Thomas v. State

817 S.W.2d 346, 1991 Tex. App. LEXIS 2705, 1991 WL 228768

• Court: Court of Appeals of Texas
• Decided: June 13, 1991
• Docket: No. 09-89-115 CR
• Status: Published

Opinions

OPINION

ONION, Justice (Retired).

This is an appeal from a conviction for delivery of a controlled substance, namely, cocaine. After finding the appellant guilty, the jury found the enhancement allegations as to one prior felony conviction to be “true”, and assessed punishment at forty (40) years imprisonment.

Appellant advances seven points of error. Initially, appellant contends that the “conviction herein must be set aside and a judgment of acquittal entered because the evidence makes it clear that no controlled substance was ever transferred, either actually or constructively, to I.E. Jordan, as alleged in the indictment and required by the trial court’s charge to the jury. We agree and will reverse the judgment of conviction.

The record reflects that on October 21, 1987, Ira Edward Jordan, an undercover officer for the Conroe Police Department, was given an assignment. He was instructed to meet a confidential informant and a suspect who was to make a delivery of a half-ounce of cocaine at the Crossroads Shopping Center in Conroe. Wearing a body mike, and with other officers in the area listening to any conversation he might have, Jordan met the informer and the suspect, Bobby Joe Franklin, at the shopping center. Arrangements were made to pay $600.00 for the cocaine. Franklin left to make a phone call. The trio then went to Franklin’s residence on Avenue M. Fearing for his safety, Jordan told Franklin he would await the delivery of the cocaine at the First Street baseball park, three or four blocks away. Thirty or forty minutes later Franklin and the informant arrived and told Jordan a problem had developed with the delivery of the cocaine, “that it was going to be a while before the stuff got there” but to be patient. Later Franklin left the area and returned, and at one point a call was placed over the mobile phone in Jordan’s vehicle to a number later shown registered to the appellant. Jordan talked to some man whose voice he could not identify and assured him that he (Jordan) had the money. Eventually, a white car arrived and a man later identified as the appellant got out. The car left. Franklin talked to the appellant and then Franklin asked Jordan to give him $100.00 in advance, but Jordan refused. Jordan then attempted to approach the appellant who backed away. Franklin then went to talk to the appellant. Jordan saw something being exchanged, but he could not identify what it was. Then Franklin came back and told Jordan “[i]t’s all right.” The record then reflects that Jordan testified:

His typical line of b.s. that he was giving me and I go, “Let me see it.” He showed it to me and I went up to grab it and he wouldn’t turn it loose, and I looked at it and said, “It looked like dynamite shit,” and that’s our code word to take the subject down. I had six hundred ($600.00) dollars in cash and it was in twenty dollar bills. And I started counting them out to him, mainly to kill time to give the bust signal — the bust team time to get out of the woods and get over to us. As I counted out the end of it, I reached over and grabbed Bobby Joe by the arm and yelled at him, “Police.” At this time, he let go of the dope he had in his hand, he turned around and hit me. The fight started. He and I went to the ground fighting.

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Bobby Joe and I were back here when I was counting out the money to him, and when I reached over and grabbed him, he had the dope in this hand because I grabbed this hand, which was right next to me and he dropped the dope and that when he turned around and hit me and the fight, was on.

Both Franklin and the appellant were arrested. The chain of custody was established and it was shown that the “dope” was cocaine weighing 11.65 grams and was 79.6 percent pure.

In light of appellant’s contention that there was no delivery as alleged and as required by the trial court’s charge, we first examine the indictment which provides in pertinent part that appellant on or about October 21, 1987,

[D]id then and there intentionally and knowingly deliver to I.E. Jordan a controlled substance, namely cocaine by aggregate weight, including any adulterants and dilutants, of less than twenty-eight (28) grams by actually transferring and constructively transferring and offering to sell said controlled substance.¹

In its charge the court instructed the jury in the definitional portion as follows:

I.

Our law provides that a person commits an offense if he knowingly or intentionally delivers cocaine, a controlled substance.

By the term “deliver” or “delivery” as used in this charge is meant the actual or constructive transfer from one person to another of cocaine.

The court also abstractly charged on the law of parties and then submitted the issues of delivery by constructive transfer and as a party to actual delivery as follows:

IV.

(DELIVERY BY CONSTRUCTIVE TRANSFER)

Now, if you find from the evidence beyond a reasonable doubt that on or about the 21st day of October, 1987, in Montgomery County, Texas, Roy George Thomas, the defendant had a controlled substance, to wit, cocaine under his control, and that he handed the controlled substance to another person, namely Bobby Joe Franklin, knowing that the cocaine would be delivered to another person, and that Bobby Joe Franklin did so deliver the said cocaine to I.E. Jordan, and that the cocaine was in an amount, by aggregate weight, including any adulterants and dilutants, of less than 28 grams, as alleged in the indictment, then you will find the defendant guilty of the offense of Delivery of a Controlled substance as charged in the indictment.

Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, then you will consider the following section of this charge to determine whether or not the defendant is guilty of delivery of a controlled substance as a party to an offense.

V.

(Delivery as a Party To An Offense)

Now, if you find from the evidence beyond a reasonable doubt that Bobby Joe Franklin, on or about the 21st day of October, 1987, in Montgomery County, Texas, did then and there intentionally or knowingly deliver a controlled substance, to wit, cocaine of less than 28 grams, including any adulterants and dilutants, to I.E. Jordan, and that the defendant, Roy George Thomas, acting with intent to promote or assist the commission of the offense of Bobby Joe Franklin, solicited, encouraged, directed, aided or attempted to aid Bobby Joe Franklin to commit the offense of Delivery of Cocaine, then you will find the defendant, Roy George Thomas, guilty of the offense of Delivery of a Controlled Substance as charged in the indictment.

Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will find the defendant not guilty.

The jury returned the following verdict:

We, the Jury, find the defendant, Roy George Thomas, Guilty of the offense of Delivery of a Controlled Substance as charged in the indictment.

/s/ Homer H. Hershey

Foreman of the Jury

In the charge the court limited the definition of “deliver” or “delivery” to the actual or constructive transfer from one person to another of cocaine.² The court then authorized the jury to convict appellant under the instructions given of delivery of cocaine by constructive transfer or as a party to the delivery of cocaine. Both of these theories as submitted required the jury to find beyond a reasonable doubt that Bobby Joe Franklin delivered cocaine to I.E. Jordan before it could convict the appellant Thomas. The jury returned a general verdict not indicating under which theory it had found the appellant guilty. It is to be observed that the State abandoned any “offer to sell” theory. The same was not submitted to the jury by the trial court in its charge, nor was it included in the court’s definition of “deliver” or “delivery.” ³

In passing upon the sufficiency of the evidence the Benson — Boozer line of eases must be kept in mind. Benson v. State, 661 S.W.2d 708 (Tex.Crim.App.1982), cert. denied 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d 372 (1984); Boozer v. State, 717 S.W.2d 608 (Tex.Crim.App.1984). These cases hold that the sufficiency of the evidence must be measured against the jury charge, even if the instruction is erroneous — and the State has not objected to increasing its burden of proof. See also Saunders v. State, 794 S.W.2d 91, 92 (Tex. App. — San Antonio 1990, pet. granted); Husting v. State, 790 S.W.2d 121, 125 (Tex. App. — San Antonio 1990, no pet.).

Under the evidence in the instant case the appellant made no actual “delivery” of his own at all to Jordan. Appellant argues that his conviction under either theory submitted to the jury rests upon whether Franklin made a delivery to Jordan.

Tex.Rev.Civ.Stat.Ann. art. 4476-15, § 1.02(8) contemplated three types of delivery: (1) an actual transfer; (2) a constructive transfer; and (3) an offer to sell. Daniels v. State, 754 S.W.2d 214, 217 (Tex.Crim.App.1988); Queen v. State, 662 S.W.2d 338, 340 (Tex.Crim.App.1983); Ferguson v. State, 622 S.W.2d 846, 848 (Tex.Crim.App.1980). These terms are not defined by the legislature for the purpose of the Controlled Substances Act, the Penal Code or elsewhere. Daniels, 754 S.W.2d at . When statutory words are not defined or shown to have been used in a particular sense, they are ordinarily given their plain meaning. Campos v. State, 623 S.W.2d 657, 658 (Tex.Crim.App.1981); Sanford v. State, 492 S.W.2d 581, 582 (Tex.Crim.App.1973). See also Whaley v. State, 717 S.W.2d 26, 30-31 (Tex.Crim.App.1986).

Giving the term “actual delivery” its plain meaning, the Court of Criminal Appeals has stated the term “consists in completely transferring the real possession and control of a controlled substance from one person to another person.” Conaway v. State, 738 S.W.2d 692, 695 (Tex.Crim.App.1987) (emphasis supplied); see also Coleman v. State, 794 S.W.2d 926, 928 (Tex.App. — Houston [1st Dist.] 1990, no. pet.).

In Daniels, 754 S.W.2d at 219-20 a survey of the plain meaning of “delivery” was undertaken:

In Black’s Law Dictionary, Fifth Edition (1979) at pp. 385, 386, we find “delivery” defined:

“The act by which the res or substance thereof is placed within the actual or constructive possession or control of another.

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“What constitutes delivery depends largely on the intent of the parties. It is not necessary that delivery should be manual delivery ... (Jones v. Young, 539 S.W.2d 901, 905 (Tex.Civ. App. — Texarkana 1976)—

“Actual delivery consists in giving real possession to the vendee or his servants or special agents who are identified with him in law and represent him. It is a formal immediate tradition of the property to the vendee.

“Constructive delivery is a general term, comprehending all those acts which, although not truly conferring a real possession of the thing sold on the vendee, have been held, by construction of law, equivalent to acts of real delivery.”

Ballentine’s Law Dictionary, 3rd Ed. (1969) at p. 329 defines “delivery” as “a handing over; the surrender of possession to another

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“For some purposes, a delivery is accomplished by nothing more than making a thing available to another, placing it within his reach, notwithstanding there is no actual handing of the thing from one person to another.” (Emphasis supplied.) Webster’s Third New International

Dictionary (Unabridged Ed.1961) defines “constructive delivery” as “... a delivery not accompanied by an actual transfer of possession of the property delivered yet recognized as having been intended by the parties and as sufficient in law....”

The State recognizes that there was no actual delivery or transfer of the cocaine between Franklin and Jordan, but claims “delivery” in the plain meaning of the term was made. Prior to the arrest, there was no relinquishment or transfer of possession or control of the cocaine to Jordan by Franklin. According to Jordan’s testimony Franklin never afforded him access to the substance. Jordan saw “it” but Franklin would not turn the substance over to Jordan. In fact, Franklin never relinquished control until the fight started and Jordan had yelled “Police”. A constructive transfer should include a transfer where the parties have taken all the steps necessary to place the goods at the disposal of the transferee. See Torres v. State, 667 S.W.2d 190, 194 (Tex.App. — Corpus Christi 1983) rev’d on other grounds, 698 S.W.2d 677 (Tex.Crim.App.1985). That did not occur here.

The State’s reliance upon Caraballo v. State, 706 S.W.2d 773 (Tex.App. — Houston [14th Dist.] 1986, pet. ref’d) and Endsley v. State, 702 S.W.2d 307 (Tex.App. — Houston [1st Dist.] 1985, pet. ref'd) is misplaced. In Caraballo, the bag was handed to undercover officer Guerra to inspect the cocaine for the purpose of making a sale. Guerra opened the bag and took out a plastic baggie containing a white powdery substance. When asked for money, Guerra left the apartment and gave the bust signal. The court held that the dominion and control of the cocaine had passed from the defendant to Guerra in an actuál transfer, even though Guerra did not maintain control of the contraband when he left the apartment. In Endsley, even momentary possession of LSD was sufficient to show actual delivery. The police had certain parties under surveillance in a public park. After an exchange of money, Edenfield, the purchaser, took a seat at a park table. The defendant walked to the table and laid a piece of plastic on the table. Edenfield picked it up, examined it, and laid it down on the table. When the police approached the defendant knocked the package off of the table. These cases are a far cry from the instant one.

The standard for review of the sufficiency of evidence is whether, viewing the evidence in the light most favorable to the verdict, 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, n. 12, 99 S.Ct. 2781, 2789 n. 12, 61 L.Ed.2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989); 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). The standard is applicable to both direct and circumstantial evidence cases. Chambers v. State, 711 S.W.2d 240, 244-45 (Tex.Crim.App.1986); Christian v. State, 686 S.W.2d 930, 934 (Tex.Crim.App.1985).

Testing the sufficiency of the evidence against the charge given, and applying the standard of review enunciated above, we conclude that no rational trier of fact could have found beyond a reasonable doubt all of the essential elements of the offense charged. Appellant’s initial point of error is sustained.

In view of our disposition of the first point of error, we need not reach appellant’s other contentions. Because the evidence is insufficient, the conviction must be set aside and an acquittal ordered. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). The judgment is reversed and the appellant is ordered acquitted.

REVERSED AND ACQUITTED.

1 . Appellant acknowledges he filed no motion to quash the indictment.

2 . Section 1.02(8) of the Texas Controlled Substances Act in effect at time of offense alleged and at trial provided in part:

‘Deliver’ means to transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship. The term includes offering to sell a controlled substance, counterfeit substance, or drug paraphernalia.

Tex.Rev.Civ.Stat.Ann. art. 4476-15 § 1.02(8) (Vernon 1976).

Now see Tex.Health & Safety Code Ann. § 481.-002(8) (Vernon Pamph.1991).

3 . Section 1.02(8) of the Texas Controlled Substances Act in effect at time of appellant’s trial provided in part:

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 offer-ee.

Tex.Rev.Civ.Stat.Ann. art. 4476-15 § 1.02(8) (Vernon 1976).

Now see Tex.Health & Safety Code Ann. § 481.-183(a) (Vernon Pamph.1991).