IN THE COURT OF CRIMINAL APPEALS
OF TEXAS




NO. 765-99

 

WILLIAM R. MARABLE, Appellant

v.


THE STATE OF TEXAS



ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS
TARRANT COUNTY

Cochran, J., filed a concurring opinion.

O P I N I O N



We granted review to determine whether appellant had sufficient notice of the theory of culpability by which the State would seek his conviction for delivery of a controlled substance. (1) I join the Court's opinion and add the following comments.

I.

On the afternoon of December 4, 1996, undercover Fort Worth Police Department Officer Dave Torsiello drove down East Berry Street. Officer Torsiello and his backup team had been assigned to the area in response to complaints that individuals were openly selling narcotics.

Officer Torsiello testified that a woman, Valerie Whorley, flagged him down and asked what he was doing. Officer Torsiello answered that he was looking for a place "to score a couple of 'dimes.'" (2) Ms. Whorley agreed to take Officer Torsiello to such a location if he would buy her some, too.

Ms. Whorley then instructed Officer Torsiello to drive to the intersection of East Bessie and Virginia Streets. When they arrived, Ms. Whorley asked Officer Torsiello to buy her ten dollars' worth of crack cocaine. Officer Torsiello agreed and told Ms. Whorley that he wanted twenty dollars' worth for himself. Accordingly, he gave her thirty dollars in cash.

Ms. Whorley left the car and approached appellant. As she began speaking to appellant, Officer Torsiello left and drove around the block a couple of times. When he returned, Ms. Whorley reported that she had given appellant the thirty dollars but appellant had not given her anything in return. She promised that if Officer Torsiello would give her another ten dollars, she would be able to get the crack cocaine for him. Officer Torsiello gave her another ten dollars and this time he waited in the car, which was about ten-to-fifteen feet away from appellant.

Officer Torsiello testified that he observed the entire transaction: Ms. Whorley handed the additional ten dollars to appellant, and then appellant placed a small white rock in Ms. Whorley's left hand. Ms. Whorley came back to Officer Torsiello's car and gave him the rock, which later tested positive for cocaine. Ms. Whorley then walked away from Officer Torsiello's car. Appellant walked to a nearby liquor store, where Officer Torsiello's backup team subsequently arrested him.

A Tarrant County Grand Jury indicted appellant on February 6, 1997 for delivery of a controlled substance. The indictment specifically alleged that appellant:

...on or about the 4th day of December 1996, did then and there intentionally or knowingly deliver to [Officer] D.A. Torsiello a controlled substance, namely cocaine of less than one gram, including any adulterants or dilutants, by actually transferring said controlled substance.

Appellant contends, inter alia, that the Sixth Court of Appeals erred when it found that the indictment provided appellant with sufficient notice of the theory of culpability that the State planned to pursue against him. More specifically, appellant complains that the evidence presented at trial supported only a finding of delivery by constructive transfer from appellant to Officer Torsiello, a theory not alleged in the indictment. Furthermore, appellant contends, because the indictment failed to mention Ms. Whorley's role in the transaction, the indictment did not notify appellant that the State would attempt to convict him as a party to Ms. Whorley's actual transfer of cocaine to Officer Torsiello. As the Court of Appeals noted, the heart of appellant's complaint is "that he did not receive adequate notice to prepare his defense because the State did not allege in the indictment that it would prove actual delivery by the law of parties." Marable v. State, 990 S.W.2d at 424.

Appellant also asserts that, even if the indictment sufficiently notified him of the State's theory of culpability, the evidence presented at trial was insufficient to show that he was a party (3) to the delivery of a controlled substance to Officer Torsiello. Appellant urges this Court to overrule our earlier holding in Miller v. State, 537 S.W.2d 725 (Tex. Crim. App. 1976). Appellant notes that the Sixth Court of Appeals criticized this Court's analysis in Miller, but declared that Miller's factual similarity to appellant's case and the doctrine of stare decisis compelled it to follow Miller's holding, and thereby to overrule appellant's claim.

II.

Before considering the merits of appellant's argument, I would first distinguish two statutory means of "delivering" a controlled substance. Under Texas Health and Safety Code section 481.002(8), "'[d]eliver' means to transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship." (4) Thus, one may accomplish a delivery by either an actual transfer or a constructive transfer.

Because the Texas Controlled Substances Act does not define the terms "actual transfer" and "constructive transfer," Texas courts have construed the terms according to their plain and common meanings. (5) This Court's decisions interpreting the meaning of these terms have continued to flesh out our earlier holdings on the subject, as new factual scenarios have come before us, and as we have recognized that the same set of facts, if properly pleaded, may support both theories of transfer. (6)

We considered this subject in Heberling v. State, 834 S.W.2d 350 (Tex. Crim. App. 1992). In that case, we discussed the principles underpinning our conclusions in earlier delivery of controlled substances cases to clarify the definition of "actual transfer":

. . .[W]e now hold that an actual transfer or delivery, as commonly understood, contemplates the manual transfer of property from the transferor to the transferee or to the transferee's agents or to someone identified in law with the transferee. (7)



Until our decision in Heberling, some confusion existed regarding the role of a buyer-transferee's agent in cases alleging actual transfer from a defendant to an undercover police officer. The problem arose when the facts demonstrated that contraband actually passed from a defendant to an intermediary and then from that intermediary to an undercover police officer, but the jury charge did not include an instruction on the law of parties or the law of agency. (8) This Court's decision in Heberling made it clear that, if the evidence is such that a reasonable jury could conclude that an intermediary was an undercover officer's agent or representative, then proof beyond a reasonable doubt of an actual transfer from a defendant to that agent is legally sufficient to convict that defendant of an actual transfer to the undercover officer, whether or not the trial court instructed the jury on agency. (9)

An intermediary's relationship to a defendant-seller and an undercover officer-buyer is significant because it affects legal sufficiency of evidence and jury charge error analyses. If the State proceeds under the theory that an intermediary was an undercover officer-buyer's agent or representative, then a defendant could be convicted of an actual delivery under the rule articulated in Heberling. (10) However, if the theory is that an intermediary was a defendant's agent (i.e., a "steerer" (11)), then a defendant can be convicted as a party to the actual delivery, assuming that the jury is so instructed. (12)

A constructive transfer is the transfer of a controlled substance either belonging to a defendant or under his direct or indirect control, by some other person or manner at the instance or direction of a defendant. Davila v. State, 664 S.W.2d 722, 724 (Tex. Crim. App. 1992); Rasmussen v. State, 608 S.W.2d 205, 210 (Tex. Crim. App. 1980). A conviction for delivery of a controlled substance by constructive transfer requires some showing that a defendant-transferor was "at least aware of the existence of an ultimate transferee before he may be said to have delivered or made a delivery of a controlled substance to another through a third party." Gonzales v. State, 588 S.W.2d 574, 577 (Tex. Crim. App. 1979). In addition, in either a constructive or an actual transfer situation, the evidence must show that a defendant-transferor voluntarily relinquished control or possession to a transferee. Thomas v. State, 832 S.W.2d 47, 51 (Tex. Crim App. 1992). Most actual deliveries involving an intermediary also qualify as constructive deliveries.

With these distinctions in mind, I would turn to the merits of appellant's claim.

III.

Appellant contends that, because the indictment failed to allege that appellant actually transferred the controlled substance to Officer Torsiello through Valerie Whorley, the indictment did not sufficiently notify him of the State's theory of culpability. Appellant argues that the trial court erred by instructing the jury on the law of parties when the indictment did not allege facts supporting such an instruction. As the Sixth Court of Appeals noted, a party to an offense may be charged with the offense without alleging the facts that make him a party to the offense and criminally responsible for the conduct of another. (13) Moreover, if the evidence supports a charge on the law of parties, then the trial court may charge on the law of parties even though there is no such allegation in the indictment. (14)

These propositions are well-established in Texas law and they are equally well-established propositions under federal law. (15)

Because the indictment need not include notice that the State will attempt to prove its case under the law of parties, the Court properly overrules this aspect of his ground for review.

Lastly, appellant contends that the State failed to prove an actual transfer. Appellant asserts that "the type of delivery which was shown at trial was without a doubt constructive delivery." He continues: "The Appellant allegedly delivered a controlled substance to a third party who then delivered the controlled substance to D.A. Torsiello, the recipient alleged in the indictment. These facts constitute a classic constructive delivery." Whether these facts do or do not constitute a constructive delivery is irrelevant. As noted previously, the facts of a given case may support a conviction for delivery of a controlled substance by actual transfer, constructive transfer, or both. The fact that the State alleges only one means of delivery in an indictment and then at trial presents evidence sufficient to prove more than one theory of culpability is irrelevant. What matters is that the State presents evidence such that a reasonable jury could convict a defendant under the theory alleged in the indictment and the instructions given by the trial court.

The evidence that the State presented at trial in the present case was sufficient to prove two distinct theories of an actual transfer from appellant to Officer Torsiello. (16) On one hand, a reasonable jury could have found that Valerie Whorley was Officer Torsiello's agent or representative or was identified in law with him. The court of appeals put it succinctly:

Torsiello suggested to her that he wanted to purchase drugs. ... [A]fter Torsiello's request, Whorley took him to an intersection where drugs were sold. ... Officer Torsiello paid her for making the drug purchase. ... The evidence does show that Whorley made the purchase from Marable.



Marable v. State, 990 S.W.2d at 426-27. Based on this evidence, a reasonable jury could have determined beyond a reasonable doubt both that Ms. Whorley acted as Officer Torsiello's agent and that appellant delivered a controlled substance to her by actual transfer. The evidence was also sufficient for a reasonable jury to find beyond a reasonable doubt that Ms. Whorley then delivered that controlled substance to Officer Torsiello by actual transfer. Under Heberling, this evidence was legally sufficient to convict appellant of an actual transfer to Officer Torsiello through Officer Torsiello's agent, Ms. Whorley. (17)

On the other hand, a reasonable jury could also have found from the evidence presented at trial that appellant was guilty as a party to the actual transfer of a controlled substance to Officer Torsiello. In this regard, I disagree with the court of appeals' characterization of the evidence and with its application of Miller v. State, 537 S.W.2d 725 (Tex. Crim. App. 1976) to that evidence.

The court of appeals listed its reasons for concluding that the evidence did not show that Ms. Whorley and appellant were working together:

The evidence does not show that Whorley was aware of any particular seller of drugs. ... There was no evidence that Marable knew Whorley or that Whorley was in any way working on behalf of Marable. There was no evidence that Marable was aware of Officer Torsiello, although Marable was within Officer Torsiello's view, or that Marable was aware that Officer Torsiello was the real purchaser of drugs. Officer Torsiello's mere presence in a car near the scene of the purchase does not show that Marable knew Officer Torsiello was the purchaser of the drugs.



I disagree. As the court of appeals correctly noted, to convict a party to an offense, the evidence must directly or circumstantially show that the individual acted with intent to promote or assist in the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid another person in the commission of the offense. (18) The jury may consider events occurring before, during, and after the offense, as well as actions which suggest an understanding and common design to engage in the act. (19) The record in this case contains sufficient evidence from which a reasonable jury could infer a party relationship between appellant and Ms. Whorley.

For example, there is Officer Torsiello's direct testimony that Ms. Whorley initiated the encounter that ultimately led to appellant's arrest. He testified that she waved him (a complete stranger) over to her and then asked him what he was doing. While her question is facially innocuous, given the entire body of evidence, one could interpret it as the elliptical solicitation of a steerer. When Officer Torsiello told her that he was looking for a place to buy crack cocaine, Ms. Whorley negotiated with him to obtain her own supply of the drug. It is not unreasonable to conclude that Ms. Whorley, as someone who evidently partook of crack cocaine herself, maintained some level of contact with individuals selling the drug. At the very least, the evidence shows that Ms. Whorley knew to where to find someone selling crack cocaine. She may or may not have known of appellant in particular; a reasonable jury could have gone either way.

The record similarly contains evidence from which the jury could have inferred that appellant: 1) was aware of Officer Torsiello's presence; 2) knew that Officer Torsiello was the source of the money with which Ms. Whorley paid for the cocaine; and 3) knew that Officer Torsiello would be the ultimate recipient of the cocaine. (20)

None of that evidence is directly conclusive, but it is sufficient, taken together, for the jury to have determined beyond a reasonable doubt that appellant was guilty as a party to Ms. Whorley's actual transfer of cocaine to Officer Torsiello. This is the proposition for which Miller v. State (21) stands, that a jury may look to the circumstances surrounding the offense to determine whether or not an individual is guilty as a party to the delivery of a controlled substance by actual transfer.

The facts in Miller are similar to the facts of the present case. In Miller, an undercover police officer met an intermediary at a bowling alley and then drove to the defendant's house. (22) When they arrived, the officer remained in the car while the intermediary went to the defendant's front door and knocked. (23) The defendant answered with a small package of LSD already in hand, which he gave to the intermediary. (24) The intermediary then returned to the car and gave the package to the officer. (25) A jury, which received an instruction on the law of parties, subsequently convicted the defendant of delivery of a controlled substance by actual transfer. (26) The court of appeals affirmed the conviction, as did this Court, implicitly finding that the evidence was sufficient for the jury to have found the defendant guilty of an actual delivery under the law of parties. (27) Although our rendition of the facts and analysis in that case could have been more substantial, Miller's core holding is still good law: a jury may infer the requisite intent from circumstances surrounding the offense when determining a defendant's guilt as a party to the delivery of a controlled substance by actual transfer.

In summary, I agree with the majority that the indictment provided appellant with sufficient notice to support his conviction as a party to the delivery of a controlled substance to Officer Torsiello by actual transfer.

Cochran, J.

Filed: September 18, 2002

Publish

1. Although appellant's petition for discretionary review presented five questions for review, this Court granted review only on the question:

Whether the appellant had sufficient notice of the theory of culpability by which the State would seek conviction for delivery of a controlled substance?

However, both the State and appellant briefed this Court on all five questions. For the sake of clarity, I, therefore, list those four additional questions here:

Whether the Sixth Court of Appeals erred in finding that the evidence was factually sufficient to support appellant's conviction as a party for actual delivery of a controlled substance?



Whether the Sixth Court of Appeals erred in finding that the evidence was legally sufficient to support appellant's conviction as a party for actual delivery of a controlled substance?



Whether the Court of Criminal Appeals should revisit the precedent set by Miller v. State, 537 S.W.2d 725, [sic] (Tex. Crim. App. 1976), for sufficiency of the evidence in delivery of controlled substance cases in which the State relies on the law of parties to prove that the defendant by actual delivery transferred a controlled substance through a third person to the ultimate transferee?



Whether the Sixth Court of Appeals erred by applying the incorrect standard of review for reviewing the sufficiency of the evidence as set forth in Miller v. State, 537 S.W.2d 725 (Tex. Crim. App. 1976)?

To dispose of the sole issue before this Court and to the extent that the analysis overlaps, I would examine aspects of the grounds for which we did not grant review, because the parties themselves have made those additional grounds an essential part of their discussion of the primary question.

2. A "dime" is street slang for ten dollars' worth of crack cocaine.

3. An individual is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or both. Tex. Penal Code Ann. 7.01(a). A person is criminally responsible for an offense committed by another if acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Penal Code Ann. 7.02(a)(2).

4. Tex. Health & Safety Code Ann. 481.002(8) (Vernon Supp. 1994). The statute continues, "The term includes offering to sell a controlled substance, counterfeit substance, or drug paraphernalia." Id. This third type of delivery is not at issue in the present case.

5. See, e.g., Nevarez v. State, 767 S.W.2d 766, 768 (Tex. Crim. App. 1989); Conaway v. State, 738 S.W.2d 692, 695 (Tex. Crim. App. 1987) (plurality op.). Black's Law Dictionary states that to "transfer" is to "convey or remove from one place or one person to another; to pass or hand over from one to another, esp[ecially] to change over the possession or control of." Black's Law Dictionary 1216 (7th ed. 2000). A "constructive transfer," however, is "[a] delivery of an item - esp[ecially] a controlled substance - by someone other than the owner but at the owner's direction." Id.

6. A significant number of cases on this subject arose due to the State's failure to plead all possible theories of "delivery" provided for in 481.002(8). See, e.g., Heberling v. State, 834 S.W.2d 350, 352-53 (Tex. Crim. App. 1992); Thomas v. State, 832 S.W.2d 47, 49-50 (Tex. Crim. App. 1992); Nevarez, 767 S.W.2d at 766 ; Daniels v. State, 754 S.W.2d 214, 219 (Tex. Crim. App. 1988) (en banc); Conaway v. State, 738 S.W.2d 692, 693-94; Davila v. State, 664 S.W.2d 722, 723 (Tex. Crim. App. 1984); Queen v. State, 662 S.W.2d 338, 340 (Tex. Crim. App. 1983); Sheffield v. State, 623 S.W.2d 403, 404-05 (Tex. Crim. App. 1981); Rasmussen v. State, 608 S.W.2d 205, 207 (Tex. Crim. App. 1980); Ferguson v. State, 622 S.W.2d 846, 851-52 (Tex. Crim. App. 1980); Gonzales v. State, 588 S.W.2d 574, 576 (Tex. Crim. App. 1979).

7. Heberling, 834 S.W.2d at 354. In Heberling, we clarified the definition of actual transfer to address the role of a transferee's agent. Id.

8. Heberling, 834 S.W.2d at 353-54.

9. Id. at 354.

10. Id.

11. A "steerer" is one who solicits business for a narcotics dealer. See United States v. Watson, 988 F.2d 544, 551 (5th Cir. 1993); United States v. Sostre, 967 F.2d 728, 733 (1st Cir. 1992); United States v. Copeland, 902 F.2d 1046, 1049 (2nd Cir. 1990) (steerer is "someone who directs buyers to sellers in circumstances in which the sellers attempt to conceal themselves from casual observation

and we have noted the importance of steerers to certain narcotics distribution operations. Without 'steerers,' buyers would either find it difficult to locate sellers or sellers would have to risk exposure to public view.") (internal quotations and citations omitted).

12. Tex. Penal Code Ann. 7.01(a) and 7.02(a)(2); see Crank, 761 S.W.2d 328, 351-52 (Tex. Crim. App. 1988). Contrary to appellant's assertion, an indictment is not defective if it does not mention the law of parties. See Crank, 761 S.W.2d at 351-52. See also Daniels v. State, 754 S.W.2d 214, 217-18 (Tex. Crim. App. 1988) (discussing sufficiency of notice when indictment tracks language of statute creating and defining the offense charged).

13. Crank v. State, 761 S.W.2d 328, 351 (Tex. Crim. App. 1988). See Tex. Penal Code Ann. 7.02; see also Rico v. State, 707 S.W.2d 549, 552 (Tex. Crim. App. 1986); Pitts v. State, 569 S.W.2d 898, 900 (Tex. Crim. App. 1978).

14. Crank, 761 S.W. 2d at 352. See Rico v. State, 707 S.W.2d at 552; Pitts v. State, 569 S.W.2d at 900.

15. See, e.g., United States v. Neal, 951 F.2d 630, 633 (5th Cir. 1992) ("[a]iding and abetting is not a separate offense, but is an alternative charge in every indictment, whether explicit or implicit"); United States v. Renner, 238 F.3d 810, 814 (7th Cir. 2001) ("Every indictment implicitly includes an aiding and abetting charge; it is unnecessary for an indictment specifically to mention 18 U.S.C. 2 (the federal party principal statute)"; United States v. Bradstreet, 135 F.3d 46, 53-54 (1st Cir. 1998) ("aiding and abetting is an alternative charge in every count, whether explicit or implicit"); United States v. Clark, 980 F.2d 1143, 1146 (8th Cir. 1992) ("[i]t is well established that a defendant may be convicted of aiding and abetting even though he was not charged in that capacity.... Aiding and abetting is an alternative charge in every count, whether implicit or explicit.").

16. It was, of course, also sufficient to prove a constructive delivery, but the State did not plead that manner of transfer.

17. Heberling, 834 S.W.2d 350, 354. Although the evidence is legally sufficient, the jury was not charged under this theory and therefore, we do not decide the case on this basis. The only theory submitted to the jury was appellant's guilt under the law of parties.

18. Tex. Penal Code Ann. 7.02(a)(2).

19. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987).

20. It was not until Officer Torsiello and Ms. Whorley arrived at the intersection of East Bessie and Virginia Streets that Officer Torsiello actually gave Ms.Whorley thirty dollars in cash. Ms. Whorley then got out of the car and approached appellant. Officer Torsiello waited until Ms. Whorley and the appellant began talking, and then he drove around the block twice. Appellant was present, albeit ten to fifteen feet away, when Officer Torsiello returned a few minutes later and Ms. Whorley went back to the car to get the additional ten dollars. The jury could have reasonably inferred that appellant was aware of Officer Torsiello's presence from that point, especially because Officer Torsiello did not drive around the block this time but waited while Ms. Whorley and appellant concluded their transaction.

21. 537 S.W.2d 725 (Tex. Crim. App. 1976).

22. Id. at 726.

23. Id.

24. Id.

25. Id.

26. Id.

27. Id.