Queen v. State

In Queen v. State, 662 S.W.2d 338 (Tex. Crim. App. 1983), the defendant moved to set aside the indictment for failing to specify which of the three types of delivery (actual transfer, constructive transfer, offer to sell) the State would rely upon for conviction. 662 S.W.2d 339-340. The indictment specified that the defendant effected delivery by "transferring the said marijuana into a motor vehicle within the care and control and custody of the said Ben Neel and by transferring the said marijuana to the actual custody of the said Ben Neel." Id. at 340. The Court held that the indictment alleged both an actual and a constructive transfer - the constructive transfer being the delivery of marijuana to the recipient's motor vehicle. Id. at 341. The Court further found that the constructive nature of the transfer was confirmed by the evidence: the defendant drove Neel's automobile to the location of the marijuana, loaded the marijuana onto the automobile, drove the automobile back to its original location, and returned to Neel's house and handed him the keys. Id.