Warren v. State

• Decision Date: 18 February 2000
• Docket Number: No. 06-99-00063-CR,06-99-00063-CR
• Citation: Warren v. State, 15 S.W.3d 168 (Tex. App. 2000)
• Parties: (Tex.App.-Texarkana 2000) KIRKLAND LAMAR WARREN, Appellant V. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 168

15 S.W.3d 168 (Tex.App.-Texarkana 2000)

KIRKLAND LAMAR WARREN, Appellant

V.

THE STATE OF TEXAS, Appellee

No. 06-99-00063-CR

Court of Appeals of Texas Texarkana.

Submitted Feb. 17, 2000

Decided Feb. 18, 2000

On Appeal from the 4th Judicial District Court Rusk County, Texas Trial Court No. CR98-230

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

O P I N I O N

Opinion by Chief Justice CORNELIUS.

A jury convicted Kirkland Lamar Warren of the second degree felony of delivery of one gram or more but less than four grams of cocaine, by actual delivery.¹ Warren's punishment, enhanced by a prior felony conviction, was set by the jury at fifty years' imprisonment. In a single point of error, Warren contends that the State's evidence was insufficient to prove actual delivery as alleged in the indictment and, therefore, the trial court erred in failing to grant his motion for instructed verdict. We affirm the conviction.

At the time of the events underlying this appeal, Cynthia Barefield was a private citizen working with the Northeast Texas Narcotics Task Force as an informant, arranging drug buys between undercover officers and suspected drug dealers. On June 8, 1998, Barefield arranged a drug buy between Officer Paul Jaworski of the Task Force and Warren at the motel where Barefield lived in Rusk County. Warren arrived at the motel first,² followed by Jaworski, who arrived about ten minutes later. Barefield introduced the two men, and Jaworski asked Warren, "Do you have something for me?" Warren answered, "Yes, it's in the bathroom on top of the toilet." Barefield testified that Warren placed the cocaine in the bathroom because there were police cars and police officers in the motel parking lot, and this made him nervous. Jaworski went into the bathroom and found wrapped in plastic what was later determined to be crack cocaine. He picked it up and returned with it to the bedroom. Warren and Jaworski briefly argued over the price of the cocaine, then Jaworski paid Warren $200.00 and left the motel room, followed by Warren minutes later.

Warren contends that the State's evidence was sufficient to prove constructive delivery, but insufficient to prove actual delivery as alleged in the indictment. He contends that actual delivery requires that the seller physically hand over possession of the controlled substance to the buyer. He relies on Queen v. State, 662 S.W.2d 338 (Tex. Crim. App. 1983), in which the Court of Criminal Appeals said that constructive delivery included a situation where the seller "plac[es] the contraband in a particular location and then advise[s] the recipient of this location so that the recipient can retrieve the narcotics." Queen v. State, 662 S.W.2d at 340. Because the evidence showed that Warren did not physically hand over the cocaine to Jaworski, but directed Jaworski to retrieve it from the bathroom where he had previously placed it, Warren contends he could have been convicted of constructive, but not actual, delivery of cocaine.

A challenge to the trial court's denial of a motion for instructed verdict is, in effect, a challenge to the legal sufficiency of the evidence to support the conviction. Nam Hoai Le v. State, 963 S.W.2d 838 (Tex. App.-Corpus Christi 1998, pet. ref'd). In considering such a challenge, we consider all the evidence, both from the State and the defense, in the light most favorable to the verdict. Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990). We consider the evidence to determine whether any rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). If any rational trier of fact could so find, the evidence is sufficient and we will affirm the conviction.

Pursuant to Section 481.113(a) of the Texas Health and Safety Code, a person commits a felony offense who knowingly or intentionally "delivers" a controlled substance. See Tex. Health & Safety Code Ann. § 481.113(a). Delivery of a controlled substance may be accomplished in one of three ways: by actual transfer, constructive transfer, or an offer to sell. Ferguson v. State, 622 S.W.2d 846, 848 (Tex. Crim. App. [Panel Op.] 1980) (citing Tex. Rev. Civ. Stat. Ann. art. 4476-15, § 1.02(8)). So that the accused may know the precise nature of the accusation against him, the State must specify in the indictment the kinds of delivery it will try to prove. Id. Here, although the State could have alleged all manners of delivery, State v. Garrett, 798 S.W.2d 311, 314 (Tex. App.-Houston [1st Dist.] 1990), aff'd, 824 S.W.2d 181 (Tex. Crim. App. 1992), it alleged only that Warren delivered the cocaine by actual transfer. Thus, the State was bound to prove beyond a reasonable doubt that Warren delivered the cocaine by actual transfer. Conaway v. State, 738 S.W.2d 692, 694 (Tex. Crim. App. 1987).

The sole issue for our determination is whether the evidence supports a finding that Warren delivered the contraband by actual transfer. In making this determination, Warren's argument that the State proved constructive rather than actual transfer requires that we distinguish these types of delivery. The Texas Controlled Substances Act does not define the terms "actual transfer" and "constructive transfer." Accordingly, Texas courts have construed the terms according to their plain or common meanings. See, e.g., Nevarez v. State, 767 S.W.2d 766, 768 (Tex. Crim. App. 1989); Conaway v. State, 738 S.W.2d at 695. Actual delivery of a controlled substance has been defined as a complete transfer of the real possession and control of the substance from one person to another. Conaway v. State, 738 S.W.2d at 695. As commonly understood, an actual transfer, or delivery 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); Cohea v. State, 845 S.W.2d 448, 450 (Tex. App.-Houston [1st Dist.] 1993, pet. ref'd). Constructive delivery, on the other hand, has been defined as a transfer of a controlled substance, either belonging to an accused or under his control, by some other person or agency, at the instance and direction of the accused. Thomas v. State, 832 S.W.2d 47, 51 (Tex. Crim. App. 1992); Roberts v. State, 866 S.W.2d 773, 778 (Tex. App.-Houston [1st Dist.] 1993, pet. ref'd). In Queen, the case on which Warren relies, the Court of Criminal Appeals cited Rasmussen v. State, 608 S.W.2d 205 (Tex. Crim. App. [Panel Op.] 1980), where the court for the first time addressed what constitutes a constructive transfer. See Queen v. State, 662 S.W.2d at 340-41 (citing Rasmussen v. State, 608 S.W.2d at 210). In Rasmussen, the court consulted other jurisdictions that had adopted statutes from the Uniform Controlled Substances Act and cited State v. Guyott, 239 N.W.2d 781 (Neb. 1976), as illustrative of a constructive transfer. See Rasmussen v. State, 608 S.W.2d at 209-10. In Guyott, the Nebraska Supreme Court held that a constructive transfer occurred when the transferor placed narcotics in a wastebasket in a hotel bathroom where an undercover officer later retrieved them before returning to meet the transferor in the hotel lounge. See Rasmussen v. State, 608 S.W.2d at 209-10 (citing State v. Guyott, 239 N.W.2d at 782). Thus, in Queen, the court stated in dictum,

A constructive transfer may take several forms: the actor may constructively transfer the narcotics to the intended recipient by entrusting the narcotics to an associate or the postal service for the delivery to the recipient, or the actor may place the contraband in a particular location and then advise the recipient of this location so that the recipient can retrieve the narcotics.

Queen v. State, 662 S.W.2d at 340 (emphasis added) (citing Rasmussen v. State, 608 S.W.2d at 210). Warren contends that the situation mentioned in Queen is the situation his case presents. He placed the contraband in a particular location-the motel bathroom-then advised Jaworski of the location so that Jaworski could retrieve the narcotics.

Warren also relies on Elliott v. State, 766 S.W.2d 361 (Tex. App.-Texarkana 1989, pet. ref'd), in which this Court cited Daniels v. State, 754 S.W.2d 214 (Tex. Crim. App. 1988), where the Court of Criminal Appeals noted that "[f]or some purposes, delivery is accomplished by nothing more than making a thing available for another, placing it within his reach, notwithstanding there is no actual handing of the thing from one person to another." We determined that the court referred to constructive transfers. We cited Queen and held that the evidence supported a constructive transfer where the seller placed the controlled substance on the front porch and directed the buyer to pick it up from the porch. However, in Elliott, there was no issue of whether the transfer constituted an actual transfer.

In Nevarez, the Court of Criminal Appeals again noted that "[f]or some purposes, a delivery is 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." Nevarez v. State, 767 S.W.2d at 768. To the extent that Queen's definition of constructive delivery contemplates such a situation, Queen's definition is no longer effective. In Nevarez, the court suggested that the definition it used applied to the facts of the case before it, which the court determined constituted an actual delivery. Nevarez v. State, 767 S.W.2d at 768; see also Rodriguez v. State, 970 S.W.2d 66, 69 (Tex. App.-Houston [14th Dist.] 1998, pet. ref'd); Valladares v. State, 800 S.W.2d 274 (Tex. App.-Texarkana 1990, pet. ref'd).

In 1990, in Valladares, this Court expressed its dissatisfaction with Queen's understanding of actual and constructive transfer. We stated that the...