Nevarez v. State
Decision Date | 01 February 1989 |
Docket Number | No. 417-86,417-86 |
Citation | 767 S.W.2d 766 |
Parties | Jose Luis NEVAREZ, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Michael J. Hutson, El Paso, for appellant.
Steve W. Simmons, Dist. Atty., and Robert Dinsmoor, Asst. Dist. Atty., El Paso, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
Appellant, Jose Luis Nevarez, was convicted by a jury of the offense of delivery of a controlled substance. The jury assessed punishment at thirty years' confinement. The El Paso Court of Appeals reversed the conviction in an unpublished opinion finding that the State failed to prove that appellant had "actually transfer[red]" a controlled substance as alleged in the indictment. (Nevarez v. State, No. 08-85-00062-CR, February 26, 1986, Tex.App.--El Paso.) The appellate court ordered that an acquittal be entered. We granted the State's petition for review to determine the correctness of the Court of Appeals' opinion. We reverse.
In pertinent part, the indictment in this case alleged:
"... that JOSE LOUIS NEVAREZ on or about the 23rd day of May, 1984 ... did then and there unlawfully, knowingly and intentionally delivered, to wit: did then and there actually transfer fifty pounds or less but more than five pounds of marihuana, to Jorge Pacheco...."
At trial, the State introduced evidence that appellant telephoned Mike Bogden, an El Paso police detective, and offered to sell the detective thirteen pounds of marihuana in exchange for $3,900. Appellant said that getting the marihuana would be "[n]o problem" and that a friend in Juarez, Mexico had it. Appellant indicated that it would take about four hours to get the marihuana into the State from Mexico and that he would get back to the officer when he had gotten it across the border. Later that afternoon appellant called the officer and the two arranged to meet in a particular K-Mart parking lot. The officer went to the K-Mart and waited for two hours. Appellant failed to show but that evening he again called the officer to tell him that he had the marihuana and wanted to make the deal that night. The police officer told appellant that he was already in bed and to call back the next day.
Appellant again contacted the officer. They arranged to make the transfer at a shopping mall parking lot.
Officer Bogden, assisted by officer Jorge Pacheco, went to the shopping mall parking lot. The following testimony was elicited:
The El Paso Court of Appeals found that the State failed to establish that an "actual transfer" of the contraband had taken place. That court relied upon the testimony of Officer Pacheco:
The Court of Appeals cited Daniels v. State, 674 S.W.2d 388 (Tex.App.--Austin 1984) reversed, 754 S.W.2d 214 (Tex.Cr.App.1988), for the proposition that actual delivery contemplates a manual transfer of the property. Apparently, because appellant's co-defendant, Arias, had not allowed officer Pacheco to physically remove the marihuana, then, according to the Court of Appeals, no transfer had occurred. The Court of Appeals opined that the State's evidence proved "an offer to sell" but not an "actual transfer." We disagree.
"Deliver" or "delivery" is defined by the Controlled Substances Act to mean "the actual or constructive transfer from one person to another of a controlled substance...." Article 4476-15, Section 1.02(7), V.A.C.S. (Supp.1988). For purposes of the Act, it also includes an offer to sell a controlled substance. Id. In Ferguson v. State, 622 S.W.2d 846 (Tex.Cr.App.1980), this Court determined that an indictment, alleging delivery of a controlled substance, must define how the deliver occurred. Complying with Ferguson, the State in this case alleged that the delivery was an "actual transfer."
The term "actual transfer" is not defined for purposes of the Controlled Substances Act. When statutory terms or phrases are not defined by statute they are ordinarily given their plain meaning without regard to distinction between construction of penal laws and laws on other subjects, unless the act clearly shows that they were used in some other sense. Campos v. State, 623 S.W.2d 657, 658 (Tex.Cr.App.1981); V.T.C.A., Government Code, Section 312.002(a) (1988).
In Conoway v. State, 738 S.W.2d 692 (Tex.Cr.App.1987) (plurality opinion), we determined that "actual transfer" consists in "transferring the real possession and control of a controlled substance from one person to another person." 738 S.W.2d at 695 citing Webster's Ninth Collegiate Dictionary (1985 Edition). And in Daniels v. State, supra, this Court cited Ballantine's Law Dictionary to define "delivery" as 754 S.W.2d at 220. (emphasis added).
In the charge to the jury, the trial court included instructions on the law of parties and incorporated this law into the application section of the charge. See V.T.C.A., Penal Code, Sections 7.01 and 7.02 (1974). Thus, in order to sustain allegations contained in the indictment, the State had to prove that appellant, acting with or without another, "actually transferred" the marihuana to Officer Pacheco. See Westfall v. State, 663...
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