*1 NEVAREZ, Appellant, Jose Luis OPINION ON STATE’S PETITION FOR
The STATE of DISCRETIONARY REVIEW No. 417-86. McCORMICK, Presiding Judge. Appeals Criminal Appellant, Jose Luis was con by jury victed of the offense of delivery of a controlled jury substance. The as punishment thirty sessed years’ сonfine
ment. The El Paso Court of re versed the unpublished conviction in an opinion finding that the State failed to appellant that “actually trans controlled substance as ferred]” (Nevarez thе indictment. 08-85-00062-CR, February Tex. Paso.) App. appellate The court or - El dered acquittal that an be entered. We granted petition the State’s for review determine the correctness of thе Court of Appeals’ opinion. We reverse. pertinent part, the indictment in this alleged: “... JOSE LOUIS on or NEVAREZ day May, about 23rd 1984 ... did unlawfully, then and knowingly there delivered, intentionally to wit: did then and fifty there pounds or pounds less but more than five Pacheco....” trial, At the State introduced evidence appellant telephoned Bogden, Mike detective, El police Paso and offered to sell pounds the detective thirteen of marihuana $3,900. exchange Appellant for said getting the marihuana would be “[n]o Juarez, problem” and that a friend in Mexi- Appellant co had it. indicated that would get take about four hours to the marihuana into the State from Mexico and that he would back to the officer when he had gotten it across the Later that border. appellant afternoon called the officer and particular the two to meet in a Paso, Hutson, appel- Michael J. El for K-Mart lot. The officer lant. Ap- the K-Mart and waited for two hours. Simmons, Atty., pellant evening Steve W. Dist. and Rob- failed to show but that Dinsmoor, Paso, Atty., again El ert Asst. Dist. called the officer to tell Austin, Huttash, to make the Atty., Robert marihuana wanted State’s night. police deal that told State. *2 looking at they was already in and to were—Pacheco appellant that he was bed day. the next marihuana. call back Appellant again contacted the officer. at a
They
to make
Well,
Pacheсo was
as Detective
“A.
parking lot.
shopping mall
it,
it
looking
he nodded to me that
by
Bogden, assisted
Officer
indeed,
was,
While Neva-
marihuana.
Pacheco,
parking
shopping
to the
mall
went
me,
money
counting the
with
rez was
testimony
elicited:
following
was
lot. The
car,
signal to the
gave
I
the bust
in the
shopping
“Q.
occurred at
What
[the
in and execute
back-up units to move
mall
lot]?
the arrest.
Bogdеn] He
[By
“A.
Officer
backed
“Q.
you please explain to the
Would
truck,
stated,
again,
I
the back of
as
signal
Jury
a
is?
bust
he
the truck was toward our trunk and
takes
“A. At the time that
so that
moved it
delivery is tak-
placе, once we feel the
time, they got
very
At that
out
close.
give
signal.
In this
ing place, we
a
got
of our car
of the truck and we
out
case,
wearing
cap
I
I
a
and took
was
I,
of,
talking
by
stood
the car
and kind
cap
and that was a
off
baseball
and Detective Pacheco
to Mr. Nevarez
area,
signal
other units in the
he
to the rear of the truck and
watching, that the transfer
that werе
and,
Arias
speaking with Mr.
was
occurred,
had, indeed,
delivery had
believe,
I
Mr.
maybe,
subject,
the third
them to move
place
taken
and for
Calles.
(Emphasis
the arrest.”
add-
and make
“Q.
you doing
Mr.
What were
еd).
time?
at that
of
found that
The El Paso Court
talking,
asking me if I
“A. Just
he was
to establish that an
the State failed
and, said,
and, I
money
I
‘Yes.’
had the
of the contraband had
transfer”
said,
you
‘Do
the marihuana?’
have
upon
relied
the testimo-
place. That court
and,
said,
‘I’ll
he
‘Yes.’ and I said
let
Pacheco:
ny of Officer
money,
let
you take a look at the
but
signal
given,
“Q. After the bust
was
and
us take a look at the marihuana.’
what, exactly, happened?
said,
indi-
‘Okay.’
he
So he turned and
Calles, like,
given,
cated to Mr. Arias and Mr.
signal
“A. After the bust
was
go
okay, let’s
them
ahead and
have
our car to
Bogden
over toward
wаlked
money
look at it.
at this
Nevarez
but,
bag,
pick
I
to
“Q.
point,
tried
happened at that time?
[sic]
What
me,
holding
let
Arias wouldn’t
time,
Pacheco, I
“A. At that
Detective
money.
had the
on to it until Nevarez
rear of the truck
could see
at the
up
So,
just
I
be-
point,
backed
green
and Mr. Arias —there was a
give it
going
to
cause I knew wasn’t
truck,
garbage
in the back of
money and
until
to me
bag,
toward the back
slid
Arias
up
I could have both
so
Detective Pacheco
the truck toward
me, I didn’t want
in front of
and Calles
here,
said,
go
‘Okay,
ahead
to
behind me.”
them
look at
take a
it.’
“Q.
bag?
touched the
Arias
Aрpeals cited Daniels v.
The Court
to Detective
“A. Yes. He slid it over
(Tex.App.
- Austin
Pacheco.
reversed,
1984)
do,
that actual
“Q.
proposition
for the
App.1988),
did Pacheco
What
manual transfеr
delivery contemplates a
time?
Apparently, because
property.
to take a
pulled
bag over
“A. He
co-defendant, Arias, had not allowed
lant’s
doing
while he was
look at it and
physically remove
officer Pacheco to
that,
Mr. Nevarez
Arias then advised
then,
according to the Court
money with me while
go
count the
another_
Appeals, no transfer had occurrеd. The
purposes,
For some
a deliv-
Appeals opined
that the State’s
ery
accomplished
by nothing more than
proved
“an offer to sell”
but
making
thing
another,
plac-
available
disagrеe.
an “actual transfer.” We
reach,
notwithstanding
his
within
thing
there is no actual
“delivery”
“Deliver” or
is defined
from one
to another.” 754 S.W.2d
Controlled Substances Act to mean “the
added).
(emphasis
at 220.
actual or constructive transfer
from one
*3
person to another of a controlled sub-
charge
In
jury,
the
the trial court
stance_”
4476-15,
Article
Section
parties
included instructions on the law of
1.02(7),
(Supp.1988).
рur
V.A.C.S.
For
incorporated
applica
this law into the
Act,
poses of the
it also includes an offer to
charge.
V.T.C.A.,
tion section of the
See
Fergu
a controlled
sell
substance.
Id.
Code,
(1974).
Pеnal
Sections 7.01 and 7.02
State,
son v.
622
846
S.W.2d
Thus,
allegations
in order to sustain
con
1980),this
determined that an indict
Court
indictment,
in
tained
the
the State had to
ment, alleging delivery of a controlled sub
acting
appellant,
with or without
stance, must define how the deliver oc
another, “actually transferred” the mari
Complying
Ferguson,
curred.
huana to Officer Pacheco. See
v.
Westfall
in
State
State,
(Tex.App. Corрus
that an actual Ben in this Appeals’ opinion The Court of is remanded and the cause case is reversed STATE re- appellant’s that court 760-86. maining points of error. Appeals of of Criminal
MILLER, J., concurs in result. CLINTON, Judge, dissenting. 15, 1989. the rea on the merits is for My dissent March Rehearing Denied concurring opinion stated
sons Conaway v. noting purport
App.1987), further in that plurality present *4 working defini to be a
cause determined here majority delivery,” of “actual
tion significant qualifying deter
omits the most
minant, “completely,” as “com to wit: transferring,” Conaway,
pletely State, 754 S.W.2d
and that in Daniels v. dictio quoting the Court was ” “delivery definition of
nary allegation
sufficiency of notice transfer.”
“constructive retrogres to note 1 for its also dissent of review treatment of the standard
sive see
pronounced Virginia; Jackson сoncurring opinion in Moreno at 870-872
1988). Furthermore, Supreme only to demon
spoke of “mere modicum” Thompson v. Louisville
strate that supply “simply fails to a workable
doctrine predictable standard for deter
or even
mining process the due standard Winship has been honored.” Jackson S.Ct.,
Virginia, U.S. at than a mere say not to that “more
That is Indeed, suffice.
modicum” of evidence will novel, in note its criterion was to inter Supreme Court referred
12 the States, 315 U.S. v. United
alia Glosser (1942) L.Ed. 680 62 S.Ct.
(verdict where “substan must be sustained it). supports
tial evidence”