                                    NO. 07-04-0457-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                  MARCH 29, 2006
                          ______________________________

                                TRACY YOLANDA WARD,

                                                                 Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

             FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

                   NO. 48,235-D; HON. DON EMERSON, PRESIDING
                         _______________________________

                                      Opinion
                          _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

       The State indicted Tracy Yolanda Ward (appellant) for knowingly delivering a

controlled substance “by actual transfer to Rodger [sic] Ward, a person who [was] 18 years

of age or younger.” Ward was the unborn child of appellant at the time of the purported

delivery, and the “actual transfer” purportedly occurred through appellant consuming the

controlled substance (cocaine) and causing it to circulate through her blood stream and

into that of the unborn child via the umbilical cord. Prior to trial and without the benefit of
a plea agreement, appellant pled guilty to the offense and received a five-year suspended

sentence. Of her multiple issues on appeal, we need only address one. It concerns the

legal sufficiency of the evidence supporting her conviction.1 And, upon considering that

issue, we reverse and render judgment.

        Statute provides that a person commits an offense by knowingly delivering a

controlled substance to a child. TEX . HEALTH & SAFETY CODE ANN . §481.122(a)(1) (Vernon

2003). A child, for purposes of the statute, “means a person younger than 18 years of

age.” Id. §481.122(d). And, according to that same Code, the term “person” encompasses

“an individual, corporation, government, business trust, estate, trust, partnership,

association, or any other legal entity.” Id. §481.002(33) (Vernon Supp. 2005).

        Also defined in the Texas Health and Safety Code is the term “deliver.” According

to the legislature, it “means to transfer, actually or constructively, to another a controlled

substance . . . regardless of whether there is an agency relationship.” Id. § 481.002(8).

And, while the concept of actual transfer has not been statutorily defined, the Court of

Criminal Appeals filled the void.2

        Per that court, an actual transfer “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.” Heberling v. State, 834 S.W.2d 350, 354 (Tex. Crim. App. 1992);


        1
          The bulk of the issues raised implicate constitutional matters. Authority holds, however, that if legal
disputes may be re solve d on non -constitution al ground s they must s o be reso lved. Bradley v. Sta te ex rel.
W hite, 990 S.W .2d 245, 247 (Tex. 1999) (stating that a court does not “consider constitutional challenges
when [it] can dispose of a case on nonconstitutional grounds”). And, while it is clear that the litigants wish us
to addres s the con stitutiona l issues, we are c om pelled to abide by the foregoing au thority.

        2
         Because the State accus ed appe llant, via the indictmen t of a delivery via “an actual transfer to” her
unborn ch ild, we focus upon the construction of that term and om it further reference to the theory of
constructive transfer.

                                                       2
accord, Thomas v. State, 832 S.W.2d 47, 51 (Tex. Crim. App. 1992) (stating that an actual

transfer occurs when the defendant “transfers actual possession and control of a controlled

substance to another person”); Donely v. State, 140 S.W.3d 428, 429 (Tex.

App.–Beaumont 2004, no pet.) (stating that an actual transfer “consists of a complete

transfer of real possession and control of the contraband”); Luna v. State, No. 07-03-0184-

CR, 2004 Tex. App. LEXIS 1750 (Tex. App.–Amarillo February 24, 2004, pet. ref’d)

(reiterating Heberling). Implicit within this definition is the need for the transferor to

exercise both possession and control over the substance delivered. Donely v. State, supra

(discussing an actual transfer); Queen v. State, 662 S.W.2d 338, 340 (Tex. Crim. App.

1983) (stating that the “critical factor” in a constructive delivery is that prior to the delivery

“the substance involved was directly or indirectly under the defendant’s control”); Williams

v. State, 783 S.W.2d 301, 302 (Tex. App.–Corpus Christi 1989, no pet.) (noting that

possession and control of the substance prior to transfer is necessary under either theory).

Similarly implicit is the requirement that the transferor relinquish that possession to

another. Thomas v. State, 832 S.W.2d at 51. From this, it follows then that the recipient

must also gain or exercise possession over the transferred substance before it can be said

that the actual manual transfer occurred. See Verduzco v. State, 24 S.W.3d 384, 386

(Tex. App.–Houston [1st Dist.] 2000, no pet.) (finding that the evidence was legally

insufficient to prove delivery since the intended recipient of the cocaine never touched it).

In short, we cannot see how there can be a real, actual, or complete transfer of possession

from the transferor unless someone gains possession of               that relinquished by the

transferor. With this said, we turn to the facts before us.



                                                3
       For purposes of this appeal, we assume arguendo that an unborn child is a child

within the parameters of Texas Health and Safety Code § 481.122(a)(1). This is a matter

we need not actually decide to resolve this appeal. Furthermore, all agree that the “actual

transfer” contemplated here consisted of the ingestion by appellant of a controlled

substance that eventually entered into the unborn child’s body via conveyance through the

umbilical cord. Nowhere are we cited to evidence suggesting that the unborn child actually

handled, touched, manipulated or otherwise exercised physical possession over the drug.

Again, the substance was merely discovered in the unborn child’s body. And, therein lies

the rub for the majority of jurisdictions that have considered the issue hold that the mere

presence of a controlled substance in one’s blood or urinary system does not constitute

possession. Jackson v. State, 833 S.W.2d 220, 222-23 (Tex. App.–Houston [14th Dist.]

1992, pet. ref’d) (and cases cited therein); New Mexico v. Montano, 95 P.3d 1059, 1062

(N.M. Ct. App. 2004, no hist.); State Bd. of Nursing v. Berry, 32 S.W.3d 638, 642 (Mo. Ct.

App. 2000, no hist.); Logan v. Cox, 624 N.E.2d 751, 754-55 (Oh. Ct. App. 1993, no hist.);

accord, State v. Griffin, 584 N.W.2d 127, 131-32 (Wis. Ct. App. 1998, rev. denied) (stating

that there was no possession because the accused could not exercise control over the

drug once within his blood); State v. Flinchpaugh, 659 P.2d 208, 211 (Ks. 1983) (holding

similarly). So, since the only evidence of record indicating that the unborn child possessed

the drug taken by his mother is its presence in his body when born, and that is not

evidence of possession as a matter of law, the State failed to satisfy its burden. In short,

it did not present some evidence upon which a rational factfinder could conclude beyond

reasonable doubt that an actual transfer of possession from appellant to the child occurred



                                             4
as contemplated by §481.122(a)(1). Thus, appellant’s conviction for the crime alleged in

the indictment lacks the support of legally sufficient evidence and must be reversed.3

        We are a judicial body obligated to enforce the law as written by the legislature. If

that body cares to define “deliver” as including the transfer of drugs by a mother to her

unborn child through the exchange of bodily fluids, it may do so. Yet, ours is not to write

where it has not. Accordingly, we reverse the judgment of the trial court and render

judgment acquitting appellant of the charge as averred in the indictment.



                                                           Brian Quinn
                                                           Chief Justice

Publish.




        3
          To the extent that the State contends appellant waived her complaint regarding the sufficiency of the
evidence, we find the argument unavailing. One cannot be convicted of som ething that is not a crim e. And,
to accep t the State’s c onte ntion w ould be to ignore that truism .

                                                      5
