Heberling v. State

• Decision Date: 24 June 1992
• Docket Number: No. 1034-91,1034-91
• Citation: 834 S.W.2d 350
• Parties: Santiago Alberto HEBERLING, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 350

834 S.W.2d 350

Santiago Alberto HEBERLING, Appellant, v. The STATE of Texas, Appellee.

No. 1034-91.

Court of Criminal Appeals of Texas En Banc.

June 24, 1992.

Robert G. Turner, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Kimberly Aperauch Stelter and Ted Wilson, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

On May 18, 1990, Appellant, Santiago Alberto Heberling, was convicted of delivery of more than 400 grams of a controlled substance, namely cocaine. See Tex. Health & Safety Code § 481.001 et seq. The trial judge then sentenced appellant to twenty years confinement and assessed a $5,000 fine. The First Court of Appeals affirmed appellant's conviction and sentence in an opinion published in part. Heberling v. State, 814 S.W.2d 183 (Tex.App.--Houston [1st Dist.] 1991). We granted appellant's petition for discretionary review, pursuant to Tex.R.App.Pro 200(c)(2), (3) and (4), to determine the following: (1) Whether the evidence was sufficient to sustain appellant's conviction for delivery by actual transfer, and (2) whether the Court of Appeals erred in holding that cocaine not actually offered or received in evidence at trial was nonetheless "placed before the jury" as required by the trial court's charge to the jury. We will affirm.

The relevant facts in this case are not disputed by the parties. We therefore adopt the summary of the facts as set forth by the Court of Appeals:

On November 14, 1988, Houston police Officer Nick Wilson, while posing as the brother-in-law of a police informant, Marcelo Nagid, made a buy of cocaine. Wilson met with Nagid's neighbor, Alberto Nagid drove his van to an apartment complex across the street. Ilarty instructed Nagid to park in the parking lot behind the apartment complex. They waited approximately five minutes before appellant drove up in a pickup truck, and parked in front of Nagid's van. Ilarty and Nagid got out of the van and approached the pickup. Ilarty told appellant that the money had been counted and he should "bring over the cocaine." Appellant left, and returned in a blue Camaro. Appellant handed a Ritz cracker box to Ilarty. After appellant handed the box to Nagid, who in turned [sic] handed the box to Nagid, Nagid opened it and saw that it contained what appeared to be a kilo of cocaine.

Ilarty, and Fernando Otarola at Nagid's apartment. As part of the ruse, Wilson brought $22,000 in cash. After seeing the money, Ilarty told Wilson to go with him to get the cocaine. Wilson refused, and sent Nagid to go with Ilarty.

Nagid returned to his van and went back to his apartment. Appellant followed him in the blue Camaro, and Ilarty remained in the parking lot. Nagid entered his apartment and handed the box to Wilson. After Wilson determined that the box contained cocaine, he signaled surveillance police officers to arrest those parties involved in the transaction. Otarola was arrested inside Nagid's apartment. Nagid was taken outside and asked to identify appellant, who was then inside a police patrol car. Nagid identified appellant as the same person who had followed him after giving Ilarty the cocaine.

Heberling v. State, 814 S.W.2d at 183-84.

I.

Appellant's first and second grounds for review assert that the facts of this case do not support the charge given to the jury, and that the evidence therefore is insufficient to support his conviction. ¹ Appellant was indicted for delivery by actual transfer, constructive transfer and offer to sell. ² However, at trial, the State withdrew the constructive transfer and offer to sell counts. At the conclusion of appellant's presentation of his evidence, the trial judge charged the jury on (1) delivery by actual transfer of the cocaine from appellant to Officer Wilson, and (2) delivery by actual transfer of the cocaine from appellant's codefendants to Wilson, under the law of The court of appeals first noted that a conviction for delivery by actual transfer will be sustained under the law of parties, even if the transfer is made through an informant acting as an intermediary. Heberling v. State, 814 S.W.2d at 185, citing, Boyer v. State, 801 S.W.2d 897 (Tex.Cr.App.1991). The court of appeals then found that the evidence adduced at appellant's trial demonstrated that, at the time of the transfer of cocaine from Nagid to Wilson, there existed a written agreement between Wilson, Nagid, Nagid's attorney Steve Hebert and Bob Stabe of the Harris County District Attorney's Office. See Appendix. Based on this agreement, the court of appeals held that Nagid was, in effect, Wilson's agent. The court of appeals then concluded: "Because the evidence was sufficient to show appellant made an actual transfer to Nagid, and that Nagid was Wilson's agent, we hold the evidence was sufficient to support a conviction for actual transfer to Wilson." Heberling v. State, 814 S.W.2d at 186.

parties. The jury returned a general verdict of guilt. ³

Appellant argues that the trial court's failure to include Nagid in the charge as a party, coupled with the State's failure to object to the charge at trial, effectively raised the State's burden of proof by requiring the State to prove that there was an actual, physical transfer of cocaine from appellant or his codefendants to Wilson. In addition, appellant, citing Conaway v. State, 738 S.W.2d 692, 700 (Tex.Cr.App.1987) (Clinton, J., concurring), contends that the existence of an agency relationship between Nagid and Wilson is irrelevant to discerning whether an actual transfer has occurred. Appellant also notes that no jury instruction on agency was requested or given.

The State contends that the evidence at trial clearly demonstrated that Nagid was acting only as an agent of Wilson, and that everyone involved in the drug transaction was aware of this relationship. The State distinguishes this case from Conaway, in which the cocaine passed through the hands of an intermediary who was neither an agent of the undercover police officer nor necessary to the transaction. The State also argues that the term "actual transfer" should be given its plain meaning, and that this meaning should be read to include a transferee's agents. We now address the merits of appellant's grounds for review.

A jury charge that was not objected to at trial will be reversed only for fundamental error. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1984) (op. on reh'g). That is, the error must be so egregious and have created so much harm that the defendant was denied a fair and impartial trial. Id. The actual degree of harm is determined by looking at the jury charge itself; the state of the evidence, including contested issues and the weight of the probative evidence; the arguments of counsel; and any other information contained in the record. Id. Error predicated on insufficient evidence arising from a jury charge that enlarges on the State's burden of proof is of a fundamental nature. See, e.g, Arceneaux v. State, 803 S.W.2d 267 (Tex.Cr.App.1990).

Appellant contends that the charge actually tendered to the jury authorized a conviction of delivery by actual transfer only if the jury was capable of finding beyond a reasonable doubt that appellant or appellant's codefendants "actually transferred" cocaine to Officer Wilson. Appellant asserts that because the evidence at trial only showed an actual transfer from appellant's codefendants to Nagid, and because Nagid was not included in the law of parties charge, there was no evidence of an actual transfer to Wilson. Thus, appellant argues, by not ensuring that Nagid was included as a party, the State acquiesced in a jury charge that effectively enlarged its burden of proof by requiring it to prove It is clear that appellant's first and second grounds for review present this Court with only one real issue to resolve: whether the term "actual transfer" encompasses only a transferee who physically receives the transferred item from the transferor, or whether an actual transfer can include a transferee's agents. ⁴ If the definition of actual transfer contemplates only a transferee, the evidence adduced at trial is insufficient to support a conviction under the jury charge as worded in the instant case. If an actual transfer includes both the transferee and the transferee's agent(s), then we must determine whether the evidence was such that a reasonable jury could have concluded that Nagid was an agent of Wilson. If the answer to that inquiry is in the affirmative, the evidence is sufficient to support appellant's conviction under the jury charge.

that there was a physical transfer of cocaine from appellant or his codefendants to Wilson. Because the evidence will not support this charge, as worded, appellant argues that he suffered fundamental harm. On the other hand, the State asserts that the term "actual transfer" is broad enough to include within its ambit both the ultimate transferee and the transferee's agents. Thus, claims the State, there was sufficient evidence at trial to support an actual transfer to Wilson, via his agent Nagid, regardless of whether Nagid was included in the charge as a party to the actual transfer.

Because the term actual transfer is not defined in the Controlled Substances Act, it must be given its plain meaning. Thomas v. State, 832 S.W.2d 47 (Tex.Cr.App.1992); Campos v. State, 623 S.W.2d 657, 658 (Tex.Cr.App.1981). In Conaway v. State, 738 S.W.2d 692, 695 (Tex.Cr.App.1987) (plurality op.), this Court had occasion to construe the ordinary, commonly understood meaning of actual delivery: "Thus, for our purposes, 'actual delivery' consists in completely transferring the real possession and control of a controlled substance from one person to another person." See also, Nevarez v. State, 767 S.W.2d 766 (Tex.Cr.App.1989). Judge Clinton noted in a concurring opinion that: ...