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Click here for the full text of this decision The question presented by this case is whether the transfer of drugs was “actual” or “constructive.” Sometimes both types of transfers can occur in the same transaction. FACTS:An undercover law enforcement agent met appellant at an outdoor site to buy crack cocaine. When the agent asked “where it was at,” the appellant pointed to a foil-wrapped package lying in the road near a tree and said “it’s right there in that piece of foil.” Turner retrieved the package and haggled with the appellant over the price. The appellant was paid $480 for the cocaine. The appellant was subsequently indicted for, and convicted of, delivery of cocaine by “constructive transfer.” On appeal, he contended that the evidence was legally insufficient to support his conviction because the evidence showed an actual transfer rather than a constructive transfer. Relying upon Queen v. State, 662 S.W.2d 338 (Tex. Crim. App. 1983), the court of appeals held that appellant had indeed effected a constructive transfer. In so holding, the court of appeals declined to follow Houston and Texarkana decisions that held that the relevant portion of Queen had been nullified by later cases. Consequently, the court of appeals found the evidence to be legally sufficient and affirmed the conviction. HOLDING:Affirmed. The present case involves a constructive transfer and an actual transfer. The constructive transfer occurred when appellant informed the undercover officer of the cocaine’s location. The actual transfer occurred when the undercover officer actually retrieved the contraband. Queen was correct in holding that one method of constructive transfer is for the transferor to instruct the recipient on the location of the contraband. If the contraband is already in place, the constructive transfer is complete at the time the transferor gives the instruction. When the recipient retrieves the contraband, there is then a completed actual transfer. While Stolz and Warren appear to have reached the right result in each of their cases, since an actual transfer did take place, their conclusion that no constructive transfer occurred is incorrect, and to the extent they so held, the court disavows their reasoning. In the present case, appellant constructively transferred the cocaine when he instructed the undercover officer as to its location. The evidence is therefore sufficient to support a conviction for constructive transfer. That the evidence also shows an actual transfer is of no consequence in this case. OPINION:Keller, P.J.; Meyers, Keasler, Hervey, Holcomb and Cochran, JJ., join. WOMACK, J. concurred in the result. DISSENT:Johnson, J.; Price, J., joins.”[T]he act of leaving an item in a particular location and then advising the intended transferee of that location would be a constructive transfer only if the transferor is no longer in a position to retrieve the item. If, however, the transferor is in as good a position to exercise physical control over the item as the intended transferee, there can be no constructive transfer. Likewise, the mere placement of a packet of contraband on the ground between the transferor and the transferee, rather than handing the packet from one to the other, does not change what would clearly be an actual transfer into a constructive transfer. “In this case, when appellant placed the packet of cocaine on the ground, he did not relinquish control over it, as evidenced by the fact that the undercover officer picked up the cocaine and then haggled with appellant over the price. Therefore, I believe the transaction in this case was indeed an actual transfer.”

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