## Facts

- Mark Wren Boyer sat in the back seat of a parked car while James Brumley, an undercover Texas Department of Public Safety narcotics investigator, sat in the front seat with Brumley’s informant.
- Boyer did not know Brumley was a police officer or that the other passenger was an informant.
- Boyer instructed the informant to hand Brumley amphetamine, and the informant made the physical, hand-to-hand transfer to Brumley.
- After the transfer, Brumley tried to give Boyer $100. Boyer refused the money and told Brumley to give it to the informant, which Brumley did.
- Boyer never physically touched the drugs or the money.
- A jury convicted Boyer of delivery of amphetamine (less than 28 grams) based on the law of parties; the trial court found two enhancement paragraphs true and assessed 25 years’ imprisonment.
- The Fort Worth Court of Appeals reversed for insufficient evidence and rendered an acquittal, reasoning that because neither Brumley nor the informant could be convicted for their roles in the transaction, no offense existed to support Boyer’s conviction as a party.
- The State sought discretionary review in the Texas Court of Criminal Appeals.

## Issues

1. May a defendant be convicted of delivery of a controlled substance by actual transfer under the law of parties when the person who physically transfers the drugs is acting as a law-enforcement intermediary and therefore is not criminally responsible or is immune from prosecution?

## Decision

- Yes. The Texas Court of Criminal Appeals reversed the court of appeals.
- The court held the evidence was sufficient to support Boyer’s conviction for delivery by actual transfer under the law of parties, even though the informant (and the undercover officer) could not be held criminally responsible for their conduct in the operation.
- The court rejected the court of appeals’ view that non-liability of the intermediary and officer means no “offense” occurred for purposes of party liability.
- The Court of Criminal Appeals’ disposition reversed the court of appeals’ acquittal and left the trial court’s judgment of conviction in place.

## Legal Principles

- Under Texas Penal Code § 7.02, a person is criminally responsible for an offense committed by another if, acting with intent to assist the commission of the offense, the person solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.
- Under Texas Penal Code § 7.03(2), a defendant’s criminal responsibility based on another’s conduct is not defeated because the other person has not been prosecuted or convicted, has been acquitted, or is immune from prosecution.
- The law of parties focuses on whether the “conduct of another” constitutes the charged offense and whether the defendant’s actions (such as directing or soliciting) make him responsible for that conduct; the intermediary’s inability to be convicted does not erase the offense.
- In a controlled-substance case alleging delivery by actual transfer, the element of “actual transfer” may be shown through an intermediary’s physical handoff when the defendant directs that handoff and arranges payment through the intermediary.

## Conclusion

In *Boyer v. State*, the Texas Court of Criminal Appeals held that Boyer could be convicted for delivery of amphetamine by actual transfer under the law of parties because he directed the informant to hand the drugs to the undercover officer and directed payment to the informant, even though the informant and officer were not criminally responsible for their roles in the controlled transaction.


Boyer v. State, 801 S.W.2d 897 (1991)