*1 portion of the statute upon appellees relied their motion
provides:
(c) It is any person unlawful for
lease, or contract for the sale or lease of
any goods, patented unpatent-
ed, use, consumption, or resale or to fix price use, for such consumption, or resale or to discount from upon or rebate such condition,
price, agreement, on the or un-
derstanding purchaser that the or lessee
shall not use or goods deal in the aof competitor competitors the seller or
lessor, condition, where the effect of the
agreement, or understanding may be to competition
lessen substantially any line
of trade or commerce. 15.05(c)(Vernon
TexJBus. Com.CodeAnn. added). (emphasis por- The italicized
tion of this statute indicates a contract is precludes
unlawful if it buyer from deal-
ing goods competitors of the seller. inapplicable
This section is to the contract
here because there limiting is no condition
appellant’s right to appel- deal with competitors.
lees’ conclusion, appellees would find that
failed to meet their burden establishing give the contract does not appellant the right purchase
exclusive appellees’ used Likewise,
drill appellees bits. failed to es-
tablish that the contract violates Texas anti-
trust laws. would sustain point error,
lant’s judgment, reverse the
and remand the cause for trial. RODRIGUEZ, Appellant,
Francisco Texas, Appellee.
The STATE of
No. A14-92-00889-CR. Texas, Appeals
Court of (14th Dist.).
Houston
June 1994.
Rehearing Denied June *2 request. allowed Appellant then Schu-
macher to into a black which con- look tained numerous commonly wrapped employed to a manner wrap carry and kilos of cocaine. At that team, point, signalled the arrest Schumacher Ayala, and appellant, who Escamil- arrested la. When substance contained in the analyzed, it con- trolled was in fact over 400 but Patchen, Burkholder, Henry Jerry L. D. grams of flour. III, Houston, appellant. for Appellant and convicted un- was indicted Houston, Graber, appellee. Rikke Safety § 481.- der TexHealth & pertinent part: reads BROWN, C.J., and Before J. CURTISS (a) Except chapter, as authorized ELLIS, JJ. MURPHY and person if person offense commits an delivers, knowingly intentionally ... or or OPINION MAJORITY ... possess intent to deliver a con- Penalty Group trolled substance listed MURPHY, Justice. plea entered a be- fore court to the offense (c) aggravated person A of- commits substance, namely a controlled to sell commits an person fense offense cocaine, grams. weighing at least 400 Tex (a) amount and the Subsection (Ver- 481.112 Health controlled to which & substance convicted, judge non He was is, applies by aggregate weight, including imprisonment punishment at for 15 assessed dilutants, grams or more. adulterants or years in the Institutional Division of the Tex- (c) (d) An under Subsection is: and a Department Criminal Justice there is fine. $3000.00 evidence to his conviction insufficient (3) punishable by confinement controlled, substance, life Department Texas of Corrections for for the that he should have been indicted or for a of not more than or term of a sim- not to years, less than and a fine exceed
ulated See Tex. $250,000, if the amount of controlled Ann. Health Code is, applies the offense to which agree judg- We and reverse by aggregate weight, including adulterants ment. dilutants, more. grams 18, 1991, Ayala un- On Julio Act, The Simulated Controlled Substances Schumacher that he dercover Jack and several other individuals would Schu- (Vernon 1992), provides: kilograms of cocaine macher 20 (a) person an offense if the commits day, met with next intentionally knowingly ... de- person office, Escamilla Escamilla’s Gerardo livers a simulated controlled substance men told Schumacher where the two person: their source would arrive at “Colombian” (1) represents the expressly arrived, office soon. When substance; to be by Ayala and Escamilla was told .(2) represents the substance appellant had the cocaine in a manner bring him car trolled substance go should with to his car, to believe that lead At asked to see substance; or is a controlled complied and Schumacher substance). person receiving in- In order to establish de- states to the proof of such an livery tended to receive simulated corroborated evidence other than successfully must be person may substance that the offeree, in this ease statement represent the substance to be a controlled *3 Schumacher. party. substance to a third Tex.Health Code 1992). 481.183(a) (Vernon proof This § Ann. against appellant, because the was available (d) An under this section is a felo- police recorded all of the conversations Schu- ny degree. of the third Ayala, appellant, had with and Es- punishment felony degree for a third is subject appellant was camilla. in confinement the Institutional Division offering under Section 481.112 for conviction Department of Justice the Texas Criminal to sell in a
for two to ten
or confinement
applies
482.002
Section
community
facility
not more
correctional
substance, defined
simulated controlled
year,
up
than one
a fine
purported to
a controlled sub-
(Vernon
§
Supp.
TexPenal
chemically
that is
different than the
1994).
purported
it is
be. Tex.Health
(Vernon
482.001(4)
Appeals
The Court Criminal
has consistently
1992).
general
held that where a
stat
“Delivery”
under Section
also
specific
and a
complete
ute
statute
within
offering to sell a simulated con-
includes
conduct,
proscribe
itself both
Appellant expressly rep-
defendant’s
trolled substance.
specific
charged
he should be
under the
delivering
more
was
resented
substance he
State,
Cheney
substance, cocaine,
statute.
v.
755 S.W.2d
be a controlled
and also
State,
(Tex.Crim.App.1988);
127
Williams v.
represented that the
was cocaine
641 S.W.2d
238
by
packaged.
in
the manner which it
pari
flour,
This rule is
the in
based on
materia rule
then
a substance that
is
delivered
construction,
statutory
which
that
provides
chemically different from cocaine.
general
if two
subject
statutes deal with the same
under
was also
conviction
Section
subject,
general purpose,
have the same
482.002.
relate to the
persons,
same
class of
Because
to convic-
they
pari
considered
materia and
carry differing
two
tion under
statutes which
should,
possible,
wherever
to
construed
prohibited
penalties but deal with the same
gether
conflicts
Che
harmonized.
conduct, offer to sell a controlled
ney,
way
government, while the theft Childress cally money includes in the definition of sto (Tex.Crim.App.1990); Hunter v. Fort Worth (Tex. punishment property, and also varies the Capital Corp., len on the amount of stolen. The statute, based enacting presumed is it although the defendant statute intended the entire prosecuted been either stat effective, just result and a ute, funds misappropriation was “cov 311.021(2), intended. Tex.Gov’t Code Ann. chapter greater the theft with much ered wording of From the (em Garza, precision.” 687 S.W.2d 482.002, presume legislature Section we added). phasis See also Williams precise conduct prohibit intended to (Tex.Crim.App.1982) (finding 641 S.W.2d engaged, that it made *4 prosecution improper under theft statute that this behavior constituted determination hindering offense of a secured creditor when society delivery anof a lesser harm to statute); specific parte was the more Ex the of actual because controlled Holbrook, (Tex.Crim.App. 606 925 delivery fense of a simulated controlled of possession (stating dealing with statute punish range a lesser of substance carries forged license controls of a driver’s over ment. statute); State, general forgery and Jones v. case, although (Tex.Crim.App.1977) (holding 836 552 S.W.2d statute, find under we been convicted either wel should have been with with that Section 482.002 covers his actions general more fare fraud instead of under greater 481.112. precision much than Section statute). theft conflicts the statutes Since there are between 718 The State cites Stewart penalty provi- as to of and (Tex.Crim.App.1986), 286 for sions, and materia the statutes proposition that an need not deliv- individual charged with the have been should er controlled at all specific delivery more of a simulat- offense delivery guilty of the of a con- Williams, 641 ed controlled substance. to sell.1 trolled substance Stewart S.W.2d at 239. holds that offense of complete a controlled judgment trial court of the We reverse represents he person offers to sell what the indict- and remand with instructions that agree, a controlled and substance. We ment dismissed. subject agree pros- also delivery for of a controlled ecution substance. Justice, ELLIS, dissenting. question not the before us. Rath- But that is disagreement myself in with Finding er, question are faced of when a we with majority panel, respectfully members prosecution two person is my file dissent. statutes, conflict, whether the statutes so, specifically applies one more a Appellant, Rodriguez, Francisco entered prohibited conduct at issue. to the plea before the court not delivery by offering to sell a con- decided, legis Stewart was When cocaine, substance, namely weighing 482.002, yet lature had enacted Section grams. See Tex.Health at least 400 & only Safe- statute then available ty prosecution of a sub State convicted, pun- judge assessed purporting to be a controlled sub fifteen imprisonment ishment at prohibiting stance was statute Tex- in the Institutional Division by offer to controlled substance sell. a Department of Criminal Justice presumed to do useless legislature is never he large quantity of flour. Appellant also cites Vivanco plus actually delivered controlled [14th Dist.] S.W.2d 187 dilutants, 1992, ref'd). simply a simulated pet. distinguish adulterants and We find Vivanco Vivanco, was not liable for he case us. able from the before prosecution grams along under Section 482.002. of cocaine defendant delivered 6.48 beyond fine. is in- doubt. Jackson v. Vir there reasonable $3000 2781, 307, 318-19, ginia, evidence to his conviction 99 S.Ct. sufficient U.S. 2788-89, (1979); Matson L.Ed.2d should have been indicted for the (Tex.Crim.App. of a sim- If there is evidence establishes ulated See Tex. doubt, guilt beyond a and if the Health appel trier of an fact believes judgment would affirm the position late is not in a reverse the trial court. judgment sufficiency on of the evidence grounds. Moreno v. Ayala Oh un- Julio dercover Jack Schumacher that he and several other would sell individuals commits offense if he know- kilograms of cocaine for delivers, manufactures, ingly intentionally day, The next Schumacher met with possesses intent to manufacture or office, and Gerardo Escamilla at Escamilla’s Penalty deliver a controlled substance in where two men told Schumacher that Group 1. their “Colombian” source would arrive at the 481.112(a) (Vernon 1992). *5 arrived, soon. office When transfer, actually “Deliver” means to or by Ayala and Escamilla that constructively, to another controlled sub- appellant had the cocaine and Schumacher stance, substance, drug par- counterfeit or go should with him car bring to his the aphernalia, regardless of whether there is car, appellant At the asked to see agency relationship. an The term includes money and complied Schumacher substance, offering to sell a controlled request. Appellant his then allowed Schu- substance, drug parapherna- counterfeit macher to look into a black which con- lia. tained numerous 481.002(8) TexHealth wrapped commonly employed in a manner to wrap carry kilos of cocaine. At that reads, pertinent part, The indictment as point, signalled team, Schumacher the arrest follows: appellant, Ayala, which arrested and Escam- Texas, County, [I]n Harris Francisco Rod- illa. When the substance contained in the Defendant, riguez, styled the analyzed, hereafter it was not a con- 19,1991, substance, heretofore on or about did trolled but in fact over 400 unlawfully, intentionally then and grams of flour. there by knowingly offering deliver to sell to error, In his first points and third SCHUMACHER, J. a controlled sub- lant claims the evidence is insufficient to stance, COCAINE, namely weighing by support his He first conviction. contends the aggregate including any weight, adulter- is evidence insufficient to a convic- grams. at least ants and dilutants substance, tion of controlled be- appellant guilty cause the that The trial court found evidence reveals he intended substance, delivery by offering sell a sell a simulated to controlled sub- stance, than a rather controlled substance. indictment. He then argues that by his conviction for Sufficiency The Evidence to Prove supported by offer to sell is not Delivery of a Substance Controlled because his criminal was not intent corrobo- that his conviction for Both rated. claims are without merit. delivery of a cannot be The Standard of Review sustained and his because he co-defendants any challenge standard of for a had no intent amount review to deliver of co- whether, Rather, sufficiency they of the evidence is caine. intended to defraud the light buyer by delivering only viewed most favorable to the substance that verdict, any appeared argues rational of fact He trier to be cocaine. thus that provision essential this crime offense falls within over, may placed on actions which Simulated Controlled Substances Act. See reliance be understanding design show an and common in an engage act. Moore [14th not dispute does that pet.). no Dist.]
Escamilla offered to sell a controlled sub-
Furthermore,
Schumacher.
Appellant aided in the commission of
party
does
contest
was a
that he
by
arriving at Escamilla’s office
merely
He
claims
offense.
alleged
designated
narcotics
time with
delivery of
offense committed was not
his
car.
summoned
of a simulated
but
vehicle,
to see the
asked
purchase the
was to
appeals,
analyzing
The court of criminal
drugs,
agent
pack-
then showed the
several
the offense of
ex-
ages wrapped
kilogram
manner that
plained:
commonly
packaged.
bricks of cocaine
is
When actual
constructive
provisions
of TexHealth &
Under
involved,
the nature
usu-
(Vernon
481.183(a)
ally
analysis,
determined
chemical
1992),
an
cor-
proof of
offer to sell must be
necessary
proof.
thus
the prose-
When
by person
offeree
roborated
other
sell,”
delivery “by
cution
offer to
involves
byor
than a statement of the
evidence other
represen-
element can met
Because
offeree.
tation,
deed,
word
corroborated,
pres-
must
the State must
has a
to sell. The
controlled substance
just the
ent
evidence other than
additional
indeed, the
properties
pres-
chemical
can
offer to sell. This additional evidence
possession
ence or
*6
example,
attempted
the
transfer
include
necessary to the offense.
substance,
completed
of
of
the
the
transfer
(Tex.
286,
v.
Stewart
S.W.2d
substance,
sell,
recording
the
of the offer to
Crim.App.1986); Vivanco v.
production
the exhibition or
187,
(Tex.App
190-91
S.W.2d
. —Houston
testimony
of the offer to sell
a witness
ref'd). Thus,
1992, pet.
in order
[14th Dist.]
has
other than the
the State
offeree.
delivery by
to commit
offer to
prove
in
to
the burden to
corroboration
order
necessary
not
sell controlled
it is
delivery by
of
offer to
establish the offense
for the
to
substance in
defendant
have
case,
offer
sell.
In this
corroboration of the
possession at all—much less an
actual
place
appellant
to sell took
exhibited
to
Furthermore, appellant
party
is a
clearly
Therefore,
es-
the evidence
macher.
delivery by
of
offer to
even
attempted
appellant aided
tablishes that
present
though he
not
when the offer
and Escamilla
commission
aid
made.
Estrada
S.W.2d
I
delivery by
of
offer to sell. would overrule
(Tex.App.
[14th Dist.]
772-73
appellant’s
point
first
of error.
dism’d,
pet.
improvidently granted, 846
argues
point
in his
of error
third
if,
sufficiently prove his
“acting
guilty
party
to an offense
the State failed
as
proof
criminal intent. He contends that such
promote
with intent to
or assist
commis
requirement
offense,
solicits,
necessary to
of sec
encourages,
meet the
sion of the
481.183(a)
directs, aids,
attempts
aid the
tion
that an offer
corroborated.
other
State, 671
person to
cites Garber
offense[.]”
commit
Tex.Penal
7.02(a)(2).
pet.),
no
for the
deciding
Paso
In
Estra
— El
of
da,
proposition
purpose
the corrobo
that the
this court considered the events occur
the de
before,
requirement
ration
is to insure that
ring
during and after the offense to
guilty
punished
not
appellant
par
fendant will
determine
acted
alone,
actually
774;
thoughts
and to insure that he
ty.
Beardsley
Id.
culpable
has
(Tex.Crim.App.1987). More-
committed some
This court addressed
appellant’s
a similar issue
I would overrule
third
Vivanco,
point
went on to delivery by rather than appeals In Stewart court of criminal offer to sell a controlled substance. This makes it clear the mere fact that the rejected addressed the identical actually does deliver the total Vivanco, point of error in at 187. drugs amount of offered does render same, The are not two offenses and as the evidence insufficient ... to convict explained criminal appeals court of Stewart the crime was committed properties Stewart the chemical [the] offer, surrounding circumstances actually delivered are not an the offer are viewed to determine delivery by element of the offense of offer is corroborated. They to sell. are two different offenses. Id. at 192. requires Each of different elements enough conviction. There was evi- ruling of Vivanco. instructs presented dence from which a rational tri- us that of the controlled sub- er of fact have could stance named the offer does not have to of delivery by offer to There is sell. noth- occur in order for the be corrobo- ing requires be con- contrary, rated. To the all circumstances victed of of a simulated controlled surrounding the offer should be considered in substance rather determining if the offer is corroborated. point sell. We overrule this error. case, stipulation State offered to which agreed, the defense follow rule set forth Vivan-
outlining Ayala appellant’s point co. Escamilla’s offer to would overrule second large Schumacher a error. amount of co- stipulation caine. The also outlined majority states that lant’s participation in this offense. He ar- to conviction under the rived at designated Escamilla’s office at the *7 act car, appellant time. In his a black bag, had They simulated controlled which filled with packages wrapped further state that since there are conflicts way kilograms are usually cocaine between the as to statutes wrapped. He escorted Schumacher to penalty provisions, the statutes are his car Only asked see the appellant materia and should have been agent $260,000 after showed did show contents delivery of a simulated controlled substance. bag. purchase the black price I disagree affirm trial court’s $310,000. However, Ayala cocaine was judgment. give Escamilla demanded that Schumacher $50,000 up them front. car, went carrying
he was Certainly these
acts, agreed and the State place,
took corroborate the existence of the Furthermore,
offer to sell. these acts indi-
cate part appellant. criminal intent on all, $260,000 price
After is very high for a full of flour! testified at trial he knew the were filled with
flour, and he intended to the flour