patient or research subject by, or in the presence of, a practitioner. Texas Controlled Substances Act, Section 1.02(1). ‘Dispense’ refers to a delivery of a controlled substance to an ultimate user or research subject by a practitioner or pursuant to a lawful order of a practitioner. Texas Controlled Substances Act, Section 1.02(10). ‘ “Distribute” means to deliver other than by administering or dispensing a controlled substance.’ Texas Controlled Substances Act, Section 1.02(12).” *
Therefore a defendant who is charged with “delivering” a controlled substance has not only the right to demand notice of whether a constructive transfer, an actual transfer, or an offer to sell is alleged, as the Court holds today; he also has the right to demand notice of whether administering, dispensing, or distributing is alleged. (It will be noticed that the typical illegal transfer of a controlled substance is a distribution.)
The misquotation of Section 1.02(12) which appears at 596 S.W.2d 899 has been corrected here.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9684573. Public record. Not legal advice.