Stephens v. State

• Decision Date: 16 October 2008
• Docket Number: No. 06-08-00022-CR.,06-08-00022-CR.
• Citation: 269 S.W.3d 178
• Parties: Raelun Cornell STEPHENS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

269 S.W.3d 178

Raelun Cornell STEPHENS, Appellant, v. The STATE of Texas, Appellee.

No. 06-08-00022-CR.

Court of Appeals of Texas, Texarkana.

Submitted July 23, 2008.

Decided October 16, 2008.

Pamala J. Worthington, Gary, for appellant.

Danny Buck Davidson, Dist. Atty., Carthage, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice MOSELEY.

This case presents the exact problem forecast nearly a decade ago by our brother jurist when he opined that the guidelines distinguishing actual delivery of narcotics from constructive delivery of narcotics had become so muddled that prosecuting attorneys who are preparing an indictment would be left with no discernible guidelines to follow. Warren v. State, 15 S.W.3d 168, 173 (Tex.App.-Texarkana 2000, no pet.) (Grant, J., dissenting).

Raelun Cornell Stephens appeals his conviction by a jury for delivery of a controlled substance. The indictment alleged Stephens constructively delivered cocaine to Brady Odom (who at trial was shown to be a Panola County deputy sheriff) in an amount greater than four grams but less than 200 grams. The evidence at trial showed Stephens made an actual delivery of ten grams of cocaine to an undercover confidential informant, who later turned over the cocaine to Odom. Stephens now raises several points of error. Because we find the evidence to be legally insufficient, we reverse the trial court's judgment and render a judgment of acquittal.

I. Sufficiency

Stephens challenges the legal sufficiency of the evidence to support his conviction for "constructive delivery" of cocaine to Odom. In a legal sufficiency review, we examine the evidence adduced in the trial below in the light most favorable to the jury's verdict and ask whether any rational trier of fact could have found all the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "[U]nder Malik v. State, evidentiary sufficiency should be measured against the `elements of the offense as defined by the hypothetically correct jury charge for the case....'" Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App.2002) (quoting Gollihar v. State, 46 S.W.3d 243, 255-56 (Tex.Crim.App.2001), and citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.App.1997)). "Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Malik, 953 S.W.2d at 240. "State law, in relevant part, defines `element of the offense' as the forbidden conduct with the required culpability." Id. at 252-53.

The Texas Court of Criminal Appeals has mandated that a complaint alleging insufficiency of the evidence is to be analyzed under the hypothetically correct jury charge. Gharbi v. State, 131 S.W.3d 481, 483 (Tex.Crim.App.2003) (allegation which is not statutory element or "an integral part of an essential element of the offense" need not be included in hypothetically correct jury charge); see Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App.2002) (allegation which is not statutory element need not be included in hypothetically correct jury charge); see also Gollihar, 46 S.W.3d at 256. The charged offense is the act of delivery of cocaine. "The hypothetically correct charge may not modify the indictment allegations in such a way as to allege 'an offense different from the offense alleged in the indictment.'" Gollihar, 46 S.W.3d at 255 n. 20 (quoting Planter v. State, 9 S.W.3d 156, 159 (Tex.Crim.App. 2000)). As a consequence, it cannot change this charge of constructive delivery to a charge of actual delivery.

The grand jury's indictment alleged that Stephens

on or about the 5th day of October, 2006, and before presentment of this indictment in the County of Panola and State of Texas, did then and there knowingly deliver by constructive delivery to Brady Odom, a controlled substance, namely, cocaine, in an amount of four grams or more but less than 200 grams,

AGAINST THE PEACE AND DIGNITY OF THE STATE.

A person commits a crime in Texas if he "knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 1." TEX. HEALTH & SAFETY CODE ANN. § 481.112 (Vernon 2003); see also Talley v. State, 909 S.W.2d 233, 234 (Tex.App.-Tex-arkana 1995, pet. ref'd). Cocaine is a penalty group 1 narcotic. TEX. HEALTH & SAFETY CODE ANN. § 481.102(3)(D) (Vernon Supp.2008). The phrase "to deliver," as it is used in Article 481.112, means "to transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship." TEX. HEALTH & SAFETY CODE ANN. § 481.002(8) (Vernon Supp.2008).¹ "An indictment for the delivery of a controlled substance must specify which type or types of delivery was ... performed." Young v. State, 183 S.W.3d 699, 706 (Tex. App.-Tyler 2005, no pet.); see also Warren, 15 S.W.3d at 170; Marable v. State, 990 S.W.2d 421, 423 (Tex.App.-Texarkana 1999), aff'd, 85 S.W.3d 287 (Tex.Crim.App. 2002). At trial, the State is required to prove delivery via the method that is alleged in the indictment. Conaway, 738 S.W.2d at 694 ("[N]otwithstanding that the State could have alleged both actual and constructive delivery, ... it chose only to allege that the delivery occurred by `actual delivery.' It was thus bound to prove its allegation beyond a reasonable doubt.") (citations omitted); Warren, 15 S.W.3d at 170. The indictment may allege multiple theories of delivery. Conaway, 738 S.W.2d at 694; Warren, 15 S.W.3d at 170.

"[A]n 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." Heberling v. State, 834 S.W.2d 350, 354 (Tex. Crim.App.1992). "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." Marable, 85 S.W.3d at 291 (Cochran, J., concurring); see Heberling, 834 S.W.2d at 354.

A "constructive transfer" requires "the transfer of a controlled substance either belonging to an individual or under his control by some other person or agency at the instance or direction of the individual accused of such constructive transfer." Daniels v. State, 754 S.W.2d 214, 220 (Tex. Crim.App.1988); see also Marable, 85 S.W.3d at 291. A constructive transfer may also occur when the delivery is made by implication. See Payan v. State, 199 S.W.3d 380, 384 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd), cert. denied, 549 U.S. 1170, 127 S.Ct. 1129, 166 L.Ed.2d 898 (2007).

Some appellate jurists have written that a constructive transfer requires the transferor to have actual knowledge of the ultimate transferee. See, e.g., Daniels, 754 S.W.2d at 221-22; Sheffield v. State, 623 S.W.2d 403, 405 (Tex.Crim.App. [Panel Op.] 1981); Hart v. State, 15 S.W.3d 117, 119 (Tex.App.-Texarkana 2000, pet. ref'd) (essential elements of constructive transfer are "transferor had either direct or indirect control of the substance transferred" and "knew of the existence of the transferee"); Wyatt v. State, 951 S.W.2d 144, 148 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd).

Others, including the more recent and binding rulings, do not require proof of knowledge of the identity of an intended third-party transferee. In Sims v. State, the Texas Court of Criminal Appeals made a thoughtful and considered analysis of some of the various meanings of "constructive delivery" as employed in Texas. 117 S.W.3d 267 (Tex.Crim.App.2003). The court even quoted Daniels for the proposition that the State must show "[t]he transferor ... kn[e]w of the existence of the transferee." Id. at 277 (quoting Daniels, 754 S.W.2d at 221-22). But the court thereafter wrote, "When the transferee alleged is not the immediate transferee, then for the evidence to be sufficient, the defendant must have contemplated that there would in fact be a third party transferee." Id.

"[W]hen the State alleges constructive transfer to an alleged ultimate recipient ... the accused must have contemplated that his initial transfer would not be the final transaction in the chain of distribution." Daniels, 754 S.W.2d at 221; see also Marable, 85 S.W.3d at 291 ("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.'").

A classic constructive delivery case is Gutierrez v. State, 71 S.W.3d 372, 376-77 (Tex.App.-Amarillo 2001, pet. ref'd), wherein the defendant presumably never laid eyes on or communicated directly with the undercover drug officer. In Gutierrez, the officer drove his car to a place in front of the defendant's residence. Someone other than the defendant came to the car, communicated with the officer, returned to the residence, and came out with drug samples which he showed the undercover officer. The officer then paid the other individual over $11,000.00; the other individual returned to the residence and brought a substantial quantity of drugs to the undercover officer, still seated in the automobile. When delivery occurred, a raid was conducted inside the residence, where the defendant was found hunched over a commode having drug residue in it. Id. Though there was no proof that the defendant knew the identity of the officer seated in the automobile, the appeals court held that the evidence was sufficient to establish constructive...