OPINION
DUGGAN, Justice.
The trial court found appellant guilty of delivery of less than 28 grams of cocaine. Appellant pled true to two enhancement paragraphs in the indictment, and the court assessed his punishment at 35 years confinement. Appellant asserts three points of error. We affirm.
Officer Gary Dora testified that he met appellant on July 23, 1990, while he was assigned to the Southwest Tactical Unit Narcotics detail and working as part of a team performing undercover controlled “buys” of narcotics at the intersection of Rampart and Glenmont in Houston. As Dora approached, driving an unmarked car, appellant and three other males standing in a convenience store parking lot at the intersection gave him a hand and head gesture. Based on his experience as a narcotics officer, Dora knew the gestures to mean they were selling drugs.
Officer Dora stopped and said he needed “a twenty.” Although this statement was not directed to any specific individual in the group, appellant, who Dora identified in the courtroom, separated from the group and directed Dora to park his car.
When appellant approached the parked car and asked Dora what he needed, Dora replied that he needed a twenty dollar rock; appellant went back to the group and spoke with one of the individuals. Officer Dora could not hear their conversation. Appellant then accompanied that individual, a juvenile, back to Dora’s vehicle. The juvenile got inside the officer’s vehicle on the passenger’s side, and appellant stood just inside the angle created by the car frame and the open passenger door. The juvenile asked Dora how many he needed, and Dora said just one; the juvenile then poured crack cocaine from a vial into his hand to show Dora. Appellant remained outside the vehicle during the entire transaction. Officer Dora then took one of the “rocks,” handed the juvenile twenty dollars, and noted as he left that appellant and the juvenile stood together in front of the store.
Officer Dora field-tested the substance, determined that it was cocaine, and notified the raid team by car radio as he left the scene. He drove back to the scene to verify that the team had arrested the right person, and tagged and deposited the contraband in the HPD lockbox. He also verified that a photograph of appellant, taken at the time of his arrest, was that of the suspect present during the drug transaction.
Appellant, who was on parole and was transferring to Louisiana, testified that he was standing at the corner waiting for a bus; Dora testified he was not at the bus stop. Although appellant testified the bus to Louisiana left at 12:55 p.m., Dora’s offense report showed that the arrest, which occurred within minutes of the drug transaction, took place at 1:45 p.m. Appellant denied making any gestures, or approaching or speaking to Officer Dora. It is unclear from the record whether appellant testified he spoke to the juvenile; however, he stated that he was not acquainted with any of the individuals on the corner prior to that day. No controlled substances were found on appellant, who had on his person only seventy cents, which he claimed was bus fare. The only controlled substances shown in court were those found on the juvenile. The jury found appellant guilty of delivery by constructive transfer only.
In appellant’s first point of error, he urges that the evidence is insufficient to support his conviction for constructive transfer of a controlled substance because it does not show that, prior to the alleged delivery, he had either direct or indirect control over the controlled substance Officer Dora purchased.
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. Stewart v. State, 718 S.W.2d 286, 288 (Tex.Crim.App.1986); Tex. Health & Safety Code Ann. § 481.112(a) (Vernon Pamph. 1992). Section 481.002 of the Health and [257]*257Safety Code defines “delivery” of a controlled substance as:
(8) “Deliver” means to transfer, actually or constructively, to another a controlled substance ... regardless of whether there is an agency relationship. The term includes offering to sell a controlled substance....
(9) “Delivery” or “drug transaction” means the act of delivering.
Tex. Health & Safety Code Ann. § 481.-002(8) & (9) (Vernon Pamph.1992).
Thus, constructive delivery is the transfer of a controlled substance, either belonging to an individual or under his control, by some other person or agency, at the instance and direction of the individual accused of such transfer. Atuesta v. State, 788 S.W.2d 382, 385 (Tex.App.—Houston [1st Dist.] 1990, pet. ref d). Con structive transfer is proved by showing that 1) prior to the alleged delivery, the transferor had either direct or indirect control of the substance transferred, and 2) the transferor knew of the existence of the transferee. Daniels v. State, 754 S.W.2d 214, 220-22 (Tex.Crim.App.1988) (citing Eassmussen v. State, 608 S.W.2d 205, 209-10 (Tex.Crim.App.1980) and Gonzalez v. State, 588 S.W.2d 574, 577 (Tex.Crim.App.1979)).
While mere presence at the scene of an offense is not sufficient to make one a party to the offense, it is a circumstance tending to prove that one is a party when taken with facts sufficient to prove participation. Medellin v. State, 617 S.W.2d 229, 231 (Tex.Crim.App.1981). Sufficient evidence of constructive delivery has been found where the suspect initiated and was present during the transaction, even though he did not hand over the contraband or accept any money. Woods v. State, 734 S.W.2d 414, 415 (Tex.App.—Houston [1st Dist.] 1987), vacated and remanded on other grounds, 758 S.W.2d 285 (Tex.Crim.App.1988).
Appellant concedes that he knew of the existence of the transferee, Officer Dora. However, he urges that the State failed to meet its burden to show that he, as the alleged transferor, had either direct or indirect control of the crack cocaine transferred, relying on Davila v. State, 664 S.W.2d 722 (Tex.Crim.App.1984). In Davi-la, an undercover officer and a companion, Chism, entered the living room of a house where neither Davila nor her common-law husband, Cosme, lived. Davila and another person were seated on a couch. Davila, who knew Chism, got up and asked what the two wanted. Chism answered simply “four.” Davila went outside, engaged in a brief conversation with Cosme, and returned inside and resumed her seat. Cosme came in “in short order,” approached Chism, and asked what he wanted. Chism answered “four,” and Cosme, who had “precisely four” balloons containing cocaine in his hand, placed them in Chism’s hand in exchange for $130.
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OPINION
DUGGAN, Justice.
The trial court found appellant guilty of delivery of less than 28 grams of cocaine. Appellant pled true to two enhancement paragraphs in the indictment, and the court assessed his punishment at 35 years confinement. Appellant asserts three points of error. We affirm.
Officer Gary Dora testified that he met appellant on July 23, 1990, while he was assigned to the Southwest Tactical Unit Narcotics detail and working as part of a team performing undercover controlled “buys” of narcotics at the intersection of Rampart and Glenmont in Houston. As Dora approached, driving an unmarked car, appellant and three other males standing in a convenience store parking lot at the intersection gave him a hand and head gesture. Based on his experience as a narcotics officer, Dora knew the gestures to mean they were selling drugs.
Officer Dora stopped and said he needed “a twenty.” Although this statement was not directed to any specific individual in the group, appellant, who Dora identified in the courtroom, separated from the group and directed Dora to park his car.
When appellant approached the parked car and asked Dora what he needed, Dora replied that he needed a twenty dollar rock; appellant went back to the group and spoke with one of the individuals. Officer Dora could not hear their conversation. Appellant then accompanied that individual, a juvenile, back to Dora’s vehicle. The juvenile got inside the officer’s vehicle on the passenger’s side, and appellant stood just inside the angle created by the car frame and the open passenger door. The juvenile asked Dora how many he needed, and Dora said just one; the juvenile then poured crack cocaine from a vial into his hand to show Dora. Appellant remained outside the vehicle during the entire transaction. Officer Dora then took one of the “rocks,” handed the juvenile twenty dollars, and noted as he left that appellant and the juvenile stood together in front of the store.
Officer Dora field-tested the substance, determined that it was cocaine, and notified the raid team by car radio as he left the scene. He drove back to the scene to verify that the team had arrested the right person, and tagged and deposited the contraband in the HPD lockbox. He also verified that a photograph of appellant, taken at the time of his arrest, was that of the suspect present during the drug transaction.
Appellant, who was on parole and was transferring to Louisiana, testified that he was standing at the corner waiting for a bus; Dora testified he was not at the bus stop. Although appellant testified the bus to Louisiana left at 12:55 p.m., Dora’s offense report showed that the arrest, which occurred within minutes of the drug transaction, took place at 1:45 p.m. Appellant denied making any gestures, or approaching or speaking to Officer Dora. It is unclear from the record whether appellant testified he spoke to the juvenile; however, he stated that he was not acquainted with any of the individuals on the corner prior to that day. No controlled substances were found on appellant, who had on his person only seventy cents, which he claimed was bus fare. The only controlled substances shown in court were those found on the juvenile. The jury found appellant guilty of delivery by constructive transfer only.
In appellant’s first point of error, he urges that the evidence is insufficient to support his conviction for constructive transfer of a controlled substance because it does not show that, prior to the alleged delivery, he had either direct or indirect control over the controlled substance Officer Dora purchased.
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. Stewart v. State, 718 S.W.2d 286, 288 (Tex.Crim.App.1986); Tex. Health & Safety Code Ann. § 481.112(a) (Vernon Pamph. 1992). Section 481.002 of the Health and [257]*257Safety Code defines “delivery” of a controlled substance as:
(8) “Deliver” means to transfer, actually or constructively, to another a controlled substance ... regardless of whether there is an agency relationship. The term includes offering to sell a controlled substance....
(9) “Delivery” or “drug transaction” means the act of delivering.
Tex. Health & Safety Code Ann. § 481.-002(8) & (9) (Vernon Pamph.1992).
Thus, constructive delivery is the transfer of a controlled substance, either belonging to an individual or under his control, by some other person or agency, at the instance and direction of the individual accused of such transfer. Atuesta v. State, 788 S.W.2d 382, 385 (Tex.App.—Houston [1st Dist.] 1990, pet. ref d). Con structive transfer is proved by showing that 1) prior to the alleged delivery, the transferor had either direct or indirect control of the substance transferred, and 2) the transferor knew of the existence of the transferee. Daniels v. State, 754 S.W.2d 214, 220-22 (Tex.Crim.App.1988) (citing Eassmussen v. State, 608 S.W.2d 205, 209-10 (Tex.Crim.App.1980) and Gonzalez v. State, 588 S.W.2d 574, 577 (Tex.Crim.App.1979)).
While mere presence at the scene of an offense is not sufficient to make one a party to the offense, it is a circumstance tending to prove that one is a party when taken with facts sufficient to prove participation. Medellin v. State, 617 S.W.2d 229, 231 (Tex.Crim.App.1981). Sufficient evidence of constructive delivery has been found where the suspect initiated and was present during the transaction, even though he did not hand over the contraband or accept any money. Woods v. State, 734 S.W.2d 414, 415 (Tex.App.—Houston [1st Dist.] 1987), vacated and remanded on other grounds, 758 S.W.2d 285 (Tex.Crim.App.1988).
Appellant concedes that he knew of the existence of the transferee, Officer Dora. However, he urges that the State failed to meet its burden to show that he, as the alleged transferor, had either direct or indirect control of the crack cocaine transferred, relying on Davila v. State, 664 S.W.2d 722 (Tex.Crim.App.1984). In Davi-la, an undercover officer and a companion, Chism, entered the living room of a house where neither Davila nor her common-law husband, Cosme, lived. Davila and another person were seated on a couch. Davila, who knew Chism, got up and asked what the two wanted. Chism answered simply “four.” Davila went outside, engaged in a brief conversation with Cosme, and returned inside and resumed her seat. Cosme came in “in short order,” approached Chism, and asked what he wanted. Chism answered “four,” and Cosme, who had “precisely four” balloons containing cocaine in his hand, placed them in Chism’s hand in exchange for $130.
The indictment charged that Davila “constructively” transferred the heroin to Chism, and the State was thus obligated to prove a constructive transfer. Davila, 664 S.W.2d at 724. In affirming the court of appeals judgment reversing Davila’s conviction, the Court of Criminal Appeals held:
The evidence ... fails to show that [Dav-ila] had direct or indirect control of the contraband prior to its delivery, and does not show that the contraband was delivered by Cosme at [Davila’s] instance or direction ... At most the evidence shows that [Davila] merely relayed Chism’s offer to buy to her husband Cosme. Cosme negotiated both the quantity and the price before making the delivery. [Davila] made no response when Chism offered to buy “four.” The fact that she might have understood what he meant by his cryptic offer is no proof that the contraband was under her direct or indirect control prior to its delivery by Cosme to Chism. Furthermore, [Davila’s] act in merely relaying an offer from buyer to seller is not sufficient to prove that the seller acted at [her] “instance or direction”.... There is no proof that [Davila] had any control over Cosme’s actions.
664 S.W.2d at 724-725.
Davila is distinguishable from our case. There, after the officer and Chism entered [258]*258the house, Davila asked Chism what they wanted and relayed that request to Cosme, the person selling the drugs. Davila did not initiate the transaction because she did not indicate that she, herself, was selling drugs. Davila, 664 S.W.2d at 723. While she obviously told Cosme that Chism wanted drugs, and indicated to Cosme out of Chism’s presence who and where Chism was, she did not bring him to Chism and did not stand by Chism and Cosme to monitor the transaction. By contrast, in our case appellant initiated the transaction when he made a head and hand gesture to Officer Dora indicating that he was selling drugs, approached Dora, directed him where to park his car, and asked him what he wanted. Appellant then walked over to the juvenile who had the drug, brought him to Dora, and stood by to monitor the transaction. Thus, in contrast with Davila, appellant initiated and was present during the transaction. Even though he did not hand over the contraband or accept the money, the transaction was done at his instance and direction; appellant thereby acted as a party to a constructive transfer.
In reviewing the sufficiency of the evidence to support a conviction based upon direct evidence, the evidence is viewed in the light most favorable to the verdict to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); see also Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986), cert. denied, 488 U.S. 872,109 S.Ct. 190,102 L.Ed.2d 159 (1988); Flournoy v. State, 668 S.W.2d 380, 383 (Tex.Crim.App.1984). The entire body of evidence must be reviewed to determine whether the State has proved beyond a reasonable doubt every element of the alleged offense. Jackson, 443 U.S. at 307, 99 S.Ct. at 2781; see also Sharp, 707 S.W.2d at 614. If there is evidence that establishes guilt beyond a reasonable doubt, and the trier of fact believes that evidence, we cannot reverse the judgment on sufficiency of the evidence grounds. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988).
Officer Dora, an experienced police officer, testified that appellant gave a hand and head gesture that indicated he was selling drugs. After Dora said he wanted “a twenty,” appellant directed him to park his vehicle, asked him what he wanted, returned to the group, spoke with a juvenile, and accompanied the juvenile to Dora’s vehicle. Appellant remained just inside the vehicle’s door during the entire transaction. Viewed in the light most favorable to the verdict, the evidence shows that appellant exercised indirect control over the drugs, that the juvenile acted under his direction, and that he was aware of Dora, the transferee. Atuesta, 788 S.W.2d at 385.
Appellant’s point of error one is overruled.
In points of error two and three, appellant urges that the penalty assessed by the trial judge, 35 years confinement, is so excessive that it constitutes cruel and unusual punishment in violation of the eighth amendment to the U.S. Constitution and article 1, section 13 of the Texas Constitution. Appellant concedes that in light of the rulings of the Texas Court of Criminal Appeals, an appeal prefaced on the grounds of disproportionate punishment is frivolous. However, he raises the issue to prevent a waiver of his anticipatory claims in federal court.
Appellant was convicted of the offense of delivery, by constructive transfer, of a controlled substance weighing by aggregate weight less than 28 grams. He also stipulated and pled true to felony convictions alleged in two enhancement paragraphs. The court assessed his punishment at 35 years confinement.
Delivery of less than 28 grams of cocaine, a substance found in penalty group one, is a first degree felony. Tex. Health & Safety Code Ann. § 481.112(b) (Vernon Pamph.1992). The legislature has set the punishment for a first degree felony at confinement for life, or for any term of not more than 99 years, or less than 5 years, and not less than 25 years confinement when enhanced by two prior felony convic[259]*259tions. Tex. Health & Safety Code Ann. § 481.106(a) (Vernon Pamph.1991); Tex. Penal Code Ann. § 12.42(d) (Vernon 1992). Section 12.42 of the Tex. Penal Code was specifically upheld against a similar constitutional attack. Rummel v. Estelle, 445 U.S. 263, 285, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980); Simpson v. State, 668 S.W.2d 915, 919 (Tex.App.—Houston [1st Dist.] 1984, no pet.).
Punishment assessed by the judge or jury within the limits prescribed by statute is not cruel and unusual within the constitutional prohibition. Harris v. State, 656 S.W.2d 481, 486 (Tex.Crim.App.1983); Combs v. State, 652 S.W.2d 804, 806 (Tex.App.—Houston [1st Dist.] 1983, no pet.).
Appellant’s points of error two and three are overruled.
The judgment is affirmed.
WILSON, J., dissents.