concurring.
In every case but one reviewed by Judge McCormick in his dissenting opinion the decision of the Court was unanimous on the point presently under investigation here.1 Given that sort collegiality in opinion after opinion, that the Court was wreaking “chaos” seems to have gone unnoticed by *696Judges usually extraordinarily alert to slightest miscue.2
In my judgment another review of many of the same cases will demonstrate that scriveners drawing charging instruments and courts submitting jury charges without strict attention to state of evidence probably created what Judge McCormick interprets as “chaos.”
Certainly, the indictment was the problem in Gonzalez v. State, 588 S.W.2d 574 (Tex.Cr.App.1979), then regarded as a matter of first impression in this jurisdiction. It alleged accused delivered heroin to a named peace officer. However, accused transferred heroin to one person who subsequently out of sight of accused handed it to named peace officer whose presence was utterly unknown to accused. As Judge Dally remarked in his concurring opinion, the testimony would have supported a conviction of appellant either for possession of heroin or delivery of heroin to the middleman, “but the appellant was not charged with these offenses.” Id., at 578.
In Rasmussen v. State, 608 S.W.2d 205 (Tex.Cr.App.1980), while the opinion does not set out indictment allegations, judging from charge given by the trial court it alleged simply that accused did “knowingly and intentionally deliver to [named undercover officer] marijuana in a quantity greater than one-fourth of an ounce.” Id., at 207. The proof would show, however, that in his presence the brother of accused actually transferred a sample to the officer. A Court panel found no support for a theory that accused was “the primary actor,” and reversed for failing in the court’s charge to apply law of parties to facts and refusing a requested instruction that would have. Id., at 207-208. On rehearing the State asserted that accused was “a primary actor in the commission of this offense” in that he “constructively delivered” the marihuana. Rejecting that contention for reasons outlined by Judge McCormick in his dissenting opinion at page 699, the Court unanimously denied State’s motion.
Next, as Judge McCormick points out, Garza v. State, 622 S.W.2d 85 (Tex.Cr.App.1981), is straightforward actual transfer to an undercover agent, while Sheffield v. State, 623 S.W.2d 403 (Tex.Cr.App.1981), is a probation revocation on account of two sequential constructive transfers to an undercover agent in which the probationer was clearly the transferor under the rule of Gonzalez, supra.
As pointed out ante in n. 1, the indictment in Queen v. State, supra, awkwardly attempted to set out factually both actual and constructive transfer, the content of which is quoted by Judge McCormick in his dissenting opinion at page 700. Delivery of marihuana to a named undercover agent was alleged, but then the pleader tried to state the manner and means: one, “by transferring the marihuana into a motor vehicle within the care and control and custody of said [agent];” the other, “by transferring the said marihuana to the actual custody of the said [agent].” 662 S.W.2d at 340. The issue over which the Court split was whether those allegations gave sufficient notice of the type of delivery upon which the State would rely. For our purposes here, however, competing interpretations of such peculiar allegations become academic in light of evidence which clearly shows that accused personally dealt directly with the agent in making two deliveries of marihuana. First, in a motel room he handed the agent a leather bag containing four pounds of marihuana as part of a one hundred pound transaction; after the agent inspected and approved its quality, he gave accused the keys to his van, and accused drove it to another place, loaded the balance of the total amount, returned to the motel parking lot and handed over keys to the agent. Thus, while the indictment allegations may have been somewhat garbled as a matter of notice, the evidence *697plainly shows conduct of accused constitutes an actual transfer followed by a constructive transfer.
In Davila v. State, 664 S.W.2d 722 (Tex.Cr.App.1984), the Court followed the earlier interpretation of one aspect of constructive transfer in Rasmussen, supra, and found accused did not constructively transfer four balloons containing heroin to an undercover officer because she was not shown to have had control of it before another person manually transferred the balloons to the officer or that the latter made the transfer at her instance or direction. Id., at 724. This is just another example of faulty pleading in the face of available evidence showing who actually delivered the controlled substance.
Thus, the “difficulty” perceived by Judge McCormick does not arise from our prior decisions but from a lack of comprehension of meaning of the terms “actual transfer” and “constructive transfer” on the part of some who draft charging instruments and prepare charges. In the instant cause the pleader chose to allege delivery “by actual transfer,” and after the evidence was in neither the prosecutor nor the trial judge saw to it that the charge to the jury included instructions on the law of parties. If it equates with reversal, that is what caused “difficulty” here. Compare Pulgarin v. State, 635 S.W.2d 195 (Tex.App.—Houston [1st] 1982), no PDR.
Judge McCormick criticizes the majority opinion and prior decisions identifying “actual transfer,” claiming such construction “unduly restricts the clear intent of the statute and totally disregards [the phrase] ‘whether or not there is an agency relationship.’ ” Dissenting opinion, at p. 701.
Taking the latter criticism first, in terms the phrase is in the nature of a proviso. It is used in context of a “transfer from one person to another_” Thus it is a declaration that as between those two persons an agency relationship is of no moment in determining whether an alleged transfer from one to the other occurred. Stated another way, that there is an agency relation between them will not bar a finding that a transfer took place. One sure effect of tacking that phrase on the definition is to defeat a former defense of accommodation agent. See Posey v. State, 515 S.W.2d 286 (Tex.Cr.App.1974) (Morrison, J., concurring in part and dissenting in part, at 288).
As to legislative intent, the genesis of this definition is the Uniform Controlled Substances Act of 1970. See 9 U.L.A. 195 (Master Ed. 1979). Given that source, one may comfortably believe that to have a definition as uniform as reasonably possible the commissioners drew on commonly understood meanings of delivery of goods by actual and constructive transfer, as terms of art. Accordingly, we may resort to the great body of precedent in law merchant or mercantile law as a fair analogue to controlled substance transactions (with or without consideration).
When used in the law of sales of goods, an actual transfer means a manual transfer; that is, a passing or handing over an article from one person to another. Black’s Law Dictionary (Revised Fourth Edition) 1669.3
“Actual delivery consists of the giving real possession to the vendee or his servants or special agents who are identified with him in law and represent him. [citations omitted throughout]. It is a formal immediate tradition of the property to the vendee. It contemplates a manual transfer of the property.”
Id., at 515. See Davis v. State, 631 S.W.2d 587, 589 (Tex.App.—El Paso 1982) no writ history; Walker-Smith Co. v. Jackson, 123 S.W.2d 993, 996 (Tex.Civ.App.—Amarillo 1938), writ dism’d judgment cor.
Constructive delivery, on the other hand, is essentially a general legal 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.” Black’s Law Dictionary, supra, at 515. Accord: Fox v. Young, 91 *698S.W.2d 857, 859 (Tex.Civ.App.—El Paso 1936) no writ history, citing 12 C.J. 1303.4
Those meanings, understandings and usages of actual and constructive transfers constituting a delivery, while originating in law merchant, are equally applicable to transfers amounting to a delivery within the meaning of § 1.02(8). Justice Earl W. Smith has delineated them and appropriately applied the concept of constructive transfers for the Austin Court of Appeals in Daniels v. State, 674 S.W.2d 388 (Tex.App.—Austin 1984) no PDR. The Houston courts of appeals, following Rasmussen, do not indicate any “difficulty” in distinguishing “actual” and “constructive” transfers. See, e.g., Henderson v. State, 681 S.W.2d 173 (Tex.App.—Houston [14th] 1985), and Pulgarin v. State, supra.
The dissenting opinion suggests at page 8 that the proper approach is “to look only to the type of possession resulting in the transferee and determine whether it is an actual or constructive transfer.” However, that viewing is especially myopic. As pointed out in Ferguson v. State, supra, “The ‘delivery’ is the act by the appellant which constitutes the criminal conduct.” 622 S.W.2d, at 850. The suggested test is so foreign to existing precedent that it can only serve to unsettle our prior decisions. Indeed, the dissent does not even attempt to take the very analytical approach to the facts of this cause it insists the Court should make.
Again, because of the way in which the indictment alleged appellant committed the offense, the case was tried and the jury was charged on the theory that by an actual transfer appellant delivered marihuana to undercover officer Danny Green, but the proof showed appellant manually transferred the bag of marihuana to Randy Win-gard. Then and there appellant committed the offense of delivery of marihuana by actual transfer to Wingard. The “difficulty” is, as Judge Dally demonstrated in Gonzalez, supra, appellant was not charged with that offense.5
The State Prosecuting Attorney argues that the “popcorn vendor” analogy urged upon the jury in Gonzalez v. State, 588 5.W.2d 574 (Tex.Cr.App.1979) is apt here.6 But heroin or any controlled substance is not popcorn, and an unlawful transfer of marihuana requires only a transferor and a transferee, who need not be a “buyer” to be a felony of the third degree. And in this cause Wingard was not an innocent football fan. He knew the bag contained marihuana and intentionally handed it to Green, asking him to “look at them.” Win-gard made an actual manual transfer. The “popcorn vendor” analogy is false.
With those observations I join the judgment of the Court.
DUNCAN, J. joins in this opinion.. The Court sharply divided in Queen v. State, 662 S.W.2d 338 (Tex.Cr.App.1983), over intendment and sufficiency of notice from unusual factual allegations that the majority construed to aver both actual and constructive transfer, id., at 341; whereas dissenters charged the majority with confusing "actual versus constructive transfer with transfer to actual or constructive custody of the recipient,” id., at 342. Judge McCormick seems to be reopening that dispute. Dissenting opinion, at pp. 701-702.
. Common usage of the term conveys a like meaning. Webster’s New International Dictionary (Second Edition), G. & C. Merriam Company (Springfield 1944) 2689. 7. Law; Webster’s New Collegiate Dictionary, G. & C. Merriam Company (Springfield 1979) 1231.
. In Fox v. Young, supra, one Handy had purchased a doughnut machine with cash payment and a promissory note secured by chattel mortgage; he placed it in a certain cafe. Later with note in default and demand made on him by noteholder for the machine, Handy wrote the latter to “herewith tender and do deliver to you possession [of the machine.]" Though the machine remained in cafe, the El Paso Court held it had been constructively delivered to noteholder, so that a seizure of it by sheriff under writ of sequestration at instance of another creditor constituted conversion. Handy had done everything necessary to be done "in order to put the [machine] completely and unconditionally at the disposal of the [mortgagee].” Id., at 859.
. Wingard committed an offense also when he manually transferred the bag of marihuana to Green. We do not know from this record whether Wingard was ever charged, but certainly he was vulnerable to one. As a matter of fact, under properly pleaded indictments the evidence would be sufficient for the State to secure two convictions instead of botching this one.
. “At a football game when a vendor comes up the stairs with popcorn and the man on the end wants to buy a bag of popcorn, the vendor down on this end gives it to this person and she gives it to the next and on and on in turn until it get down to the end. The popcorn is passed from here to here to here until it eventually gets down to the buyer. It may go through some other hands, but this is the buyer and this is the seller.Now, the buyer now has his popcorn and the seller now has his money. That is what we mean by constructive delivery."