      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-00-00571-CR




                              Frank Joseph Deary, Jr., Appellant

                                                v.

                                  The State of Texas, Appellee



    FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
          NO. 9352, HONORABLE HAROLD TOWSLEE, JUDGE PRESIDING




               A jury found appellant Frank Joseph Deary, Jr., guilty of delivering one gram or more

but less than four grams of cocaine in a school parking lot. See Tex. Health & Safety Code Ann.

§§ 481.112(a), (c), .134(c) (West Supp. 2001). The jury assessed punishment, enhanced by two

previous felony convictions, at imprisonment for fifty years and a $10,000 fine. We will modify the

judgment and affirm.

               The relevant facts are undisputed. Undercover narcotics officers Gene Wilson and

Lionel Beals met appellant and Tommy Baker outside a Smithville bar for the purpose of a cocaine

transaction. The officers drove to a nearby school parking lot, followed by appellant and Baker in

Baker’s car. There, Wilson walked over to the passenger side of Baker’s car. Wilson testified:


       I’m talking to Mr. Deary and looking at other things going on, and the driver [Baker]
       had it [the cocaine] under the front seat and he takes it out and gets out what I’m
       going to purchase, which happens to be a hundred dollars worth and that’s going to
       be five actual pieces of crack, and he takes it out, gets out what I’m purchasing and
        hands it to Mr. Deary who in turn hands it to me, which I’m standing on the passenger
        side right by him; and I in turn reached in, after I get it concealed, and handed the
        money to the actual driver.


                The indictment alleged that appellant delivered cocaine to Wilson “by constructive

transfer.” In his first point of error, appellant contends the State failed to prove that he delivered the

cocaine to Wilson in the manner alleged.

                The delivery of a controlled substance can be accomplished in three ways: by actual

transfer, by constructive transfer, or by offer to sell. Id. § 481.002(8); Ferguson v. State, 622 S.W.2d

846, 848 (Tex. Crim. App. 1980). The parties agree that appellant, when he handed the cocaine to

Wilson, delivered the substance to Wilson by actual transfer. See Conaway v. State, 738 S.W.2d 692,

695 (Tex. Crim. App. 1987) (plurality op.). From this, appellant urges that the State failed to prove

that he was guilty of the constructive delivery alleged in the indictment. The State argues, and we

agree, that appellant’s conviction may be sustained because he was a party to Baker’s constructive

delivery.

                A constructive transfer means, among other things, the delivery of a controlled

substance through an intermediary. See Thomas v. State, 832 S.W.2d 47, 51 (Tex. Crim. App. 1992);

Conaway, 738 S.W.2d at 695; Cano v. State, 3 S.W.3d 99, 105 (Tex. App.—Corpus Christi 1999,

pet. ref’d). In this case, Baker, who owned or controlled the cocaine, constructively delivered it to

Wilson, with appellant acting as intermediary in the transaction. See Conaway, 738 S.W.2d at 695.

                The district court’s jury charge included an instruction of the general law of parties.

See Tex. Penal Code Ann. §§ 7.01, .02 (West 1994). Although the court failed to apply the law of

parties to the facts of the case in the application paragraph, we measure the sufficiency of the

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evidence against a hypothetically correct charge for this cause, that is, a charge that properly applies

the law of parties to the facts. Howard v. State, 966 S.W.2d 821, 825 (Tex. App.—Austin 1998, pet.

ref’d) (citing Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997)).1

               In Conaway and in Nevarez v. State, 767 S.W.2d 766 (Tex. Crim. App. 1989), the

defendant handed the controlled substance to an intermediary, who in turn handed it to an undercover

officer. See Conaway, 738 S.W.2d at 693; Nevarez, 767 S.W.2d at 767. In each case, the defendant

was indicted for delivering the substance by actual transfer. See Conaway, 738 S.W.2d at 693;

Nevarez, 767 S.W.2d at 767. In Conaway, the charge did not include an instruction on the law of

parties and the evidence was held insufficient to sustain the conviction. 738 S.W.2d at 695. In

Nevarez, the charge incorporated the law of parties and the evidence was held sufficient to sustain

the defendant’s conviction as a party to the actual transfer of the substance from the intermediary to

the named deliveree. 767 S.W.2d at 768.

               In the cause before us, Baker constructively delivered the cocaine to Wilson.

Appellant assisted the commission of the offense by taking the cocaine from Baker and passing it on

to Wilson. The jury could rationally find beyond a reasonable doubt that appellant was criminally

responsible as a party to Baker’s constructive transfer. Point of error one is overruled.




    1
       Actually, the district court attempted to apply the law of parties to the facts in its general
instructions. The court’s instructions on the abstract law of parties included this paragraph: “A
person is criminally responsible for an offense committed by the conduct of another if, acting with
intent to promote or assist the commission of the offense, he directs, aids or attempts to aid Tommy
Baker in constructively delivering a controlled substance, namely cocaine to Eugene Wilson . . . .”
We express no opinion as to whether, despite the formal application paragraph’s silence, this
instruction was sufficient to apply the law of parties to the facts of the case.

                                                   3
                In point of error two, appellant contends the district court erred in its guilt charge by

refusing to instruct the jury on the defense of entrapment as it related to the allegation that the offense

took place on school premises. See Tex. Penal Code Ann. § 8.06 (West 1994). Appellant argues that

he was entrapped into delivering the cocaine on school premises because it was the undercover police

officers who chose the school parking lot as the location for the delivery. The State argues that the

defense of entrapment relates only to the underlying criminal conduct and does not apply to an

element that only serves to enhance punishment.

                We need not decide this issue because the refusal of the entrapment instruction, if

error, was harmless. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on

reh’g). The indictment also alleged appellant’s two previous felony convictions for the purpose of

enhancing his punishment. Appellant pleaded true to both allegations at the punishment stage of his

trial. See Wilson v. State, 671 S.W.2d 524, 525 (Tex. Crim. App. 1984) (plea of true sufficient to

prove enhancement allegation). Thus, the applicable range of imprisonment was twenty-five to

ninety-nine years, or life, regardless of whether the offense was committed on school premises. See

Tex. Penal Code Ann. § 12.42(d) (West Supp. 2001).2 Under the circumstances, a favorable finding

on the requested entrapment issue would not have altered the applicable range of punishment. Point

of error two is overruled.

                Finally, appellant complains of the violation of an order in limine requiring that the

admissibility of any extraneous offense be determined outside the jury’s presence before being offered




     2
       The punishment charge authorized the jury to assess a minimum term of fifteen years’
imprisonment, and thus was more favorable to appellant than it should have been.

                                                    4
in evidence. Appellant urges that this order was violated during Officer Wilson’s testimony. The

record reflects, however, that appellant did not object to the testimony. See Tex. R. App. P. 33.1(a);

Tex. R. Evid. 103(a)(1). A motion in limine, even if granted, does not in itself preserve error.

Harnett v. State, 38 S.W.3d 650, 655 (Tex. App.—Austin 2000, pet. ref’d). Point of error three

presents nothing for review and is overruled.

               The judgment recites that appellant was convicted of a first-degree felony. In fact,

delivery of one gram or more but less than four grams of cocaine is a second-degree felony even when

committed on school premises. See Young v. State, 14 S.W.3d 748, 751-53 (Tex. Crim. App. 2000)

(reconciling conflicting amendments to section 481.134). The judgment is therefore modified to

reflect a conviction for a second-degree felony. As modified, the judgment of conviction is affirmed.




                                                __________________________________________

                                                Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices Yeakel and Patterson

Modified and, as Modified, Affirmed

Filed: August 9, 2001

Do Not Publish




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