Opinion issued on June 28, 2002
In The
Court of Appeals
For The
First District of Texas
NO. 01-00-00611-CR
RICHARD LANE KNIGHT, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 822100
O P I N I O N
A jury found appellant, Richard Lane Knight, guilty of delivery of a controlled substance, namely, cocaine. After finding the enhancements true, the trial court assessed punishment at 30 years confinement. In three points of error, appellant complains: (1) the evidence is legally insufficient; (2) the trial court erroneously charged the jury; and (3) trial counsel was ineffective. We affirm.
BACKGROUND
In 1999, Christopher Erwin was charged with possession of a controlled substance, namely, cocaine. In exchange for deferred adjudication, Erwin agreed to cooperate with the Harris County District Attorney's Office and Houston Police Officer R. Bradley "in the investigation of narcotics trafficking . . . of which he has knowledge." Erwin thereafter contacted appellant and set up a narcotics transaction. Erwin told appellant that his cousin (1) wanted cocaine, marijuana, or LSD. Police videotaped the transaction, which took place at Erwin's house. After delivering approximately a kilogram of cocaine and a pound of marijuana, appellant was arrested.
SUFFICIENCY OF THE EVIDENCE
In point of error one, appellant complains the evidence is legally insufficient to prove delivery of a controlled substance by actual delivery. We apply the usual standard of review. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).
The evidence shows that, after arriving at Erwin's house, appellant showed Erwin his money. He then asked to see Erwin's money. Erwin explained that "his cousin . . . was not going to let his money go," and appellant agreed to use his own money to buy the narcotics, provided he was later reimbursed. Appellant then left Erwin's house. Several hours later, appellant returned to Erwin's house. He removed cocaine, marihuana, and a scale from his bag. Appellant placed the items on a table for Officer Bradley and Erwin to see. As Officer Bradley handled and inspected the narcotics, appellant explained to him that the narcotics had just come off the "banana boat." Appellant then waited for his money. After appellant heard the sound of someone approaching, he put the narcotics back in his bag.
A person commits the offense of delivery of a controlled substance if he knowingly or intentionally delivers a controlled substance. (2) Tex. Health & Safety Code Ann. § 481.112(a) (Vernon Supp. 2002); Cornejo v. State, 871 S.W.2d 752, 755 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd). Deliver means (1) actually transferring, (2) constructively transferring, or (3) offering to sell a controlled substance. Tex. Health & Safety Code Ann. § 481.002(8) (Vernon Supp. 2002); Cornejo, 871 S.W.2d at 755.
The State charged appellant with all three methods of delivery: (1) actual transfer to Officer Bradley; (2) constructive transfer to Officer Bradley; and (3) an offer to sell to Officer Bradley. Prior to trial, the State abandoned the constructive transfer and offer to sell paragraphs of the indictment and relied on the actual transfer paragraph. The jury was charged on actual transfer.
An actual transfer occurs when, as in this case, a person transfers real possession and control of a controlled substance to another person. Conaway v. State, 738 S.W.2d 692, 695 (Tex. Crim. App. 1987); Wartel v. State, 830 S.W.2d 757, 760 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd); Caraballo v. State, 706 S.W.2d 773, 774 (Tex. App.--Houston [14th Dist.] 1986, pet. ref'd). The evidence shows appellant brought the narcotics to Erwin's house to give to Bradley in exchange for money. Appellant placed the narcotics on a table, and Bradley handled and inspected the narcotics. The narcotics passed from appellant's possession and control to Officer Bradley's. See Caraballo, 706 S.W.2d. at 774.
Appellant complains no actual transfer occurred because he "never received any money for the cocaine." We are not persuaded by appellant's complaint because the statute merely refers to a transfer of a controlled substance, not to the consummation of the deal. Id. at 774.
Appellant also complains he "never parted with possession of the cocaine." He contends that, had he transferred possession of the cocaine to Officer Bradley, "he would not have been in a position to put it into his bag." Appellant's complaint is similar to the defendant's argument in Endsley v. State, 702 S.W.2d 307, 308 (Tex. App.--Houston [1st Dist.] 1985, pet. ref'd). In Endsley, the defendant claimed the evidence that he placed LSD on the table, that the buyer picked it up momentarily and put it back on the table, and that the defendant knocked the LSD off the table was insufficient to show a completed transfer and showed only possession by the defendant. Id. The defendant reasoned that, even though the buyer picked up the LSD, he immediately laid it back on the table, under the defendant's control. Id. at 308-09. The defendant then exercised his control over the LSD by knocking it to the ground. Id. This court took the defendant's argument to mean that "the momentary possession of the LSD by [the buyer] was insufficient possession to constitute a transfer or a delivery." Id. Noting the definition of actual transfer did not require a "minimal length of time or mode of possession by the transferee," this court held the transfer was completed as soon as the buyer accepted the package from defendant. Id. Like Endsley, the evidence that appellant in this case put the narcotics in his bag is immaterial.
Further, an actual transfer does not require that a seller manually place cocaine in the hands of the buyer. See Nevarez v. State, 767 S.W.2d 766, 768 (Tex. Crim. App. 1989) (holding delivery is accomplished by nothing more than making a thing available to another and placing it within his reach, even though there is no actual handling of the thing from one person to another); Rodriguez v. State, 970 S.W.2d 66, 69-70 (Tex. App.--Houston [1st Dist.] 1998, pet. ref'd) (holding evidence was sufficient to show actual delivery where defendant made cocaine available to officer); Wartel, 830 S.W.2d at 760-61 (holding defendant effected actual transfer because he controlled transaction).
Viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction.
We overrule point of error one.
JURY CHARGE
In point of error two, appellant asserts the trial court erroneously charged the jury regarding entrapment.
The trial court charged the jury on entrapment as follows:
It is a defense to prosecution that the defendant engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
The term 'Law Enforcement Agent' includes personnel of the State and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents.
Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant committed the offense as alleged, but you further believe, or you have a reasonable doubt thereof, that he was induced to do so by Christopher Erwin who was a law enforcement agent, to-wit: an informant acting under specific instructions from police agents to entrap the defendant by persuasion or other means likely to cause persons to commit the offense, and that such conduct of said Christopher Erwin did not merely afford the defendant an opportunity to commit the offense, if any, you will find the defendant not guilty.
(Emphasis added.) Appellant objected, orally and in writing, that the charge improperly limited his entrapment defense and appellant requested that the italicized portion of the jury instruction be changed as follows: "an informant acting under specific [in accordance with] instructions from police agents to entrap [induce] the defendant by persuasion or other means likely to cause persons to commit the offense." The trial court denied appellant's proposed change to the charge. A comparison shows that appellant's requested change, and the charge actually given, are substantially and materially the same. The trial court did not err.
We overrule point of error two.
INEFFECTIVE ASSISTANCE
In point of error three, appellant complains trial counsel was ineffective because he did not request an instruction on the defense of mistake of fact.
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). See Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.). Appellant must show (1) counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment, and (2) but for counsel's error, the result of the proceedings would have been different. Gamble, 916 S.W.2d at 93. It is the defendant's burden to prove ineffective assistance of counsel. Id. The defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id. A claim of ineffective assistance of counsel must be firmly supported by the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). We will not make a finding of ineffectiveness based on speculation. Gamble, 916 S.W.2d at 93.
Section 8.02(a) of the Texas Penal Code provides that "[i]t is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for the commission of the offense. Tex. Pen. Code Ann. § 8.02(a) (Vernon 1994); White v. State, 844 S.W.2d 929, 933 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd). The defense applies only when the actor's mistake affects the culpable mental state of the offense. Thomas v. State, 855 S.W.2d 212, 214 (Tex. App.--Corpus Christi 1993, no pet.).
A person commits the offense of delivery of a controlled substance if he knowingly or intentionally delivers a controlled substance. Tex. Health & Safety Code Ann. § 481.112(a); Cornejo, 871 S.W.2d at 755. To be entitled to an instruction on mistake of fact, appellant must show he unknowingly or unintentionally delivered a controlled substance.
Appellant contends he raised the defense by his testimony that "he participated in a cocaine transaction, with the knowledge of someone whom he believed to be a police officer, to help a friend 'work off a case' to fulfill the terms of a contract." This testimony, however, is not evidence that appellant unknowingly or unintentionally delivered a controlled substance. See White, 844 S.W.2d at 933 (holding that, in prosecution for unauthorized use of motor vehicle, mistake of fact defense was not raised by evidence; evidence defendant did not resist arrest and car did not appear to be stolen was insufficient to show defendant did not know he was operating car without owner's consent). It is undisputed that appellant knowing and intentionally delivered the narcotics to Officer Bradley and Erwin.
At the motion for new trial hearing, trial counsel testified he did not request an instruction on mistake of fact because appellant's belief was not erroneous. Appellant had testified that he knew he was dealing with a police officer.
Appellant has not overcome the presumption that, under the circumstances, his counsel engaged in sound trial strategy.
Accordingly, we overrule point of error three.
CONCLUSION
We affirm the judgment.
Margaret Garner Mirabal
Justice
Panel consists of Justices Mirabal, Jennings, and Duggan. (3)
Do not publish. Tex. R. App. P. 47.
1. Officer Bradley went undercover as Erwin's cousin.
2. The jury was so charged.
3. The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District
of Texas at Houston, participating by assignment.