RONALD KEITH BELL, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed November 27, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-01533-CR
............................
RONALD KEITH BELL, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F88-94520-PI
.................................................................
O P I N I O N
Before Justices Whitham, Rowe and Whittington
Opinion By Justice Whitham
                Appellant appeals a conviction for unlawful delivery of amphetamine. We find no merit in any of appellant's four points of error. Accordingly, we affirm.
        In his first point of error, appellant contends that the State failed to prove an actual transfer of amphetamine from appellant to the police officer. Three types of "delivery" are contemplated by the Controlled Substances Act: (1) an actual transfer, (2) a constructive transfer, and (3) an offer to sell. Queen v. State, 662 S.W.2d 338, 340 (Tex. Crim. App. 1983); Tex. Rev. Civ. Stat. Ann. art. 4476-15, § 1.02(7) (Vernon Supp. 1989). The indictment must provide the defendant sufficient notice of the particular method of delivery the State intends to show at trial. See Ferguson v. State, 622 S.W.2d 846, 851 (Tex. Crim. App. [Panel Op.] 1981) (on reh'g). The State must then prove the accused's guilt by virtue of the specific form of delivery alleged in the indictment. See Davila v. State, 664 S.W.2d 722, 724 (Tex. Crim. App. 1984). The indictment in the present case alleges that appellant actually transferred the amphetamine to Officer Kalota. Although not specifically defined in the Controlled Substances Act, the term "actual transfer" contemplates completely transferring the real possession and control of a controlled substance from one person to another person. Conaway v. State, 738 S.W.2d 692, 695 (Tex. Crim. App. 1987). The crux of appellant's argument is that the State proved a constructive transfer, not an actual transfer. At trial, the following dialogue took place:
        [PROSECUTOR]: What took place, what happened after the Defendant produced the baggy with a white substance?
 
        [WITNESS]: He attempted to hand it to the girl, and at the same time I reached over and she was taking it and I took it out of her hand.
 
* * *
        [PROSECUTOR]: What was the first thing you did after he handed the amphetamine across to you and you got a hold of it?
 
        [WITNESS]: I picked it up and looked at it.
 
* * *
        [DEFENSE COUNSEL]: Mr. Carathers, I mean, Mr. Kalota, the defendant didn't deliver anything to you, did he?
 
        [WITNESS]: Yes, sir, he did.
 
        [DEFENSE COUNSEL]: Delivered to you?
 
        [WITNESS]: Yes.
 
        [DEFENSE COUNSEL]: You sure he didn't deliver it to Ms. Morrison?
 
        [WITNESS]: No, sir, he did not.
The standard for reviewing the sufficiency of the evidence is to examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Garrett v. State, 682 S.W.2d 301, 304 (Tex. Crim. App. 1984), cert. denied, 471 U.S. 1009 (1985). The trier of facts is the sole judge of the weight and credibility of the evidence and may believe all or any part of the witnesses' testimony. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). Since the finder of fact resolved the "actual transfer" issue against appellant, we cannot substitute our judgment concerning the credibility of the witnesses. See Corley v. State, 582 S.W.2d 815, 819 (Tex. Crim. App. 1979). Thus, we overrule appellant's first point of error.
        In his second point of error, appellant contends that the trial court erred in overruling appellant's motion for new trial where the evidence showed that appellant was not absent by choice, but due to illness and medication. Appellant was present on September 14, 1988, during the voir dire and the initial testimony of the State's first witness. Court was then adjourned until 9:00 the next morning. Appellant did not return to the proceedings--then, or later. Appellant was called for three times at the courthouse, trial was delayed from 9:00 a.m. until 11:30 a.m., appellant did not call the court or his attorney to indicate any reason for his absence, and appellant's wife indicated that appellant had left his house at 5:30 a.m.. With these facts in mind, the trial court made a presumption that appellant chose to voluntarily remove himself from his trial. The trial then proceeded in appellant's absence. In his motion for new trial, appellant alleged that his absence was due to a medication that he took. Attached to this motion for new trial is an affidavit by Kenneth E. Speak, D.O. stating that appellant was given a prescription for Imodium the day before his disappearance, and that Imodium may cause drowsiness. This is the only evidence offered by appellant as to the reason for his absence.
        A defendant may waive his right to be present at trial if he voluntarily absents himself after the jury has been selected. See Miller v. State, 692 S.W.2d 88, 91 (Tex. Crim. App. 1985); Tex. Code Crim. Proc. Ann. art. 33.03 (Vernon 1989). In reviewing the trial court's decision to proceed with trial, the appellate court may consider facts that occur after the trial court's ruling in determining whether the accused's absence was voluntary. Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App. 1984). While the abovementioned affidavit may constitute evidence that appellant was prescribed Imodium, it does not constitute evidence that appellant ever took that drug or that the taking of the drug rendered him unable to attend his trial. Thus, we conclude that appellant presented no evidence to excuse his absence from his trial. Because we conclude that appellant offered no evidence at his motion for new trial to indicate that his absence was anything other than voluntary, we will not disturb the trial court's finding. Moore, 670 S.W.2d at 261. We overrule appellant's second point of error.
        In his third point of error, appellant contends that the trial court erred in refusing to grant appellant's motion for mistrial where the State referred to the fact that in a prior conviction utilized for enhancement, appellant had been charged originally with aggravated robbery but the charge had been reduced to robbery. Assuming, but not deciding, that the reference was error, and that the trial court's curative instruction was ineffective to cure this error, we proceed to discuss this point. During the punishment phase of this trial, a pen packet of appellant's was admitted into evidence and published to the jury without objection. The following discourse then took place:
        [PROSECUTOR]: [To the jury] This is what is called a penitentiary packet, somebody goes down to the penitentiary, this is the record compiled. Right past the first page there is a picture of the prisoner and then there is [sic] different judgments that he went down on. This contains a conviction from 1978, it was an aggravated robbery charge dropped to a robbery and he received --
 
        [DEFENSE COUNSEL]: Your Honor, I'm going to object to that as to what it was and what it was dropped down to, that is outside the record.
(emphasis added). Appellant's objection was sustained and the jury was instructed to disregard the statement, however, appellant's motion for mistrial was denied. On appeal, appellant addresses error to the State's reference to the originally charged prior felony, not to the fact that this reference was outside of the record. In fact, nowhere in his brief does appellant contend that the State's comment was outside of the record. FN:1 Appellant may not, for the first time on appeal, urge error not raised at trial. The error presented on appeal must be the same as the objection raised before the trial court. Nelson v. State, 607 S.W.2d 554, 555 (Tex. Crim. App. 1980). Since the objection made in the trial court in the present case was not the same as urged on appeal, appellant has not properly preserved his argument for review. Hodge v. State, 631 S.W.2d 754, 757 (Tex. Crim. App. 1982). Thus, we conclude that appellant has waived his third point of error.
        In his final point of error, appellant contends that the evidence was insufficient to establish that appellant committed the offense. Specifically, appellant contends that since Kalota failed to identify appellant in court, that the evidence of identity was insufficient to convict appellant. At this juncture we note that it would have been rather difficult for Kalota to have identified appellant in court since appellant was not present in the courtroom at that time (see above). Officer Carathers, who originally captured appellant, however, did identify appellant in open court. Further, Kalota testified that the person who sold him the amphetamine was appellant, and appellant did not seriously contest identification at trial. The State has the burden of proving that the accused committed the offense. Miller v. State, 667 S.W.2d 773, 775 (Tex. Crim. App. 1984). The identification evidence is sufficient if the totality of the circumstances support the conclusion that the jury was adequately apprised that the witnesses were referring to appellant. Rohlfing v. State, 612 S.W.2d 598, 601 (Tex. Crim. App. [Panel Op.] 1981). Since appellant was identified by name by Kalota, identified in court by Carathers, and there was no serious attempt by appellant to show that Kalota purchased the amphetamine from anyone other than appellant, we conclude that the evidence was sufficient to prove that appellant committed the offense. See Wortham v. State, 750 S.W.2d 326, 331 (Tex. App.--Beaumont 1988, no pet.). We overrule appellant's fourth point of error. Having overruled all of appellant's four points of error, we affirm the trial court's judgment.
 
        Affirmed.
 
 
                                                          
                                                          WARREN WHITHAM
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
 
881533.U05
 
FN:1 This is a noteworthy omission since, although appellant made this objection at trial, the pen packet, admitted without objection, included the complained of statement--that the aggravated robbery charge had been reduced to robbery. Further, the pen packet was published to the jury.
File Date[11-27-89]
File Name[881533]