Conaway v. State

McCORMICK, Judge,

dissenting.

Because the majority erroneously restricts the definition of the term “actual *699delivery” as contained in the Controlled Substances Act (Article 4476-15, Section 1.02(8), V.A.C.S.),1 I must register my dissent. Under the facts presented in this case, and as set forth in the majority opinion, the State correctly indicted appellant for actual delivery, and the appellant was correctly convicted since the evidence was clearly sufficient to support the conviction.

Today’s opinion restricts the term “actual delivery” to but one simple transaction, and thus, by implication, makes all other “deliveries” “constructive deliveries.” Hereafter, for a defendant to be convicted of “actual delivery” the evidence must show that the defendant personally and manually possessed the contraband and that he physically handed the contraband directly to the transferee and that the transferee personally, manually and physically received the contraband. Such is a distortion of the terms actual delivery and constructive delivery and ignores the plain terms of the statute.

Article 4476-15, supra, defines “deliver” or “delivery” as “the actual or constructive transfer from one person to another of a controlled substance ... whether or not there is an agency relationship.” Since the Legislature did not define “actual” or “constructive” transfer, this Court has continued to wrestle with the interpretation of those terms. Such an affray is, in my opinion, an unnecessary exercise which has. brought us to the absurd result demonstrated by today’s majority opinion.

The history of this Court’s interpretation of the applicable section shows that we have gotten on the wrong road, and followed it further and further away from our proper destination. A complete review of decisions of this Court on the subject is informative.

In Gonzalez v. State, 588 S.W.2d 574 (Tex.Cr.App.1979), the defendant was convicted of knowingly and intentionally delivering heroin. A panel of this Court reversed the conviction and, on the basis of unassigned error, held that the evidence was insufficient to show the defendant’s guilt. The facts showed that the defendant delivered the contraband to one Montoya who, after obtaining possession of the heroin, returned to the parked car from defendant’s house and handed the heroin to Galvan, the person alleged in the indictment as the transferee. There was no evidence that the defendant even knew of the existence of Galvan, nor was there any evidence showing defendant intended any type of transfer to Galvan. It was held that a “transfer” as an essential element of “deliver” contemplates that the transferor (Gonzalez) is at least aware of the existence of an ultimate transferee (Galvan) before he may be said to have delivered or made a delivery of a controlled substance to another through a third person (Montoya). Gonzalez v. State, supra, at 577.

Later, in Rasmussen v. State, 608 S.W.2d 205 (Tex.Cr.App.1980), this Court examined the term “constructive transfer.” Rasmussen was charged and convicted of the offense of delivery of marihuana. The evidence revealed that undercover officer Fife arranged a meeting with the defendant's brother, and that the defendant arrived at the scene driving the automobile in which his brother was a back seat passenger. Defendant’s brother gave Fife a baggie of marihuana, which Fife offered to pay for, but the brother refused payment. When a police car was observed near the meeting place, the defendant said, “Let’s get out of here,” and “We’ll get back with you,” referring to a discussion of future purchases by Fife.

On appeal, the State argued that Rasmussen had been guilty of a constructive transfer. Noting that the term “deliver” was apparently derived from the Uniform Controlled Substances Act, the Court went on to examine cases from other jurisdictions which had dealt with the meaning of the term constructive transfer. Citing State v. Ellis, 161 W.Va. 40, 239 S.E.2d 670 (1977), the Court quoted:

“We interpret a ‘constructive transfer’ to be the transfer of a controlled substance either belonging to an individual or under his control by some *700other person or agency at the instance or direction of the individual accused of such constructive transfer.” (Emphasis added).

After examining both a Nebraska and a New Mexico case, the Court concluded:

“The common element of these cases is that prior to delivery the substance involved was directly or indirectly under the defendant’s control. In the instant case appellant exercised no direct control over the marihuana such as would indicate that it belonged to him, nor does the evidence reflect that (defendant’s brother) was acting as appellant’s agent or under his direction.” Rasmussen, supra, at 210.

The facts of Garza v. State, 622 S.W.2d 85 (Tex.Cr.App.1981), demonstrate a simple actual transfer. An undercover narcotics agent, posing as a heroin buyer, met with the defendant Garza on a motel parking lot. Following a discussion, the defendant left the officer and entered the motel, returning a short time later with a small package of heroin which he gave to the officer. Such evidence was sufficient to support conviction for the “actual transfer” of heroin as proscribed by the statutes. Garza, supra, at 90.

Again in 1981, this Court had an opportunity to discuss the theory of constructive transfer. In Sheffield v. State, 623 S.W.2d 403 (Tex.Cr.App.1981), the Court applied the holding of Gonzalez, supra, to sustain the revocation of Sheffield’s probation. The facts in the revocation hearing showed that undercover officer Delgado accompanied Martha Coleman to the defendant’s place of business for the purpose of purchasing drugs. Sheffield met them at their car where Coleman asked the defendant for four preludin pills. At the same time Delgado handed Coleman $30.00 which she owed the defendant from a previous transaction, and Coleman gave this money to Sheffield. Coleman then accompanied the defendant into his place of business where he got a bottle of pills from behind the counter, handed Coleman four of them, and told Coleman he did not want to deal with Delgado. He then instructed Coleman that when she got the money for the pills to give it to “Mary Jo.” Coleman returned to the car, gave the pills to Delgado, received $60.00 from him, and attempted to hand the money to the defendant. The defendant instructed “Mary Jo” to take the money, which she did. She in turn handed the money to the defendant, who put it in his pocket.

Later that same day a similar transaction took place. Delgado and Coleman returned to the defendant’s business, and when he walked out to the car Coleman told him she wanted some more pills. She then turned to Delgado and asked him how many pills he wanted and Delgado told her he wanted four, which message was relayed to the defendant. The defendant then entered his place of business, turned and handed something to “Mary Jo” who then handed Coleman four pills. Coleman handed the pills to Delgado, received $60.00 from him and handed the money to “Mary Jo” at defendant’s direction. “Mary Jo” then handed the money to the defendant who placed it in his pocket.

Contrary to Sheffield’s contentions, this Court held that the evidence was sufficient to show the defendant’s control of the pills prior to the delivery and, relying on Gonzalez held that the evidence showed that the defendant was not only aware of Delgado’s existence and identity, but also acted upon Delgado’s instructions concerning the number of pills desired during the second delivery. This, the Court held, showed a “constructive transfer” from the defendant to Delgado. Sheffield, supra, at 405.

Queen v. State, 662 S.W.2d 338 (Tex.Cr.App.1983), dealt with a motion to quash an indictment which alleged that the defendant

“... did then and there unlawfully, knowingly and intentionally deliver a usable quantity of marihuana to Ben Neel in an amount more than one-fourth ounce and for remuneration by transferring the said marihuana into a motor vehicle within the care and control and custody of the said Ben Neel and by transferring the said marihuana to the actual custody of the said Ben Neel.”

*701As against the defendant’s argument that the indictment failed to give proper notice as to the type of delivery upon which the State was relying, this Court held:

“The indictment alleges an actual transfer (by transferring the said marihuana to the actual custody of the said Ben Neel) and a constructive transfer (by transferring the said marihuana into a motor vehicle within the care and control and custody of Neel.)” Queen, supra, at 341.

In concluding that the indictment alleged both actual and constructive transfer, the Court implies that the type of delivery may well be gauged by the type of “possession” which results in the transferee.

In Davila v. State, 664 S.W.2d 722 (Tex.Cr.App.1984), this Court affirmed the Amarillo Court of Appeals’ reversal of the defendant’s conviction for constructive transfer of heroin. The evidence there showed that Agent Chism and an informant arrived at a residence belonging to the defendant’s common law husband’s brother. When they arrived, one Cosme (the defendant’s common law husband) was standing in the front yard conversing with someone in a parked truck. Chism and the informant entered the residence where appellant was seated on a couch next to Cosme’s sister-in-law. The defendant asked Chism what he wanted and he responded, “Four.” The defendant then went out to the yard and talked with Cosme who went around the house and a few minutes later entered the house. Cosme asked Chism what he wanted and he again responded, “Four,” at which time Cosme handed Chism four balloons of heroin in exchange for $120. Chism and the informant then departed.

Davila was charged with delivery by constructive transfer of the heroin to Chism. This Court, following the rationale of Rasmussen held that since the evidence presented failed to show that the defendant had direct or indirect control of the contraband prior to its delivery, and failed to show that Cosme was acting at the instance or direction of the defendant, the evidence was insufficient to show a constructive transfer. Davila, supra, at 724-725.

To date, the above cases appear to be the entire body of law from this Court on the subject. Very little can be gleaned from them by which bright line rules can be extracted. Keeping in mind that we are discussing delivery by either actual or constructive transfer, we can express the following rules:

1. The transferor must know of the existence of the transferee. Gonzalez v. State, supra.
2. Prior to an alleged delivery, the transferor must have either direct or indirect control of the substance transferred. Rasmussen v. State, supra.

Where the difficulty comes is in attempting to interpret whether the terms “constructive” and “actual” are meant to describe

1. The type of possession the transferor had prior to the transfer; or
2. The type of possession the transferee has following the transfer; or
3. A transfer involving the presence or observance of an intermediary.

Under the holding of the majority in the instant cause, when combined with other previous opinions of this Court, an “actual” transfer could be accomplished only where the transferor had personal possession of the goods and physically gave them to the transferee such that the transferee personally possessed the goods. Sheffield v. State, supra; Garza v. State, supra; and Rasmussen v. State, supra. Such a construction unduly restricts the clear intent of the statute and totally disregards that portion of the definition of delivery which says “whether or not there is an agency relationship.”

The time has now come to attempt to bring some order out of the chaos we have wrought upon ourselves, and the instant case is the proper vehicle. In looking at the definition of “deliver,” supra, it is clear that the statute contemplates a completed “transfer.” It would therefore follow that the type of transfer, whether actual or constructive, is gauged by the type of “pos*702session” which results in the transferee following the delivery. This becomes even more apparent when we consider that the term “whether or not there is an agency relationship.” This term must be given meaning, and what it tells us is that a delivery may be completed by the use of an agent either for the transferor or the transferee without affecting the criminal responsibility of the transferor.

Therefore, I would hold that in determining whether a delivery was an actual or constructive transfer, we look only to the type of possession resulting in the transferee and determine whether it is an actual or constructive transfer. The type of possession had by the transferor prior to the delivery should be of no moment in determining whether the offense has been completed since transfer as used in the statute contemplates a completed transaction, which is complete when either actual or constructive possession of the contraband is in the transferee.

Since the majority fails to give such a construction to the statute, I must vigorously dissent.

. See now Article 4476-15, Section 1.02(6), V.A. C.S.