*1 an in town.” The sum of the evidence concerning Plangman’s partic-
adduced DANIELS, Appellant, James E. ipation only that she knew of the shows recently crime after its commission. We Texas, Appellee. The STATE of holding that one is not an reaffirmed the accomplice witness either because one No. 767-84. knew of the offense and not disclose it presence Texas, of one’s the scene Appeals or because Criminal Kunkle v. (Tex.Cr.App. State of the crime. En Banc. 18, 1986). No., 69,501, June Fur- delivered June act, thermore, without affirmative witness, accomplice even as a “cannot be an Id., slip opinion
matter of fact.” at 9. any in the instant case does not reflect
record Plangman’s part act on to assist
affirmative Kunkle, encourage
in or the murder. See supra; Chappell Caraway,
supra; (Tex.Cr.App.1978). Appel- showing Plangman partici-
lant made
pating planning promoting the of- appellant prove Plangman
fense. Nor did any knowledge of the murder soon to
had See Cross
transpire. Thus, Plangman is murder, accomplice capital she
not an act in its perform
did not affirmative stated, previously
commission. As we
Plangman’s knowledge failure to mere compel
disclose does not the conclusion Easter, supra; accomplice.
that she was an Kerns, Viewing
Caraway, supra; collectively,
the evidence the facts are require
sufficient an instruction Plangman whether Irene was an Therefore, hold
accomplice witness. we refusing err in to so
the trial court did not jury. Appellant’s ground third
instruct the
for review is overruled. reasons,
Therefore, given foregoing judgment of the Court of
affirmed.
CLINTON, CAMPBELL
DUNCAN, JJ., concur in the result.
TEAGUE, J., dissents.
WHITE, J., participating. *2 Hineman, appeal only, on
Charles M. Austin, appellant. for Saba, Atty., Sam Crump, Dist. San Louis Llano, Oatman, Atty., Robert Asst. Dist. Austin, Huttash, for Atty., State’s State. PETITION FOR
OPINION ON STATE’S REVIEW DISCRETIONARY ONION, Presiding Judge. guilty by jury found
Appellant was delivery of mari- of unlawful the offense pun- huana. The trial court assessed the imprisonment. The years’ five ishment at was based on a violation of the Act, Article Texas Controlled Substances (as 4476-15, 4.05(a) (b)(3), V.A.C.S. § 1981).1 amended in alia, appellant con appeal, inter overruling court erred tended trial quash the indictment because his motion to transfer” was an the term “constructive did not notice of ambiguous term that right the acts and violated state adequate under the federal and notice of Criminal Pro constitutions and Code Appellant further contended cedure. error in court committed fundamental trial allowing jury to convict alleged in theory on a agreed Appeals “with both Court of assignments error” and reversed to dismiss remanded with instructions State, indictment. Daniels v. 1984). granted (Tex.App. We — Austin discretionary review petition State’s of the Court to determine the correctness Ap Appeals’ Texas Rules decision. Procedure, 200(c)(2). Rule pellate Kimberly Briefly, the record shows Orga- Hughes, of the Austin a member Unit, an undercover worked as nized Crime County at the time agent-officer in Burnet early October alleged offense. 12, pursu- offense on October the time of the 1. The Court of reviewed this case effect the sub- did not Sub- 1982. The amendment ant to the 1976 version of the Controlled However, 4476-15, com- Further however. stantive law § stances Act. supra, Article Currently unnecessary. see Legislature is therefore amended in 1981 ment 1983, 4476-15, (Acts Leg., p. (Acts Leg., p. Sept. 68th § 4.05 67th ch. eff. 1983). Aug. 1981). eff. version which ch. It was this effect parking appellant in the Hughes Hughes Urbanovsky met were the Grocery Hughes lot of Cochran’s Store later State’s witnesses. indicated her Whited, testimony went to his residence Marble Falls indi- Brooks and Mar- cating buy drugs. Appellant charges she wanted to tinez all had filed them. sell, drugs stated he didn’t have but At the close of the State’s case-in-chief according Hughes, he rolled her a mari- appellant’s motion for an instructed verdict cigarette huana and she “simulated” smok- guilty” of “not was denied. ing part of it. *3 Eugene Charles Van Buskirk de- evening On the of October appellant’s fense testified he was at house Martinez, Hughes Tim was with James question, on the occasion in and was watch- Brooks and Whited at the Relax Bar James ing group television when entered the drinking I outside Granite Shoals beer. appellant house. He stated that was leav- accompanied Hughes The three men later very go get the house at the time to a appellant’s in her car and directed her to (Van pack Buskirk) six of beer for which he previously home which she had visited. given appellant money. had Van Buskirk testified She that marihuana was smoked Hughes, upon entering, recalled that went appellant’s in the car en route to house and directly to the bathroom and that in her again smoking joint. she simulated absence Brooks and Whited asked Juanita Upon appellant’s Armstrong, present, arrival Brooks entered who was about some “pot,” they bought house and then returned to the car. There- some marihuana Hughes gave Armstrong, placed after related she from money James Whit- who gave ed a and he $100 bill her “underneath the bar.” He later observed a $40 change. get purse thought In order to be able to into it behind the bar and be- Hughes longed house Armstrong. insisted she had to use the It was Van Bus- bathroom, accompanied testimony Hughes and she the three kirk’s was transaction, Upon entering during men into the house. she bathroom this and that appellant Hughes saw seated on a stool behind after came out Brooks and Whited large “pot,” bar and also observed a white man showed her the that Whited then watching cigarette with blond hair television. rolled a marihuana and “a few of Hughes proceeded Upon smoking appellant them” bathroom. were it when the her return she Appellant saw Whited the kitchen returned with the beer. asked bag group area with a of marihuana. He handed the as he leave had to work the bag Hughes morning group if asked her “it next and the left. right.” responded looked all She “Yes.” Armstrong, Juanita when called Hughes testified that Whited then “handed defense, present testified that she was my plus bill Daniels $100 $15 James question, appellant the time in and that the (appellant).” present was not when the transac- group bag place. participation then left the house. The tion took As her transaction, apparently split of marihuana took the Fifth Amend- was she Hughes permitted received one half next ment and was to do so without which the day objection. cross-examination she relat- she delivered to Chemist Bob Urbanov- On sky living appellant at the Department, of the Austin Police who ed she was with time, analyzed appellant, testified that he and reiterated that on the determined gone get given by Hughes question, that the substance him occasion in had beer Daniels, appel- weighing was in fact marihuana 10.8 for Van Buskirk. Clifton grams cousin, present, or 0.88 ounces. lant’s testified he group en- appellant left the house as Hughes On cross-examination admitted tered, made was with and that the “deal” present she was not when marihuana Armstrong. did not “delivered.” She see where Texas Con- pertinent portions the marihuana came from because the first bag she Act in effect at the time time observed the of marihuana it trolled Substances provided: was in the offense of Whited. instant 4.05(a) Except constituting “Sec. as authorized and the acts Act, person commits an offense if the offense. this knowingly intentionally delivers The trial court overruled the motion to marihuana. quash. appeal the Court of “(b) (a) An offense under Subsection erred, although concluded the trial court of this section is: noted that if the had been transfer,” allega- with “actual tracking tion the statute would have been “(3) felony degree the third if Daniels, supra sufficient. at 392. amount of marihuana delivered is four right An accused’s to notice of the accu- more ounces or less but than one-fourth premised upon sation him is consti- ounce[.]” principles, tutional both federal and state. “Sec. 1.02 The Sixth Amendment to the Constitution “(8) ‘delivery’ ‘Deliver’ means the provides part: United States actual or constructive transfer from one prosecutions, “In all criminal the ac- person to another of a controlled sub- enjoy right cused shall ... to be *4 drug paraphernalia, stance or whether or informed the nature and cause of the agency relationship. not there is an For accusation....”2 Act, purposes of this it also an includes I, 20 Texas Constitution § offer sell a controlled or part: states in drug paraphernalia.” prosecutions all criminal the ac- “[In As can be seen from the definition of right shall have the to demand the cused] 1.02(8), “deliver” “delivery” in said nature and cause of the accusation types “delivery” contemplated: three him, are copy and to have a thereof.” (1) transfer; (2) an actual a constructive pertinent There are also Codeof Criminal transfer; (3) and an offer to sell. See provisions. Procedure See Articles 21.- Queen State, (Tex. v. 340 02(7),21.03, 21.04, 21.11 and V.A.C. Cr.App.1983); State, Ferguson v. 622 S.W. C.P. 2d (Tex.Cr.App.1980); 848 Conaway v. The defendant is thus entitled to notice State, 738 (Tex.Cr.App. S.W.2d 694 alleged of the acts or omissions he is 1987). State, have committed. Gorman v. 634 presented The indictment in this case (Tex.Cr.App.1982). S.W.2d 681 pertinent part that on or about considering quash, When a motion to it is 12, 1982, October “... James E. Daniels say insufficient to the accused knew with ... did then and unlawfully, there inten- charged; what offense was rather the tionally and knowingly deliver to Kimber- question presented is whether the face of ley Hughes by (sic) contractive transfer a plain the instrument sets forth in and intel quantity of marihuana in excess of one- ligible language sufficient information to fourth ounce[.]” prepare the accused to enable defense.
In his State, (Tex.Cr. amended quash appel- motion to v. 591 McManus S.W.2d505 urged lant three why App.1979); State, indict- reasons Haecker v. First,
ment in this case is
(Tex.Cr.App.1978).
defective.
that it
920
The motion to
does not set
quash
granted
forth the
offense
should be
the lan
where
plain
intelligible words; second,
and
guage
charging
it fails
instrument concern
allege
whereby
the manner and
vague
means
the defendant’s conduct is so
alleged
committed;
third,
acts were
deny
and
indefinite as to
the defendant effec
that “constructive
ambigu-
allegedly
transfer” is an
tive notice of the acts he
commit
State,
ous and conclusory legal
term which is
ted. Haecker v.
Cf. Adams
State,
proper
(Tex.Cr.App.1986).
insufficient to
him
notice of the
v.
While
essential elements
dictment need not
evidence
Phillips,
indictment,
Smith
alleged
upon
supra;
fense must
an
State.
State,
v.
language
(Tex.Cr.App.1973);
502
133
indictment drafted in
S.W.2d
State,
(Tex.Cr.
is Cameron v.
creating
defining
offense
401
statute
an
S.W.2d 809
State,
ordinarily
sufficient. Beck v.
App.1966).
682
(Tex.Cr.App.1985),
S.W.2d
554
State,
Ferguson
v.
“Actual consists real possession to or his App.1977). the vendee servants special agents who are identified with meaning We note do further that the of represent him in law him. It is a “constructive transfer” has been addressed of proper- formal immediate tradition by not in this Court but the context a ty to vendee. motion for to indictment failure delivery general is a “Constructive allege put to sufficient facts to the defend- term, comprehending all those acts meaning. ant on notice of such which, although truly conferring a In Rasmussen thing real sold on the (Tex.Cr.App.1980), delivery a of marihuana vendee, held, by have been construction case, origi- the conviction was on reversed law, equivalent acts of real deliv- nal submission failure de- ery.” requested charge fendant’s on the law of (1969) Dictionary, Ballentine’s Law 3rd Ed. parties. rehearing urged the State “delivery” as p. 329 defines primary a defendant was actor a handing over; pos- the surrender “a parties required on was not based session to another on the contention the defendant had “con- structively delivered” marihuana. purposes, “For some is ac- opinion rehearing on noted by nothing making complished more than meaning of “constructive transfer” another, placing it thing available type pursuant of delivery method or reach, notwithstanding within his 4476-15, 1.02(8),V.A.C.S., had not handing thing is no actual from Observing previously been addressed. person (Emphasis to another.” Act Texas Controlled Substances supplied.) derived from the Uniform Controlled Sub- International Dic- Webster’s Third New Act, this Court reviewed decisions stances 1961) tionary (Unabridged “con- Ed. defines from states with statutes based on other delivery” a delivery structive as “... Act. Uniform accompanied by pos- transfer an actual property yet recog- delivered session Ellis, State v. W.Va. S.E. having par- nized as been intended Supreme Ap 2d law_” ties and as sufficient peals, setting pertinent after forth their statutes, stated: In the instant case interpret a transfer’ ‘constructive delivery, the act which is statu “We transfer of sub- be the a controlled torily ordinarily defined and is suffi cient, belonging to an individual specificity further meet the stance either per- type his control other the indictment under some Ferguson agency Al son at the or direction as “constructive transfer.” instance though statu of such con- “constructive transfer” the individual accused *7 defined, given its torily is to common be structive transfer.” V.T.C.A., Code, meaning. See Government Court also reviewed Rasmussen 312.002(a). court We conclude trial 593, 239 Guyott, 195 Neb. N.W.2d State v. properly motion to overruled the McHorse, 85 781 v. N.M. State a motion should be Such 753, up- (Ct.App.1973), P.2d 75 517 granted only where the concern in cases to held the transfers those vague the defendant’s conduct to sus- transfers and sufficient constructive effec deny indefinite as the defendant tain convictions. allegedly he commit tive notice acts simply stat- Rasmussen Court then State, Thomas v. 621 S.W.2d ted. ed: State, (Tex.Cr.App.1980); Lindsay v. these cases is “The commonelement of Cruise S.W.2d delivery State, prior However, directly particular meaning. indirectly quired under a volved was case, defendant’s control.” the circumstances of this we under specific giving in feel error not Ras- applied It that “common element” to definition was harmless. found that his actions did not mussen and delivery so as to constitute constructive Rasmussen, Whaley Actually, Davila and primary party him a to the offense. make constructive, aspect dealt with not, repeat, Court did The Rasmussen transfer. adopt the definition “constructive In Gonzalez 588 S.W.2d Ellis, although out in later transfer” as set (Tex.Cr.App.1979), held this Court point.5 to be on this cases seem confused requires that constructive transfer glean All element it did was to a common transferor at least be of the exist aware out-of-state mentioned from the cases the ultimate de ence of transferee before opinion. livery. This does not that the trans- mean In Davila v. ac identity feror need know of or be (Tex.Cr.App.1984), the defendant recipient. It quainted with the ultimate by “con- charged with of heroin alleges only requires that when the State Rasmussen, Noting transfer.” structive alleged ultimate constructive transfer to an stated: recipient must have con accused presented “The evidence in the instant templated that his transfer would initial appellant to show had case fails final transaction in the chain not be the or indirect control of the contra- direct distribution. prior its delivery, band and does opinion concurring In an in the reversal show that the contraband was delivered Gonzales, di- party] p. Judge Dally third at instance or stated: [a appellant.” rection of not show simply “The evidence does a deliv- appellant knowingly made Whaley 717 S.W.2d alleged]. (Tex.Cr.App.1986),the ery Court stated: of heroin Galvan [as nothing in to show There is the record Court, “This Rasmussen v. making appellant knew that he was (Tex.Cr.App.1980), noted heroin, con- actual or a transfer of either that ‘constructive transfer’ had been structive, is no evi- in Texas. We follow to Galvan. There defined went on to appellant met holdings of courts states which had ever other dence that specifically defined ‘constructive trans- Galvan’s or that knew about Galvan Rasmussen, at fer’. 209-10. Rasmus- testimony of Gal- role in the sale. The subsequently ap- sen has been cited with supported have a conviction van would proval. In Davila v. either for appellant (Tex.Cr.App.1984) 15 724 we said: heroin to for the heroin or “ jurisdic ‘... We followed other Montoya, but interpreted tions and charged with these offenses.” transfer to of a con transfer re- knowledge requirement was This belonging to trolled substance either State, 623 S.W.2d affirmed Sheffield the defendant or direct or under (Tex.Cr.App.1981), post Rasmussen control, by person indirect some other case. or manner at the direction instance or glean that with- eases we can From these [citing Ras defendant....’” meaning transfer” of “constructive mussen, supra] applicable: following rules are Queen State, See also *8 delivery, the alleged Thus, Prior to (Tex.Cr.App.1983). ap- 1. 340-341 direct must have either pears has ac- transferor that ‘constructive transfer’ 1982), language in Wha P.D.R. See also the 5. See Henderson 1984); Pulgarin (Tex.App. S.W.2d at 31 ley [14th] — Houston (Tex.App. [1st] — Houston believe, you “If do or if you of the transfer- not so direct control Rasmussen, supra. thereof, you red. have a reasonable doubt will guilty.” find the The transferor know of the Defendant must Gonzales, existence the transferee. appellant objected The to the instructions law of giving parties, object the but did the context None of these cases outside authorizing to the instructions conviction for a of a motion to calls different upon theory the of actual transfer. supports the that earlier reached but result charge The the viewed properly the over- conclusion that court permitting jury appel as the to convict the quash. the motion ruled by only lant for actual either his urges petition for also in its The State party conduct or to actual own as a deliv fun- discretionary review that there was no Whited, by ery and that it did not authorize charge error as damental the court’s upon delivery, constructive the Appeals. That court by found the Court only theory the charge jury to permitted that the the found citing on this basis court reversed theory alleged in indict- convict on a the (Tex. Cumbie v. alleged delivery by “construc- ment which Cr.App.1979), proposition for the that an tive transfer.” allegation charge from the omission charge jury that informed the in the indictment fundamental error. was “charged with by Cumbie, however, later overruled to delivery, by the offense extent of as to error in the conflict transfer, of more than one-fourth ounce charge requiring automatic rever court’s marihuana_" added.) (Emphasis sal. Almanza v. Abstractly the then instructed court (Tex.Cr.App.1985)(Opinion on rehear jury: ing). provides person law com- “Our The Almanza standard of review for an if inten- knowingly mits an offense charge jury’s error in reads as tionally delivers marihuana. follows: in this “By the term ‘deliver’ as used “If error in was the sub- charge, is meant or construc- actual objection in the trial ject timely of a tive person from to another transfer court, if required then reversal is marihuana, is an whether or not there rights injure the error is ‘calculated to added.) relationship.” (Emphasis agency defendant,’ more means no than The court also on the law some harm to the must be parties, applying and then the law to words, In other accused from the error. jury: instructed the facts properly pre- an error which has been “Now, you if the evidence believe from objection call for reversal will served De- beyond a reasonable that the doubt long the error is harmless. as fendant, Daniels, E. James either hand, proper objec- if no the other “On intentionally knowingly conduct own and the accused made at trial tion is ounce of delivered more than one-fourth the error was ‘funda- must claim that Kimberly Hughes on Octo- marihuana to mental,’ if a reversal he will obtain Texas, County, 1982 Burnet ber egregious and created error acting promote intent to or assist with had a fair and that he ‘has not such harm offense aided the commission ‘egregious trial’—in short impartial E. Whited to the offense James commit harm.’ above, charged, as defined and that degree actual “In both situations E. did on October said James Whited light assayed must of harm more fourth ounce 1982 deliver than one of the evi- state jury charge, the entire Hughes in Kimberly of marihuana issues and dence, including contested Texas, County, you will find Burnet evidence, argu- weight probative guilty. Defendant
223 nothing in appel- ment of and other relevant the record to show that counsel making knew information the record of the lant that was a transfer of revealed marihuana, constructive, Almanza, as a either actual trial whole.” Gonzales, Hughes. supra (concurring See opinion). Although frequently this Court has re- Viewing light most the evidence Appeals to the of
manded
cause
verdict,
jury’s
favorable to the
no rational
apply
to make
factual determination and
trier
the facts could have found all the
standard, particularly
pre-
the Almanza
essential
elements
cases,
always
Almanza
we have
done
beyond a
doubt.
reasonable
Jackson v.
so. See Kucha v.
Virginia, 443
61
U.S.
S.Ct.
Bonfanti
(1979);
L.Ed.2d
Hudson
(Tex.Cr.App.1985).
Burks v.
appellant timely objected
The
to the
parties
inclusion of the law of
in the
Supreme
Under the mandate of the
charge,
his point
but
of error is that funda
Court of
States in
the United
Burks v.
mental error
occurred when
court sub
States,
United
437 U.S.
S.Ct.
only
theory
mitted
of actual
(1978),
Massey,
L.Ed.2d
and Greene v.
which was
the indictment.
437 U.S.
98 S.Ct.
must be reversed. App.1983). Appeals Since the Court of was correct more, There is however. The evi as to the fundamental error in the court’s dence sustain the conviction in case this charge, judgment of that court is af- Hughes,
is insufficient. the undercover conviction, firmed as to the reversal agent, testified she did not know where the but reformed to show that an order of in question marihuana came from. She acquittal is also to be entered due to the saw it for the in the first time lack of sufficient evidence sustain the Although appellant Whited. took mon conviction. ey Hughes’ presence, from Whited in showing appellant was.no had direct WHITE, JJ., and McCORMICK or indirect control over marihuana concur. Rasmussen, supra. question. See Fur J., CAMPBELL, would “concur ther, appellant the indictment I would result because remand “intentionally knowingly” delivered the con- Court of for reconsideration Hughes by marihuana Adams, opinion in sistent this Court’s with Hughes transfer. evidence shows supra.” receive her share marihuana Whited, MILLER, J., disposition she dissents to the until after Brooks agrees point number appellant's left house. There is error Martinez point disposition of of error num- with the showing appellant knew two. ber Hughes was to the ultimate transferee recipient any part of of all or the mari requirement knowledge
huana. met,
Gonzlaes, supra, even if it said had direct or indi
could be
rect control over the contraband. There is