                                NOS. 12-11-00385-CR
                                     12-11-00386-CR

                        IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS

LEE ALBERT COLLINS,                              §          APPEAL FROM THE 349TH
APPELLANT

V.                                               §          JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §         HOUSTON COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Lee Albert Collins appeals his two convictions for delivery of a controlled substance. In one
issue, Appellant argues that the evidence is insufficient to support the convictions. We affirm.


                                           BACKGROUND
       In January 2010 and again in February 2010, Bobby Betsill purchased crack cocaine from
Appellant in Houston County, Texas. Betsill was working with Greg Schroeder, an agent for the
Texas Department of Public Safety (DPS). Schroeder vetted Betsill prior to engaging him as a
confidential informant and monitored and recorded his telephone calls with Appellant. Before both
of the transactions, Schroeder searched Betsill and equipped him with a concealed audio and video
recording device. For the second transaction, Schroeder actually concealed himself in the back of
Betsill‟s vehicle and was able to observe the events leading up to the drug transaction. Betsill was
paid two hundred dollars for each transaction.
       A Houston County grand jury returned indictments against Appellant alleging that he
committed two separate delivery of a controlled substance offenses. The grand jury also alleged that
he had a prior and unrelated felony conviction. Appellant waived trial by jury and pleaded not
guilty. The trial court heard evidence and found Appellant guilty as charged. The trial court found
the enhancement paragraph to be true and assessed a sentence of imprisonment for sixty years in each
case. This appeal followed.


                                   SUFFICIENCY OF THE EVIDENCE
       In one issue, Appellant argues that the evidence is insufficient to support the convictions
because the evidence showed only that Appellant delivered cocaine to the confidential informant but
the indictment alleged that he delivered cocaine to the DPS agent.
Standard of Review and Applicable Law
       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); see also Brooks v. State, 323 S.W.3d 893, 917 (Tex. Crim.
App. 2010) (plurality opinion). 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
Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). Under this standard, a reviewing
court does not sit as a thirteenth juror and may not substitute its judgment for that of the fact finder by
reevaluating the weight and credibility of the evidence. See Brooks, 323 S.W.3d at 899; Dewberry v.
State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead, a reviewing court defers to the fact
finder‟s resolution of conflicting evidence unless that resolution is not rational in light of the burden
of proof. See Brooks, 323 S.W.3d at 899–900. The duty of a reviewing court is to ensure that the
evidence presented actually supports a conclusion that the defendant committed the crime. See
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
       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 alleged in the indictments, the State‟s evidence had to show that Appellant delivered, by

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actual transfer, a controlled substance listed in Penalty Group 1 in an amount of more than one gram
but less than four grams to Greg Schroeder. See TEX. HEALTH & SAFETY CODE ANN. § 481.112 (c)
(West 2010). Cocaine is listed in Penalty Group 1. See id. § 481.102(3)(D) (West 2010).
Analysis
        Appellant argues that the evidence does not show that he delivered cocaine to Greg Schroeder,
as the indictment charges. Based on the court of criminal appeals decision in Heberling v. State, 834
S.W.2d 350 (Tex. Crim. App. 1992), Appellant argues that he must be acquitted because there is no
evidence that he was aware of the agency relationship between Betsill, the informant, and Schroeder,
the police officer.
        In Heberling, the defendant delivered cocaine to a person named Nagid. Heberling v. State,
814 S.W.2d 183, 184 (Tex. App.–Houston [1st Dist.] 1991), aff’d, 834 S.W.2d 350 (Tex. Crim. App.
1992) (en banc). Nagid was working with a police officer and that relationship, if not the officer‟s
place of employment, was known to the defendant. The court of appeals held that the evidence was
sufficient either under the law of parties or on the basis of an agency relationship between Nagid and
the police officer to prove that the defendant had delivered, by actual transfer, the cocaine to the
officer even though the defendant delivered the cocaine to Nagid only. Id. at 185. The defendant
filed a petition for discretionary review and argued that he could not be found guilty as a party to the
offense because the jury had not been charged on a theory of accomplice liability that included Nagid.
The court of criminal appeals agreed, holding that if “the definition of actual transfer contemplates
only a transferee, the evidence adduced at trial is insufficient to support a conviction under the jury
charge as worded in the instant case.” Heberling, 834 S.W.2d at 354. To resolve the issue
presented in that case, the court held that “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.” Id.
        In Heberling the court described the proof of actual agency as “foremost” in terms of
importance. Id. at 355. In the next sentence, the court noted that “in addition,” there was evidence
that the individuals involved in the transaction were aware that Nagid was the officer‟s agent. Id.
Appellant also cites Cohea v. State, 845 S.W.2d 448 (Tex. App.–Houston [1st Dist.] 1993, pet. ref‟d),
in which the court held that the evidence was sufficient to show that the informant was acting on the
officer‟s behalf and also held that it was “relevant” that the parties understood that relationship.

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Appellant argues that Heberling and Cohea stand for the proposition that there must be proof in this
case that he knew Betsill was an agent of the police officer. Otherwise, he asserts, the respective
courts would not have concerned themselves with what the defendant in Heberling knew about Nagid
or what the parties knew about the relationship of the individuals in Cohea. Appellant does not
dispute that Betsill is an agent of Schroeder in this case. Instead, he argues that he cannot be liable
for a transfer to Schroeder through Betsill because he did not know Betsill was working for Schroeder
or for anyone. We disagree.
           The court‟s use in the Heberling decision of the modifier “foremost” is not unintentional.
And the formulation of the proof necessary was careful and deliberate. This is especially so as the
court had held that an acquittal was required if the term transfer could only mean a physical transfer to
the party named in the indictment. Appellant seizes on the second sentence, in which the court notes
that all of the parties understood that Nagid was an agent. Id. at 355. But this sentence can be
understood to mean that the knowledge of the parties was evidence of the agency relationship, not a
requirement that a defendant be aware of the agency relationship. Similarly, the Cohea decision
describes the knowledge of the defendant and other parties to the transaction of the agency
relationship as “relevant,” but relevant to the question for the jury of whether the agent was in fact an
agent of the police officer, not an element of the offense. See Cohea, 845 S.W.2d at 451.
       In a concurring opinion issued a decade after the Heberling decision, Judge Cochran wrote as
follows:


       This Court's decision in Heberling made it clear that, if the evidence is such that a reasonable jury could
       conclude that an intermediary was an undercover officer's agent or representative, then proof beyond a
       reasonable doubt of an actual transfer from a defendant to that agent is legally sufficient to convict that
       defendant of an actual transfer to the undercover officer, whether or not the trial court instructed the jury
       on agency.



Marable v. State, 85 S.W.3d 287, 291 (Tex. Crim. App. 2002) (Cochran, J., concurring). This
formulation does not require actual knowledge by a defendant of the agency relationship. By
contrast, Judge Cochran noted that constructive transfer, a different type of delivery, does require a
showing that the defendant was “„at least aware of the existence of an ultimate transferee before he
may be said to have delivered or made a delivery of a controlled substance to another through a third
party.‟” Id. (quoting Gonzalez v. State, 588 S.W.2d 574, 577 (Tex. Crim. App. 1979)).
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         We agree with Judge Cochran‟s assessment of the Heberling decision. In her opinion, Judge
Cochran notes the evidence in that case was sufficient to prove an actual transfer from the defendant
to the officer, even though the defendant actually transferred the contraband to an agent. Id. at 293.
Furthermore, although it was not an issue, there was no evidence in the Marable case that the
defendant was aware of the agency relationship
         The same issue is presented in this case.                   In accordance with the court‟s decision in
Heberling, we hold that proof of actual delivery to an agent is sufficient to prove actual delivery to the
principal. There was such proof in this case, and the evidence is sufficient to support the verdict.
We overrule Appellant‟s sole issue.


                                                     DISPOSITION
         Having overruled Appellant‟s sole issue, we affirm the judgment of the trial court.


                                                                    JAMES T. WORTHEN
                                                                       Chief Justice


Opinion delivered June 12, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (DO NOT PUBLISH)


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                                  COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                           JUDGMENT

                                             JUNE 12, 2013


                                        NOS. 12-11-00385-CR
                                                12-11-00386-CR


                                     LEE ALBERT COLLINS,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                           Appeals from the 349th Judicial District Court
                   of Houston County, Texas. (Tr.Ct.Nos. 10CR-202; 10CR-205)


                       THESE CAUSES came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there were no errors in the
judgments.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgments
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                       James T. Worthen, Chief Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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