The state accuses the defendant of having committed the offense of delivery of a controlled substance.

Relevant Statutes

A person commits the offense of delivery of a controlled substance if the person knowingly delivers a controlled substance by actual transfer or constructive transfer [and the amount of the controlled substance is, by aggregate weight, including adulterants or dilutants, [insert specific amount, e.g., one gram or more but less than four grams]].

[Substance] is a controlled substance.

A person delivers a controlled substance to another by actual transfer if the person has possession and control over the controlled substance and manually conveys that possession and control of the controlled substance to the other [or to an agent of that other person].

[Include the following if the state’s theory is delivery by an intermediary.]

A person constructively transfers a controlled substance to another if the person actually transfers the controlled substance to someone intending that the controlled substance eventually be placed in the possession of a third person, the intended eventual recipient. The person must know of the existence of the intended eventual recipient. The person need not know the identity of that intended recipient and need not be acquainted with that intended recipient.

A constructive transfer of this sort is complete if the person actually transfers the controlled substance to another as part of the plan. The state need not show that the intended recipient obtained possession of the substance.

[Include the following if the state’s theory is constructive delivery by making the substance available to the transferee.]

A person constructively transfers a controlled substance to another if the person gives up possession of the controlled substance as part of a plan for the other person to obtain possession. For example, a constructive transfer may be made by leaving the substance at a location and notifying the other person that the other person can obtain the substance by retrieving it at that location.

A constructive transfer of this sort is complete when the person gives up possession of the controlled substance pursuant to the plan. The state need not show that the intended recipient retrieved or otherwise obtained possession of the controlled substance.

[Include the following if the state’s theory does not fit into either of the above categories.]

Delivery of a controlled substance to another person by constructive transfer is a relinquishment of control over the controlled substance for the purpose and with the intent that the other person get control over the substance. It does not require that the other person actually get control. The defendant must be aware of the intended recipient and intend to have that person receive control of the substance.

To prove that a defendant delivered a controlled substance to another by constructive transfer, the state must prove, beyond a reasonable doubt, that—

1. the defendant had either direct or indirect control of the substance; and
2. the defendant relinquished that control; and
3. the defendant did this with intent to convey control of the substance to the other person.

The defendant must be aware of the existence of the intended recipient. The defendant need not, however, know the identity of that intended recipient or be acquainted with that intended recipient.

A delivery by constructive transfer does not require that the intended recipient actually obtain control of the substance. The delivery is complete when the defendant relinquishes control with the required intent.

Delivery by constructive transfer can occur, among other ways, if—

1. the defendant leaves the substance in a location and notifies the intended recipient that the intended recipient can obtain the substance at that location; or
2. the defendant [delivers/actually transfers] the substance to an intermediary, intending that the intermediary [deliver/actually transfer] the substance to the intended recipient.

Definitions

Adulterant or Dilutant

“Adulterant or dilutant” means any material that increases the bulk or quantity of a controlled substance, regardless of its effect on the chemical activity of the controlled substance.

Deliver

“Deliver” means to transfer, actually or constructively, to another [regardless of any agency relationship between the other person and any other individual].

Knew He Was Delivering Controlled Substance

The phrase knew he was delivering a controlled substance means a person was aware that he was delivering something and aware that what was being delivered was a substance that in fact was a controlled substance.

Application of Law to Facts

[Include the following if the offense does not require a minimum weight.]

You must decide whether the state has proved, beyond a reasonable doubt, two elements. The elements are that—

1. the defendant, [name of defendant], delivered [substance] to [name of recipient] by actual transfer or by constructive transfer, as defined above, in [county] County, Texas, on or about [date]; and
2. the defendant knew he was delivering a controlled substance.

[Include the following if the offense requires a minimum weight.]

You must decide whether the state has proved, beyond a reasonable doubt, three elements. The elements are that—

1. the defendant, [name of defendant], delivered [substance] to [name of recipient] by actual transfer or by constructive transfer, as defined above, in [county] County, Texas, on or about [date]; and
2. the [substance] was, by aggregate weight, including adulterants or dilutants, [amount] gram[s] or more; and
3. the defendant knew he was delivering a controlled substance.

[Continue with the following.]

You must all agree on [both elements 1 and 2/elements 1, 2, and 3] listed above.

If you all agree the state has failed to prove, beyond a reasonable doubt, [either or both of elements 1 and 2/one or more of elements 1, 2, and 3] listed above, you must find the defendant “not guilty.”

If you all agree the state has proved [both of the two/each of the three] elements listed above, you must find the defendant “guilty.”

[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]