Tavares Demon Black v. The State of Texas--Appeal from 241st District Court of Smith County

NO. 12-05-00404-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TAVARES DEMON BLACK, APPEAL FROM THE 241ST

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Tavares Black appeals from his conviction for delivery of a controlled substance. In three issues, Appellant complains that the jury was permitted to find him guilty on a theory of criminal liability that was not alleged in the indictment and that the evidence was legally and factually insufficient to support his conviction. The State did not file a brief. We reverse and remand.

Background

A Smith County grand jury indicted Appellant for the felony offense of delivery of a controlled substance. Appellant pleaded not guilty and the case proceeded to a jury trial. The evidence showed that on January 14, 2005, Appellant and Teal Ford met to consummate a drug deal. The two men knew each another, but Appellant did not know that Ford was working with the police. The police were watching when the two men met, but could not observe the meeting very closely. Ford testified that Appellant gave him cocaine in exchange for money. Appellant testified that he offered to sell cocaine to Ford, that they were to go to another location to obtain it, and that Ford already had some cocaine with him when Appellant got into his car.

The indictment alleged specifically that Appellant delivered cocaine to Ford by actual transfer. After the receipt of evidence at Appellant s trial, the State requested that the jury be instructed on each definition of deliver and not just the specific allegation contained in the indictment.1 Appellant objected, but the court instructed the jury that it could find Appellant guilty as charged if it found that he actually transferred cocaine to Ford, constructively transferred cocaine to Ford, or offered to sell cocaine to Ford. The jury convicted Appellant and assessed punishment at eighteen years of imprisonment. This appeal followed.

Jury Instruction

In his first issue, Appellant complains that the jury was instructed that it could find him guilty of delivery of cocaine on a theory not alleged in the indictment.

Applicable Law

Delivery of cocaine is illegal. SeeTex. Health & Safety Code Ann. 481.112(a) (Vernon Supp. 2006). Deliver is defined as (1) an actual transfer of controlled substances, (2) a constructive transfer of controlled substances, or (3) an offer to sell controlled substances. Id. at 481.002(8). An indictment may allege any combination of these methods of delivery or it may simply allege that a defendant delivered the controlled substance. When a general allegation is made, a defendant may successfully move to quash the indictment on the grounds that it is insufficient to put him on notice of which method of delivery he stands accused. Ferguson v. State, 622 S.W.2d 846, 849 51 (Tex. Crim. App. 1981) (op. on reh g). The State may respond by simply alleging all three of the methods of delivery. Id. at 851 ( [A]ssuming that the State did elect to allege each type of criminal conduct, the [defendant] would be put on notice that all types of delivery were going to be shown, or were possibly going to be shown, and he could prepare his defenses accordingly. ).

It is error, however, to authorize a conviction on a theory not alleged in the indictment. See Conaway v. State, 738 S.W.2d 692, 694 (Tex. Crim. App. 1987) ( [The State] chose only to allege that the delivery occurred by actual delivery. It was thus bound to prove its allegation beyond a reasonable doubt. ); see also Sims v. State, 117 S.W.3d 267, 278 (Tex. Crim. App. 2003) (Conviction permissible even though only constructive transfer was alleged because transfer was both constructive and actual.); Montoya v. State, 906 S.W.2d 528, 529 (Tex. Crim. App. 1995) ( When an indictment facially alleges a complete offense, the State is bound by the theory alleged in the indictment, as is the reviewing court in its sufficiency analysis. ); Gonzales v. State, 578 S.W.2d 736, 737 (Tex. Crim. App. 1979); Bolton v. State, 576 S.W.2d 648, 649 (Tex. Crim. App. 1979)( The provision of this alternative theory of culpability in the court's charge when not expressly alleged in the indictment has consistently been considered fundamental error, calculated to injure the rights of defendants and reviewable in the interest of justice by this Court. ).

Analysis

The trial court allowed the jury to convict Appellant on a theory not alleged in the indictment. The jury was instructed that it could find Appellant guilty as charged in the indictment if it found that he actually transferred cocaine to Teal Ford, constructively transferred cocaine to Teal Ford, or offered to sell cocaine to Teal Ford. The indictment alleged only that Appellant delivered cocaine to Teal Ford by actual transfer.

We do not make arguments for parties,2 and so we examine Appellant s argument for obvious defects and analyze it in terms of the arguments made by the State at trial. There are instances in which a theory of liability not alleged in the indictment may be presented to the jury. For example, all criminal defendants are on notice that they may be liable as a party, even if party liability is not alleged in the indictment. See Marable v. State, 85 S.W.3d 287, 287 (Tex. Crim. App. 2002); see also Tex. Pen. Code Ann. 7.01(a) (Vernon Supp. 2006). Also, not every allegation in an indictment must be proven if it is not an element of the offense or is descriptive of an element. See generally, Gollihar v. State, 46 S.W.3d 243, 256 57 (Tex. Crim. App. 2001). Finally, it is proper for the jury to be charged as to disjunctive means of committing an offense even if the indictment alleges them in the conjunctive. See Kitchens, 823 S.W.2d at 258.

None of these exceptions apply here. The language by actual transfer was descriptive of an element of the offense, if not an element itself. Furthermore, there is no general principle that a person alleged to have made a delivery of a specific type is on notice that he is in jeopardy for other types of delivery. In fact, the law is precisely the opposite. See Conaway, 738 S.W.2d at 694.

The State s argument at trial is insufficient to support the jury charge that was given. The relevant discussion is as follows:

[Appellant s

Counsel]: The State is restricted to the charges and the method of proving the crime as in the indictment, we would object [. . . .]

The Court: What s the State s position on that [counsel]?

[State]: Judge, we feel they re proper with the charge of the Court.

The Court: Okay. Well, what about [counsel s] argument that the indictment charges an actual transfer to Teal Ford.

[State]: The indictment also says that he did then and there knowingly deliver, and, obviously, [counsel] is familiar with delivery in that definition, Judge, and I just feel that taking consideration [sic] the indictment saying to deliver which means constructive and actual or offered to sell.

However, the indictment, in relevant part, reads Tavares Black did then and there knowingly deliver, by actual transfer, to Teal Ford, a controlled substance . . . . (emphasis added). This is a specific allegation of a theory of liability. Appellant was entitled to a trial on that specific theory, and it was error to instruct the jury on other theories of liability.

If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is calculated to injure the rights of [the] defendant. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985); see also Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon Supp. 2006); Guevara v. State, 152 S.W.3d 45, 54 (Tex. Crim. App. 2004). Harm is calculated to injure the rights of the defendant if there is some harm to the accused from the error. Almanza, 686 S.W.2d at 171.

The harm is evident in this case. Appellant testified that he did not hand cocaine to Ford (the charged transaction), but that he merely offered to sell cocaine to Ford (one of the bases of liability in the jury charge). It was not until after he testified that the State sought to expand the theory of liability to include his admitted conduct. The Texas Constitution guarantees an accused the right to be informed of the nature and cause of the accusation against him in a criminal prosecution. Tex. Const. art. I, 10; Ward v. State, 829 S.W.2d 787, 794 (Tex. Crim. App. 1992). In a felony case the notice must be by way of an indictment, and notice of the nature and cause of the accusation must come from the face of the indictment. Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim. App. 2000). Indeed, the accused is not required to look elsewhere. Id.; Baker v. State, 123 Tex. Crim. 209, 58 S.W.2d 534, 535 (Tex. Crim. App. 1933).

Appellant was not on notice that he was on trial for offering to sell cocaine to Teal Ford. Indeed, it is unlikely that Appellant would have testified that he offered to sell cocaine to Ford if he had notice that such conduct was the subject of his trial. Appellant understood that he was on trial for transferring a quantity of cocaine to Teal Ford. Appellant was entitled to rely upon the indictment. He was harmed when the jury was authorized to convict him for conduct not alleged in the indictment.3 We sustain Appellant s first issue.

Sufficiency of the Evidence

In his second and third issues, Appellant contends that the evidence is legally and factually insufficient to support the verdict. Specifically, he contends that the jury should not have been instructed on any theory of liability not alleged in the indictment and that Teal Ford is such an unreliable witness that the conviction could not rest on his testimony.

Standards of Review

The due process guarantee of the Fourteenth Amendment requires that a conviction be supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315 16, 99 S. Ct. 2781, 2786 87, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004); Willis v. State, 192 S.W.3d 585, 592 (Tex. App. Tyler 2006, pet. ref d). Evidence is not legally sufficient if, when viewing the evidence in a light most favorable to the verdict, no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).

While legal sufficiency review is all that is required by the U.S. Constitution, the Texas Court of Criminal Appeals has determined that the Texas Constitution requires further review of the factual sufficiency of the evidence. Clewis v. State, 922 S.W.2d 126, 129 30 (Tex. Crim. App. 1996). Our review of the factual sufficiency of the evidence is without the light most favorable to the verdict, and we determine whether the evidence supporting the verdict is so obviously weak as to undermine our confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23, S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Watson v. State, No. PD 469 05, 2006 Tex. Crim. App. LEXIS 2040, at *39 (Tex. Crim. App. Oct. 18, 2006) (Evidence is factually insufficient only when reviewing court objectively concludes that the great weight and preponderance of the evidence contradicts the jury s verdict.).

Under either standard, our role is that of appellate review, and the fact finder is the sole judge of the weight and credibility of a witness s testimony. Wesbrook v. State, 29 S.W.3d 103, 111 12 (Tex. Crim. App. 2000). The fact finder may choose to believe all, some, or none of a witness s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State s burden of proof or unnecessarily restrict the State s theories of liability, and adequately describes the particular offense for which the defendant is tried. Id.

As authorized by the indictment, the State was required to prove that Appellant knowingly delivered cocaine to Teal Ford by actual transfer, in an amount of more than one gram but less that four grams including any adulterants and dilutants. Tex. Health & Safety Code Ann. 481.112 (a), (c) (Vernon Supp. 2006).

Analysis

We have addressed Appellant s argument that the jury charge should not have authorized the jury to convict Appellant on a theory not alleged in the indictment. We need not address that complaint in this portion of our analysis because our evaluation of the sufficiency of the evidence is in terms of the jury charge authorized by the indictment. See Fisher v. State, 887 S.W.2d 49, 57 (Tex. Crim. App. 1994) ( Where the indictment facially alleges a complete offense (either initially or after amendment), the State is bound by the theory alleged in the indictment, as is the reviewing court in its sufficiency analysis. ).

We hold that the evidence is sufficient to show that Appellant delivered cocaine to Teal Ford by actual transfer. Teal Ford testified that Appellant exchanged cocaine for money. A police officer gave Ford money and searched him. From a distance, an officer observed the transaction and searched Ford after the transaction. Ford had money and no cocaine before he met with Appellant, and he had cocaine but not the money after the meeting. A rational jury could have concluded that the essential elements of the offense were proven beyond a reasonable doubt. Furthermore, while Appellant has offered reasons a jury could have doubted Ford, and Appellant testified that he did not give Ford any cocaine, we conclude that the evidence is neither so weak at to undermine our confidence in the verdict, nor is it outweighed by contrary proof. We overrule Appellant second and third issues.

Conclusion

Appellant has requested that we remand this case for a new trial on the basis of the faulty jury charge. We have held that the evidence was sufficient to support a conviction on the grounds alleged by the indictment, and so the remedy requested by Appellant is appropriate. See Fisher, 887 S.W.2d at 60. Accordingly we reverse the judgment of the trial court and remand this matter for proceedings consistent with this opinion.

BRIAN HOYLE

Justice

Opinion delivered October 25, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 The statutory definition of deliver is broader than the specific allegation contained in the indictment and includes an actual transfer of a controlled substance, a constructive transfer of a controlled substance, or an offer to sell a controlled substance. See Tex. Health & Safety Code Ann. 481.002(8) (Vernon Supp. 2006).

2 C.f. Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005) (Appellant waives argument for failure to adequately brief it.); but see Tex. R. App. P. 38.8(b) (No requirement that Appellee/State file a brief.).

3 Appellant s reliance on the indictment is even more reasonable in light of the fact that the State could have alleged the offer to sell theory in the indictment and tacitly foreswore it by advancing a different and specific theory.