Conaway v. State

• Decision Date: 21 October 1987
• Docket Number: No. 1166-84,1166-84
• Parties: David Floyd CONAWAY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 692

738 S.W.2d 692

David Floyd CONAWAY, Appellant, v. The STATE of Texas, Appellee.

No. 1166-84.

Court of Criminal Appeals of Texas, En Banc.

Oct. 21, 1987.

Bill Frizzell, Tyler, for appellant.

Jack Skeen, Jr., Dist. Atty. and Jim E. Crouch, Asst. Dist. Atty., Tyler, Robert Huttash, State's Atty. and Julie B. Pollock, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

TEAGUE, Judge.

David Floyd Conaway, hereinafter appellant, was charged by indictment with delivering a controlled substance, to-wit: marihuana, to Danny Green, a Department of Public Safety undercover narcotics officer. It was alleged in pertinent part that the appellant "did then and there knowingly and intentionally deliver to DANNY GREEN, by actual transfer, more than one-fourth ounce of Marihuana." (Our emphasis.) The jury found appellant guilty and also assessed his punishment at seven years' confinement in the Department of Corrections. The Tyler Court of Appeals, in an unpublished per curiam opinion, affirmed, see Conaway v. State, (Tyler Court of Appeals number 12-83-0072-CR, September 27, 1984), rejecting the appellant's contention that the evidence was insufficient to support the indictment's allegation that he actually transferred the marihuana to Green.

We granted the appellant's petition for discretionary review in order to make the determination whether the holding by the court of appeals correctly decided the issue. We find the holding erroneous and reverse.

The trial judge, in his charge to the jury on guilt, to which no objections were made by the appellant, nor were any special requested instructions submitted by either side, defined the word "deliver" in the abstract as follows: "The term 'deliver', as used herein, means the actual transfer from one person to another of a controlled substance, whether or not there is an agency relationship." Notwithstanding that the indictment charged the appellant with making an actual delivery, the trial court's application paragraph in the charge did not expressly include that term: "Now if you find from the evidence beyond a reasonable doubt that on or about the 11th day of August, 1980, in Smith County, Texas, the Defendant, DAVID FLOYD CONAWAY, did intentionally or knowingly deliver a controlled substance, to-wit: Marihuana of more than one-fourth ( 1/4) ounce, to DANNY GREEN, as alleged in the indictment, then you will find the Defendant guilty as charged." The jury was not instructed on the law of parties. The jury found appellant guilty "as charged in the Indictment."

The prosecuting attorney in his opening statement to the jury advised the jury, inter alia, that the State would prove that on the date in question Green purchased marihuana from the appellant. The prosecuting attorney did not at that time allude or refer to any third persons that might have been involved in the delivery of the marihuana.

The facts are rather simple. Green testified that while working as an undercover officer in Smith County, "making himself available to the drug element in an attempt to locate and find people that are involved in the illicit sale of narcotics, and make purchases from them," he came into contact with the appellant. On the date in question, he was working the South Lyons Street area of Tyler. Green testified that while situated in the residence of Randy Wingard, located at 304 South Lyons Street, he came into contact for the first time ever with appellant. Kenneth Williams, who appears to have put the meeting together, was also present. Appellant drove alone to the Wingard residence in his vehicle. AFter entering the residence, appellant handed a paper sack to Wingard, who handed it to Green, who saw that the sack contained four plastic sandwich bags containing what to him appeared to be marihuana. Expert testimony later revealed it was in fact marihuana. Green agreed to purchase two bags at $35 for each bag, and gave the appellant $70 for the two bags. The appellant set the price of $35 for each bag. The appellant then received the sack from either Green, Williams, or Wingard, or he just picked up the sack, which contained the remaining two bags, off a table. He then left the residence. The date of the offense was August 2, 1980. The appellant, however, was not arrested until October 28, 1982. Neither Williams nor Wingard testified at the appellant's trial.

The appellant testified and denied that he was present in the Wingard residence at the time in question. "I don't know anybody that lives on Lyons Street. I don't even know where Lyons Street is at."

In rejecting appellant's contention that there was a variance between the allegation of "actual delivery", as alleged in the indictment, and the evidence adduced to support that allegation, after setting out a summary of the facts of the case, the court of appeals merely concluded: "We hold that the evidence was sufficient for the jury to find that appellant delivered the marihuana by actual transfer. " (Our emphasis.)

The State argues that in deciding whether there was an actual delivery of the marihuana by appellant to Green, we should look to the "character of the transaction." We have done so but find such does not assist the State in establishing that appellant "actually" delivered the marihuana to Green.

Under the Controlled Substances Act, a person commits an offense if he knowingly or intentionally delivers marihuana to another. Art. 4476-15, § 4.05. "Deliver" or "delivery" may occur either by actual or constructive transfer from one person to another of a controlled substance, whether or not there is an agency relationship. Art. 4476-15, Section 1.02(8), V.A.C.S. Thus, in this case, technically speaking, there were two actual deliveries that took place; the first one occurred when the appellant delivered the paper sack to Wingard and the second occurred when Wingard delivered the paper sack to Green. Based upon the evidence, it is clear that the appellant never actually delivered any marihuana to Green. Cf. Garza v. State, 622 S.W.2d 85 (Tex.Cr.App.1981) (On State's motion for rehearing.)

Under the Controlled Substances Act, delivery of a controlled substance might be accomplished in three distinct ways: actual transfer, constructive transfer, and offer to sell. See Ferguson v. State, 622 S.W.2d 846 (Tex.Cr.App.1980). Also see Art. 4476-15, Section 1.02(8), supra. As a matter of law, these are mutually exclusive ways in which delivery of a controlled substance might occur.

In this instance, the State chose to charge appellant only with actual delivering the marihuana to Green, thus satisfying the specificity requirement that Ferguson, supra, which held that an indictment which does not specify which kind of delivery was committed is subject to a motion to quash, mandated. Thus, notwithstanding that the State could have alleged both actual and constructive delivery, see Queen v. State, 662 S.W.2d 338, 341 (Tex.Cr.App.1983), it chose only to allege that the delivery occurred by "actual delivery." It was thus bound to prove its allegation beyond a reasonable doubt. The evidence clearly reflects that a constructive delivery from appellant to Green occurred, see Sheffield v. State, 623 S.W.2d 403 (Tex.Cr.App.1981); Gonzalez v. State, 588 S.W.2d 574 (Tex.Cr.App.1979), and Rassmussen v. State,, 608 S.W.2d 205 (Tex.Cr.App.1980), in that the transfer of the marihuana from Wingard to Green did not occur by actual delivery from appellant but only occurred at the instance or direction of the appellant.

The State argues: "Where a transferor intentionally and knowingly seeks to immediately transfer possession of the property to a transferee but out of necessity or ease of transport must go through a third person, such transaction could be deemed to be an 'actual' transfer." The State cites us to no authority that might support its proposition, and we have found none. We find that the main flaw in the State's argument is that there is no evidence in this record that might warrant the inference that it was necessary for the appellant to actually deliver the marihuana to Wingard before it was delivered to Green, nor is there any evidence in this record from which we might infer that the delivery to Wingard was done merely to facilitate the transaction.

Although appellant was charged individually with actually delivering a controlled substance, the proof only shows that there was a constructive delivery. Nevertheless, appellant was subject to being convicted of actual delivery of the substance, provided that the law of parties is invoked and applied to the case. See V.T.C.A., Penal Code, Sections 7.01 and 7.02. Also see Pitts v. State, 569 S.W.2d 898 (Tex.Cr.App.1978), and its progeny. However, in this cause, the jury was not instructed on the law of parties. Thus, the trier of fact was not permitted to find appellant guilty of actual delivery acting as a party to the offense. Cf. Medellin v. State, 617 S.W.2d 229 (Tex.Cr.App.1981); Westfall v. State, 663 S.W.2d 664 (Tex.App.--Corpus Christi 1984) (No P.D.R.); Howery v. State, 528 S.W.2d 230 (Tex.Cr.App.1975); Hammonds v. State, 316 S.W.2d 423 (Tex.Cr.App.1958); Robinson v. State, 493 S.W.2d 145 (Tex.Cr.App.1973).

The evidence adduced in this cause established that Green, while performing an undercover narcotics investigation, came into contact with Wingard and Williams. The three later met at Wingard's residence. The record does not reflect, other than Green's hearsay statement, that "It was prearranged that [the appellant] would bring marihuana to the residence", how appellant got into the picture. Nevertheless, appellant later arrived at the residence with a paper sack that was shown to contain four baggies of marihuana. He gave the sack to Wingard who gave it to Green. Wingard told Green the price per bag was $40, but Green told him that he could purchase it for $35 per each baggie. "At...