Torres v. State, 13-82-205-CR

• Decision Date: 17 November 1983
• Docket Number: No. 13-82-205-CR,13-82-205-CR
• Citation: 667 S.W.2d 190
• Parties: Nerio M. TORRES, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 190

667 S.W.2d 190

Nerio M. TORRES, Appellant, v. STATE of Texas, Appellee.

No. 13-82-205-CR.

Court of Appeals of Texas Corpus Christi.

Nov. 17, 1983.

Rehearing Denied Dec. 29, 1983.

Second Rehearing Denied Jan. 26, 1984.

Discretionary Review Granted

July 11, 1984.

J. Douglas Tinker, Tinker & Tor, Corpus Christi, for appellant.

Thomas L. Bridges, Dist. Atty., Sinton, for appellee.

Before BISSETT, UTTER and GONZALEZ, JJ.

OPINION

BISSETT, Justice.

This is an appeal from a conviction for the offense of delivery of marijuana of (200) pounds or less but more than 50 pounds. Art. 4476-15, § 4.05(c) of the Texas Controlled Substances Act, TEX.REV.CIV.STAT.ANN. (Vernon Supp.1982). Appellant Nerio M. Torres was indicted for knowingly and intentionally delivering "by actual transfer and constructive transfer to Johnny L. Whitley a quantity of marijuana of more than fifty (50) pounds but less than two hundred (200) pounds." Appellant entered a plea of "not guilty." A jury found appellant guilty and assessed punishment at ten years confinement in the Texas Department of Corrections.

Appellant brings forward thirteen grounds of error. We first address his third ground of error wherein he challenges the constitutionality of art. 4476-15, § 4.05(c) of the Texas Controlled Substances Act, as amended in 1981.

The Texas Legislature, in the 1981 session, passed House Bill 730, ¹ which amended the Texas Controlled Substances Act, TEX.REV.CIV.STAT.ANN., art. 4476-15 (Vernon Supp.1982). The Court of Criminal Appeals has recently held in Ex parte Crisp, 661 S.W.2d 944 (Tex.Cr.App.1983); and, in Bass v. State, 661 S.W.2d 954 (Tex.Cr.App.1983), that the caption to House Bill 730, supra, was defective in that it failed to apprise readers of the changes in the Code of Criminal Procedure and Penal Code effectuated by the amendment. The Bill was declared unconstitutional under the Tex. Const. Art. III, § 36. The Court further held that the Controlled Substances Act stood as though House Bill 730 had never been enacted.

The pre-amendment version of the Texas Controlled Substances Act, in pertinent part, provided:

"(d) Except as otherwise provided by this Act, a person commits an offense if he knowingly or intentionally delivers marihuana.

(e) Except as provided in Subsection (f) of this section, an offense under Subsection (d) of this section is a felony of the third degree.

(f) An offense under Subsection (d) is a Class B misdemeanor if the actor delivers one-fourth ounce or less without receiving remuneration."

Art. 4476-15, § 4.05, Tex.Rev.Civ.Stat.Ann. (Vernon 1976). Tex. Penal Code Ann. § 12.34 (Vernon 1974), in pertinent part, provides:

"(a) An individual adjudged guilty of a felony of the third degree shall be punished by confinement in the Texas Department of Corrections for any term of not more than 10 years or less than 2 years."

The indictment in the instant case is sufficient to allege an offense under the law as it existed before H.B. 730 was passed. See Crisp, supra.

In the case at bar, the charge given the jury at the punishment stage of appellant's trial reads:

"Our statute provides that the punishment for the offense of DELIVERY OF MARIHUANA OF 200 POUNDS OR LESS BUT MORE THAN 50 POUNDS shall be CONFINEMENT IN THE TEXAS DEPARTMENT OF CORRECTIONS FOR LIFE OR FOR A TERM OF NOT MORE THAN 99 years or less than 5 years, and a fine not to exceed $50,000."

The sentence imposed by the jury was "10 years confinement in the Texas Department of Corrections." Despite the fact that the statute, under which appellant was initially charged, has been subsequently held to be unconstitutional, no reversible error is shown since the penalty imposed on appellant was within the range provided for by the pre-amendment statute. See Harvey v. State, 515 S.W.2d 108 (Tex.Cr.App.1974). We find that the charge given was neither calculated to injure the rights of appellant nor was appellant deprived of a fair and impartial trial. See Jewell v. State, 593 S.W.2d 314 (Tex.Cr.App.1978); Sulak v. State, 118 Tex.Cr.R. 112, 40 S.W.2d 157 (1931); and, Grider v. State, 82 Tex.Cr.R. 124, 198 S.W. 579 (1917). Appellant's third ground of error is overruled.

We now turn to appellant's sufficiency of the evidence assertions. The record reflects that, on October 19, 1981, appellant was contacted by Sheril Young (later identified as a confidential informant). As a result of this contact, a meeting was set up the following day between appellant, Young, and Officer Johnny Lynn Whitley, who was acting in an undercover capacity. At this meeting, appellant and Officer Whitley discussed the purchase of a large quantity of "commercial" marijuana. Officer Whitley testified that appellant agreed to deliver to Whitley any amount they wanted, at a price of one hundred and seventy-five dollars ($175) a pound. According to Officer Whitley, appellant gave him a phone number and told him "to call [appellant] at 8:00 that evening and he'd let [Whitley] know how much [marijuana] they had and we could work out a deal on it." Officer Whitley then went to the Sheriff's Office in Rockport, Texas, and picked up $40,000.00, in cash, to be used as purchase money for the marijuana. That night, when Officer Whitley called the number given him, he spoke with appellant and it was agreed that the parties would meet so that Officer Whitley could view a sample of the marijuana and show appellant the money. At this second meeting, appellant and another man (Mr. Morin) met with Officer Whitley and a second officer. The second officer (Officer Russell) showed appellant the money and Officer Whitley was shown a "baggie of marijuana." Mr. Morin told Officer Whitley that he could get approximately one hundred and fifty pounds of marijuana, and it was arranged that the delivery would take place in Rockport, Texas.

Whitley testified that, at 11:45 p.m. the same day, Mr. Morin called Officer Whitley at a motel room in Rockport, Texas, and another meeting was set up in a parking lot. When Officers Whitley and Russell arrived, they observed two vehicles, a blue van and a green Thunderbird. Appellant and Mr. Morin were standing outside of the blue van. Officer Whitley approached the two men and asked to see the marijuana. The green Thunderbird was moved near Officer Whitley's car and Mr. Morin took Officer Whitley over to it. Appellant and Officer Russell remained by the car in which Officers Whitley and Russell had arrived. In the trunk of the Thunderbird were bags of marijuana.

Officer Russell testified that appellant explained to him that they only had a hundred pounds but that he would have the rest of it the next day. Mr. Morin and Officer Whitley walked over to Whitley's car for the money. Officer Whitley gave a prearranged signal, and shortly thereafter, other law enforcement officers moved in and arrested appellant and Morin.

Appellant asserts in his first ground of error that the evidence was insufficient to show a delivery by appellant to Officer Whitley of the marijuana. The jury was charged with finding delivery, through actual or constructive transfer. Constructive transfer "contemplates that the transferor is at least aware of the existence of the ultimate transferee before he may be said to have delivered or made a delivery of a controlled substance to another through a third person." Sheffield v. State, 623 S.W.2d 403 (Tex.Cr.App.1981); Gonzalez v. State, 588 S.W.2d 574 (Tex.Cr.App.1979). It is appellant's contention that no transfer of the marijuana took place since the marijuana was never physically placed in Officer Whitley's possession; hence, there could be no delivery.

The State contends the "constructive transfer" does not require the actual placing of a substance in the physical possession of another, instead, it can be established simply by making the substance available either by placing it in the presence of an agent or by affording him access to the substance. While we are not inclined to define "constructive transfer" as liberally as the state requests, we do find that, under the facts present in the case at bar, a constructive transfer did occur. The "constructive" part of the transfer should not be limited to just the identity of the parties making the transfer itself. A "constructive transfer" should include a transfer where the parties have taken all the steps necessary to place the goods at the disposal of the transferee; however, due to the nature of the goods, an actual manual delivery is impractical under the circumstances. See Fox v. Young, 91 S.W.2d 857 (Tex.Civ.App.--El Paso 1936, no writ).

Here, arrangements were made between the parties for Officer Whitley to return to his hotel room in Rockport, Texas, where he was to receive a call concerning the delivery of the marijuana. He received the phone call and was told to proceed to a parking lot in Rockport. Once there, he was shown bags of marijuana in the trunk of a car. Testimony establishes that the car contained fourteen bags, of assorted sizes, containing marijuana. The combined weight of the bags was one hundred and three pounds. After viewing the bags, Mr. Morin and appellant attempted to collect the money for the marijuana from Officer Whitley. At this time, they were arrested. We find the facts sufficient to establish a constructive transfer. We further find the evidence sufficient to establish that appellant was the transferor. See Villarreal v. State, 617 S.W.2d 702 (Tex.Cr.App.1981). Appellant's first ground of error is overruled.

Appellant asserts in his second ground of error that the evidence is insufficient to prove that the quantity of marijuana in question was more than fifty pounds but less than two hundred pounds. It was established at trial that fourteen bags of marijuana were confiscated during appellant's arrest, these bags having a combined weight of 103 pounds. Officer Whitley testified that, while he did not personally inspect the contents of each bag, those...