Valladares v. State

• Decision Date: 06 November 1990
• Docket Number: No. 6-89-101-CR,6-89-101-CR
• Citation: 800 S.W.2d 274
• Parties: Roy VALLADARES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 274

800 S.W.2d 274

Roy VALLADARES, Appellant, v. The STATE of Texas, Appellee.

No. 6-89-101-CR.

Court of Appeals of Texas Texarkana.

Nov. 6, 1990.

Rehearing Overruled Dec. 4, 1990.

Roy Valladares, pro se.

John B. Holmes, Dist. Atty., Houston, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

CORNELIUS, Chief Justice.

Roy Valladares appeals pro se from his conviction for delivery by actual transfer of more than fifty pounds and less than two hundred pounds of marihuana. The jury assessed punishment at ten years in the penitentiary and a fine of $500.00. Valladares complains in his sole point of error that the evidence is insufficient to support the verdict because an actual delivery of the marihuana was not shown. We disagree and affirm the judgment.

In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found from that evidence the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

According to the undisputed testimony, the following occurred: On January 16, 1989, Gonzalo Anguiano, a Texas City narcotics officer working undercover for the Baytown Police Department, arranged to buy 145 pounds of marihuana for $87,000.00 from Roy Gonzalez at Gonzalez's house. Since Gonzalez did not have a sample of marihuana at that time, Anguiano returned the next day and received one from Gonzalez. On January 18, Anguiano again returned to Gonzalez's home to inform him that he liked the sample and that he wanted to make a purchase. Gonzalez arranged for the two to meet later that day at a gas station in LaPorte, Texas. Gonzalez and Valladares, driving a green car, arrived at the gas station so that Gonzalez could see the money. After Gonzalez saw the money, held by undercover officer Zeke Cavazos in a nearby parking lot, he arranged for Anguiano to meet him two hours later at the same parking lot. Gonzalez and Valladares, driving a brown car, returned to the parking lot where Gonzalez had previously viewed the money. Gonzalez got in the car with Anguiano, and Valladares stood by the trunk of the brown car. Gonzalez told Anguiano that after he saw the marihuana in the trunk of the brown car, they would exchange car keys so that Gonzalez could leave the money in the officers' car and Anguiano could leave with the marihuana in the brown car. Later, they planned to switch the cars back. Gonzalez waited inside the car while Anguiano got out to look at the marihuana.

Valladares opened the trunk of the brown car, pointed to two large sacks, and told Anguiano, "There it is." Valladares testified that Gonzalez gave Anguiano the keys to the brown car which contained the marihuana. Anguiano testified that he maintained custody of the marihuana and drove the brown car and the marihuana to Baytown, where he turned the contraband over to Officer Pettigrew.

The jury was charged on the law of parties. The evidence reviewed above sufficiently supports the finding that Valladares, acting as a party, actually transferred and delivered the contraband to Officer Anguiano.

Valladares argues that because the undercover police officers gave the "bust alert" to apprehend Valladares before Officer Anguiano took physical possession of the marihuana, the State failed to prove an actual delivery. We disagree.

That Anguiano may not have completed his taking possession of the contraband until after Valladares was arrested does not defeat the transfer. See, e.g., Newman v. State, 522 So.2d 71 (Fla.Dist.Ct.App.1988). The timing of the recipient's possession, viz-a-viz the defendant's arrest, is not controlling. The essential fact is that there was a completed transfer.

It is true that just because the police impound the contraband after an arrest does not necessarily mean that there was an actual delivery. But when the purchaser takes possession of it after the arrest there is a completed actual delivery. Logically, the time when the seller is arrested has nothing to do with whether the purchaser reduces the contraband to his possession. Valladares has made no claim that his arrest was premature.

In our case, Anguiano was not just "the police." He was the purchaser. That was not the case in Flores v. State, 754 S.W.2d 419 (Tex.App.-Corpus Christi 1988, no pet.). In that case, the purchaser, in the words of the court, "never had " possession of the contraband. Flores v. State, supra (emphasis added). The court correctly ruled that some other police officer's possession would not suffice for a completed transfer to the purchaser.

Even if the evidence did not show that Anguiano took physical possession of the marihuana, an actual delivery was shown.

We recognize that the cases in Texas presently require a completed transfer, which most construe to require that, for an actual delivery, the recipient must reduce the thing to his physical possession. These cases, however, are wrong in their interpretation of the Controlled Substances Act. The erroneous law and the confusion generated by these cases have been exposed and deplored in dissenting opinions by Presiding Judge McCormick and Judge Odom. See Conaway v. State, 738 S.W.2d 692 (Tex.Crim.App.1987) (McCormick, J., dissenting); Queen v. State, 662 S.W.2d 338 (Tex.Crim.App.1983) (Odom, J., dissenting). Even these scholarly dissents, in our view, have missed the mark.

The focus of the statute's prohibition against delivery of a controlled substance is on the actor--the transferor--not the transferee. The act which is punished is not possession, but delivery. As Judge Odom has said, "The issue is a matter of the conduct of the accused, not of the recipient." Queen v. State, supra (emphasis added). Within the meaning of the Act, a completed transfer occurs when the actor completely and unequivocally relinquishes possession of the substance in favor of the recipient. That the recipient does not reduce the substance to physical possession does not mean there has been no actual delivery. To hold that an actual delivery has not been effected until there has been a reduction of the substance to physical possession confuses actual versus constructive transfer with actual or constructive custody. See Queen v. State, supra. There can be an actual delivery into the constructive custody of a recipient. That is precisely what occurs when the transferor puts the collateral in the recipient's legal custody, or designates it for, and makes it readily available to, the recipient but the recipient does not reduce it to physical possession. There still has been an actual delivery to the constructive custody of the recipient. On the other hand, constructive delivery is where the act of delivery, as distinguished from the act of receipt, is accomplished indirectly, symbolically, through the act of another, or implied by law from the circumstances.

Technical rules of legal possession which apply in civil cases should not, and in reality do not, apply to criminal transfers because the act condemned by the statute is not possession by a recipient but a delivery by the actor. Thus, the concept of a completed transfer, as in the case of a deed or personal property in civil cases, does not apply. See Caraballo v. State, 706 S.W.2d 773 (Tex.App.-Houston [14th Dist.] 1986, pet. ref'd). Whether the recipient reduces the contraband to actual physical possession is not important; what is important is that the actor traffics in the distribution of the contraband. That is the gravamen of the offense, and it is the essential fact to be proved.

To hold that an actual delivery is not made unless and until the recipient reduces the substance to his physical possession would make deliveries to a recipient's home, boat, locker or suitcase not actual deliveries unless the recipient physically touched the contraband itself--a ludicrous conclusion. Indeed, carrying such reasoning to its logical conclusion would compel a holding that delivery of a container of contraband is not an actual delivery unless the recipient opens the container and touches the raw contraband. The Controlled Substances Act certainly did not intend such bizarre and unreasonable results.

In the criminal law context, a delivery may be accomplished by nothing more than making a thing available to another, placing it within his reach, notwithstanding there is no actual handing of the thing from one person to another. BALLENTINE'S LAW DICTIONARY 329 (3rd ed. 1969), quoted with approval in Nevarez v. State, 767 S.W.2d 766 (Tex.Crim.App.1989), an actual delivery case. Such a transfer is an actual one--not a constructive one. Delivery of the keys to a container which can only be possessed by use of the keys is an actual delivery in the criminal law context, not a constructive one.

The container in which the marihuana was located (the car) was delivered to Anguiano. Anguiano took physical possession of it and maintained that possession until he delivered it to Officer Pettigrew. Thus, the requirements of a completed transfer were met.

The judgment is affirmed.

BLEIL, Justice, concurring.

I concur in holding that the evidence presented during the trial of this case sufficiently supports the jury's finding that Valladares actually delivered more than fifty pounds of marihuana. Because sufficient evidence supports the guilty finding, I decline to join in the discussion about the various types of possible delivery.

GRANT, Justice, dissenting.

The question in this case is not whether a delivery had occurred, but whether the evidence supported a delivery by actual transfer. Under the Controlled Substance Act, delivery of a controlled substance is accomplished in three distinct ways: actual transfer, constructive transfer, and offer to sell. See Ferguson v. State, 622 S.W.2d 846, 848 (Tex.Crim.App. [Panel Op.] 1980); Conaway v....