Davila v. State
Decision Date | 29 February 1984 |
Docket Number | No. 506-83,506-83 |
Citation | 664 S.W.2d 722 |
Parties | Gloria DAVILA, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Floyd D. Holder, Jr., Lubbock, for appellant.
John T. Montford, Former Dist. Atty., Jim Bob Darnell, Dist. Atty. and Hollis M. Browning, Asst. Dist. Atty., Lubbock, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted by a jury of delivery of heroin by constructive transfer. The jury assessed punishment at eight years confinement. The Amarillo Court of Appeals reversed the conviction in an unpublished opinion. We granted the State's petition for discretionary review in order to review the Court of Appeals' holding that the evidence fails to show a "constructive" transfer of the heroin within the meaning of the Controlled Substances Act, Tex.Rev.Civ.Stat.Ann. Art. 4476-15, Sec. 1.02(8), which provides in pertinent part:
" 'Deliver' or 'delivery' means the actual or constructive transfer from one person to another of a controlled substance ..."
The indictment alleged in pertinent part that:
"On or about the 27th day of August, A.D. 1980 ... GLORIA DAVILA did then and there knowingly and intentionally deliver by constructive transfer, to Glenn E. Chism a controlled substance listed in Penalty Group I, to-wit: Heroin ..."
The following evidence presented at trial, as summarized by the Court of Appeals, appears to be undisputed:
Appellant was not charged with being a party to the actual transfer of the heroin which took place when Cosme delivered it to Chism. See V.T.C.A. Penal Code, Secs. 7.01, 7.02. The indictment alleged that appellant "constructively" transferred the narcotic to Chism and thus the Court of Appeals was correct in holding that the State was required to prove a constructive transfer. The Court of Appeals relied on our opinion in Rasmussen v. State, 608 S.W.2d 205 (Tex.Cr.App.1980) in finding that the evidence insufficiently proved a constructive transfer.
In Rasmussen we noted that the term "constructive transfer" had not been previously defined by this Court and we looked to other jurisdictions which had adopted similar statutes from the Uniform Controlled Substances Act for guidance. We followed other jurisdictions and interpreted a...
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