It is fairly easy, in the civil context, to differentiate between an "actual" transfer and a "constructive" transfer. The existence of legal substitutes for actual possession, such as deeds and titles, allows for a "constructive" transfer of ownership without the relinquishment or assumption of physical control over the item in question. Such transfers of ownership are governed by contract law, and are enforceable in the courts. However, in the context of illegal transactions involving controlled substances, the line is more difficult to draw.

The common element in the criminal cases discussing "constructive" transfer appears to be a manifestation of intent by the transferor to relinquish control over the item in question before the intended transferee actually has physical control of that item. Take, for example, a situation in which an individual places an item in a particular spot, leaves the area, and then calls the intended transferee with instructions about where to find the item. In such a case, the transfer would be a "constructive" transfer, despite the absence of an intermediary, because the transferor has already relinquished control over the item when he informs the transferee of its whereabouts. Similarly, when an individual places an item in the mail for delivery to the intended recipient, the sender has relinquished control over the item, although the recipient will not have actual possession of the item until it is delivered. Both situations are examples of "constructive" transfer, as described by Queen v. State, 662 S.W.2d 338, 340 (Tex. Crim. App. 1983).

Although, as Warren and Nevarez indicate, an actual transfer does not require placement of the item directly in the hands of the intended transferee, it does seem to require a simultaneous relinquishment of control by the transferor and assumption of control by the transferee. See, Nevarez v. State, 767 S.W.2d 766, 768-69 (Tex. Crim. App. 1989); Warren v. State, 15 S.W.3d 168, 171 (Tex. App. - Texarkana, 2000). Therefore, the 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.

I respectfully dissent.

Johnson, J.

Filed: October 8, 2003

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