Comment

Jury submission of delivery cases is complicated by several related matters: the explicit statutory distinction between delivery by actual transfer and delivery by constructive transfer, the practice of identifying the recipient in the charging instrument, and the lack of statutory definitions of the two kinds of transfer.

Practice is for an indictment for delivery of a controlled substance to specify the name of the recipient. This is probably necessary. The evidence must therefore, of course, show the delivery to the specified recipient.

A charging instrument for delivery of a controlled substance must specify which of the statutory types of delivery—actual transfer, constructive transfer, or offer to sell—the state will rely on at trial. See Ferguson v. State, 622 S.W.2d 846, 851 (Tex. Crim. App. 1981).

The term constructive transfer should be defined in jury instructions. See Whaley v. State, 717 S.W.2d 26, 31 (Tex. Crim. App. 1986).

In 1987, Judge Clinton of the court of criminal appeals acknowledged certain difficulty in the area but blamed “a lack of comprehension of meaning of the terms ‘actual transfer’ and ‘constructive transfer’ on the part of some who draft charging instruments and prepare charges.” Conaway v. State, 738 S.W.2d 692, 697 (Tex. Crim. App. 1987) (Clinton, J., concurring). The tasks of comprehending these terms, applying them to specific pleadings and evidence, and then explaining this to juries remain, in the Committee’s view, difficult.

Currently Used Constructive Transfer Instruction. The jury instruction on constructive transfer now in wide use developed from several discussions by the court of criminal appeals on matters other than jury instructions.

In Davila v. State, 664 S.W.2d 722 (Tex. Crim. App. 1984), the court of criminal appeals read Rasmussen v. State, 608 S.W.2d 205 (Tex. Crim. App. 1980), as “interpret[ing] a constructive transfer to be the transfer of a controlled substance either belonging to the defendant or under his direct or indirect control, by some other person or manner at the instance or direction of the defendant.” Davila, 664 S.W.2d at 724. Before Davila, the court of criminal appeals read Rasmussen as recognizing at least two distinguishable types of constructive transfer:

Queen v. State, 662 S.W.2d 338, 340–41 (Tex. Crim. App. 1983) (quoting Rasmussen, 608 S.W.2d at 210).

In Daniels v. State, 754 S.W.2d 214 (Tex. Crim. App. 1988), the court of criminal appeals read Gonzalez v. State, 588 S.W.2d 574, 577 (Tex. Crim. App. 1979), as holding “that constructive transfer requires the transferor at least be aware of the existence of the ultimate transferee before delivery.” Daniels, 754 S.W.2d at 221. The court added, “This does not mean that the transferor need know the identity of or be acquainted with the ultimate recipient.” Daniels, 754 S.W.2d at 221.

Delivery by either statutory method requires “transfer.” That term is not defined in the statutes. In Thomas v. State, 832 S.W.2d 47 (Tex. Crim. App. 1992), the court addressed the term and concluded, “It is clear to us that the term ‘transfer’ plainly requires a voluntary relinquishment of possession in favor of another.” Thomas, 832 S.W.2d at 51.

In 1986, the court of criminal appeals made clear that “ ‘constructive transfer’ has acquired a particular meaning.” Whaley, 717 S.W.2d at 31. The term should therefore be defined in jury instructions. A sufficient definition of the phrase, however, is all that is required. That definition need not be incorporated into the application portion of the instructions. See Wilburn v. State, No. 2-03-266-CR, 2005 WL 327160, at *8 (Tex. App.—Fort Worth Feb. 10, 2005, pet. ref’d) (not designated for publication) (“ ‘[C]onstructive transfer’ is not an independent crime that requires that all elements composing the definition to be alleged in the application portion of the jury charge.”).

In apparent response to Whaley, trial courts incorporated into jury instructions definitions developed from Gonzalez, Rasmussen, Davila, and Daniels, although none of these cases involved efforts to define constructive transfer in jury instructions. See Hernandez v. State, 808 S.W.2d 536, 539 (Tex. App.—Waco 1991, no pet.). Often trial courts instruct juries as follows:

Hart v. State, 15 S.W.3d 117, 121 (Tex. App.—Texarkana 2000, pet. ref’d). Variations on this instruction continue to be used.

In one recent case, for example, the court noted, “The charge defined constructive transfer as ‘the transfer of a controlled substance either belonging to an individual or under his direct or indirect control by some other person at the instance or direction of the individual accused of such constructive transfer.’ ” Frank v. State, 265 S.W.3d 519, 522 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (commenting that instruction “omitted the requirement that the transferor know of the existence of the transferee before delivery”).

The instruction at CPJC 81.13 defines constructive transfer solely in terms of the first of the two types of constructive transfer distinguished in Davila. It does not attempt to provide a general definition of constructive transfer in which actual transfer to an intermediary is simply an example.

This instruction also suggests that the evidence must show a completed transfer to the named recipient.

Sims v. State—Constructive Transfer Reconsidered. In 2003, the court of criminal appeals—in an evidence sufficiency case arising out of a nonjury trial—addressed constructive transfer in considerable detail. See Sims v. State, 117 S.W.3d 267 (Tex. Crim. App. 2003). The court reaffirmed that constructive transfer of controlled substances can be made in the second of the two ways distinguished in Davila—by placing the substances in a particular location for retrieval by an intended recipient.

Sims also made clear that the intended recipient need not actually obtain possession for a completed delivery by constructive transfer to occur. A constructive transfer is complete—a delivery occurs—if the defendant places a controlled substance in a specific place for retrieval by the intended recipient and instructs the recipient on that location. Sims, 117 S.W.3d at 277–78. A constructive transfer to a recipient using an intermediary is complete if the defendant places a controlled substance in the possession of the intermediary for the purpose of having the intermediary make actual delivery to the recipient. Sims, 117 S.W.3d at 271.

As conceptualized in Sims, constructive transfer is essentially an attempted actual delivery. It consists of certain action short of actual delivery to the recipient that is intended to result in later actual delivery to that recipient. The key to what action by the defendant is required is apparently in Thomas’s definition of transfer—the defendant must relinquish control.

In a sense, Sims’s definition of constructive transfer fills what might be regarded as a gap in the Texas definition of delivery, when compared to definitions used in many other jurisdictions. In many jurisdictions, delivery is defined as including “the actual, constructive, or attempted transfer” of a substance. Under Sims, what amount to certain attempts to actually transfer are defined as transfers and, thus, as deliveries under the concept of constructive transfers.

This does make somewhat difficult the task of relating the pleading to the proof and submission to the jury. Suppose the state’s theory is that the defendant committed the crime by actually transferring the substance to an intermediary intending that the intermediary actually transfer the substance to the recipient. This is probably alleged as a delivery to the recipient by constructive transfer, even though the offense as defined does not require that the recipient ever receive the substance. The crime of constructive transfer to the recipient is completed by an actual transfer to the intermediary.

Nothing in Sims suggests that the previously accepted definition of actual transfer was incorrect. Judge Johnson commented in dissent that actual transfer does not require that the transferor place the item directly in the hands of the transferee. But, she added, it does appear to require “a simultaneous relinquishment of control by the transferor and assumption of control by the transferee.” Sims, 117 S.W.3d at 278 (Johnson, J., dissenting). This seems consistent with the Sims majority.

As the case law defines actual and constructive transfers, one chain of events may involve several deliveries, any of which could be the basis for prosecution. Suppose the defendant gives cocaine to an intermediary and the intermediary then gives it to the recipient. The defendant’s giving of the cocaine to the intermediary is a delivery by actual transfer to the intermediary. It is also a delivery by actual transfer to the recipient, if the intermediary is the recipient’s agent. The actual transfer to the intermediary may also be a constructive transfer to the recipient, if the defendant intends that the intermediary deliver it to the recipient. The defendant may also be responsible as a party for the intermediary’s actual transfer to the recipient.

The charging instrument need not reflect that the state will prove delivery by actual transfer by evidence that the actual transfer was made by someone other than the defendant for whose conduct the defendant is responsible as a “party.” See Marable v. State, 85 S.W.3d 287 (Tex. Crim. App. 2002). Whether the law of parties should be included in the jury instructions, then, is determined entirely by whether the evidence produced would permit the jury to convict on that theory.

Sims, of course, did not address how or even whether the content of constructive transfer as developed in that opinion should be explained to juries. But nothing in Sims suggests the court was repudiating Whaley and the need to instruct juries on constructive transfer. Further, an instruction that ignores Sims’s development of the law of constructive transfer would be incomplete and most likely inaccurate. Most basically, the instructions frequently used do not make clear that a delivery by constructive transfer can be complete even if the recipient never actually obtains the substance.

When a jury is given alternative ways to find that the defendant “delivered,” the jury is most likely not required to be unanimous regarding the specific way its members rely on in finding a defendant guilty. See Rodriguez v. State, 89 S.W.3d 699, 702 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (“Because section 481.002(8) provides that ‘delivery’ includes both constructive transfer and offer to sell, the jury need not agree on the method of delivery to convict appellant.”).

If the instructions include the law of parties, the defendant is entitled to have the abstract law applied to the facts. Ruiz v. State, 766 S.W.2d 324, 326 (Tex. App.—Houston [14th Dist.] 1989, no pet.). See generally Campbell v. State, 910 S.W.2d 475, 477 (Tex. Crim. App. 1995) (“[I]t is error for a trial judge to refer to the law of parties in the abstract portion of the jury charge and not to apply that law or to refer to that law in the application paragraph of the jury charge.”).

Definition of “Actual Transfer.” The definition of actual transfer at CPJC 81.13 is based on the discussion by the court of criminal appeals in Heberling v. State, 834 S.W.2d 350 (Tex. Crim. App. 1992): “[A]n 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.” Heberling, 834 S.W.2d at 354 (emphasis omitted). See Ex parte Perales, 215 S.W.3d 418, 420 (Tex. Crim. App. 2007) (discussing case law explanations of actual transfer).

There may be some question about whether the definition should require that the transfer be “manual.” Some discussions treat this as significant. See Conaway, 738 S.W.2d at 697–98.

When the state does not seek conviction on the theory that an actual transfer to an intermediary was in law a delivery by actual transfer to the recipient because the intermediary was the recipient’s agent, there is no need to burden the definition with references to agents or persons “identified in law with the transferee.”

Mutual Exclusivity of Actual and Constructive Transfers. Discussions sometimes suggest that actual transfer and constructive transfer are in some sense mutually exclusive. See Conaway, 738 S.W.2d at 694 (plurality opinion of Teague, J.) (“As a matter of law, [actual transfer, constructive transfer, and offer to sell] are mutually exclusive ways in which delivery of a controlled substance might occur.”); Tomlinson v. State, No. 01-92-01243-CR, 1994 WL 149078, at *1 (Tex. App.—Houston [1st Dist.] Apr. 21, 1994, no pet.) (not designated for publication).

In Sims, the court held that when the evidence supported a finding by the jury that the state proved a constructive transfer, “[t]hat the evidence also shows an actual transfer is of no consequence in this case.” Sims, 117 S.W.3d at 278. Does this reject the claim that the two kinds of transfer are mutually exclusive?

Suppose the state proves that the defendant gave cocaine to an intermediary intending for the intermediary to give it to the recipient and that the intermediary then gave it to the recipient. Sims makes clear that proof that the defendant gave the cocaine to the intermediary will support a finding of a constructive transfer to the recipient by the defendant. That the evidence also shows an actual transfer by the defendant to the intermediary is of no consequence when the state has alleged the crime consists of a constructive transfer to the recipient.

In this situation, the evidence might show that the intermediary made an actual transfer to the recipient and that the defendant is responsible for that transfer as a party to it. Thus the defendant might be guilty of actual transfer to the recipient (the defendant is a party to the intermediary’s actual transfer to the recipient) and constructive transfer to the recipient (the defendant made an actual transfer to the intermediary, intending that the intermediary give the substance to the recipient). Each theory, however, requires proof of some facts that the other does not. Guilt of actual transfer is not based on precisely the same facts as guilt of constructive transfer.

Despite Sims, actual and constructive transfer are probably still mutually exclusive in the sense that precisely the same facts could not give rise to both actual and constructive transfer to the same recipient.

Suppose, for example, the evidence showed that the defendant and the recipient were seated at a table. The defendant pushed a substance onto the table and the recipient picked it up. This might be a constructive transfer—placing the substance in a location for retrieval by the recipient. Or it might be an actual transfer—the defendant never really gave up possession until the recipient picked up the substance. But it probably cannot be both.

Even in this example, the two theories would rely on somewhat different facts. The constructive transfer theory would not use the retrieval of the substance by the recipient, while that fact would be essential to the actual transfer theory.