Wallis v. State

830 S.W.2d 674, 1992 Tex. App. LEXIS 1279, 1992 WL 108421
CourtCourt of Appeals of Texas
DecidedApril 22, 1992
DocketNo. 09-90-233 CR
StatusPublished
Cited by1 cases

This text of 830 S.W.2d 674 (Wallis 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
Wallis v. State, 830 S.W.2d 674, 1992 Tex. App. LEXIS 1279, 1992 WL 108421 (Tex. Ct. App. 1992).

Opinion

OPINION

WALKER, Chief Justice.

This is an appeal from a conviction for the first degree felony offense of Delivery of a Controlled Substance (cocaine). Appellant’s indictment contained three enhancement allegations raising appellant’s punishment status to that of an habitual offender. Following the verdict of “guilty,” the jury [675]*675assessed appellant’s punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of sixty-five (65) years. Appellant raises two points of error for consideration on appeal, viz:

Point of Error One: The appellant was not in direct or indirect control of a controlled substance before its delivery to an undercover police officer.
Point of Error Two: The trial court erred in allowing the State to admit, over the defendant’s objection, evidence of an extraneous uncharged threat allegation.

Despite the ambiguous nature of the wording of appellant’s first point of error in the context of criminal appellate law, appellant’s brief centers on a single argument. Appellant complains that the evidence is insufficient to prove beyond a reasonable doubt that appellant “delivered” contraband as alleged in the indictment and the jury instructions. Relying heavily on language taken from Rasmussen v. State, 608 S.W.2d 205 (Tex.Crim.App.1980), appellant argues that, under Rasmussen’s definition of “constructive transfer,” the evidence in the instant case failed to show that appellant had “direct or indirect control over the conduct of Charles Gingo (sic), who made the ultimate transfer.” Appellant further argues that there is no evidence to show an agency relationship or any control by appellant over Charles Gen-go’s conduct of disposing of the contraband in appellant’s absence or by appellant’s direction.

At this point, a brief rendition of the facts presented to the jury in the light most favorable to the verdict is in order. Appellant was indicted under the instant facts along with two brothers, Chad Gengo and Charles Gengo, for delivery of cocaine to an undercover police officer, David Wom-ack. Among the witnesses called by the State in its case-in-chief were both Chad and Charles, as well as David Womack. The jury was made fully aware of the fact that both Chad and Charles were giving testimony under a cloud of further prosecution if their testimony was anything but truthful and consistent with previous statements.

Combining the testimony of Chad, Charles, and Officer Womack, it appears that on the night of February 23, 1990, in the parking lot of a local nightclub in Montgomery County, Chad sold some marihuana to Officer Womack, who was working in an undercover capacity. Womack asked Chad if Chad could sell Womack some cocaine. Chad did not answer immediately, but walked over to where appellant was standing. Womack positively identified appellant as the person Chad conversed with. Chad then returned to Womack and instructed Womack to go to appellant’s apartment later and that appellant would sell Womack the cocaine.

At some later point in time, appellant personally delivered approximately one-half gram of cocaine to the apartment of Charles Gengo. Chad Gengo also lived at the apartment with his brother and Charles’ girlfriend. Appellant personally handed the cocaine to Chad instructing Chad that “this is for them dudes that come over to his (appellant’s) house and this is what they wanted.”

Womack testified that he (Womack) showed up at appellant’s apartment and specifically asked appellant if he (appellant) had Womack’s one-half gram of cocaine. Appellant replied that he (appellant) had dropped the cocaine off at Chad’s apartment. Womack immediately went to Chad’s apartment. Chad Gengo was not at the apartment, but Charles Gengo was. Womack explained that he (Womack) was there to pick up something that “David” (appellant) had left at the apartment. Charles telephoned Chad who spoke directly to Womack. Chad instructed Womack that the cocaine was located in Chad’s bedroom on a nightstand underneath an ashtray. Charles Gengo led Womack to Chad’s bedroom. When Charles lifted the ashtray on the nightstand, the baggie of cocaine was underneath and Womack took possession of it. During the telephone conversation with Chad, the price of the cocaine was determined to be $50. The mon[676]*676ey was left at the apartment, and Womack left the apartment.

As has been often stated, the standard for reviewing sufficiency of evidence to support a conviction is, when viewing said evidence in the light most favorable to the verdict, any rational trier of fact could have found proof of each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Furthermore, any review of the sufficiency of the evidence must be measured against the jury instructions, specifically the application paragraphs. See, Walker v. State, 823 S.W.2d 247 (Tex.Crim.App.1991), cert. denied, — U.S. -, 112 S.Ct. 1481, 117 L.Ed.2d 624 (1992); Jones v. State, 815 S.W.2d 667 (Tex.Crim.App.1991).

In the instant case, the jury was specifically instructed that conviction of appellant could take place under one of three delivery scenarios: 1) that appellant constructively transferred the contraband to Wom-ack, 2) that Chad Gengo constructively transferred the contraband to Womack with appellant culpable as a party “acting with intent to promote or assist the commission of the offense, if any, by soliciting, encouraging, directing, aiding or attempting to aid” Chad Gengo in the constructive transfer to Womack, or 3) that Charles Gengo actually transferred the contraband to Womack with appellant culpable as a party “acting with intent to promote, or assist the commission of the offense, if any, by soliciting, encouraging, directing, aiding or attempting to aid” Charles Gengo in the actual transfer to Womack. See, Tex.Penal Code Ann. §§ 7.01 and 7.02 (Vernon 1974).

In Daniels v. State, 754 S.W.2d 214, 220-221 (Tex.Crim.App.1988), the Court of Criminal Appeals narrowed the applicability of the Rasmussen case by stating the following:

The Rasmussen Court then simply stated:
“The common element of these cases is that prior to delivery the substance involved was directly or indirectly under the defendant’s control.”
It applied that “common element” to Rasmussen and found that his actions did not constitute constructive delivery so as to make him a primary party to the offense.
The Rasmussen Court did not, repeat, did not adopt the definition of “constructive transfer” as set out in Ellis,1 although later cases seem to be confused on this point, (footnote omitted) All it did was to glean a common element from the out-of-state cases mentioned in the opinion.

The Court of Criminal Appeals has basically set out a two pronged analysis of constructive transfer cases. In Davila v. State,

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Related

Johnson v. State
900 S.W.2d 475 (Court of Appeals of Texas, 1995)

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Bluebook (online)
830 S.W.2d 674, 1992 Tex. App. LEXIS 1279, 1992 WL 108421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wallis-v-state-texapp-1992.