Posey v. State

515 S.W.2d 286, 1974 Tex. Crim. App. LEXIS 1938

• Court: Court of Criminal Appeals of Texas
• Decided: November 13, 1974
• Docket: 49025
• Status: Published

Opinions

OPINION

DALLY, Commissioner.

This appeal is taken from a conviction for the sale of marihuana; the punishment was assessed by the jury at imprisonment for two years. The appellant contends in his single ground of error that the trial court erred in refusing to give his specially requested charge on accommodation agency. The appellant testified he was merely acting as the conduit from the source of the marihuana to the narcotics officer, at the officer’s behest, receiving no remuneration, and he claims he was entitled to be acquitted should the jury agree that he was acting as such an accommodation agent. Although the doctrine of accommodation agency has been applied in prosecutions for the sale of narcotics, we now hold that accommodation agency is no defense in such prosecutions.

Accommodation agency as applied in narcotics cases began with Durham v. State, 162 Tex.Cr.R. 25, 280 S.W.2d 737 (1955). In Durham the Court applied the doctrine of accommodation agency that had been applied in prosecutions for the sale of liquor in violation of the local option liquor law. The stated authority for the holding in Durham was “Harris v. State, 155 Tex.Cr.R. 180, 233 S.W.2d 123; Flores v. State, 159 Tex.Cr.R. 1, 259 S.W.2d 198; Cortinas v. State, 93 Tex.Cr.R. 64, 245 S.W. 911; Chance v. State, 85 Tex.Cr.R. 62, 210 S.W. 208; Hamilton v. State, 80 Tex.Cr.R. 516, 191 S.W. 1160; Branch’s Ann.P.C. 713, Sec. 1248.”

In the liquor cases “sale” was given its ordinary definition and consideration was a necessary element. A mere transfer, without evidence of barter or payment, was inadequate to sustain a conviction for the sale of liquor in violation of the local option laws. Holley v. State, 14 Tex.App. 505 (Tex.Ct.App.1883); Bottoms v. State, 73 S.W. 16 (Tex.Cr.App.1903). Where one is the agent of the purchaser of the liquor, without profit to the agent himself, the requisite element of consideration is absent, and no “sale” can result. Hood v. State, 35 Tex.Cr.R. 585, 34 S.W. 935 (1896); Wright v. State, 35 Tex.Cr.R. 581, 34 S.W. 935 (1896); Hamilton v. State, 80 Tex.Cr.R. 516, 191 S.W. 1160 (1917); Branch’s Ann.P.C.2d, § 1322. Therefore, a defendant in a liquor case who was merely the agent of a purchaser (and not a middleman making a profit) and who was doing the perfectly legal act of buying liquor, Thompson v. State, 34 S.W. 937 (Tex.Cr.App.1896); Bennett v. State, 34 S.W. 936 (Tex.Cr.App.1896), and whose subsequent transfer to his principal resulted in no actual consideration is entitled to a charge on accommodation agency requiring his acquittal if the transfer was not actually a sale. McElwee v. State, 73 Tex.Cr.R. 445, 165 S.W. 927 (1914).

The definition of “sale” as applied in narcotics cases is:

“ ‘Sale’ includes barter, exchange, or gift, or offer therefor, and, each such transaction made by any person, whether as principal, proprietor, agent, servant, or employee.” Art. 725b, § 1(10'), V.A. P.C.

Under this definition, proof of consideration is not required as an element of the offense. Holdaway v. State, 505 S.W.2d 262 (Tex.Cr.App.1974); Lewis v. State, 482 S.W.2d 177 (Tex.Cr.App.1972); Mistrot v. State, 471 S.W.2d 831 (Tex.Cr.App.1971). Because an exchange without consideration or a gift is a sale under this definition, a transfer merely for the accommodation of a principal-purchaser does come within the definition of “sale” applicable to the offense. In the case before us, the appellant may well have been the agent of the purchaser, acting without hope of benefit. However, the appellant, while admitting the transfer, raises nothing which precludes it from being a “sale” under the statutory definition. Thus, he would not be entitled to a defensive charge on agency because the mere fact of agency is not exculpatory. In the case of illegal drugs, the conduit is as criminally liable as the pusher. Holdaway v. State, supra.

The Durham case is distinguishable from this case on another basis. There, the appellant testified that she was aware at the time of the transaction that the purchaser was in fact a narcotics officer. If the alleged agent indeed knew that her principal-purchaser was a law enforcement officer and claimed to be working with him in gathering evidence, an appropriate charge would be required. If such evidence is not raised, where one commits a knowingly illegal act, as in the case of the transfer of narcotics from a seller to a purchaser, an agency situation will not protect him from criminal liability. There is no evidence in this case that the appellant was aware that his purchaser was a narcotics officer and there is no evidence that the appellant was working with the narcotics officer in gathering evidence. He was not entitled to the specially requested charge on accommodation agent.

To the extent that they conflict with this opinion, other cases applying the rule of Durham v. State, supra, in prosecutions for the sale of narcotics are overruled. It is not the intention of the Court for this decision to, in any way, impinge on the defense of entrapment.

The judgment is affirmed.

Opinion approved by the Court.