Estrada v. State
| Decision Date | 03 February 1993 |
| Docket Number | No. 342-92,342-92 |
| Citation | 846 S.W.2d 332 |
| Parties | Garces A. ESTRADA a/k/a Charlie Andrades, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Kristine C. Woldy, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., and Carol M. Cameron, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted by a jury of delivery by offering to sell a controlled substance, namely, cocaine, weighing by aggregate weight, including any adulterants or dilutants, at least 400 grams. He was sentenced by the court to twenty-five years imprisonment and assessed a fine of $10,000. The conviction was affirmed. Estrada v. State, 824 S.W.2d 770 (Tex.App.--Houston [14th], 1992).
After careful review of the petition for discretionary review and the opinion of the Court of Appeals, we have determined that appellant's petition for discretionary review was improvidently granted. Appellant's petition for discretionary review is dismissed.
The Court grievously errs in its determination that this petition for discretionary was "improvidently granted."
We should decide whether the court of appeals correctly proceeded on an underlying legal theory that "[t]his offer to deliver [sic] cocaine occurred during four different meetings and involved a group of five different people," to conclude from "the totality of the circumstances involved in this transaction and the appellant's constant presence and closeness with the entire drug sale" that appellant is guilty as a party to the "felony offense of delivery by offering to sell a controlled substance, namely cocaine." Estrada v. State, 824 S.W.2d 770, at 771-772, 773-774 (Tex.App.--Houston [14th] 1992). 1
Yet, on the same day the same panel of the same court in an opinion written by the same justice held that the same offense committed by the principal actor was complete the moment he alone first offered to sell the same amount of cocaine. Vivanco v. State, 825 S.W.2d 187, at 189 (first paragraph) (Tex.App.--Houston [14th] 1992), viz:
As is its wont when represented by the instant appellate prosecutorial office, the State dismisses the teaching of Stewart as "supported neither by law nor logic." State's Reply Brief, at 12. Because of its several followers identified ante, we should not shirk the responsibility to determine whether Stewart remains viable against the notion that delivery by an offer to sell is not complete until actual delivery is made.
To the refusal of the Court to address the important issue joined in this cause, I respectfully dissent.
Appellant was convicted by a jury of delivery of a controlled substance, by offer to sell. 1 The Court of Appeals affirmed. Estrada v. State, 824 S.W.2d 770 (Tex.App.--Houston [14th], 1992). We granted appellant's petition for discretionary review to determine whether the evidence was sufficient to sustain the conviction. 2 The majority finds that decision was improvident. Estrada v. State, 846 S.W.2d 332, 332 (Tex.Cr.App.1993). Judge Clinton dissents, believing the Court should decide when an offer to sell a controlled substance is complete. Estrada v. State, 846 S.W.2d 332, 333 (Tex.Cr.App.1993) (Clinton, J. dissenting) (). While me must ultimately decide when an offer to sell is complete, I write separately because the evidence in the instant case is insufficient to support such a conviction, regardless of when an offer to sell is complete.
The indictment alleged that appellant:
... on or about May 26, 1989, did then and there unlawfully intentionally and knowingly deliver by offering to sell to A.R. Diaz, a controlled substance, namely cocaine, weighing by aggregate weight, including any adulterants and dilutants, at least 400 grams.
At trial, the jury was instructed on the law of parties. 3 See, Tex.Penal Code Ann. § 7.02(a)(2).
Viewed in the light most favorable to the prosecution, the evidence established that on May 25, 1989, Harris County Sheriff's Department Detectives Diaz and Schulte met with an informant. The informant introduced Diaz to Jairo Manuel Vivanco. Diaz stated an interest in purchasing eight kilos of cocaine and Vivanco quoted a price of $17,000.00 per kilo for a total price of $136,000.00. Vivanco wished to inspect the money before calling his connection. Diaz escorted Vivanco to Schulte's truck where Schulte displayed $140,000.00 in cash. Vivanco stated he would contact Diaz after talking to his connection. Diaz gave Vivanco his pager number. Vivanco left and was followed by police to an apartment complex (hereinafter referred to as "Vivanco's complex"). Appellant was not present during this meeting.
At approximately 1:00 p.m. on May 25, Vivanco paged Diaz, and stated his connection would meet Diaz at 1:30 p.m. Shortly thereafter, Vivanco, Jimmy Rodriguez, and Johnny Rodriguez were observed leaving Vivanco's complex. Diaz arrived and was introduced to Jimmy and Johnny. Jimmy, who was introduced as the person with the drug connection, asked to inspect the money. Diaz and Jimmy went to Schulte's truck where Schulte displayed $140,000.00 in cash. After making a telephone call Jimmy stated the cocaine would be available at 5:30 p.m. that afternoon. Appellant was not present at this meeting.
Vivanco, Jimmy, and Johnny returned to Vivanco's complex. Later, appellant and Overt Alegria arrived at Vivanco's complex. Appellant, Vivanco, Jimmy, Johnny, and Alegria, were observed loading clothes into two vehicles. Completing their task, Vivanco, Johnny, and Jimmy drove away and appellant and Alegria departed in another vehicle. Before leaving the complex, Alegria retrieved a gray duffle bag from a trash dumpster.
Vivanco paged Diaz and stated the cocaine had arrived. A third meeting was arranged for 6:00 p.m. on May 25 at a Dairy Queen. Diaz and Schulte arrived to meet Vivanco, Jimmy and Johnny. Appellant was not present. Schulte and Diaz were instructed to follow Vivanco. Vivanco drove to another apartment complex. During this meeting, Vivanco directed Diaz to the back seat of the vehicle where Johnny was sitting. Johnny displayed several block-like objects wrapped with gray duct tape. Diaz became suspicious, never having observed cocaine packaged in such a manner. Diaz requested the opportunity to test the substance and Vivanco refused. Diaz stated he would not purchase eight kilos of cocaine without testing the substance. Again Vivanco refused and left, informing Diaz he would contact him later. While these events occurred, appellant and Alegria were seen driving in the area. At one point, Alegria left the vehicle and walked through the apartment complex towards the street where appellant picked him up.
At approximately 10:00 p.m. on May 25, Vivanco paged Diaz. Diaz demanded that he be allowed to cut into the packages to test the cocaine. An agreement was made to meet the following morning at a parking lot beside a Safeway Store.
On the morning of May 26, Jimmy, Johnny, Vivanco, appellant, and Alegria exited an apartment in Vivanco's complex. Johnny was carrying a gray bag similar to the bag Alegria retrieved from the dumpster. Vivanco, Johnny, and Jimmy drove away in one vehicle and appellant and Alegria left in another vehicle. At approximately 11:30 a.m., Diaz parked in front of the Safeway. Schulte parked nearby. Jimmy, accompanied by Vivanco and Johnny, parked next to Diaz. Initially, appellant and Alegria parked in a parking lot north of the Safeway. Appellant changed shirts and then...
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