Bedford v. State

666 S.W.2d 574, 1984 Tex. App. LEXIS 4958
CourtCourt of Appeals of Texas
DecidedJanuary 19, 1984
DocketNo. 01-82-0863-CR
StatusPublished
Cited by4 cases

This text of 666 S.W.2d 574 (Bedford v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bedford v. State, 666 S.W.2d 574, 1984 Tex. App. LEXIS 4958 (Tex. Ct. App. 1984).

Opinion

OPINION

JACK SMITH, Justice.

The appellant was convicted of possession with intent to deliver a controlled substance, cocaine. A jury assessed his punishment at twenty-five years confinement in the Texas Department of Corrections. He alleges three grounds of error on appeal.

The appellant does not challenge the sufficiency of the evidence; therefore, the facts necessary for this opinion will be discussed in the respective grounds error.

In his first ground of error, the appellant asserts that the trial judge neglected to define the term “deliver” in the [575]*575jury charge in accordance with Article 4476-15, Sec. 1.02(8), Tex.Rev.Civ.Stat., which states as follows:

“Deliver” or “delivery” means the actual or constructive transfer from one person to another of a controlled substance or drug paraphernalia, whether or not there is an agency relationship. For purposes of this Act, it also includes an offer to sell a controlled substance or drug paraphernalia. Proof of an offer to sell must be corroborated by a person other than the offeree or by evidence other than a statement of the offeree.
The court’s charge stated as follows: The defendant, William Eugene Bedford, Jr. stands charged by indictment with the offense of intentionally and knowingly possessing with intent to deliver a controlled substance, namely cocaine, alleged to have been committed in Harris County, Texas, on or about the 16th day of June, 1980. To this charge the defendant has pleaded not guilty. You are instructed that the law applicable to this case is as follows ... A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist ... A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. “Deliver” or “delivery” means the actual or constructive transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

The application paragraph stated as follows:

Now if you believe from the evidence beyond a reasonable doubt that the defendant, William Eugene Bedford, Jr., acting alone or together with Gary Zel-ler, as a party to the offense, as that term has been defined for you, if any, did intentionally or knowingly in Harris County, Texas on or about the 16th day of June, 1980, possess with intent to deliver a controlled substance, namely, cocaine, introduced as State’s Exhibit Number 2, then you will find the defendant guilty as charged in the indictment.
Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant.

The appellant asserts that the charge was fundamentally defective in that the word “deliver” was defined only in the abstract definition portion of the charge and not defined in the application paragraph.

He argues that the problem with this instruction is that it does not define for the jurors those facts that they must find in order to decide whether or not the appellant possessed cocaine with the intent to transfer it, either actually or constructively, from one person to another.

He also argues that the trial court failed to define “intent” in the application paragraph of the charge. He cites Doyle v. State, 631 S.W.2d 732 (Tex.Cr.App.1982) for the proposition that the failure to include an essential element of the offense of the charge applying the law to the facts is fundamental error.

In Doyle, on Motion for Rehearing, the Court of Criminal Appeals addressed two premises: (1) its authority to exercise its plenary powers to reverse a case, sua sponte, where error was not alleged in the trial court nor on appeal; and (2) the required elements of an offense necessary to be included in the application paragraph in a charge to the jury. The appellant’s complaint in the present case is not the same as the two premises discussed in Doyle. He is not complaining that all required elements of the offense are not contained in the application paragraph; he is asserting that the definition of the terms “deliver” and “intent” should have been contained within the application paragraph.

The appellant states that in Doyle the court stated as follows:

[576]*576Abstract definitions of legal terms, words, and phrases in a jury charge are of extreme importance to a jury’s understanding of the law of the ease. However, standing alone, abstract definitions are like words found in a dictionary. They are useless until correctly used in a sentence.

The appellant urges that Doyle mandates that the terms “deliver” and “intent” should have been contained within the application paragraph. We do not construe the holding in Doyle to contain such a mandate. We first note that the paragraph which appellant alludes to from Doyle is dicta and unnecessary to that decision. We next note that article 36.14, V.A.C.C.P., requires only that the trial judge prepare for a jury a proper and correct charge on the law, and the law as may be applied to the facts adduced.

In the abstract portion of the charge in the instant case, the definitions given were proper. In the application paragraph, all the elements of the offense were contained. The purpose of the application paragraph is to properly apply the law to the facts of a ease. If the application paragraph is properly constructed, the issues will be clear to the jury. To require that all abstract definitions be contained within the application paragraph would tend to confuse the jury and obscure the issues, although the better procedure would be to include a phrase such as “as defined herein”, as suggested by the Texas Court of Criminal Appeals in Rider v. State, 567 S.W.2d 192 (Tex.App. 1978).

We hold that the trial court charge properly applied the law to the facts and overrule the appellant’s ground of error number one.

In his second and third grounds of error, the appellant asserts that the trial judge abused his discretion and fundamentally erred by terminating the voir dire of his counsel. He alleges that because of this termination, he failed to get a fair and impartial jury and effective assistance of counsel. He declares that because of this abuse of discretion he has been denied due process of law.

The appellant’s complaint is clearly set forth in his counsel’s initial remarks set forth in his bill of exceptions:

MR. BERG: I would ask, Your Honor, to interrupt me if I actually misstate something for the record.
Yesterday, during the voir dire examination, I was informed by the Court that I would have ten minutes remaining to conduct the voir dire examination, that is, the remainder of the voir dire examination. There were at that time a potential — strike the word potential. There were at that time eight remaining veniremen to whom I had not spoken or asked any individual questions.

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666 S.W.2d 574, 1984 Tex. App. LEXIS 4958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bedford-v-state-texapp-1984.