Andy Ray Hubbard v. State

• Court: Court of Appeals of Texas
• Decided: October 25, 2006
• Docket: 09-05-00430-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-05-430 CR

ANDY RAY HUBBARD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 1st District Court

Newton County, Texas

Trial Cause No. ND5631

MEMORANDUM OPINION

Appellant Andy Ray Hubbard was indicted for knowingly delivering "by constructive transfer, to Joe Walker, a controlled substance, namely, Cocaine, in an amount of less than one gram." See Tex. Health & Safety Code Ann. § 481.112(a) (Vernon 2003). A jury convicted Hubbard, and the trial court assessed punishment at two years of confinement in a state jail facility. In this appeal, Hubbard contends the trial court erred by overruling his motions for continuance and mistrial, and the evidence was legally insufficient to support his conviction. We reverse and render.

The Evidence

Sheriff Joe Walker testified he arrested Hubbard on February 14, 2005. On that date, Robert McCain approached Sheriff Walker and volunteered to assist with making drug arrests. McCain had been previously convicted of drug-related charges, and he had been arrested for possession of a controlled substance a few days before he approached Sheriff Walker. During their conversation, Sheriff Walker asked McCain to buy drugs from Hubbard, and he told McCain he would talk to his deputy about dropping the charge against McCain. Sheriff Walker placed a fresh tape in a pocket tape recorder and showed McCain how to use the recorder. Sheriff Walker also obtained a twenty-dollar bill and two five-dollar bills from the contraband account and photocopied the money. Sheriff Walker instructed McCain to purchase drugs from Hubbard and then arranged to meet McCain afterwards. Sheriff Walker did not follow McCain to the location of the transaction or conduct surveillance. When the transaction was completed, McCain gave Sheriff Walker two rocks of crack cocaine and returned the tape recorder.

After field testing the contraband, Sheriff Walker obtained an arrest warrant and a search warrant. When Sheriff Walker arrived at Hubbard's home, Hubbard was on a horse, and Hubbard fled on the horse when Sheriff Walker called out to him. Driving his own unmarked pickup truck, Sheriff Walker pursued Hubbard and ultimately arrested him. Sheriff Walker suspected Hubbard had discarded any drugs in his possession "because his pockets were pulled out of his pants, and that's something that's happened in times past with Andy." Because eight to ten people were in Hubbard's house, Sheriff Walker decided not to execute the search warrant, but he did search the immediate area where Hubbard was located and arrested. Sheriff Walker did not find drugs or contraband in the area, but Hubbard's wallet contained the money Sheriff Walker had given McCain to buy the drugs. Sheriff Walker testified that the quality of the microcassette recording of the drug transaction "leaves a lot to be desired," but he identified the voices on the tape as belonging to Hubbard and McCain. The tape was then played for the jury.

Deputy Sheriff Scott Duncan of the Newton County Sheriff's Department testified he served as the backup officer during the arrest of Hubbard. Deputy Duncan photocopied the money that McCain was to use to purchase drugs from Hubbard. Deputy Duncan also secured a location for McCain and searched McCain's person and his vehicle, but he did not search under the vehicle or under the gas cap. After searching McCain's vehicle, Deputy Duncan released McCain to go to the location where McCain was to meet Hubbard, and Deputy Duncan went to meet Sheriff Walker.

Deputy Duncan testified that when the transaction was completed, McCain met the officers and turned the drugs and the tape recorder over to Sheriff Walker. Deputy Duncan testified that Sheriff Walker field tested the narcotic and obtained an arrest warrant and a search warrant. Deputy Duncan forwarded the drugs to the D.P.S. crime lab for analysis. Severo Lopez, the drug section supervisor for the Texas D.P.S. crime laboratory, testified that the substance recovered from McCain contained 0.32 grams of cocaine.

Captain Ricky Hall testified he had known McCain for many years. According to Captain Hall, McCain approached the sheriff's department about making a controlled drug buy. Captain Hall testified that McCain was on parole, and McCain may have served time for delivery of a controlled substance. Captain Hall took McCain to see Sheriff Walker, and Sheriff Walker decided to have McCain attempt to purchase drugs from Hubbard. Captain Hall explained that for a number of years the authorities had suspected Hubbard of dealing drugs. The officers then gave McCain a tape recorder and money from the contraband account.

Captain Hall testified that after the transaction was completed, McCain gave the investigating officers the tape recorder and a substance that appeared to be crack cocaine. McCain told the officers that he had purchased the substance from Hubbard. The officers field tested the substance, which tested positive for cocaine. The investigating officers then secured a warrant for Hubbard's arrest and went to his residence. When the officers searched Hubbard, they found the money from the contraband account in his possession.

McCain testified that he is currently on parole for delivery of a controlled substance. After McCain was charged with a crime as a result of a traffic stop, he approached Deputy Hall about assisting with drug cases. The investigating officers asked McCain to attempt to buy drugs from Hubbard. After receiving a tape recorder and money, McCain went to Hubbard's residence. McCain then met with the officers and gave them the cocaine he had purchased from Hubbard. McCain testified that he had not previously purchased drugs from Hubbard, but he knows people who have. McCain testified that Sheriff Walker agreed to drop the case against him in return for buying drugs from Hubbard.

Linda Alfred, Hubbard's wife, testified that when McCain visited her residence, she, her mother, her sister, Hubbard, and their children were present. According to Linda, when McCain knocked on the door, "he looked like he was scared or paranoid or something like he was high . . . his eyes was big, red and he was kind of shaking." Linda testified that Hubbard sold McCain a car buffer. Linda and Hubbard then left to visit a gravesite. Upon returning home, Hubbard went for a ride on his horse. Approximately thirty to forty minutes later, officers arrived and arrested Hubbard. Linda testified that she asked the officers to search the residence, but they declined to do so. When asked about the tape recording, Linda testified that the voice on the tape was not Hubbard's.

Lashon Davis testified that Hubbard is his sister Linda's fiancé and common-law husband, as well as the father of his sister's children. Davis testified he was present at Hubbard's residence when McCain arrived. According to Davis, McCain and Hubbard were never alone together. Davis testified that McCain and Hubbard discussed a car buffer, and he denied seeing any transaction involving drugs.

Dorothy Alfred, Hubbard's mother-in-law, testified that she was present when McCain visited Hubbard's residence. According to Dorothy, Hubbard and McCain were never alone during the visit. Dorothy denied hearing anything that sounded like a drug transaction. Dorothy testified she has "some doubts" regarding whether the voice on the audiotape belongs to Hubbard.

Standard of Review

In issue two, Hubbard challenges the legal sufficiency of the evidence to support his conviction. We address Hubbard's legal sufficiency challenge first because if we determine the evidence is legally insufficient to support his conviction, we must render a judgment of acquittal. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). In reviewing the legal sufficiency of the evidence, we consider all the evidence in a light most favorable to the prosecution to determine if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). We consider all of the evidence, whether properly or improperly admitted, as well as both direct and circumstantial evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001); Muttoni v. State, 25 S.W.3d 300, 308 (Tex. App.--Austin 2000, no pet.).

Analysis

The elements of the offense of delivery of a controlled substance are: (1) a person; (2) knowingly or intentionally; (3) delivers; (4) a controlled substance. Tex. Health & Safety Code Ann. § 481.112(a) (Vernon 2003). Delivery may be made through actual transfer, constructive transfer, or an offer to sell. Tex. Health & Safety Code Ann. § 481.002(8) (Vernon Supp. 2006). "An actual transfer consists of a complete transfer of real possession and control of the contraband from the transferor to the transferee or his agents, while a constructive transfer covers a variety of situations where the transferor does not manually transfer the contraband to the transferee. . . ." Donley v. State, 140 S.W.3d 428, 429 (Tex. App.--Beaumont 2004, no pet.) (citing Sims v. State, 117 S.W.3d 267, 270-77 (Tex. Crim. App. 2003) and Heberling v. State, 834 S.W.2d 350, 354 (Tex. Crim. App. 1992)). A constructive transfer requires that the transferor is at least aware of the existence of the ultimate transferee before delivery. Daniels v. State, 754 S.W.2d 214, 221 (Tex. Crim. App. 1988); Gonzalez v. State, 588 S.W.2d 574, 577 (Tex. Crim. App. 1979). The transferor need not know the identity of or be acquainted with the ultimate recipient. Daniels, 754 S.W.2d at 221. However, when the State alleges a recipient who was not the immediate recipient of the contraband, "the accused must have contemplated that his initial transfer would not be the final transaction in the chain of distribution." Id.; see also Sims, 117 S.W.3d at 276-77.

In this case, there is ample evidence of an actual transfer from Hubbard to McCain. There is also ample evidence of an actual transfer from McCain to Sheriff Walker. However, Hubbard was indicted for a constructive transfer to Sheriff Joe Walker, not an actual transfer to McCain. Therefore, the State had to prove that Hubbard contemplated that his transfer to McCain was not the final transaction in the chain of distribution. See Daniels, 754 S.W.2d at 221; see also Gonzalez, 588 S.W.2d at 577 (Where actual transfers existed between appellant and intermediary and between intermediary and ultimate recipient, Court of Criminal Appeals declined to find a constructive transfer from appellant to the ultimate recipient because the record contained no evidence that appellant knew the intermediary was acting on behalf of a third person.). Although we are not convinced that this requirement provides any legitimate protection of an accused's constitutional rights, it is neither our duty nor our right to modify or remove it. The record contains no such evidence. Viewing the evidence in a light most favorable to the prosecution, we conclude that a rational jury could not have found the elements of the offense beyond a reasonable doubt. See Swearingen, 101 S.W.3d at 95. We sustain issue two. We need not reach issue one, since it would result in no greater relief. We reverse the judgment of the trial court and render judgment that Hubbard is acquitted.

REVERSED AND RENDERED.

STEVE MCKEITHEN

Chief Justice

Submitted on September 5, 2006

Opinion Delivered October 25, 2006

Do Not Publish

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

DISSENTING OPINION

I respectfully dissent. Generally, establishing a constructive transfer through an intermediary requires proof the defendant must have contemplated there would in fact be a third-party transferee beyond the intermediary. See Sims v. State, 117 S.W.3d 267, 277 (Tex. Crim. App. 2003). That makes sense unless the "intermediary" is considered by law as the equivalent of the ultimate transferee. Not every "constructive" delivery need involve an "intermediary." See id. The general rule should not be applied, in my view, when the transfer is to the buyer's agent authorized to take delivery.

The law treats the transfer to an authorized agent of the buyer as the equivalent of a transfer to the principal. There is no true "third-party" or "intermediary" under those circumstances. Proof of the agency and of actual delivery to the authorized agent is sufficient. The record here includes sufficient evidence the informant acted as an authorized agent for the sheriff in making the purchase.

Both Daniels and Gonzales were decided before Heberling v. State, 834 S.W.2d 350 (Tex. Crim. App. 1992). See Daniels v. State, 754 S.W.2d 214 (Tex. Crim. App. 1988); Gonzalez v. State, 588 S.W.2d 574 (Tex. Crim. App. 1979). The Court in Heberling made it clear that proof of an actual transfer to an agent is legally sufficient to convict the defendant of delivery by actual transfer to an undercover officer. Heberling, 834 S.W.2d at 354. The Court noted that construing the term "actual transfer" to encompass both the transferee and his agents was consistent with the general meaning of the term in the civil context, and the Court cited authorities treating a delivery to a buyer's authorized agent as "tantamount" to, or "equivalent" to, delivery to the actual buyer. Id. at 354 n.5. The delivery constituted an actual transfer because of the agency relationship, despite the lack of an instruction to the jury on the law of agency.

In Heberling, the Court described the evidence in part as follows:

We must now decide whether the evidence at appellant's trial was sufficient to establish an agency relationship between Nagid and Wilson. Although there was no jury instruction on agency, there was substantial evidence presented at trial from which the jury could have concluded that Nagid was an agent of Wilson or, at the least, that Nagid was identified with Wilson in law and represented him. Foremost, the jury had before it the written agreement . . . in which Nagid agreed to act under Wilson's direction. In addition, there was testimony indicating that the various individuals involved in the cocaine deal understood that Nagid was acting on Wilson's behalf in obtaining the cocaine.

Id. at 354-55 (emphasis added). This evidence in that case was sufficient to support a conviction by actual transfer to the undercover officer through his agent.

In Young v. State, 183 S.W.3d 699, 702 (Tex. App.--Tyler 2005, pet ref.), a law enforcement officer made a purchase through a confidential informant, as in this case. The seller was indicted for delivery of the drug by actual transfer to the officer. Id. at 706. The appellate court held it was unnecessary for the State to allege the drug was in fact delivered to the confidential informant as an agent for the officer. Id.

The indictment here, unlike the indictment in Young, alleged a constructive transfer to the sheriff. "Constructive transfer" is a term that encompasses acts which, by construction of law, are considered equivalent to a real delivery.

A transaction may involve both an actual delivery and a constructive delivery. See Sims, 117 S.W.3d at 268. In the case before this Court, the proof in my view establishes both. There is evidence of an "agency" relationship and a delivery to the authorized agent, McCain. There is, of course, no evidence Hubbard knew of the confidential relationship between McCain and the sheriff. Whether additional evidence may be required under Heberling to establish an actual transfer in a particular case is not the issue here. The issue is whether, by construction of law, this transfer was the legal equivalent of a transfer to the sheriff.

Under the circumstances here, I believe the fact of agency serves to make the delivery actual and constructive: actual in the sense that McCain is the sheriff's "agent," and delivery to McCain is, under Heberling, considered delivery to the sheriff; constructive in the sense that the contraband was not really transferred directly from Hubbard to the sheriff personally. Under this agency construct, the seller's knowledge of an intended transferee beyond McCain would seem an unnecessary requirement, and the transfer is at its most basic level a constructive one made equivalent by law to a direct transfer. If the purpose of including the method of delivery in the indictment is to give the defendant adequate notice, and yet an allegation of agency is not a requirement for the indictment, I believe the allegation of constructive transfer more accurately notified the defendant of what he was charged with doing.

I do not believe that proof of the seller's knowledge of the existence of the ultimate transferee should be required to establish a constructive transfer to a law enforcement officer through an authorized agent. The law should treat the delivery to the officer through the confidential informant as the equivalent of a direct delivery to the officer; that is, the law should treat the transfer as a constructive as well as an actual transfer to the officer.

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DAVID GAULTNEY

Justice

Delivered October 25, 2006