                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION
                                         No. 04-15-00313-CR

                                         The STATE of Texas,
                                              Appellant

                                                   v.

                                       James Burke JARREAU,
                                              Appellee

                    From the 216th Judicial District Court, Gillespie County, Texas
                                        Trial Court No. 5552
                           Honorable N. Keith Williams, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: June 22, 2016

MOTION TO DISMISS FOR WANT OF JURISDICTION DENIED AS MOOT; AFFIRMED

           This is an appeal from a trial court’s order granting appellee James Burke Jarreau’s motion

to quash the indictment. On appeal, the State of Texas contends the trial court erred in (1) granting

Jarreau’s motion to quash, and (2) denying the State’s motion to amend the indictment to provide

the requisite notice in response to the motion to quash. We deny as moot the State’s motion to

dismiss for want of jurisdiction Jarreau’s cross appeal and affirm the trial court’s order granting

the motion to quash.
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                                                BACKGROUND

        The factual background is unnecessary to the disposition of this appeal. Accordingly, we

provide a brief procedural background for context.

        The State obtained an indictment against Jarreau for delivery or offer of delivery of a

dangerous drug. Specifically, the indictment alleged Jarreau “did then and there intentionally or

knowingly deliver or offer to deliver to [M.J.] a dangerous drug, specifically 25B-NBOMe.” 1

Jarreau filed two motions to quash the indictment. In this first motion, he alleged the indictment

failed to provide adequate notice or define the term “dangerous drug.” Approximately a month

later, Jarreau filed a second motion to quash. In his second motion, which is the motion ruled upon

by the trial court, Jarreau complained the indictment is defective because it: (1) fails to allege why

25B-NBOMe is a dangerous drug under section 483.001(a) of the Texas Health and Safety Code

(“the Code”); (2) fails to state an offense — 25B-NBOMe did not bear and was not required to

bear the legends required by subsections (A) and (B) of section 483.001(2) of the Code; (3) fails

to allege which of the various statutory definitions of “dangerous drug” the State intends to rely

on in its prosecution, thereby failing to provide adequate notice; (4) fails to allege which of the

various statutory definitions of “dangerous drug” the State intends to rely on in its prosecution,

thereby failing to provide adequate notice; (5) alleges a delivery or offer to deliver, but does not

state whether the delivery in question was by actual or constructive transfer; (6) alleges Jarreau

delivered or offered to deliver a dangerous drug, but does not allege the manner and means of the

purported delivery or offer to deliver; (7) the statute underlying the indictment — section

483.042(a) of the Code, which makes delivery or an offer of delivery of a dangerous drug a



1
 Effective September 1, 2015, the Legislature added 25B-NBOMe to penalty group 1A in the Texas Controlled
Substances Act. Act of May 22, 2015, 84th Leg., R.S., ch. 64, § 2, 2015 Tex. Gen. Laws __ (current version at TEX.
HEALTH & SAFETY CODE ANN. § 481.1021(a)(2)(B) (West Supp. 2015)).

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criminal offense — is unconstitutionally vague, facially and as applied; and (8) alleges Jarreau

delivered or offered to deliver a dangerous drug, but does not allege he knew the thing delivered

was a dangerous drug or any kind of contraband.

       After a hearing at which the parties presented their respective arguments, the trial court

took the matter under advisement. A subsequent hearing was scheduled. On the day of the hearing,

but before the trial court ruled on the motion to quash, the State filed a motion to amend the

indictment, seeking to include more specificity regarding the manner and means of delivery. At

the hearing, the trial court verbally denied the State’s motion to amend and thereafter, granted

Jarreau’s second motion to quash. At the State’s request, the trial court stated on the record it was

granting Jarreau’s motion because the indictment failed to allege:

       •   why 25B-NBOMe is a dangerous drug under section 483.001(a) of the Code;

       •   which of the various statutory definitions of “dangerous drug” the State intended to rely
           on;

       •   whether the delivery in question was by actual or constructive transfer; and

       •   the manner and means of the purported delivery or offer to deliver.

       Thereafter, the trial court signed the order granting Jarreau’s motion to quash. The State

filed a notice of appeal. After the State filed its notice of appeal, Jarreau filed a cross notice of

appeal, seeking to affirm the trial court’s order on the grounds the trial court denied, expressly or

by implication. In response, the State filed a motion to strike Jarreau’s cross-appellant’s brief and

the points therein — which we interpret as a motion to dismiss for want of jurisdiction Jarreau’s

cross appeal — arguing this court lacks jurisdiction to consider those points. Jarreau filed a

response. After reviewing the motion and the response, we ordered the motion and response

carried with the appeal.




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                                             ANALYSIS

       As noted above, the State contends the trial court erred in granting Jarreau’s motion to

quash and denying its motion to amend. We begin with the propriety of the trial court’s order

granting the motion to quash.

                                         Motion to Quash

       The State first argues the trial court erred in granting the motion to quash the indictment.

As noted above, the trial court granted the motion to quash on four separate grounds. The State

does not address each ground independently; rather, the State makes a general argument, asserting

the indictment was sufficient because it provided adequate notice of the charged offense and the

act upon which the State would rely at trial to prove Jarreau’s guilt.

                                        Standard of Review

       Prior to the decision in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997), the

standard used to review a trial court’s ruling on a motion to quash was abuse of discretion. State

v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). Thereafter, however, a trial court’s ruling

on a motion to quash was subject to de novo review. See State v. Cooper, 420 S.W.3d 829, 831

(Tex. Crim. App. 2013) (citing Moff, 154 S.W.3d at 601); State v. Castorena, No. 04-14-00671-

CR, 2016 WL 234856, at *1 (Tex. App.—San Antonio Jan. 20, 2016, no pet.). After Guzman, the

court of criminal appeals determined that an appellate court should conduct a de novo review

because the sufficiency of a charging instrument is a question of law, and “when the resolution of

a question of law does not depend on the credibility and demeanor of a witness, then the trial court

is in no better position than the appellate court to make the determination.” Moff, 154 S.W.3d at

601; Castorena, 2016 WL 234856, at *1 (citing State v. Rosseau, 396 S.W.3d 550, 555 n.6 (Tex.

Crim. App. 2013); Moff, 154 S.W.3d at 601). Here, the trial court’s decision to quash the

indictment was based on the indictment, the motion to quash, and argument of counsel, and
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therefore, the trial court was in no better position than we are now with regard to determining

whether the indictment provided sufficient notice. Accordingly, we must apply the de novo

standard of review. See Moff, 154 S.W.3d at 601; Castorena, 2016 WL 234856, at *1. We may

affirm a trial court’s order on a motion to quash if the court’s decision is correct on any theory of

law applicable to the case. State v. Ford, 179 S.W.3d 117, 121 (Tex. App.—San Antonio 2005,

no pet.); State v. Newton, 179 S.W.3d 104, 107 (Tex. App.—San Antonio 2005, no pet.).

                              Applicable Law — Charging Instruments

        Our federal and state constitutions confer on criminal defendants the right to fair notice of

the specific charged offense. See U.S. CONST. amend. VI (“In all criminal prosecution, the accused

shall enjoy the right to . . . be informed of the nature and cause of the accusation . . .”); TEX. CONST.

art. I, § 10 (“In all criminal prosecutions the accused shall have . . . the right to demand the nature

and cause of the accusation against him, and to have a copy thereof.”); see also State v. Barbernell,

257 S.W.3d 248, 250 (Tex. Crim. App. 2008); Moff, 154 S.W.3d at 601; Castorena, 2016 WL

234856, at *1. Toward that end, in Chapter 21 of the Texas Penal Code, the Legislature provided

statutory guidelines regarding the sufficiency of an indictment. See, e.g., TEX. CODE CRIM. PROC.

ANN. art. 21.02 (West 2016); id. art. 21.03; id. art. 21.11. Article 21.02 sets out what must be

included in an indictment and states, in part, that “[t]he offense must be set forth in plain and

intelligible words.” Id. art. 21.02. And, it should include everything that is necessary to be proved.

Id. art. 21.03. An indictment is sufficient if it:

        [C]harges the commission of the offense in ordinary and concise language in such
        a manner as to enable a person of common understanding to know what is meant,
        and with that degree of certainty that will give the defendant notice of the particular
        offense with which he is charged, and enable the court, on conviction, to pronounce
        the proper judgment[.]

Id. art. 21.11



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Based on the foregoing, an indictment must be specific enough to inform the accused of the nature

of the accusation against him so that he may prepare a defense. See Moff, 154 S.W.3d at 601;

Castorena, 2016 WL 234856, at *1.

       Generally, an indictment is sufficient if it tracks the language of the statute under which

the defendant has been charged. Barbernell, 257 S.W.3d at 251; Moff, 154 S.W.3d at 602;

Castorena, 2016 WL 234856, at *2; Nix v. State, 401 S.W.3d 656, 662 (Tex. App.—Houston [14th

Dist.] 2013, pet. ref’d). Generally, definitions of statutorily-defined terms and elements are

considered evidentiary, and need not be further alleged in the indictment. Barbernell, 257 S.W.3d

at 251. Moreover, the State is not required to plead evidentiary matters nor the manner and means

of commission of an offense — if there is but one, to provide adequate notice to the defendant.

See id. (citing Curry v. State, 30 S.W.3d 394, 398 (Tex. Crim. App. 2000)); see also Daniels v.

State, 754 S.W.2d 214, 218 (Tex. Crim. App. 1988) (en banc). However, a legally sufficient

indictment — one that tracks the language of the statute — may nonetheless be subject to a motion

to quash for failing to provide the defendant with sufficient notice — notice necessary to prepare

an adequate defense or prevent subsequent prosecution for the same act. See Barbernell, 257

S.W.3d at 251 (citing Curry, 30 S.W.3d at 398); Moff, 154 S.W.3d at 602; Nix, 401 S.W.3d at 662.

       An indictment must go beyond the statutory language when the statute is not “completely

descriptive of the offense,” so that more particularity is required to provide proper notice. Nix,

401 S.W.3d at 662 (quoting Haecker v. State, 571 S.W.2d 920, 921 (Tex. Crim. App. [Panel Op.]

1978)); see Barbernell, 257 S.W.3d at 662 (citing Curry, 30 S.W.3d at 698). Specifically, when a

statute defines the manner or means of commission in several alternative ways, an indictment will

fail for lack of specificity if it neglects to identify which of the statutory means it addresses. Nix,

401 S.W.3d at 662 (citing Mays, 967 S.W.2d 404, 407 (Tex. Crim. App. 1998) (en banc)).



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         Finally, “[a]n indictment must be facially tested by itself under the law, as a pleading; it

can neither be supported nor defeated as such by what evidence is introduced on trial.” Patterson

v. State, 353 S.W.3d 203, 207 (Tex. App.—San Antonio 2011, pet. ref’d) (quoting State v.

Rosenbaum, 910 S.W.2d 934, 948 (Tex. Crim. App. 1994) (opin. on reh’g adopting dissent)). In

other words, the sufficiency of an indictment cannot be supported or defeated by evidence at a

pretrial hearing, i.e., the trial court may not conduct a mini-trial on the merits regarding allegations

in the indictment. State v. Meadows, 170 S.W.3d 617, 620 (Tex. App.—El Paso 2005, no pet.)

(citing Rosenbaum, 910 S.W.2d at 948); Farrar v. State, 95 S.W.3d 648, 651 (Tex. App.—

Eastland 2002, no pet.) (same). There is no authority — by constitution or statute — that permits

a defendant to test the sufficiency of the evidence to defeat any element alleged in the indictment.

Meadows, 170 S.W.3d at 620.

                                                     Application

         Jarreau was charged with delivery or offer of delivery of a dangerous drug pursuant to

section 483.042 of the Code. See TEX. HEALTH & SAFETY CODE ANN. § 483.042(a) (West 2010).

An indictment for this offense must allege: (1) a person, (2) delivered or offered to deliver, (3) a

dangerous drug. See id. In this case, the indictment stated:

         JAMES BURKE JARREAU, on or about the 20th day of April, A.D. 2013, and
         before presentment of this indictment, in said County and State, did then and there
         intentionally or knowingly deliver or offer to deliver to [M.J.] a dangerous drug,
         specifically 25B-NBOMe[.] 2

         The State contends the indictment was sufficient because: (1) it tracks the language of the

statute, and (2) the term “dangerous drug” is defined by statute, and therefore, the State was not

required to plead any additional facts or evidence underlying that definition. The State admits that


2
  The indictment alleged a mens rea, which it was not required to do. See TEX. HEALTH & SAFETY CODE ANN.
§ 483.042(a). The State admits in its brief that by alleging Jarreau acted intentionally or knowingly, the State increased
its burden of proof.

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because the term “deliver” provides alternate manner or means of committing the delivery, that

upon a proper motion to quash, it was required to amend the indictment to allege the manner and

means of delivery upon which it would rely. The State addresses its attempt to comply with this

ground of Jarreau’s motion to quash in its second issue. As for the term “dangerous drug,” citing

the Barbernell decision, the State contends the key factors in determining whether a particular

substance is a dangerous drug is an evidentiary matter as opposed to a matter of pleading and

notice, and therefore, it was not required to provide additional information to satisfy the notice

requirement. Thus, the State contends it provided or attempted to provide all the notice to which

Jarreau was entitled. Jarreau disagrees.

         One of the grounds upon which the trial court based its decision to quash the indictment

was the failure of the indictment to state which of the statutory definitions of “dangerous drug” the

State intended to rely on in its prosecution of Jarreau. As the trial court stated, “[T]here needs to

be some clarity in the indictment of which of the statutory definitions the State would rely upon to

classify this as a dangerous drug.”

         Section 483.001(2) defines a “dangerous drug” as a “device or drug that is unsafe for self-

medication and that is not included in Schedules I through V or Penalty Groups 1 through 4 of

Chapter 481 (Texas Controlled Substance Act).” Id. § 483.001(2). 3 Jarreau argued below, and

argues again here, there are two statutory methods by which a person may commit the offense of

delivery or offer of delivery of a dangerous drug — deliver or offer to deliver a device, or deliver

or offer to deliver a drug that is unsafe for self-medication. Thus, according to Jarreau, upon proper




3
  The statute goes on to state that “[t]he term includes a device or drug that bears or is required to bear the legend: (A)
‘Caution: federal law prohibits dispensing without prescription’ or ‘Rx only’ or another legend that complies with
federal law; or (B) ‘Caution: federal law restricts this drug to use by or on the order of a licensed veterinarian.’” TEX.
HEALTH & SAFETY CODE ANN. § 483.001(2)(A), (B). We find this portion of the definition irrelevant to our analysis.

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motion, the State was required to provide the method by which the State intended to prove

commission of the offense. We agree.

        We agree with the State that generally, an indictment that tracks the language of the statute

and defines the terms therein is constitutionally and statutorily sufficient. See Barbernell, 257

S.W.3d at 251; Moff, 154 S.W.3d at 602; Castorena, 2016 WL 234856, at *2. Nevertheless,

“where a criminal statute possesses statutorily-defined, alternative methods of committing an

offense, then upon timely request, a defendant is entitled to an allegation of which statutory method

the State intends to prove.” Mays, 967 S.W.2d at 407 (quoting State v. Edmond, 933 S.W.2d 120,

128 (Tex. Crim. App. 1996)); see, e.g., Olurebi v. State, 870 S.W.2d 58, 62 (Tex. Crim. App. 1994)

(en banc); State v. Stukes, No. 14-15-00287-CR, 2016 WL 720845, at *2–3 (Tex. App.—Houston

[14th Dist.] Feb. 23, 2016, no pet.); Nix, 401 S.W.3d at 662; White v. State, 50 S.W.3d 31, 37–38

(Tex. App.—Waco 2001, pet. ref’d).

        We find the court’s decision in Olurebi instructive. In that case, the defendant was charged

with felony credit card abuse. 870 S.W.2d at 59. To convict a defendant for this offense, the State

was required to prove the defendant, with intent to obtain property or service, used “a fictitious

credit card or the pretended number or description of a fictitious credit card[.]” Id. at 60. The

court first determined a fictitious credit card “is either a credit card not issued by the purported

owner or a credit card with an actual owner but issued to a nonexistent cardholder.” Id. at 61.

Because the court determined there were two ways in which a credit card could be fictitious, it

held the trial court should grant a motion to quash that fails to advise the defendant of the manner

in which the credit card is fictitious. Id. at 62. The court held that because the trial court failed to

grant the defendant’s motion to quash, the trial court erred, requiring a remand for a harm

determination. Id.



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       Here, although the term “dangerous drug” is defined, it is defined in two ways — a device

that is not included in Schedules I through V or Penalty Groups 1 through 4 of Chapter 481, or a

drug that is unsafe for self-medication and that is not included in Schedules I through V or Penalty

Groups 1 through 4 of Chapter 481. Hence, there are — as in Olurebi — alternate means by which

a defendant may deliver or offer to deliver a dangerous drug. See id. Accordingly, once Jarreau

filed a motion to quash pointing out the notice deficiency in the indictment, it was incumbent upon

the State to provide the missing notice.

       Another example is found in the court’s opinion in Saathoff v. State, 891 S.W.2d 264 (Tex.

Crim. App. 1994) (per curiam). In that case, the defendant was charged with intoxication

manslaughter. Id. at 265. The indictment failed to allege the type of intoxication — loss of normal

mental or physical faculties versus blood alcohol concentration above the proscribed limit — the

State sought to prove. Id. at 267, 267 n.3; see TEX. PENAL CODE ANN. § 49.01(2) (West 2011)

(defining “intoxicated”). The trial court denied the motion to quash, but this court reversed the

trial court’s decision, holding the State was required to specify which definition(s) of intoxication

it sought to prove. Saathoff, 891 S.W.2d at 265 (citing Saathoff v. State, No. 04-93-00261-CR,

(Tex. App.—San Antonio Nov. 10, 1993). On petition for discretionary review, the State argued,

among other things, that because intoxication was not an act or omission, but merely a condition

it was not required to allege the type of intoxication in the indictment. Id. at 266. The court held

the State interpreted the concept of “act or omission” too narrowly, concluding that “[i]f the

prohibited conduct is statutorily defined to include more than one manner and means of

commission,” upon request, the State must allege the manner or means it seeks to establish. Id. at

266. Thus, analogizing to Saathoff, we conclude that just as the State, in response to a motion to

quash, was required to allege which version of the defined term “intoxication” it would rely on at



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trial, it was likewise required in this case to allege which version of the defined term “dangerous

drug” it would rely on at trial.

        Similarly, in White v. State, the Waco Court of Appeals was asked to determine whether a

trial court erred in failing to grant a motion to quash that challenged an indictment alleging failure

to report child abuse or neglect. 50 S.W.3d at 37–38. In that case, the indictment alleged the

defendant “did then and there, having cause to believe that the physical or mental health or welfare

of a child, [C.W.], had been or may be directly affected by abuse or neglect, knowingly failed [sic]

to report.” Id. at 38. The defendant claimed the indictment failed to provide adequate notice of

the manner and means by which she committed the offense. Id. at 37. According to the defendant,

the allegation in the indictment was insufficient because it failed to provide, among other things,

“specific notice as to what type of abuse occurred.” Id. at 38. The court found that the term

“abuse” was defined in the Texas Family Code in multiple ways. Id. Thus, it was possible for the

defendant to commit the offense in multiple ways. Id. Because the statute identified more than

one method by which it could be violated, in the face of a motion to quash, the indictment failed

for lack of specificity. Id. We hold the same is true in this case — although the statute defined

the term “dangerous drug,” it did so in two separate ways, establishing that the offense with which

Jarreau was charged can be committed in alternate ways. Therefore, the trial court did not err in

granting his motion to quash.

        We also find State v. Edmond instructive as it sets out the distinction regarding what the

State must allege — manner and means when there are alternative methods of commission — as

opposed to evidentiary matters which it need not allege. 933 S.W.2d at 128–30. In that case, the

defendant was charged with official oppression. Id. at 121. The specific paragraph at issue alleged

the defendant subjected the victim to “sexual harassment by making unwelcome sexual advances

and/or making request for sexual favors.” Id. at 127–28. The defendant argued that because the
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indictment failed to describe or define the specific advances or requests alleged, the indictment

failed to provide adequate notice. Id. at 128. The trial court agreed and quashed the indictment;

its decision was affirmed by the court of appeals. Id. at 121. The State sought further review in

the court of criminal appeals. Id. at 121–22.

       Upon review, the court of criminal appeals held Edmond’s complaint was distinguishable

from that presented in Olurebi. Id. at 128. In the Edmond indictment, the State “utilized the

statutory definition of ‘sexual harassment,’ electing among the alternate statutory manner or

means” of committing the offense. Id. at 130. The State did so by describing how the defendant

allegedly sexually harassed the victim — by making unwelcome sexual advances and/or making

request for sexual favors. Id. Contrary to the defendant’s position, the State was not required to

include in the indictment the language actually used by the defendant because that would require

the State to “plead[] facts which are essentially evidentiary in nature.” Id.

       We find this case falls within the ambit of Olurebi rather than Edmond. Here, the State did

not “elect[] among the alternate statutory manner or means” of committing the offense of delivery

or offer to deliver a dangerous drug — by device or by drug that is unsafe for self-medication.

Compare Edmond, 933 S.W.2d at 130 with Olurebi, 870 S.W.2d at 61; see Coleman v. State, 643

S.W.2d 124 (Tex. Crim. App. 1982) (holding that indictment that tracked statutory language for

theft provided insufficient notice because indictment simply alleged defendant appropriated

property without alleging manner or means of appropriation, which were statutorily specified).

Simply including the descriptor “25B-NBOMe” does nothing to alleviate the notice deficiency.

       Accordingly, we hold the trial court properly granted Jarreau’s motion to dismiss the

indictment on the ground that the indictment failed to provide adequate notice because it failed to

state which of the statutory definitions of “dangerous drug” the State intended to rely on in its

prosecution of Jarreau — thereby failing to allege one of the alternate manner and means of
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committing the charged offense. Given that we have determined that this ground was a sufficient

basis upon which to quash the indictment, we need not address either the three alternate grounds

ruled upon by the trial court or the four alternate grounds raised by Jarreau in his cross appeal. See

Ford, 179 S.W.3d at 121. As we have declined to address Jarreau’s alternate contentions for

affirming the trial court’s order, we deny as moot the State’s motion to dismiss for want of

jurisdiction Jarreau’s cross appeal. We further note that because the indictment was quashed and

the State appealed that decision rather than refiling the indictment, there has been no trial. Because

there was no trial, this is not a situation in which we are required to do a harm analysis pursuant to

Adams v. State, 707 S.W.2d 900 (Tex. Crim. App. 1986). See Moff, 154 S.W.3d at 604.

                                   Motion to Amend Indictment

       In its second appellate complaint, the State contends the trial court erred in denying its

motion to amend the indictment. The State argues it was entitled to amend the indictment because

the proposed amendment charged neither a different nor an additional offense, nor did the proposed

amendment prejudice Jarreau’s substantial rights. We need not address this issue given our

decision that the indictment failed to allege one of the statutory alternative methods by which

Jarreau could have committed the offense.

       In the original indictment, as set out above, the State alleged Jarreau “did then and there

intentionally or knowingly deliver or offer to deliver to [M.J.] a dangerous drug.” Section

483.001(3) defines “deliver” as selling, dispensing, giving away, or supplying in any other

manner.” TEX. HEALTH & SAFETY CODE ANN. § 483.001(3). In addition to challenging the

indictment on the ground analyzed above, Jarreau also challenged the indictment for failing to

allege the manner and means of the purported delivery or offer to deliver. In its proposed

amendment, the State sought to address this complaint by Jarreau by amending the indictment to

include the statutory definition of delivery. This is the only amendment proposed by the State.
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       The absence of a manner and means of purported delivery or offer to deliver is not the basis

for our decision affirming the trial court’s order granting the motion to quash. And, as noted by

the trial court, the proposed amendment would not have corrected the other notice deficiency in

the indictment, which is the basis for our decision. We therefore need not address whether the trial

court erred in denying the State’s motion to amend.

                                          CONCLUSION

       Based on the foregoing, we hold that because the State failed to provide sufficient notice

to inform the accused of the specific acts for which he was charged, the trial court did not err in

quashing the indictment. We further deny as moot the State’s motion to dismiss for want of

jurisdiction Jarreau’s cross appeal.   Accordingly, we affirm the trial court’s order granting

Jarreau’s motion to quash.

                                                  Marialyn Barnard, Justice

Do Not Publish




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