*1 a demand presented he was After tract. refund, any to make Phares failed full
for a fact that he had re-
refund, despite materials and acknowl- $7,100.00for
ceived than that much less
edged spending specified materials
amount on jurors opinion, reasonable my
contract. that, from the these facts infer from
could contract, Phares he entered
moment materials purchase intended
never the contract. complete
required the fact that contract and
existence only fulfilled the contract
he partially hypothesis a reasonable
circumstances innocence; facts the existence of these jury through remove from should not — legal review of sufficien- of our guise weigh the evidence to
cy right —the intent at the outset Phares’s determine with the home- relationship
his contractual Thus, though even the evidence
owners.
conflicts, juror could conclude a reasonable felony theft. Be- committed
that Phares holds that the evidence majority
cause the support jury’s insufficient legally not,
verdict, it I my opinion dissent.
respectfully MIHNOVICH, Appellant,
Albert John Texas, Appellee. STATE 09-08-00207-CR, 09-08-00208-
Nos.
CR, 09-08-00209-CR. Texas, Appeals
Beaumont. 5, 2009.
Submitted Oct.
Decided Nov. 2009.
Discretionary Review Refused
March (Vernon 31.03(a), (e)(4)(A) $1,500.00 necessary the commis- to establish Ann. Pen.Code 2009). Supp. felony proven. See Tex. sion of theft was still *2 Hon, Atty., William Lee Dist. E. Joseph Martin, III., First Asst. Atty., Dist. Liv- ingston, for State. McKEITHEN, C.J.,
Before KREGER, GAULTNEY and JJ. OPINION KREGER, CHARLES Justice. indictments, In separate three appellant Albert John charged Mihnovich was having “Anthony delivered to Lowrie” the hydrocodone controlled substances al- and prazolam “by constructively transferring said substance[s.]”1 controlled See Tex. Safety 481.114(b), § Health Code Ann. & (c) (Vernon 2009).2 Supp. The cases were action; in jury tried to a a single the result pretrial of a motion filed Id. State. 2003).3 481.132(b) (Vernon jury convicted Mihnovich in three causes and assessed of punishment years’ fifteen con- finement Department Texas Justice, Criminal Correctional Institutions 19,506, in Division cause number and con- years finement for two each in cause num- 19,507 19,508 bers in a jail state facili- ty Department of the Texas of Criminal Among Justice.4 issues raised Mih- novich in Bellaire, appeal F. his those convictions Keegan, appel- James lant. is that the evidence at trial was legally single delivery hydrocodone episode.” 1. A was al- the same Under criminal subsec- 481.132, leged (a)(2) occurred on March tion of section the definition of separate alprazolam while deliveries of and of episode” “criminal includes the commission hydrocodone place were have taken of two or in more offenses violation of the on March 2007. act controlled substances and the offenses repeated commission of the same or simi- portions 2. The relevant version current lar offenses. language 481.114 contain section the same as the version in effect at the time along 4.A fourth cause tried with the other will, therefore, We offense. refer the cur- three, 19,505, possession cause number provision. version of the rent code substance, controlled ended when the trial 481.132(b) granted pertinent part, court Mihnovich's motion for direct- section reads: may prosecuted single "A defendant ed verdict the conclusion of the State’s arising action criminal for all out of offenses case-in-chief. dence, up the convictions. We Detective Lowrie set his to sustain where
insufficient recording acquit- equipment Schleppi’s bed- judgment render reverse and On prior room arrival. Mihnovich’s tal. *3 occasion, hy- twenty Mihnovich sold to The March Schleppi. drocodone tablets TRIAL THE 27, 2007, up was also set us, the before the As set out in record to Schleppi calling ostensibly Mihnovich relatively simple facts and underlying purchase hydrocodone alprazolam. and all not in State’s indictments dispute. a They agreed to meet at sandwich local with constrac- charged having Mihnovich take shop where the transaction would the tively delivered controlled substances before, Schleppi provided As place. was The record indi- “Anthony to Lowrie.” County the Polk authori- currency by U.S. offenses, the time of the cates that at ties, and was the wireless transmitter a detective in the narcotics Lowrie was the again person. on her After hidden County Polk Sheriffs office. division the departure and Mihnovich’s from the sale 2007, early or Detective During late 2006 scene, the nar- again turned over Schleppi Lowrie, permission the Polk with the time, cotics to This Detective Lowrie. office, Attorney’s made an County District forty Mihnovich tab- Schleppi delivered Betty Schleppi, a woman agreement with al- hydrocodone eighteen lets of and County charges, drug Polk pending with Subsequent testimony indicat- prazolam. surreptitiously purchase Schleppi the from Schleppi acquired ed tablets were selling narcotics from individuals who 2 weight Mihnovich March had on a total Schleppi would then turn illegally. them grams hy- 12.97 and tested for positive County Polk authori- the over to narcotics Testimony the drocodone. also confirmed subsequently prosecute who ties would narcotics delivered Mihnovich Mihnovich criminally. seller Because was hydrocodone on 27 to Schleppi March be a to Polk Coun- already person interest and alprazolam, weighing grams and 32.68 regard illegal to the ty authorities with grams, respectively. Following 3.45 narcotics, Schleppi sale of and because conclusion and of the State’s case-in-chief series of personally, knew Mihnovich a il- subsequent granting of the directed by Schleppi from Mihnovich purchases licit verdict the trial court in cause number arranged was and consummated. 19,505, calling rested without defense only Schleppi indicates that record single a witness. Mihnovich, from the made contact with OF STANDARD REVIEW setting up to him telephone
initial calls transactions, time and of the place raised, sufficiency When legal issue meetings which the ac- during face-to-face if ra ultimately any we must determine exchange money tual tional trier fact could have found —took — meeting, to each Detective place. Prior proven essential elements offense provide Schleppi doubt, Lowrie U.S. would beyond making in reasonable and currency which numbers the serial we are to ex required this determination recorded, and Schleppi had been light amine all evidence in the most record outfitted with wireless transmitter so jury’s favorable verdict. to the Jackson 2781, Lowrie monitor Virginia, Detective could 443 99 S.Ct. U.S. State, (1979); between record the entire conversation L.Ed.2d McKinney 61 560 2, 366, (Tex.Crim.App.2006). The March Schleppi and Mihnovich. 374 presented consider all of the evidence place Schleppi’s sale took resi- We jury, properly improper to the whether or parties, jury’s and the charge contains State, ly admitted. Conner v. 67 S.W.3d none. Under these particular circum- stances, (Tex.Crim.App.2001); legal Hill v. our sufficiency review is State, therefore somewhat (Tex.App.-Beau narrowed because even hypothetically mont In a pet.). legal sufficiency “[a] correct [jury] evidence, charge may modify examination of the record direct indictment alle- gations in such a way as to allege and circumstantial evidence are ‘an treated offense different from in the offense equally probative that each is as as the ” the indictment.’ Gollihar v. establishing guilt other of an ac n. (Tex.Crim.App.2001) Clayton cused. *4 State, (quoting Planter v. 156, 9 Indeed, S.W.3d (Tex.Crim.App.2007). 778 circum 159 (Tex.Crim.App.1999)). Consequently, stantial evidence alone can be sufficient to it would be improper analyze the evi- guilt. establish Id.
dence any theory under of delivery other by ANALYSIS than constructive transfer. The elements of the offense of A “constructive” transfer re
delivery Penalty Group of a 3 or 4 con quires “the transfer of a controlled sub (1) (2) trolled substance are: a person, stance either belonging to an individual or (4) (3) delivers, knowingly, a controlled under his control some person other or Safety substance. Tex. Health & Code agency at the instance or direction of the 481.114(a) 2009). (Vernon § Supp. Ann. individual accused of such constructive An actor may delivery effectuate of contra State, transfer.” v. Daniels 754 S.W.2d transfer, by actual band constructive 214, 220 (Tex.Crim.App.1988). A construc transfer, or an offer to sell. Id. may tive transfer also be accomplished 481.002(8). law, “As a matter of these when the delivery is by implication. made mutually ways exclusive in which deliv State, Stephens 178, 269 S.W.3d ery of a controlled substance might occur.” ref'd). 2008, (Tex.App.-Texarkana pet. State, 692, Conaway 738 S.W.2d 694 However, when the State’s indictment al (Tex.Crim.App.1987). “Transfer” has been leges delivery of solely the contraband is voluntary relinquishment described as “a by constructive transfer and the evidence possession favor of another.” Thom indicates an actual transfer was made (Tex.Crim. State, as v. S.W.2d unalleged defendant to an intermedi App.1992). proper For notice purposes, ary who then actually transfers the contra alleging indictment of a transferee, band to the alleged ultimate a controlled substance specify must which conviction legal sufficiency will withstand a type types or were purportedly challenge only when the evidence also indi performed by Queen the defendant. See contemplated cates that the defendant that State, (Tex.Crim. 662 S.W.2d party there would be a third transferee. State, App.1983); Ferguson v. State, See Sims v. (Tex.Crim.App.1980). 848-49 State, (Tex.Crim.App.2003); Gonzalez v. (Tex. Crim.App. 577-78 case, In the instant all three indict 1979); Frank v. 265 S.W.3d 519 ments alleged single delivery: method of (Tex.App.-Houston [1st Dist.] “by constructive[ ] transfer[ ].” Addition pet.). ally, each alleged indictment the same lone “Anthony transferee: Lowrie.” prosecutions, Neither In the instant the State requested side instructions on the law of specifically alleged Mihnovich’s deliveries only by accomplished constructive Gonzalez v. involved an indict-
were all
transferee,
ment that
a third
single
named
De-
transfer to
transfer to a
(i.e.
transferee),
not the
proof
The State’s
consist-
immediate
tective Lowrie.
was no
of the
but this Court found
there
only
actual transfers
contra-
ed
evidence that
the defendant knew
Schleppi, after which
by Mihnovich
band
was being pur-
controlled substance
turn over the
Schleppi
contraband
chased on behalf of a third party.
[Gon-
great significance
Lowrie. Of
Detective
zalez, 588
It
in this
577.]
portion of the recorded conversation
is a
passage
context
in Daniels
Schleppi
Mihnovich and
between
ap-
must be
rule
read.
articulated
on March
admit-
first transaction
only
attempts
when the
plies
State
evidence,
Schleppi
into
tells Mih-
ted
by alleging
recipi-
a conviction
obtain
use,
personal
are for her
novich the
recipient
ent that was not the immediate
Thus,
resale.
the record con-
Our
contraband.
conclusion
indicating
tains no evidence
Mihnovich
supported by
summary
further
contemplated
ever
that there would in fact
*5
applicable
of
to con-
Daniels
the rules
transferee
than
party
be a third
other
structive transfers:
Sims,
277;
at
Schleppi. See
S.W.3d
alleged
1. Prior
the
delivery,
to an
Gonzalez,
at 577-78.
re-
588 S.W.2d
This
transferor must have either direct or
represented the
quirement
long-stand-
has
indirect
control of
the substance
ing
Ap-
the Court of Criminal
holding
transferred. Rasmussen
here,
[v.
when,
alleges
the State
the
peals
as
(Tex.Crim.App.
be
ultimate transferee to
someone other
1981)], supra.
intermediary, and also
the
than the
limits
only
allegation to
constructive
2. The
know of the
transferor must
Daniels,
transfer
the contraband. See
existence
of
of the transferee. Gonzales
221-22; Gonzalez,
[sic],
[Daniels,
supra.
at
at
S.W.2d
in
at 577. The
Sims dis-
S.W.2d
Court
221-22.]
rule,
spans roughly
cussed
which
thir-
this
The
that
point was not
the transfer
ty years, by citing Daniels to further clari-
include
intermediary
must
an
but that
in
fy
holding
its
knowledge
the transferor must have
of
Gonzalez:.
al-
transferee. When
transferee
...,
this Court held that
Gonzalez
transferee,
leged is not the immediate
requires the
a constructive transfer
sufficient,
then for
evidence to be
at least be aware of the
transferor
have contemplated
defendant must
ultimate
existence
transferee
that there would in fact be
third
a
delivery. This does not mean
before
transferee.
need
the transferor
know
Sims,
(exact
agent. gave He him the gave drugs. the As ed nevertheless that transfer- purchase “[w]hen and she transferee, case, in this when ee not the immediate she I the evidence view sufficient, of the actual then for the evidence to be the drugs, an possession took contemplated completed was a con- defendant have that her and must delivery to there in fact a third trans- delivery to the oc- would detective structive Sims, at 277. feree.” This is curred. type of required specific for a “construc- says the drugs were de- The indictment It should not be required tive transfer.” the detective “constructive livered the agent actual transferee is the defendant was on notice transfer.” the constructive transferee. proven to be was consid- transfer that the In heard equivalent jury the of an actual this case the the record- by law ered transactions, and happened ings may that in this delivery. When case, understood the indictment concluded—based on conversations defendant records, doctors, asking about trou- legal a motion for the name medical and filed bles, acquaintances He the nature who been understood mutual had the informant. informant, him. against arrested or turned defendant’s charge of the warnings pills only people “to to sell Heberling know,” you that informant’s pro- own (Tex.Crim.App.1992), the Court of her, were for pills testation that the held an actual Appeals that Criminal caught selling previously fact that was she delivery contemplates man- or transfer friendly drugs, the obvious relation- property from the transfer- ual transfer appellant ship between the two—that must transferee, or to or the transferee’s to the not the only recipi- have believed she was in law agents to someone identified or ent he was her. providing Under circumstances the transferee. is, contemplated That he “must have case, treated the third party there in fact be a toans- to the as an actual agent Sims, feree.” 277. Of *7 transferee, rather a con- than as alleged course, anticipate par- the third he did not delivery. Citing Id at civil 355. structive ty police. would be the transferee delivery noted that to a law, the Court recurring This issue. “equiv- appeal presents is “tantamount to” or buyer’s agent buyer. See delivery Stephens to the Id at 354 S.W.3d 178 alent to” ref'd.) pet. “equiv- n. (Tex.App.-Texarkana The tei-ms “tantamount” and 5. (“This that, delivery suggest presents problem the exact con- case alent” to law, nearly ago by forecast a decade delivery is considered our struction of delivery jurist opined “actual” to the brother when he equivalent to an delivery actual Heberling, guidelines distinguishing transferee. designated delivery constructive also some evidence the transfer- narcotics from there was fact a third had become so muddled or knew there narcotics attorneys preparing in- who prosecuting transferee. Id 351-52. The transfer, left with an actual an indictment would be no dis howev- dictment follow.”) er, (citing to guidelines at 352. cernible not a constructive transfer. Id (Tex. Essentially, circumstances that would Warren pet.)); no see also App.-Texarkana requirements satisfied the construc- CR, State, No. 09-05-430 were treated to Hubbard v. equivalent tive transfer as Oct. (Tex.App.-Beaumont, in that WL actual transfer case. (not designated publica legal equivalent delivery of a to the pet.) detec- tion). arises, circumstances, I be tive recurring issue under the because ap- The lieve, pellant actually the term “constructive delivered the drugs because to the specialized agent. has taken a criminal detective’s transfer” meaning law where none was intended. Sims, spe 275. The meaning sought distinguish has to
cialized actual transfers from oth specific cases equivalent
er transfers considered to actu transfers,
al that is constructive transfers. itself, seems counter to approach contrary the intent of the also seems to Kyle ALEXANDER, Appellant Edward language statute. statute deliveries, all seems intended to cover Texas, The STATE of State. distinguish between methods of deliv to ery. No. 2-08-282-CR. agency, the fact of under Regardless, Texas, of Appeals here, circumstances to make served Fort Worth. delivery actual in the sense that the (and “agent”
informant was the detective’s Nov. was, delivery
the actual informant Heberlmg, equivalent
under detective) and constructive really
sense that contraband was not directly appellant
transferred to the personally. agency
detective this Under
construct, knowledge the seller’s of an in- beyond
tended transferee the informant requirement.
should not be a The trans-
fer at most its basic level a constructive by law equivalent
one made direct If in- purpose
“actual” transfer.
cluding the method of in the in- *8 give adequate
dictment is to defendant
notice, yet allegation agency indictment, requirement
not a for the
allegation of constructive transfer accu-
rately notified the defendant of what he charged doing.
was is, course,
There appel- evidence
lant knew he made the he selling drugs acting
was someone as an Nevertheless,
agent for law enforcement. my
the evidence this case in view is
sufficient to establish a constructive deliv-
ery to
the detective. The
was the
notes
but their contents included
recipient.
only
It
requires
ultimate
text).
within
alleges
when the
State
construc-
case,
to
alleged
an
'ultimate
In the instant
there
evi
ample
tive
is
transfer
recipient that the accused must have
dence of an
transfer
Mihnovich
actual
initial
to
contemplated
Schleppi.
that his
transfer
is also
evidence
ample
There
not be the final
in
Schleppi
would
transaction
an actual transfer from
to De
[Daniels,
already
the chain
distribution.
tective Lowrie. As has
been not
(emphasis
ed,
added
Mihnovich was indicted
all three
omitted).]
Sims,
a
citation
causes for
constructive transfer of the
Lowrie,
quitted
to Detective
not an
in all three
contraband
causes. See Burks v.
Schleppi.
States,
There
1, 18,
actual transfer
is
United
437 U.S.
98 S.Ct.
however,
record,
which 2141,
(1978)
evidence in