Marable v. State

• Decision Date: 18 September 2002
• Docket Number: No. 0765-99.,0765-99.
• Parties: William R. MARABLE, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

85 S.W.3d 287

William R. MARABLE, Appellant, v. The STATE of Texas.

No. 0765-99.

Court of Criminal Appeals of Texas. En banc.

September 18, 2002.

Brian Goza, Fort Worth, for Appellant.

C. James Gibson, Asst. DA, Fort Worth, Matthew Paul, State's Atty., Austin, for State.

OPINION

KELLER, P.J., delivered the opinion of the Court in which PRICE, KEASLER, HERVEY, HOLCOMB and COCHRAN, JJ., joined.

We granted the following ground for review: "Whether the appellant had sufficient notice of the theory of culpability by which the State would seek conviction for delivery of a controlled substance?" As the Court of Appeals remarked, the heart of appellant's complaint is "that he did not receive adequate notice to prepare his defense because the State did not allege in the indictment that it would prove actual delivery by the law of parties."¹ But it is well-settled that the law of parties need not be pled in the indictment.² We have so held in a drug delivery case with circumstances materially identical to the case at bar.³

The judgment of the Court of Appeals is affirmed.

COCHRAN, J., filed a concurring opinion.

WOMACK, J., filed a dissenting opinion in which MEYERS, and JOHNSON, JJ., joined.

COCHRAN, J., filed a concurring opinion.

We granted review to determine whether appellant had sufficient notice of the theory of culpability by which the State would seek his conviction for delivery of a controlled substance.¹ I join the Court's opinion and add the following comments.

I.

On the afternoon of December 4, 1996, undercover Fort Worth Police Department Officer Dave Torsiello drove down East Berry Street. Officer Torsiello and his backup team had been assigned to the area in response to complaints that individuals were openly selling narcotics.

Officer Torsiello testified that a woman, Valerie Whorley, flagged him down and asked what he was doing. Officer Torsiello answered that he was looking for a place "to score a couple of `dimes.'"² Ms. Whorley agreed to take Officer Torsiello to such a location if he would buy her some, too.

Ms. Whorley then instructed Officer Torsiello to drive to the intersection of East Bessie and Virginia Streets. When they arrived, Ms. Whorley asked Officer Torsiello to buy her ten dollars' worth of crack cocaine. Officer Torsiello agreed and told Ms. Whorley that he wanted twenty dollars' worth for himself. Accordingly, he gave her thirty dollars in cash.

Ms. Whorley left the car and approached appellant. As she began speaking to appellant, Officer Torsiello left and drove around the block a couple of times. When he returned, Ms. Whorley reported that she had given appellant the thirty dollars but appellant had not given her anything in return. She promised that if Officer Torsiello would give her another ten dollars, she would be able to get the crack cocaine for him. Officer Torsiello gave her another ten dollars and this time he waited in the car, which was about ten-to-fifteen feet away from appellant.

Officer Torsiello testified that he observed the entire transaction: Ms. Whorley handed the additional ten dollars to appellant, and then appellant placed a small white rock in Ms. Whorley's left hand. Ms. Whorley came back to Officer Torsiello's car and gave him the rock, which later tested positive for cocaine. Ms. Whorley then walked away from Officer Torsiello's car. Appellant walked to a nearby liquor store, where Officer Torsiello's backup team subsequently arrested him.

A Tarrant County Grand Jury indicted appellant on February 6, 1997 for delivery of a controlled substance. The indictment specifically alleged that appellant:

... on or about the 4th day of December 1996, did then and there intentionally or knowingly deliver to [Officer] D.A. Torsiello a controlled substance, namely cocaine of less than one gram, including any adulterants or dilutants, by actually transferring said controlled substance.

Appellant contends, inter alia, that the Sixth Court of Appeals erred when it found that the indictment provided appellant with sufficient notice of the theory of culpability that the State planned to pursue against him. More specifically, appellant complains that the evidence presented at trial supported only a finding of delivery by constructive transfer from appellant to Officer Torsiello, a theory not alleged in the indictment. Furthermore, appellant contends, because the indictment failed to mention Ms. Whorley's role in the transaction, the indictment did not notify appellant that the State would attempt to convict him as a party to Ms. Whorley's actual transfer of cocaine to Officer Torsiello. As the Court of Appeals noted, the heart of appellant's complaint is "that he did not receive adequate notice to prepare his defense because the State did not allege in the indictment that it would prove actual delivery by the law of parties." Movable v. State, 990 S.W.2d at 424.

Appellant also asserts that, even if the indictment sufficiently notified him of the State's theory of culpability, the evidence presented at trial was insufficient to show that he was a party³ to the delivery of a controlled substance to Officer Torsiello. Appellant urges this Court to overrule our earlier holding in Miller v. State, 537 S.W.2d 725 (Tex.Crim.App.1976). Appellant notes that the Sixth Court of Appeals criticized this Court's analysis in Miller, but declared that Miller's factual similarity to appellant's case and the doctrine of stare decisis compelled it to follow Miller's holding, and thereby to overrule appellant's claim.

II

Before considering the merits of appellant's argument, I would first distinguish two statutory means of "delivering" a controlled substance. Under Texas Health and Safety Code section 481.002(8), "`[d]eliver' means to transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship."⁴ Thus, one may accomplish a delivery by either an actual transfer or a constructive transfer.

Because the Texas Controlled Substances Act does not define the terms "actual transfer" and "constructive transfer," Texas courts have construed the terms according to their plain and common meanings.⁵ This Court's decisions interpreting the meaning of these terms have continued to flesh out our earlier holdings on the subject, as new factual scenarios have come before us, and as we have recognized that the same set of facts, if properly pleaded, may support both theories of transfer.⁶

We considered this subject in Heberling v. State, 834 S.W.2d 350 (Tex.Crim.App. 1992). In that case, we discussed the principles underpinning our conclusions in earlier delivery of controlled substances cases to clarify the definition of "actual transfer":

... [W]e now hold that an actual transfer or delivery, as commonly understood, contemplates the manual transfer of property from the transferor to the transferee or to the transferee's agents or to someone identified in law with the transferee.⁷ Until our decision in Heberling, some confusion existed regarding the role of a buyer-transferee's agent in cases alleging actual transfer from a defendant to an undercover police officer. The problem arose when the facts demonstrated that contraband actually passed from a defendant to an intermediary and then from that intermediary to an undercover police officer, but the jury charge did not include an instruction on the law of parties or the law of agency.⁸ This Court's decision in Heberling made it clear that, if the evidence is such that a reasonable jury could conclude that an intermediary was an undercover officer's agent or representative, then proof beyond a reasonable doubt of an actual transfer from a defendant to that agent is legally sufficient to convict that defendant of an actual transfer to the undercover officer, whether or not the trial court instructed the jury on agency.⁹

An intermediary's relationship to a defendant-seller and an undercover officer-buyer is significant because it affects legal sufficiency of evidence and jury charge error analyses. If the State proceeds under the theory that an intermediary was an undercover officer-buyer's agent or representative, then a defendant could be convicted of an actual delivery under the rule articulated in Heberling.¹⁰ However, if the theory is that an intermediary was a defendant's agent (i.e., a "steerer"¹¹), then a defendant can be convicted as a party to the actual delivery, assuming that the jury is so instructed.¹²

A constructive transfer is the transfer of a controlled substance either belonging to a defendant or under his direct or indirect control, by some other person or manner at the instance or direction of a defendant. Davila, v. State, 664 S.W.2d 722, 724 (Tex. Crim.App.1984); Rasmussen v. State, 608 S.W.2d 205, 210 (Tex.Crim.App.1980). A conviction for delivery of a controlled substance by constructive transfer requires some showing that a defendant-transferor was "at least aware of the existence of an ultimate transferee before he may be said to have delivered or made a delivery of a controlled substance to another through a third party." Gonzalez v. State, 588 S.W.2d 574, 577 (Tex.Crim.App.1979). In addition, in either a constructive or an actual transfer situation, the evidence must show that a defendant-transferor voluntarily relinquished control or possession to a transferee. Thomas v. State, 832 S.W.2d 47, 51 (Tex.Crim.App.1992). Most actual deliveries involving an intermediary also qualify as constructive deliveries.

With these distinctions in mind, I would turn to the merits of appellant's claim.

III.

Appellant contends that, because the indictment failed to allege that appellant actually transferred the controlled substance to Officer Torsiello through Valerie Whorley, the indictment did not sufficiently notify him of the State's theory of culpability. Appellant argues that the trial court erred by...