Gonzalez v. State , 1979 Tex. Crim. App. LEXIS 1606 ( 1979 )

DALLY, Judge,

concurring.

The facts concerning the transaction are as stated in the majority opinion. The evidence simply does not show that the appellant knowingly made a delivery of heroin to Galvan. There is nothing in the record to show that the appellant knew that he was making a transfer of the heroin, either actual or constructive, to Galvan. There is no evidence that the appellant had ever met Galvan or that he knew about Galvan’s role in the sale. The testimony of Galvan would have supported a conviction of the appellant either for possession of heroin or for the delivery of heroin to Montoya; but the appellant was not charged with these offenses.

In my opinion, based on the facts presented here, the evidence did not raise an issue of appellant’s culpability through the law of parties. An instruction on this subject would not have saved this conviction.¹ Therefore the discussion of the law of parties, principles, and accommodation agency is wholly unnecessary to the decision.

I concur in the reversal of the judgment.

W. C. DAVIS, J., concurs in this opinion.

1 . The facts in Saddler v. State, 167 Tex.Cr.R. 309, 320 S.W.2d 146 (1959), presented a dear case for proper application of the law of principals. In Saddler, the undercover officer made a deal directly with the defendant to buy marihuana and the defendant later dispatched an intermediary to arrange delivery. The Court in Miller v. State, 537 S.W.2d 725 (Tex.Cr.App.1976) gave a brief factual account that appeared to make that case very similar to this one. However, the Miller court concluded that with an instruction on the law of principals the evidence was sufficient, citing Saddler. That conclusion, and the citation to Saddler, are inexplicable unless we assume that the record in Miller contained facts which raised the principles issue and made the case analogous to Saddler, but those facts were not mentioned in the Miller opinion’s cursory factual recitation.