Michael SIMS, Appellant, v. The STATE of Texas.
No. 1313-02.
Court of Criminal Appeals of Texas.
Oct. 8, 2003.
267 S.W.3d 267
- (1) intentionally, knowingly, or recklessly causes bodily injury to another
- (2) intentionally or knowingly threatens another with imminent bodily injury ... or
- (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
Section 22.02. Aggravated Assault
(a) A person commits an offense if the person commits assault as defined in Section 22.01 and....
The prescribed punishment ranges appear to be based on harm to another, rather than on mental state. An offense under
Notice requirements mandate that manner and means be plead in the indictment so that the defendant has an adequate opportunity to prepare and present a defense. The state cannot allege murder by knife, prove murder by slow poison, and still obtain a valid conviction. Here, the state gave notice that the manner of commission was knowingly and intentionally. It may not now rely on recklessly. Indeed, that reliance is foreclosed by the state‘s failure to comply with the specific notice requirements of
I join the judgment of the Court.
Michael B. Roberts, Waco, for Appellant.
Jeffrey L. Van Horn, First Asst. St. Atty., Matthew Paul, State‘s Attorney, Austin, for State.
KELLER, P.J., delivered the opinion of the Court in which MEYERS, KEASLER, HERVEY, HOLCOMB, and COCHRAN, J.J., joined.
The question presented by this case is whether the transfer of drugs was “actual” or “con-structive.” We hold that sometimes both types of transfers can occur in the same transaction and that this is one of those times.
I. BACKGROUND
Mike Turner, an undercover law enforcement agent, met appellant at an outdoor site to buy crack cocaine. When Turner asked “where it was at,” appellant pointed to a foil-wrapped package lying in the road near a tree and said “it‘s right there in that piece of foil.” Turner retrieved the package and haggled with appellant over the price. Appellant was paid $480 for the cocaine.
Appellant was subsequently indicted for, and convicted of, delivery of cocaine by “constructive transfer.” On appeal, he contended that the evidence was legally insufficient to support his conviction because the evidence showed an actual transfer rather than a constructive transfer. Relying upon Queen v. State, 662 S.W.2d 338 (Tex.Crim.App.1983),1 the Court of Appeals held that appellant had indeed effected a con-structive transfer.2 In so holding, the Court of Appeals declined to follow Houston3 and Texarkana4 decisions that held that the relevant portion of Queen had been nullified by later cases.5 Consequently, the Court of Appeals found the evidence to be legally sufficient and affirmed the conviction.6
II. ANALYSIS
A. The conflict
Queen held that a constructive transfer can occur in at least two ways: (1) through
Two courts of appeals have held that Queen‘s characterization is not accurate. In Stolz, the defendant placed marijuana on a fence post twenty feet from the buyer while the buyer watched.8 Two or three minutes later, the buyer retrieved the marijuana.9 On appeal, the defendant argued that the evidence was insufficient to show that an actual transfer occurred because the transfer was in fact a constructive transfer.10 The Houston Court of Appeals affirmed, holding that the transfer was an actual transfer because “no other person or means” was used to transfer the marijuana between the two persons involved.11 The court then remarked that its holding contradicted “dictum” found in Queen.12 However, the Houston court found that this “dictum” was “neutralized” by subsequent “dictum” in Daniels v. State, which stated: “[A constructive transfer] only requires that when the State alleges constructive transfer to an alleged ultimate recipient, that the accused must have contemplated that his initial transfer would not be the final transaction in the chain of distribution.”13 The Houston court found that Daniels required the defendant to contemplate subsequent transfers beyond the initial transfer (i.e. subsequent transferees) for a transaction to qualify as a constructive transfer, and because Queen‘s second method does not describe the contemplation of subsequent transfers, Queen‘s second method does not describe a constructive transfer.14
In Warren, an undercover law enforcement agent met the defendant and asked, “Do you have something for me?”15 The defendant replied, “Yes, it‘s in the bathroom on top of the toilet.”16 The undercover agent then retrieved cocaine placed in the bathroom.17 Relying upon Queen, the defendant alleged on appeal that the evidence was insufficient to show an actual delivery because it showed a con-structive delivery.18 The Texarkana court held that Queen‘s definition of constructive delivery was superseded by Nevarez v. State, where this Court indicated that an actual delivery was 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.”19 Holding that an actual transfer did not
B. Resolution
The conflict posed by the courts of appeals is more apparent than real. The present case involves both a con-structive transfer and an actual transfer. The con-structive transfer occurred when appellant informed the undercover officer of the cocaine‘s location. The actual transfer occurred when the undercover officer actual-ly retrieved the contraband. To explain how this can be so, we first turn to our decision in Rasmussen v. State.21
1. The roots of Queen
In Rasmussen, we addressed the mean-ing of the term “con-structive transfer,” in the context of a delivery offense, for the first time.22 We concluded that the term was derived from the Uniform Controlled Substances Act of 1970.23 As a conse-quence, we looked to other jurisdictions for guidance.24
We discussed the holdings of three juris-dictions, each involving a distinct set of circumstances held to be a constructive transfer.25 The first was a West Virginia case involving a transfer effectuated by another person (i.e. an intermediary) un-der the direction of the defendant.26 In that case, State v. Ellis, the West Virginia Supreme Court of Appeals interpreted “constructive transfer” to mean “the trans-fer of a controlled substance either belong-ing to an individual or under his control by some other person or agency at the in-stance or direction of the individual ac-cused of such a constructive transfer.”27 The second was a Nebraska case in which the defendant instructed an undercover of-ficer to retrieve the contraband from a wastebasket.28 Holding that the transac-tion in question was a “con-structive trans-fer,” the Supreme Court of Nebraska re-marked: “it is not necessary for the State to show actual physical transfer of a con-trolled substance from the defendant. The statutory definition of delivery clearly en-compasses more than actual, direct trans-fers. It includes constructive and indirect transfers as well.”29 The third was a New Mexico case where a controlled substance was mailed to the recipient.30 The New Mexico Court of Appeals held: “Placing the controlled substance in the mail had the effect of turning the controlled sub-stance over to an agent for delivery. This amounts to a constructive transfer.”31 Of interest to the issue at hand is the New Mexico court‘s discussion immediately pre-ceding the holding quoted in Rasmussen:
“The delivery (of a check) to the post office (for final delivery to the address-ee) is a constructive and technical deliv-ery.” The deposit of an insurance policy in the mail, addressed to the insured, is a constructive delivery to the insured. Compare the effect of mailing or ship-ping in unilateral contracts. The state-ment of facts is to the effect that defen-dant mailed the controlled substance to the juvenile. If this is true, defendant selected the mails as his delivery agent. If properly mailed, there was a pre-sumption of delivery.32
At least some of this discussion indicates that a constructive delivery occurs when an item is deposited in the mail, even though the item has not yet been received by the intended transferee.
We pointed to a common element in all of these cases: “prior to delivery, the sub-stance involved was directly or indirectly under the defendant‘s control.”33 In re-sponse to the State‘s contention that there was a constructive transfer, we held that the State failed to show that the defendant exercised direct or indirect control over the contraband—a necessary precondition for showing an actual or constructive transfer (absent the law of parties).34
The Rasmussen opinion did not say it was adopting the entire holdings of these out-of-state jurisdictions concerning the meaning of “constructive transfer.” Even if it had, none of those cases can be inter-preted to clearly hold that an intermediary is essential to establishing a constructive transfer. Ellis comes closest, but the opinion refers to transfer via another “per-son or agency“—the reference to agency raising the possibility of circumstances broader than the action of an intermedi-ary. By contrast, the Nebraska case in-volved circumstances materially identical to the case at bar; it clearly held that an intermediary is not necessary to effectuate a constructive transfer. And the New Mexico case also lends support to finding a constructive transfer in the case at bar by indicating that a constructive transfer may be complete even though the recipient has not yet received the contraband. We will discuss later the significance of an incom-plete actual transfer being a completed constructive transfer.
2. Queen‘s holding
Now we turn to Queen. In that case, the defendant moved to set aside the in-dictment for failing to specify which of the three types of delivery (actual transfer, constructive transfer, offer to sell) the State would rely upon for conviction.35 The indictment specified that the defen-dant effected delivery by “transferring the said marijuana into a motor vehicle within the care and control and custody of the said Ben Neel and by transferring the said marijuana to the actual custody of the said Ben Neel.”36 The Court held that the in-dictment alleged both an actual and a con-structive transfer—the constructive trans-fer being the delivery of marijuana to the recipient‘s motor vehicle.37 The Court fur-ther found that the constructive nature of the transfer was confirmed by the evi-dence: the defendant drove Neel‘s auto-mobile to the location of the marijuana, loaded the marijuana onto the automobile, drove the automobile back to its original
As we have already stated, Queen noted the existence of two types of constructive transfers: (1) a transfer through an inter-mediary, and (2) a transfer effectuated by telling the recipient where the contraband is located.39 In citing these two methods, Queen relied upon Rasmussen. A close examination of Queen‘s articulation of these methods reveals that neither re-quires a completed actual transfer. In the first method, a constructive transfer to the intended recipient occurs “by entrusting the narcotics to an associate or the postal service for the delivery of the recipient.”40 The act of “entrusting” appears to be the act that completes the constructive trans-fer. The contraband is entrusted “for” delivery to the recipient, but nothing is said of actual delivery to the recipient being completed. In the second method, a constructive transfer occurs when the ac-tor “place[s] the contraband in a particular location and then advise[s] the recipient of this location so that the recipient can re-trieve the narcotics.”41 The constructive transfer appears to occur upon the act of advising the recipient, with the purpose of the advice being to enable the recipient to retrieve the contraband. Again, the lan-guage of the opinion does not appear to require a completed actual transfer to the recipient. And in fact, the opinion‘s appli-cation of law to the facts shows a construc-tive transfer where no actual transfer had yet taken place. According to the Court in Queen, the constructive transfer occurred in that case when the contraband was placed in the recipient‘s motor vehicle, or at the latest, when the defendant returned the recipient‘s car keys. The recipient did not yet have physical possession of the contraband.42
The courts of appeals’ analyses of Queen in Stolz and Warren, and perhaps in the present case, assume that a completed ac-tual transfer must occur for there to be a constructive transfer. Queen made no such assumption, and as will be discussed below, such an assumption would be incor-rect. Further, we disagree with the Hous-ton court‘s conclusion in Stolz that Queen‘s pronouncement concerning the second method of constructive delivery was dic-tum. Queen held that the indictment was sufficiently specific because it alleged an actual transfer and a constructive transfer. The only constructive transfer involved in that case was the transfer of contraband from the defendant to the recipient‘s auto-mobile—a transfer that did not involve an intermediary.
3. Did later cases nullify Queen?
The next important case to consider is Daniels. Daniels discussed Queen but did
Ballentine‘s Law Dictionary defined de-livery generally, as “a handing over; the surrender of possession to another” and observed that: “For some purposes, a de-livery 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.”46 No dis-tinction between actual and constructive transfer appears in this definition. Of more interest, however, are the remaining two dictionaries’ definitions provided, which specifically addressed constructive transfers.
Black‘s Law Dictionary defined “deliv-ery” as: “The act by which the res or substance thereof is placed within the ac-tual or constructive possession or control of another.”47 Black‘s further distin-guished between actual and constructive delivery—the main difference centering on whether real possession has been con-ferred on the transferee:
Actual delivery consists in giving real possession to the vendee or his servants or special agents who are identified with him in law and represent him. It is a formal immediate tradition of the prop-erty to the vendee.
Constructive delivery is a general term, comprehending all those acts which, al-though not truly conferring a real pos-session of the thing sold on the vendee, have been held, by construction of law, equivalent to acts of real delivery.48
The Court also quoted a definition of “con-structive delivery” found in Webster‘s Third New International Dictionary: “a delivery not accompanied by an actual transfer of possession of the property de-livered yet recognized as having been in-tended by the parties and as sufficient in law.”49
The Court then discussed the Rasmus-sen opinion.50 In that discussion, the Court observed that Rasmussen reviewed three out-of-state cases and gleaned a common element from those cases: “that prior to delivery the substance involved was directly or indirectly under the defen-dant‘s control.”51 One of the definitions discussed in Rasmussen, and then in Dan-iels, was the definition found in Ellis, which indicated that a constructive trans-fer was a transfer effectuated by an inter-mediary of some sort.52 Daniels empha-sized that Rasmussen did not adopt the Ellis definition: “The Rasmussen Court
In fact, the definitions given in Daniels all point to constructive transfer as a type of transfer that does not vest actual pos-session in the transferee. Rather, con-structive transfer involves a legal substi-tute for actual possession. This approach is the one taken in civil cases, and some-times arises in the use of deeds to transfer property. The grantor of the property places the deed in the hands of a third party for the benefit of a grantee or holds the property while manifesting an intent that the property belong to the grantee. This approach was articulated by the Unit-ed States Supreme Court over a century ago: “Constructive delivery may and does exist where the grantor, in the exercise of his proper authority, places the deed in the hands of a stranger for the use of the grantee, or even in some cases where he retains possession, at the same time suffi-ciently manifesting his intention to treat it as having passed the title to the grant-ee.”54
The Texas Supreme Court has articulat-ed a common example of constructive de-livery by transfer to a third party: record-ing a deed at an official place designated for property filings (e.g. the county clerk):
It is, of course, true that a deed of trust to be effective must be delivered, but we are of the opinion that a constructive delivery was proven by the undisputed evidence. “If the mortgage is made in pursuance of a previous agreement of the parties to place a mortgage on a specific property, which the mortgage[e] has agreed to accept, then the act of the mortgagor in filing it for record in the proper office is a sufficient delivery of it.”
* * *
See also the following authorities which hold that the filing for record by the grantor at the request or with the con-sent of the grantee or mortgagee amounts to a constructive delivery.55
Under this rule, the beneficiary receives title even though he did not obtain posses-sion of the deed. Conveying the deed to the recording agency with the intent that the beneficiary receive title was sufficient by itself to effectuate constructive delivery.
In Brown v. Brown, the Texas Supreme Court addressed whether a husband had delivered a real estate deed to his wife.56 The Court cited a case in which construc-tive delivery was found when a member of a law firm conveyed title to land to the law firm but retained possession of the deed.57 Because the grantor was a member of the firm, he had authority to possess the deed on the firm‘s behalf.58 Similarly, the hus-band had authority to possess the deed on his wife‘s behalf, and if he signed the deed before attesting witnesses, then delivery was complete even though the husband retained possession.59 The Texas Su-preme Court remarked that “the question is one of intention, to be determined from the facts and circumstances preceding, at-
There is in fact no specialized “criminal” meaning for the term “constructive trans-fer.” The dictionary definitions given in Daniels are general ones, geared at least as much (and probably more) toward civil cases as toward criminal cases. We have noted that our construction of the parallel term “actual transfer” is “consistent with its general understanding in the civil con-text.”63 In a concurring opinion in Cona-way v. State, Judge Clinton cited a civil case—Fox v. Young—to illustrate the con-cept of constructive delivery.64 In that civil case, a person constructively delivered a doughnut machine to a creditor—without moving the machine from the café in which it was situated—by writing a letter stating that the debtor did “herewith tender and do deliver to you possession” of the ma-chine.65 The definition Judge Clinton was illustrating was the same Black‘s Law defi-nition of constructive delivery later quoted in Daniels.66 As in the present case, Fox involved a transferor who gave an instruc-tion to the transferee designed to enable the transferee to retrieve the property on its own, without the assistance of a third party.
In two cases that pre-date this state‘s adoption of the Uniform Controlled Sub-stances Act, this Court has used the term “constructive delivery” in a manner con-forming to the usage in Fox and other civil cases. In Madison v. State, the defendant was convicted of stealing hogs.67 Mistak-enly believing that the hogs belonged to the defendant, Grooms informed the defen-dant that the hogs had ranged into Grooms‘s field.68 Although the hogs actu-ally belonged to a third party, the defen-dant called the hogs up and purported to sell the hogs to Grooms.69 The next day, Grooms put the hogs into his pen.70 We held that the defendant‘s calling up and selling the hogs constituted a constructive delivery to Grooms, even though Grooms did not yet have possession:
In this case, though the hogs were in their accustomed range, yet they were
In Rountree v. State, the defendant and his nephew conspired to steal a calf from a third party.72 They agreed that the neph-ew would take the calf and tie it at a certain location, where appellant would ar-rive and take possession.73 This plan was carried out.74 We found that a construc-tive delivery of the calf to appellant oc-curred at the point the animal was tied:
It appears to us that when Eugene Rountree tied the animal at a place agreed upon between him and appellant for the convenience of appellant to load it into his truck, that same was a con-structive delivery of the animal to appel-lant at the point where it was tied.75
Both Madison and Rountree involved a constructive delivery that was not facilitat-ed by an intermediary and was complete before any actual delivery had occurred. In Madison, the constructive delivery was complete when the defendant told the transferee that the hogs were now his. In Rountree, the constructive delivery was complete when the calf was placed in a pre-arranged location.
Given the general definitions quoted in Daniels and the historical background of the term “constructive delivery,” we must disagree with the Stolz court‘s contention that Daniels articulated a rule at odds with the second category of constructive transfer found in Queen. The relied upon passage in Daniels, in its larger context, says:
In Gonzalez v. State, 588 S.W.2d 574, 577 (Tex.Cr.App.1979), this Court held that a constructive transfer requires the transferor at least be aware of the exis-tence of the ultimate transferee before delivery. This does not mean that the transferor need know the identity of or be acquainted with the ultimate recipi-ent. It only requires that when the State alleges constructive transfer to an alleged ultimate recipient that the ac-cused must have contemplated that his initial transfer would not be the final transaction in the chain of distribution.76
Gonzalez v. State, involved an indictment that alleged a transfer to a third party (i.e.
- 1. Prior to an alleged delivery, the transferor must have either direct or indirect control of the substance transferred. Rasmussen, supra.
- 2. The transferor must know of the existence of the transferee. Gon-zales [sic], supra.78
The point was not that the transfer must include an intermediary but that the trans-feror must have knowledge of the transfer-ee. When the transferee alleged is not the immediate transferee, then for the evi-dence to be sufficient, the defendant must have contemplated that there would in fact be a third party transferee. Daniels and Gonzalez did not hold that an intermediary was required for all constructive transfers.
We also disagree with the Warren court‘s contention that Nevarez undercut the holding in Queen. In Nevarez, a co-defendant slid a bag containing marijuana over to Pacheco, an undercover officer.79 Pacheco then took the bag and tore it open,80 but the co-defendant refused to permit the him to completely remove the bag until after payment, which never oc-curred because the bust signal and arrest occurred shortly thereafter.81 This Court held that the defendant was properly con-victed of an actual transfer pursuant to the law of parties.82 In its discussion, the Court cited a definition of “deliver” from Webster‘s Ninth Collegiate Dictionary and the Ballentine‘s Law Dictionary definition of “delivery” quoted in Daniels.83 While Nevarez did quote that part of Ballentine‘s that said a delivery can be accomplished by “making a thing available to another, placing it within his reach,” the Court did not apply that definition to the facts of the case.84 Instead, the Court held that “the ‘actual transfer’ of the marihuana occurred pursuant to the law of parties the instant that Pacheco physically took and inspect-ed the marihuana offered him by appel-lant‘s co-defendant.”85 Despite the quote from Ballentine‘s, the Court did not say that sliding the contraband toward the re-cipient was enough to effectuate an actual transfer. Even if it had, sliding contra-band close to the recipient is not the same as directing the recipient to contraband that is not immediately within reach. It is true that a physical taking of the contra-band completes an actual transfer, but that does not exclude the possibility that a con-structive transfer could occur beforehand, when the defendant directs the recipient to retrieve the contraband.
4. Conclusion
Queen was correct in holding that one method of constructive transfer is for the transferor to instruct the recipient
The judgment of the Court of Appeals is affirmed.
JOHNSON, J., filed a dissenting opinion in which PRICE, J., joined.
WOMACK, J., concurred in the result.
JOHNSON, J., dissenting in which PRICE, J., joined.
It is fairly easy, in the civil context, to differentiate between an “actual” transfer and a “constructive” transfer. The exis-tence of legal substitutes for actual posses-sion, such as deeds and titles, allows for a “constructive” transfer of ownership with-out the relinquishment or assumption of physical control over the item in question. Such transfers of ownership are governed by contract law, and are enforceable in the courts. However, in the context of illegal transactions involving controlled sub-stances, the line is more difficult to draw.
The common element in the criminal cases discussing “constructive” transfer appears to be a manifestation of intent by the transferor to relinquish control over the item in question before the intended transferee actually has physical control of that item. Take, for example, a situation in which an individual places an item in a particular spot, leaves the area, and then calls the intended transferee with instruc-tions about where to find the item. In such a case, the transfer would be a “con-structive” transfer, despite the absence of an intermediary, because the transferor has already relinquished control over the item when he informs the transferee of its whereabouts. Similarly, when an individu-al places an item in the mail for delivery to the intended recipient, the sender has re-linquished control over the item, although the recipient will not have actual posses-sion of the item until it is delivered. Both situations are examples of “constructive” transfer, as described by Queen v. State, 662 S.W.2d 338, 340 (Tex.Crim.App.1983).
Although, as Warren and Nevarez indi-cate, an actual transfer does not require placement of the item directly in the hands of the intended transferee, it does seem to require a simultaneous relinquishment of control by the transferor and assumption of control by the transferee. See, Nevarez v. State, 767 S.W.2d 766, 768-69 (Tex. Crim.App.1989); Warren v. State, 15 S.W.3d 168, 171 (Tex.App.-Texarkana, 2000). Therefore, the act of leaving an item in a particular location and then ad-vising the intended transferee of that loca-tion would be a constructive transfer only if the transferor is no longer in a position to retrieve the item. If, however, the transferor is in as good a position to exer-cise physical control over the item as the intended transferee, there can be no con-structive transfer. Likewise, the mere placement of a packet of contraband on the ground between the transferor and the transferee, rather than handing the packet from one to the other, does not change
In this case, when appellant placed the packet of cocaine on the ground, he did not relinquish control over it, as evidenced by the fact that the undercover officer picked up the cocaine and then haggled with ap-pellant over the price. Therefore, I be-lieve the transaction in this case was in-deed an actual transfer.
I respectfully dissent.