# Queen v. State

> Court of Criminal Appeals of Texas · November 23, 1983 · 662 S.W.2d 338

URL: https://www.frixlaw.com/law-library/cases/9763093

## Case

- **Full name:** Darrell Eugene QUEEN, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** November 23, 1983
- **Citations:** 662 S.W.2d 338; 1983 Tex. Crim. App. LEXIS 1245
- **Precedential status:** Published
- **Opinion:** Dissent by Odom
- **Judges:** Campbell, Odom, Clinton, Teague, Miller
- **Cited by:** 53 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/9763093

## How later opinions describe it (automated extraction)

- noting, AWe observe then that the Ferguson opinion stands for the proposition that an indictment for the delivery of a controlled substance must specify which type or types of delivery the State would rely upon and need not allege the precise manner by which a specified type o…
- noting, "We observe then that the Ferguson opinion stands for the proposition that an indictment for the delivery of a controlled substance must specify which type or types of delivery the State would rely upon and need not allege the precise manner by which a specified type o…
- stating that the “critical factor” in a constructive delivery is that prior to the delivery “the substance involved was directly or indirectly under the defendant’s control”
- holding indictment sufficient to notify defendant of form of delivery alleged

## Opinion text

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 Ferguson v. State, 622 S.W.2d 846 , 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 offer to sell. Ferguson v. State, supra at 848. See also Art. 4476-15, § 1.02(8), V.A.C.S. Appellant’s complaint was properly asserted and calls into question the *342 adequacy of the constitutional requisite of notice to the accused. The adequacy of the notice must be considered from the perspective of the accused. See Cruise v. State, 587 S.W.2d 403, 404 .
The indictment does not indicate whether the State intended to pursue a legal theory of actual transfer or constructive transfer. The majority opinion erroneously 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 delivery.” 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 been 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. Ferguson v. State, 622 S.W.2d 846, 851 .
Because appellant was not given his constitutional right to notice of the conduct charged, I must dissent.
TEAGUE and MILLER, JJ., join this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9763093. Public record. Not legal advice.