Rebecca Dearing v. State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-01-218 CR ____________________

REBECCA DEARING, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 159th District Court Angelina County, Texas Trial Court Cause No. 21,970

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O P I N I O N

After a jury convicted appellant Rebecca Dearing of delivery of a controlled substance (cocaine), the trial court sentenced her to twenty-five years in the Texas Department of Criminal Justice, Institutional Division, as a repeat offender. See Tex. Health & Safety Code Ann. §§ 481.102, 481.112(a), (c) (Vernon Supp. 2001). Dearing appeals with three points of error.

Background Facts

John Catoe, an undercover investigator for the Deep East Texas Regional Narcotic Trafficking Task Force, was working undercover on November 23, 1999, with two confidential informants, Jerry Brookshire and Cathy Crawford. After deciding to attempt a drug purchase from Rebecca Dearing, the three went to her house where Crawford introduced Catoe to Dearing. When Crawford told Dearing they were looking for a hundred dollars worth of crack cocaine, Dearing explained she did not have any narcotics in the house and would have to "go get it." Catoe testified Dearing then went outside for a few minutes. In the meantime, a white male, whom Catoe did not know, entered the house and told Catoe that Dearing needed some money. Walking outside, Catoe observed Dearing alone in her pickup. He testified as follows:

So at that time I walked outside, and she was in the driver's side of the truck, pulled almost like she was fixing to exit the driveway onto the road. I walked up, had a hundred dollar bill, went to hand it to her. She said, just drop it in here. So I dropped it in her lap. And she pulled off and I went back inside the residence.

During the approximately ten minutes that Dearing was gone, Catoe waited inside the house. There were two or three other people in the residence. When Dearing returned, she entered the house and walked up to where Catoe and the two informants were standing. According to Catoe, Dearing declared that "it's out in the ashtray of the truck." Catoe testified he then "walked out of the residence, went to the truck, opened the driver's door, opened the ashtray, and there was a . . . clear cigarette package wrapper with five beige colored rock-like substances in it, and I retrieved it from the ashtray." After putting the "rocks" in his pocket, Catoe went back into the residence, announced "I've got it," and then left in the undercover vehicle. Catoe acknowledged that after Dearing drove away, she could have stopped and changed drivers without his knowing it. He also admitted he did not see Dearing put the cocaine in the ashtray, and she did not give the cocaine to him personally. He could not say who put the cocaine in the ashtray. Jerry Brookshire, one of the confidential informants working on the case with Officer Catoe, testified to essentially the same facts as did Catoe.

Dearing's defense at trial appears to have rested upon her alleged physical limitations; she put on evidence that she was on crutches after having been in an accident and was suffering with leg pain. The implication is that she was not physically capable of handling such a transaction, and, therefore, she did not commit the offense. Other evidence indicated Dearing was ambulatory, got into a pickup truck, drove off, and returned to and entered the house. On appeal she does not raise the physical limitations matter, but instead challenges the adequacy of the State's evidence on the issues of possession and actual delivery.

Analysis

A person commits the offense of delivery of cocaine, a substance in Penalty Group I, if she knowingly or intentionally delivers the controlled substance. See Tex. Health & Safety Code Ann. § 481.112(a) (Vernon Supp. 2001). "Deliver" means "to transfer, actually or constructively, to another a controlled substance . . . , regardless of whether there is an agency relationship. . . ." Tex. Health & Safety Code Ann. § 481.002(8) (Vernon Supp. 2001). The indictment charges Dearing with having intentionally and knowingly delivered a controlled substance by actual transfer, and the jury charge reflects an instruction, as well as an application paragraph, with similar content. There was no jury charge on the law of parties.

In substance, Dearing's points of error on appeal challenge the legal and factual sufficiency of the evidence; she claims there is no evidence, or in the alternative, insufficient evidence to support the element of "actual transfer" of the controlled substance. In a legal sufficiency review, this court looks at all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). In a factual sufficiency review, we view all the evidence without the prism of "in the light most favorable to the prosecution" and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). When, as here, we review a case based on circumstantial evidence, the standard of review is the same as in a review of a case with direct evidence. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999). "Circumstantial evidence, by itself, may be enough to support the jury's verdict." Id. In conducting a legal and factual sufficiency review, we are mindful that the jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). Reconciliation of conflicts in the evidence is within the exclusive province of the jury. Id.

Case law has defined "actual delivery" of a controlled substance as the complete transfer of the "real possession" and control of the substance from one person to another. Conaway v. State, 738 S.W.2d 692, 695 (Tex. Crim. App. 1987). Dearing maintains that before there can be actual transfer or delivery of the controlled substance, there must be possession. Thus, she challenges possession, as well as "actual transfer," since neither of the State's witnesses actually saw her with the cocaine.

To establish unlawful possession of a controlled substance, the State must prove beyond a reasonable doubt that the defendant exercised care, custody, control, or management over the substance and, in so doing, knew that it was contraband. See Tex. Health & Safety Code Ann. §§ 481.002(38), 481.112(a) (Vernon Supp. 2001); King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). The State may prove knowing possession by presenting evidence that affirmatively links the defendant to the controlled substance. See Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995).

In this case, there is no direct evidence establishing who put the cocaine in the ashtray of Dearing's pickup. However, circumstantial evidence establishes sufficient affirmative links between Dearing and the cocaine and thereby demonstrates her knowledge of its presence. Catoe and Dearing made a deal for the purchase of cocaine; Catoe paid her $100; she was alone in her pickup when she drove away to obtain the contraband; she came back and told him "it's in the ashtray" of the vehicle. Catoe picked up the "rocks" from the ashtray. Based on the combined and cumulative force of the circumstantial evidence, the jury could have inferred that Dearing possessed the cocaine.

In addition to challenging possession, Dearing also contends the evidence is insufficient to show an "actual transfer." In Heberling v. State, 834 S.W.2d 350, 354 (Tex. Crim. App. 1992), the Court held 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." (footnote omitted) (emphasis in original). The holding in Heberling was not, as here, in the context of a delivery made by a transferor's placing the contraband in a specified location and then telling the buyer where to pick it up; instead, the context in Heberling was a "delivery" to an agent of law enforcement, rather than to an actual officer, and the issue was whether delivery to the agent constituted actual transfer. The Court held it did.

Other cases have established that an actual transfer does not require that the seller manually place contraband in the hands of the buyer. See Nevarez v. State, 767 S.W.2d 766, 768 (Tex. Crim. App. 1989); Warren v. State, 15 S.W.3d 168, 172 (Tex. App.--Texarkana 2000, no pet.); Rodriguez v. State, 970 S.W.2d 66, 69 (Tex. App.--Houston [14^th Dist.] 1998, pet. ref'd) (Delivery by actual transfer was effectuated by the defendant's telling the undercover officer that the cocaine was in a shoe box.). Dearing does not appear to take issue with the manual transfer issue; instead she contends that in order to prove delivery by actual transfer, there must be "a continuous chain of observation of the delivery, either by law enforcement or by its agent." She directs us to cases in which the facts of the case show there was continuous observation of the delivery. ⁽¹⁾ However, these cases do not hold that a law enforcement officer or his agent must observe the whole delivery process.

In Nevarez, the Court of Criminal Appeals stated as follows: "For some purposes, a delivery is accomplished by nothing more than making a thing available to another, placing it within his reach, notwithstanding there is no actual handing of the thing from one person to another." Nevarez, 767 S.W.2d at 768 (quoting Daniels v. State, 754 S.W.2d 214, 220 (Tex. Crim. App. 1988)) (emphasis in Nevarez). Here, the evidence shows there was an actual transfer of the cocaine by "nothing more than making" the cocaine "available to" Catoe. See Warren, 15 S.W.3d at 169 (Actual transfer occurred when defendant placed cocaine in another room and instructed undercover officer where it was, and officer went into the other room and found it.). By representing she would get the cocaine, accepting $100 in payment for it, driving off to get it, and returning and telling Catoe it was in the ashtray, Dearing demonstrated through her conduct that she was in control of the contraband and the transaction and that she effected the transfer.

Viewing the evidence in the light most favorable to the prosecution, we conclude that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Under a factual sufficiency review, we further conclude the jury's finding appellant guilty of delivery of cocaine by actual transfer is not so contrary to the overwhelming weight of evidence as to be clearly wrong and unjust. Appellant's three points of error are overruled, and the judgment of the trial court is affirmed.

AFFIRMED.

PER CURIAM

Submitted on November 21, 2001

Opinion Delivered December 19, 2001

Do not publish

Before Walker, C.J., Burgess, and Gaultney, JJ.

1. See Heberling v. State, 834 S.W.2d 350 (Tex. Crim. App. 1992); Marable v. State, 990 S.W.2d 421 (Tex. App.--Texarkana 1999, pet. granted.).