                                     In The

                               Court of Appeals

                    Ninth District of Texas at Beaumont

                             _________________

                              NO. 09-17-00170-CR
                             _________________

                      THE STATE OF TEXAS, Appellant

                                        V.

                  MARCUS DEWAYNE BEATTY, Appellee
________________________________________________________________________

                   On Appeal from the 253rd District Court
                          Liberty County, Texas
                         Trial Cause No. CR32483
________________________________________________________________________

                         MEMORANDUM OPINION

      Appellee, Michael Dewayne Beatty, having been indicted by a grand jury for

the offense of unlawful delivery or manufacture with intent to deliver a simulated

controlled substance, filed a Motion to Quash Indictment with the trial court. The

trial court granted Beatty’s Motion to Quash Indictment. The State of Texas appeals

the trial court’s order granting the Motion to Quash. See Tex. Code Crim. Proc. Ann




                                        1
art. 44.01(a)(1) (West Supp. 2017). We reverse the trial court’s ruling and remand

the case to the trial court for further proceedings consistent with this opinion.

                                    Background

      On December 2, 2015, Beatty was pulled over on a traffic stop in Liberty

County, Texas. The State claims Beatty consented to a search of the vehicle. During

the search, a magnetic box containing a vacuum-sealed bag of 2,580 oblong yellow

pills with “V” markings on one side and the numbers “3601” on the other was

recovered from the frame underneath Beatty’s vehicle. Beatty was then arrested for

possession of a controlled substance.

      According to the State, the pills were subsequently submitted to the Drug

Enforcement Agency to its laboratory in Dallas, Texas, for analysis. The lab took a

sample of twenty-nine pills for analysis, and the results of the analysis indicated no

controlled substance in the twenty-nine units. However, a composite was formed

from twenty-nine units for further testing, and salicylic acid was confirmed in the

composite. Hydrocodone and acetaminophen were confirmed in one unit tested.

      A grand jury thereafter issued an indictment claiming that Beatty

      did . . . intentionally or knowingly manufacture, with the intent to
      deliver, a simulated controlled substance, namely, a substance, that was
      purported to be the controlled substance, hydrocodone, but was
      chemically different from hydrocodone, and the defendant represented
      that the substance was hydrocodone in a manner that would lead a
      reasonable person to believe that the substance was hydrocodone, by

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      the markings of a “V” on one side of each pill and “3601” on the
      opposite side of each pill, commonly associated with hydrocodone [.]

      On April 21, 2017, the trial court held a hearing on a separate Motion to

Suppress filed by Beatty. During that hearing, the trial judge expressed concerns

about the indictment and ultimately did not entertain the Motion to Suppress. The

trial judge asked the State “how do you prove that [Beatty is] representing the

substance to be a controlled substance?” The State argued that the representation for

purposes of the statute was the markings placed on the pills—the “V” and number—

and those markings were therefore sufficient. The following exchange also took

place during the hearing:

      Court: [S]o how are you going to tie that person to marking that “V”?

      State: And that’s our argument, is that would be for – whether or not
      we prove that as a finder of fact at trial.

The trial court then told the parties to look at the legislative history of the statute.

      On May 12, 2017, Beatty filed his Motion to Quash Indictment, and the trial

court heard the motion the same day. In his Motion to Quash, Beatty complained

that the offense was cited as section 482.002(a)(1) of the Texas Health and Safety

Code, but it tracked the actual language of Section 482.002(a)(2), which states that

a person commits an offense if that person “represents the substance to be a

controlled substance in a manner that would lead a reasonable person to believe that


                                            3
the substance is a controlled substance[.]”1 See Tex. Health & Safety Code Ann. §

482.002(a)(1), (2) (West 2017). Beatty further argued that he could not be

adequately informed of which law applies to his case, in violation of his

constitutional rights. At the hearing, the State again argued the markings on the pills

matching a hydrocodone pill were enough to constitute a representation. The trial

court disagreed and granted the Motion to Quash Indictment. This appeal ensued.

                                Standard of Review

      We apply a de novo standard of review when examining a trial court’s

decision on a motion to quash an indictment. See Lawrence v. State, 240 S.W.3d

912, 915 (Tex. Crim. App. 2007). “The sufficiency of an indictment is a question of

law.” State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).

                                       Analysis

      The Texas Code of Criminal procedure sets out the requirements for an

indictment in article 21.02 and provides that the “offense must be set forth in plain

and intelligible words.” Tex. Code Crim. Proc. Ann. art 21.02(7) (West 2009). An

indictment is usually legally sufficient if it delineates the penal statute in question.



      1
        Section 482.002(a)(1) provides that a “person commits an offense if the
person knowingly or intentionally manufactures with the intent to deliver or delivers
a simulated controlled substance and the person . . . expressly represents the
substance to be a controlled substance.” Tex. Health & Safety Code Ann. §
482.002(a)(1) (West 2017).
                                       4
Moff, 154 S.W.3d at 602. An indictment must allege that (1) a person, (2) committed

an offense. Teal v. State, 230 S.W.3d 172, 179 (Tex. Crim. App. 2007) (quoting

Cook v. State, 902 S.W.2d 471, 477 (Tex. Crim. App. 1995)). In order to determine

if a charging instrument alleges an offense, we must decide whether the allegations

in it are clear enough that one can identify the offense alleged. See id. at 180. A trial

court and the defendant must be able to identify what penal code provision is alleged

and whether it is one that vests jurisdiction in the trial court. Id. An indictment that

tracks the statutory language generally satisfies constitutional and statutory

requirements. State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998).

      In the present case, Beatty argues that because the indictment cites one

particular statutory subsection but the body of the indictment tracks the language of

another subsection within the same statute, he cannot be adequately apprised of

which law applies to his case, in violation of his rights under the Fifth, Sixth and

Fourteenth Amendments of the United States Constitution and Article I, Section 10,

15, and 19 of the Texas Constitution. See U.S. CONST. amends. V, VI, IVX; Tex.

Const. art. I, §§ 10, 15, 19. We find this argument unpersuasive. Despite Beatty’s

assertion that he cannot ascertain what law applies, the indictment was clear enough

to allow him to identify the appropriate code provision in his Motion to Quash




                                           5
Indictment. Specifically, he admits “the body of the indictment references

482.002(a)(2).”

      Indeed, the indictment, by tracking the language contained in section

482.002(a)(2) almost verbatim, was specific enough that Beatty was able to identify

the code section at issue. See Tex. Health & Safety Code Ann. § 482.002(a)(2). The

indictment in this case is sufficient to vest the trial court with subject-matter

jurisdiction and give Beatty notice that the State intends to prosecute him for a state

jail felony. It alleged that Beatty “intentionally or knowingly manufacture[d], with

the intent to deliver, a simulated controlled substance[.]” It asserted that the

substance “purported to be the controlled substance, hydrocodone, but was

chemically different from hydrocodone[.]” The indictment also specified that Beatty

“represented that the substance was hydrocodone in a manner that would lead a

reasonable person to believe that the substance was hydrocodone, by the markings

of a ‘V’ on one side of each pill and ‘3601’ on the opposite side . . . .” The allegations

contained in the indictment track the language of Texas Health & Safety Code

section 482.002(a)(2) and lay out in detail how Beatty “represented” the substance

was hydrocodone by the markings placed on the pills, which mimicked actual

hydrocodone. See id.




                                            6
      Furthermore, the citation of section 482.002(a)(1), which Beatty complains

of, is actually found in the caption. Texas courts have long held that a caption

constitutes no part of an indictment. See Stansbury v. State, 82 S.W.2d 962, 964

(Tex. Crim. App. 1935); Thibodeaux v. State, 628 S.W.2d 485, 487 (Tex. App.—

Texarkana 1982, no pet.). Any error contained in the caption will be considered

harmless surplusage absent a showing of prejudice. Thibodeaux, 628 S.W.2d at 487.

The Austin Court of Appeals dealt with a similar situation in Adams v. State. 222

S.W.3d 37 (Tex. App.—Austin 2005, pet ref’d.). In that case, the trial court tried to

determine which statutory provision the prosecutor was relying on. Id. at 52. The

prosecutor explained there had been a “cut and paste” mistake in the caption to the

indictment. Id. The appellant then argued that if the trial court and the prosecutor

were not sure which penal provision was used, the charging instrument was a non-

indictment. Id. The Austin Court of Appeals acknowledged the discrepancy in the

caption but determined the caption was not a part of the indictment. Id. at 53.

      Moreover, a trial court may not consider evidence beyond the face of the

indictment to test the sufficiency of the material allegations. State v. Rosenbaum,

910 S.W.2d 934, 937-38 (Tex. Crim. App. 1994); see also Carpenter v. State, 477

S.W.2d 22, 23 (Tex. Crim. App. 1972) (stating that a court may not look beyond the

face of murder indictment to see if there is sufficient evidence to support it). The


                                          7
record indicates the trial court engaged in questioning during the hearings that

looked beyond the face of the indictment. At the hearing held on April 21, 2017, the

trial court asked the State “how do you prove that [Beatty is] representing the

substance to be a controlled substance[,]” which clearly seeks evidentiary

information. (Emphasis added.) During the hearing on May 12, 2017, the trial judge

indicated he simply did not agree with the State that the markings were enough

representation for purposes of the statute. The trial court, though, apparently looked

beyond the face of the indictment in deciding to grant Beatty's Motion to Quash.

                                     Conclusion

      We conclude that the indictment is sufficient to invoke the subject-matter

jurisdiction of the court and put Beatty on notice of the offense he allegedly

committed. See Teal, 230 S.W.3d at 179. Therefore, we sustain the State's issue, and

we reverse the trial court’s order dismissing the indictment and remand the cause to

the trial court for further proceedings consistent with this opinion.

      REVERSED AND REMANDED.


                                               ________________________________
                                                       CHARLES KREGER
                                                             Justice
Submitted on October 4, 2017
Opinion Delivered February 28, 2018
Do Not Publish

Before Kreger, Horton, and Johnson, JJ.
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