Eugene Anderson v. State ( 1991 )

Anderson v. State

NO. 10-89-152-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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          EUGENE ANDERSON,

                                                                                            Appellant

          v.

          THE STATE OF TEXAS,

                                                                                            Appellee

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From 351st Judicial District Court

Harris County, Texas

Trial Court # 503539

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O P I N I O N

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          Appellant was indicted for delivery of a controlled substance, cocaine. He was found guilty by a jury, which also found two enhancement paragraphs to be true. The jury then assessed punishment at life in prison. We will affirm.

          Appellant now complains that the trial court erred in denying his motion to dismiss the enhancement paragraphs in the indictment. He argues that the enhancement provisions were improper since the general enhancement statute was inapplicable to offenses under the Controlled Substances Act which contains its own enhancement provision. See Act effective August 29, 1983, 68th Leg., R.S., ch. 425, 1983 Tex. Gen. Laws 2361, 2371-72. The Controlled Substance Act enhancement provision applies to specific sections and does not include delivery of cocaine; therefore, the provision does not apply to Appellant's offense. Since convictions obtained under the controlled substances act may be enhanced under the Texas Penal Code, the trial court properly denied Appellant's motion and the point is overruled. See Gutierrez v. State, 628 S.W.2d 57, 61 (Tex.Crim.App. [Panel Op.] 1980).

          Appellant, in his next four points, complains that there was insufficient evidence to support the verdict regarding actual delivery and constructive delivery. When we review a sufficiency of the evidence point, we must "determine whether ``after viewing the evidence in the light most favorable to the prosecution . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" See Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App. 1989). Additionally, in this matter, "if there is sufficient evidence to prove one of the two ways of committing the offense, this Court need not consider whether the evidence is sufficient to prove the alternative theory." See Vasquez v. State, 665 S.W.2d 484, 487 (Tex.Crim.App. 1984).

          Here, during the delivery transaction, Appellant was seen looking at the undercover police officer, who had motioned for Appellant's co-defendant to come over to his car. The co-defendant was asked by the police officer where he could get 20 cents of "powder". The co-defendant then took a twenty-dollar bill from the officer and took it to Appellant. Appellant, in turn, then raised up and removed something from underneath himself, and gave it to the co-defendant. The co-defendant then returned to the police officer's location and gave him a packet of cocaine.

          The elements of constructive transfer require (1) that prior to delivery the transferor must have either direct or indirect control of the substance and (2) that the transferor must know of the existence of the transferee. Daniels v. State, 754 S.W.2d 214, 221-22 (Tex.Crim.App. 1988). Here, Appellant had direct control over the substance before it was delivered and knew of the transferee, since he looked towards him when talking to the co-defendant. Therefore, after viewing the evidence in the light most favorable to the prosecution, we find that any rational trier of fact could have found the essential element of delivery beyond a reasonable doubt. Appellant's points are overruled.

          In Appellant's next point, he complains that the trial court committed fundamental error in submitting a parties' charge to the jury on an offense under the Controlled Substances Act. The law of parties is governed by sections 7.01 and 7.02 of the Texas Penal Code. See Tex. Penal Code Ann. §§ 7.01, 7.02 (Vernon 1974). This section of the Penal Code has been applied to the Controlled Substances Act, specifically the offense of delivery of cocaine. See Jimenez v. State, 739 S.W.2d 499, 501 (Tex.App.—Corpus Christi 1987, pet. ref'd). The court was correct in including the law of parties in the charge and the point is overruled.

          In Appellant's final point, he argues that the prosecutor committed fundamental error in his final argument on punishment by appealing to community demands. During final argument the prosecutor argued that the community demanded punishment of Appellant. However, Appellant failed to object to the comment at the time it was made and unless the argument of the prosecutor is so prejudicial that no instruction could cure the harm, the failure to timely object waives any error. See Tex. R. App. P. 52(a); Motley v. State, 773 S.W.2d 283 (Tex.Crim.App. 1989). Appellant's point is overruled and the judgment of the trial court is affirmed.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings and

          Justice Vance

Affirmed

Opinion delivered and filed August 1, 1991

Do Not Publish

ly: "CG Times";color:black'>

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Appeal dismissed

Opinion delivered and filed December 8, 2004

[CV06]