Brian Andrew Williams v. State

• Court: Court of Appeals of Texas
• Decided: March 7, 2007
• Docket: 09-05-00520-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-05-520 CR

BRIAN ANDREW WILLIAMS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 410th District Court

Montgomery County, Texas

Trial Cause No. 05-01-00499-CR

MEMORANDUM OPINION

The State indicted Brian Andrew Williams for delivering between one and four grams of cocaine to a named informant by actual or constructive transfer, and offer to sell. Tex. Health & Safety Code Ann. § 481.112(c) (Vernon 2003). Williams waived his right to a trial by jury, and the trial court found him guilty following his trial on October 12, 2005. The trial court subsequently assessed punishment at fifteen years' confinement in the Institutional Division, Texas Department of Criminal Justice, with credit for time served. We affirm.

In his sole appellate issue, Williams challenges the legal sufficiency of the evidence to support his conviction. He argues that although the evidence showed a delivery of cocaine to the undercover police officer in the hotel room where the transaction occurred, it did not show his delivery of the cocaine to the confidential informant as alleged in the indictment. With respect to the legal sufficiency of the evidence in a criminal case, we review all of the evidence in a light most favorable to the verdict to decide if any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006) (quoting Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005)).

Thus, the issue on appeal is whether the evidence legally supported the trial court's conclusion that Williams delivered cocaine to the State's confidential informant by actual or constructive transfer or offer to sell. The evidence at the trial included the testimony of the undercover officer. The undercover officer's testimony established that in response to an earlier telephone call from the confidential informant, Williams knocked on the door to the room and the confidential informant answered. Both the undercover officer and the confidential informant were in the room. When Williams entered, he walked directly into the bathroom and the confidential informant followed him to the bathroom door. During the conversation between Williams and the confidential informant, a dispute arose regarding the number of rocks of crack cocaine that Williams showed the confidential informant. At that point, the undercover officer went into the bathroom, searched the confidential informant's pockets in Williams's presence, and looked on the floor for anything that might have dropped. At that point, the undercover officer stated, "we didn't want any problems. We just wanted to party and [I] asked him if he would take - - we had originally ordered up to $200 worth, and I asked him if he would accept $180 for what he had. He agreed on that. I paid him the $180, and he left the room." The undercover officer testified that after offering $180 as a compromise that Williams handed the narcotics directly to him. The State, as part of its evidence, also played a surveillance videotape concerning the transaction.

Williams argues that there was no evidence of an offer to sell, an actual transfer, or a constructive transfer to the confidential informant. He further asserts that it is essential that the State prove receipt of the narcotic by the person to whom the State alleged delivery in its indictment. Specifically, Williams concludes that a rational trier of fact could have found delivery to the undercover officer but not to the confidential informant, and points to the fact that the indictment did not allege delivery to the undercover officer. In response, the State contends that: "Although [Williams] ultimately transferred the crack cocaine to [the undercover officer] for $180, the conviction should be upheld if there is sufficient proof that [Williams] offered to sell [the confidential informant] the crack cocaine."

Under the terms of the applicable statute, a person commits a felony offense if he knowingly or intentionally "manufactures," "delivers," or "possesses with intent to deliver" a controlled substance. Tex. Health & Safety Code Ann. § 481.112(a) (Vernon 2003). Delivery of a controlled substance, the offense with which Williams stood charged, may be accomplished in one of three ways: by actual transfer, constructive transfer, or an offer to sell. Tex. Health & Safety Code Ann. § 481.002 (8) (Vernon Supp. 2006); Thomas v. State, 832 S.W.2d 47, 50-51 (Tex. Crim. App. 1992). Even where, as here, the indictment for the crime is pled in the conjunctive, the State is entitled to submit each method it has alleged separately. Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991). Thus, based on the indictment under which Williams was tried, the State had to prove that Williams: (1) made an actual delivery of cocaine to the confidential informant; or, (2) made a constructive delivery of cocaine to the confidential informant; or, (3) offered to sell cocaine to the confidential informant.

The evidence showed that: (1) the confidential informant initiated the call that precipitated Williams's appearance at the hotel; (2) the confidential informant asked Williams how much he wanted for the cocaine; (3) the confidential informant offered to purchase cocaine from Williams for $200; (4) the confidential informant then disputed the amount of cocaine Williams had agreed to deliver in return for $200; (5) after the undercover officer told Williams that "[w]e just wanted to party," Williams handed the cocaine to the undercover officer in return for $180 dollars. Based on this evidence, we conclude that the trial court, as fact-finder, could rationally conclude that Williams offered to sell the cocaine in his possession to the confidential informant for $200.

The evidence also supports the judgment under a theory of constructive delivery. Constructive transfers occur in a variety of situations where the dealer does not hand the drugs directly to the person who is going to use the drugs. Sims v. State, 117 S.W.3d 267, 270-77 (Tex. Crim. App. 2003). A constructive transfer does not require proof that actual delivery to the confidential informant was completed subsequent to Williams's delivery to the undercover officer. Id. at 272. The circumstances of the transaction and the statements made by the parties in the transaction allowed the fact-finder to conclude that the confidential informant, although not handed the cocaine, would be using it.

Constructive transfer "only requires that when the State alleges constructive transfer to an alleged ultimate recipient that the accused must have contemplated that his initial transfer would not be the final transaction in the chain of distribution." Daniels v. State, 754 S.W.2d 214, 221 (Tex. Crim. App. 1988). Because the evidence showed that Williams could reasonably anticipate that the confidential informant would use the cocaine he handed to the undercover officer, the trial court could rationally conclude the State proved that Williams constructively delivered the cocaine to the confidential informant, as alleged in the indictment.

Viewing the evidence in a light most favorable to the prosecution, we conclude that the trial court could have found Williams guilty beyond a reasonable doubt of either the offer to sell cocaine or its constructive delivery, as charged in the indictment. Accordingly, we overrule Williams's sole issue, and affirm the trial court's judgment.

AFFIRMED.

____________________________

HOLLIS HORTON

Justice

Submitted on December 11, 2006

Opinion Delivered March 7, 2007

Do Not Publish

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