Opinion
Nos. 05-05-00517-CR, 05-05-00655-CR
Opinion issued January 26, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 296th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 296-81598-04, 296-81599-04. Affirmed.
Before Justices MORRIS, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
In a consolidated trial, Aaron Deloreto was convicted of two offenses of delivery of a simulated controlled substance. He complains in a single issue on appeal that the evidence against him was legally insufficient to support his conviction because a fatal variance existed between the offenses alleged in the indictments and the proof at trial. We affirm the trial court's judgments. The background of the cases and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law to be applied in the case is well settled. In appellant's sole issue, he complains his two convictions were not supported by legally sufficient evidence because a fatal variance existed between the allegations in the indictments and the proof at trial. In particular, he contends the proof at trial failed to show he "expressly" represented to the undercover officer that the substance he was selling was "lysergic acid diethylamide." To support his assertion, appellant relies on the holding in Boykin v. State, 818 S.W.2d 782, 786 (Tex.Crim.App. 1991), that a representation is "express" for purposes of the delivery of a simulated controlled substance statute if the representation involved use of a term listed in the Controlled Substances Act. Appellant contends that in these cases, the State did not prove beyond a reasonable doubt that he expressly represented the substance he was delivering to be "lysergic acid diethylamide." Some of appellant's interactions with the undercover police officer in the cases were secretly recorded. On these recordings, the officer and appellant never specifically refer to the substance involved as lysergic acid diethylamide or LSD. The officer, however, specifically testified that appellant had described the substance he was selling as "LSD and acid." Appellant alleges that "[t]aking the entire record into consideration, . . this one line of testimony is not sufficient to prove that he made an express representation that the substance was a controlled substance consistent with the terms listed in the Controlled Substances Act." We disagree. A fatal variance claim is considered a legal sufficiency challenge of the evidence. See Sims v. State, 84 S.W.3d 768, 779 (Tex.App.-Dallas 2002, pet. ref'd). Accordingly, we must examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). In addition, under Boykin, a representation "employing a term listed in the Controlled Substances Act" can meet the requirement of proving an "express representation" under the delivery of a simulated controlled substance statue. See Boykin, 818 S.W.2d at 786. Here, a police officer specifically testified that appellant described the substance he was selling as "LSD." LSD is listed in the Controlled Substances Act as a parenthesized abbreviation for lysergic acid diethylamide. See Tex. Health Safety Code Ann. § 481.1021 (Vernon 2003). Thus, viewed in the light most favorable to the verdict, the evidence was legally sufficient to prove appellant expressly represented he was delivering lysergic acid diethylamide. We resolve appellant's sole issue against him. We affirm the trial court's judgments.
The State argues that this Court lacks jurisdiction to hear the appeal of case number 05-05-00655-CR because appellant filed an untimely appeal in that cause. On May 17, 2005, however, we issued an order granting appellant's motion to extend time to file his notice of appeal and stating that the notice of appeal filed on April 25, 2005 would be "considered timely for jurisdictional purposes."