                                       In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-14-00279-CR
                              _________________

                       THE STATE OF TEXAS, Appellant

                                          V.

                   CAMERON SCOTT MOSELEY, Appellee
________________________________________________________________________

                    On Appeal from the 258th District Court
                             Polk County, Texas
                           Trial Cause No. 23340
________________________________________________________________________

                                     OPINION

      The State of Texas appeals the trial court’s order granting appellee Cameron

Scott Moseley’s motion to quash and to dismiss the indictment. See Tex. Code

Crim. Proc. Ann. art. 44.01(a)(1) (West Supp. 2014) (“The state is entitled to

appeal an order of a court in a criminal case if the order . . . dismisses an

indictment . . . or any portion of an indictment[.]”). The State argues the trial court

erred in concluding that the State was required to allege in the indictment a

controlled substance specifically identified by scientific name in section 481.1031


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of the Texas Health and Safety Code when the non-exclusive list of prohibited

substances included therein is part of a broadly-defined subclass of synthetic

cannabinoids that includes the controlled substance alleged in Moseley’s

indictment. We reverse the trial court’s order and remand the cause to the trial

court for further proceedings.

                                   Background

      Moseley was indicted for possession with the intent to deliver a controlled

substance, as follows:

      [Moseley] did then and there intentionally or knowingly possess a
      controlled substance, namely a synthetic chemical compound that is a
      cannabinoid receptor agonist and mimics the pharmacological effect
      of naturally occurring cannabinoids of four hundred grams or more,
      including any adulterants or dilutants, with intent to deliver said
      controlled substance[.]

Moseley filed a motion to quash the indictment alleging that it does not appear

from the substance of the indictment that Moseley committed an offense because

(1) “no controlled substance listed in Penalty Group 2-A is named in the

indictment[,]” and (2) “use of the ‘controlled substance analogue’ provisions of the

Texas Health and Safety Code is not allowed for substances that are alleged to be

analogous to the controlled substances listed in Penalty Group 2-A.”

      After conducting an oral hearing, the trial court granted the motion to quash

and entered written findings of fact and conclusions of law. The trial court found

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that both the State and Moseley agree that the substance at issue has the scientific

name XLR – 11 and it is not identified by scientific name under Penalty Group 2-

A. The trial court made the following conclusions: (1) the indictment fails to allege

a controlled substance specifically listed by scientific name in section 481.1031,

and should be dismissed; (2) the statutory language of section 481.1031 “creates an

exclusive list of substances instead of a broadly defined subclass of synthetic

cannabinoids supplemented by a list[,]” which precludes prosecution under Penalty

Group 2-A “even if ‘XLR – 11’ is in fact a synthetic chemical compound that is a

cannabinoid receptor agonist and mimics the pharmacological effect of naturally

occurring cannabinoids[;]” and (3) “[t]he defendant never argued, and therefore

waived for purposes of appeal, the issue that the indictment may have failed to

provide notice because it did not include the name of the non-listed substance as

‘XLR-11.’” The State timely filed its notice of appeal.

                                    Discussion

      Whether an indictment sufficiently alleges an offense is a question of law

subject to de novo review. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App.

2004). To meet the accused’s right to notice under both the United States and

Texas Constitutions, the indictment “must be specific enough to inform the

accused of the nature of the accusation against him so that he may prepare a

defense.” Id. Article 21.02 of the Texas Code of Criminal Procedure sets forth
                                         3
requirements for an indictment and specifically provides that the “offense must be

set forth in plain and intelligible words.” Tex. Code Crim. Proc. Ann. art. 21.02(7)

(West 2009). Article 21.03 provides that “[e]verything should be stated in an

indictment which is necessary to be proved.” Id. art. 21.03. Article 21.04 provides

that “[t]he certainty required in an indictment is such as will enable the accused to

plead the judgment that may be given upon it in bar of any prosecution for the

same offense.” Id. art. 21.04. An indictment that tracks the statutory language

generally satisfies constitutional and statutory requirements, and the State need not

allege facts that are merely evidentiary in nature. State v. Mays, 967 S.W.2d 404,

406 (Tex. Crim. App. 1998). The trial court should grant a motion to quash “only

where the language concerning the defendant’s conduct is so vague or indefinite as

to deny the defendant effective notice of the acts he allegedly committed.”

DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988) (en banc).

      In this case, the indictment alleges that Moseley committed the offense of

possession with the intent to deliver a controlled substance in Penalty Group 2-A.

The State argues that although the indictment does not contain the name of a

substance specifically identified in section 481.1031, its allegations are sufficient

because it does allege the basic requirements set forth in the statute that a

substance in Penalty Group 2-A be “a synthetic chemical compound that is a

cannabinoid receptor agonist and mimics the pharmacological effect of naturally
                                         4
occurring cannabinoids.” The State contends that it may prosecute a defendant

under Penalty Group 2-A for any substance that meets the basic requirements set

forth in the statute and that the list following the basic requirements only creates a

non-exclusive list of the substances which may be properly categorized under

Penalty Group 2-A. The State maintains that any substance that meets the basic

requirements identified in the statute is a “‘listed’” substance under Penalty Group

2-A subject to prosecution under section 481.113 of the Texas Health and Safety

Code. Moseley responds that Penalty Group 2-A contains an exclusive list of

substances and an indictment alleging an offense under section 481.113 must

allege manufacture, delivery, or possession with intent to deliver a substance that is

specifically identified in Penalty Group 2-A.

      Section 481.113(a) of the Health and Safety Code provides that “a person

commits an offense if the person knowingly manufactures, delivers, or possesses

with intent to deliver a controlled substance listed in Penalty Group 2 or 2-A.” Tex.

Health & Safety Code Ann. § 481.113(a) (West Supp. 2014). Section 481.1031

identifies Penalty Group 2-A as consisting of “any quantity of a synthetic chemical

compound that is a cannabinoid receptor agonist and mimics the pharmacological

effect of naturally occurring cannabinoids, including: . . . .” Id. § 481.1031. After

the word, “including[,]” the statute identifies certain named substances to be

included in Penalty Group 2-A. Id.
                                          5
      The resolution of this case depends on the meaning of the word “including”

as used in section 481.1031. Because statutory construction is a question of law,

we review it de novo. Johnson v. State, 423 S.W.3d 385, 394 (Tex. Crim. App.

2014). In interpreting a statute, “we seek to effectuate the ‘collective’ intent or

purpose of the legislators who enacted the legislation.” Boykin v. State, 818 S.W.2d

782, 785 (Tex. Crim. App. 1991) (en banc) (citing Camacho v. State, 765 S.W.2d

431 (Tex. Crim. App. 1989)). We begin our analysis by examining the plain

language of the statute. State v. Vasilas, 187 S.W.3d 486, 488 (Tex. Crim. App.

2006) (citing Boykin, 818 S.W.2d at 785). The Court in Boykin explained,

              When attempting to discern this collective legislative intent or
      purpose, we necessarily focus our attention on the literal text of the
      statute in question and attempt to discern the fair, objective meaning
      of that text at the time of its enactment. We do this because the text of
      the statute is the law in the sense that it is the only thing actually
      adopted by the legislators, probably through compromise, and
      submitted to the Governor for her signature. We focus on the literal
      text also because the text is the only definitive evidence of what the
      legislators (and perhaps the Governor) had in mind when the statute
      was enacted into law. There really is no other certain method for
      determining the collective legislative intent or purpose at some point
      in the past, even assuming a single intent or purpose was dominant at
      the time of enactment. Yet a third reason for [focusing] on the literal
      text is that the Legislature is constitutionally entitled to expect that the
      Judiciary will faithfully follow the specific text that was adopted.

818 S.W.2d at 785. If, after analyzing the literal text of the statute, we find that it is

clear and unambiguous, we give effect to the plain meaning of the statute. See

Vasilas, 187 S.W.3d at 488-89 (citing Boykin, 818 S.W.2d at 785). However,
                                            6
where a statute’s language is ambiguous or where application of the statute’s plain

language leads to absurd results, we may consider executive or administrative

interpretations of the statute or legislative history. Boykin, 818 S.W.2d at 785-86.

      Chapter 481 of the Health and Safety Code does not define “include” or

“including.” See Tex. Health & Safety Code Ann. § 481.001-.354 (West 2010 &

Supp. 2014). Section 1.002 of the Health and Safety Code indicates that the Code

Construction Act applies in the construction of its provisions unless expressly

stated otherwise. Id. § 1.002 (West 2010). The Code Construction Act provides

generally that “[w]ords and phrases shall be read in context and construed

according to the rules of grammar and common usage.” Tex. Gov’t Code Ann. §

311.011(a) (West 2013). But, “[w]ords and phrases that have acquired a technical

or particular meaning, whether by legislative definition or otherwise, shall be

construed accordingly.” Id. § 311.011(b). In section 311.005(13), the Legislature

indicated the meaning it intends to be given to the word “including” unless the

statute or context in which the word is used indicates a different definition is

required. See id. § 311.005(13). “‘Includes’ and ‘including’ are terms of

enlargement and not of limitation or exclusive enumeration, and use of the terms

does not create a presumption that components not expressed are excluded.” Id.

The Court of Criminal Appeals has relied on section 311.005(13) to interpret the

statutory meaning of the term “including” as a term of enlargement and not
                                          7
exclusion. See Vasilas, 187 S.W.3d at 489-90. In the civil law context, this Court

has interpreted the word “‘including’” as suggesting “an illustrative list rather than

an exclusive one.” Wang v. Wen-Ning Lee, 256 S.W.3d 862, 868 (Tex. App.—

Beaumont 2008, no pet.). “The verb to include introduces examples, not an

exhaustive list.” ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE

INTERPRETATION OF LEGAL TEXTS 132 (2012). We discern nothing from the context

in which “including” is used in section 481.1031 to indicate that we must disregard

either the common meaning of the term “including” or the definition provided by

the Legislature in the Code Construction Act. See Tex. Health & Safety Code

Ann. § 481.1031.

      The Legislature’s definition of the term “including” is clear and

unambiguous. In applying this definition to section 481.1031, we conclude the

specific list of substances identified in the statute is non-exclusive and Penalty

Group 2-A should be interpreted as including any “synthetic chemical compound

that is a cannabinoid receptor agonist and mimics the pharmacological effect of

naturally occurring cannabinoids[.]” Id. § 481.1031. This interpretation does not

lead to an absurd result. There is nothing absurd about the Legislature drafting the

statute to allow for the inclusion of those substances not yet identified by name

when the statute was drafted, but that share the characteristics identified in the

statute as constituting Penalty Group 2-A.
                                          8
      Because the plain language of the statute unambiguously allows Moseley to

be charged with possession of any substance specifically identified in the statute or

that otherwise is a “synthetic chemical compound that is a cannabinoid receptor

agonist and mimics the pharmacological effect of naturally occurring

cannabinoids,” Moseley’s indictment, which tracks the statutory language, is

sufficient to notify Moseley of the charges against him and to allow him to prepare

a defense. See Mays, 967 S.W.2d at 406. The trial court erred in granting

Moseley’s motion to quash. We sustain the State’s sole issue on appeal, reverse the

trial court’s order, and remand the cause for further proceedings consistent with

this opinion.

      REVERSED AND REMANDED.


                                             ______________________________
                                                    CHARLES KREGER
                                                         Justice

Submitted on December 18, 2014
Opinion Delivered February 4, 2015
Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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