Opinion issued April 29, 2004

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-00696-CR

____________

FREDERICK RYANS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 278th District Court

Walker County, Texas

Trial Court Cause No. 21,542-C

MEMORANDUM OPINION

          A jury found appellant, Frederick Ryans, guilty of knowingly delivering, by actual transfer, one gram or more, but less than four grams, of a controlled substance, namely cocaine. After making an affirmative finding that the offense was committed in a “drug free zone,” the jury assessed appellant’s punishment at confinement for 19 years and a fine of $15,000. In his sole issue, appellant contends that the evidence was legally insufficient to support his conviction of delivery of a controlled substance by actual transfer.

          We affirm.

Factual Background

          Texas Department of Public Safety Sergeant J. Tealer testified that, while assigned to the Central East Texas Narcotics Task Force, he initiated an undercover purchase of crack cocaine from appellant. On April 18, 2002, Tealer, accompanied by a confidential informant, went to appellant’s apartment complex. When he saw appellant in the parking lot of the complex, the informant approached appellant and entered into a brief conversation with him. Shortly thereafter, the informant waved Tealer over and introduced Tealer to appellant.

          Tealer told appellant that Tealer “wanted two hundred dollars worth,” meaning that he wanted to buy $200 worth of crack cocaine. In response, appellant told Tealer and the informant to wait where they were. Appellant then turned away and walked toward the apartment complex. Tealer lost sight of appellant as he walked around a corner. After approximately five minutes, appellant reappeared and signaled Tealer and the informant to meet him where he was then standing, which was near a stairway located within the apartment complex. Tealer and the informant walked over to appellant, who was waiting under the stairway.

          Appellant then “pointed down to a paper towel” located on top of an air conditioning vent. When he looked at the paper towel and its exposed contents, Tealer, based on his past undercover experience, recognized the contents as crack cocaine. Tealer picked up the paper towel and counted 10 “rocks” of crack cocaine inside of it. Tealer then handed appellant $200 in cash in exchange for the cocaine. Tealer testified that appellant “did not actually place the crack cocaine within my hand.”

          After Tealer and the informant left with the cocaine, Tealer turned it over to a federal Drug Enforcement Agency (DEA) agent. A DEA forensic chemist testified that the paper towel contained 3.3 grams of cocaine.

Legal Sufficiency

          In his sole point of error, appellant argues that the evidence was legally insufficient to support his conviction for delivery of a controlled substance “by actual transfer” because “he did not transfer the crack cocaine to Sgt. Tealer hand to hand.”          We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). A person commits the second degree felony offense of delivery of a controlled substance if he knowingly delivers one gram or more, but less than four grams, of cocaine. Tex. Health & Safety Code Ann. § 481.112(a), (c) (Vernon 2003).

          Appellant notes that he was not observed “handling” the cocaine and that he did not transfer the cocaine to Sergeant Tealer “hand to hand.” Appellant argues, thus, that “[a]t most . . . the evidence from the case at bar supports a finding that appellant made a constructive transfer.”

          In Sims v. State, the Texas Court of Criminal Appeals held that an actual and a constructive transfer of narcotics can occur in the same transaction. 117 S.W.3d 267, 268 (Tex. Crim. App. 2003). In Sims, after an undercover officer met the defendant to buy crack cocaine, the defendant “pointed to a foil-wrapped package lying in the road near a tree.” Id. The officer retrieved the package and paid the defendant for the cocaine contained inside. Id. The court noted 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.

Id. at 277-78.

          Here, as in Sims, Tealer retrieved the crack cocaine after appellant had instructed him as to its location by pointing to it. Viewing this evidence in the light most favorable to the verdict, we hold that the evidence was legally sufficient to support appellant’s conviction for actual delivery of the cocaine.

          Accordingly, we overrule appellant’s sole issue.

Conclusion

          We affirm the judgment of the trial court.

                                                                                  Terry Jennings

                                                                                  Justice

Panel consists of Justices Nuchia, Jennings, and Keyes.

Do not publish. Tex. R. App. P. 47.2(b).