I am pleased to report that in a 3-0 unanimous decision, the Seventh Court of Appeals of Texas reversed the convictions of Tracy Ward and Rhonda Smith, who had both been convicted of delivery of a controlled substance to a child for their alleged in utero transfer of drug metabolites to their fetuses.

In a brief opinion, the Court held that the chemical transfer in question did not constitute a “delivery.” “Implicit within this definition is the need for the transferor to exercise both possession and control over the substance delivered,” the Court held. The Court went on to hold, “the recipient must also gain or exercise possession over the transferred substance before it can be said that the actual manual transfer occurred.” The Court then noted that it was impossible for the unborn fetus to “possess” the drugs since they never handled, manipulated, or used them. Instead, the only evidence of possession on the part of the fetuses was the presence of the metabolites in their bloodstreams. This is insufficient as a matter of law. The Court noted that its decision is in accord with that of other jurisdictions.

The Court declined to adopt the District Attorney’s expansive definition of the crime. “We are a judicial body obligated to enforce the law as written by the legislature. If that body cares to define “deliver” as including the transfer of drugs by a mother to her unborn child through the exchange of bodily fluids, it may do so. Yet, ours is not to write where it has not.”

The Court did not address the issue of whether a fetus is a child for purposes of the statute or whether the prosecution was constitutional.

The State has a right to seek a rehearing of the case in the Court of Appeals and to seek review in the Court of Criminal Appeals.

The opinion can be read here.

The case was argued on behalf of Ms. Ward and Ms. Smith by Professor Larry Cunningham of Texas Wesleyan Law School and Joe Dawson of Amarillo, Texas. With them on the briefs were Kenneth Richey and Greta Braker who, at the time, were law students in the Texas Tech Criminal Justice Clinic.

Larry Cunningham
Visiting Associate Professor of Law, Texas Wesleyan (2005-2006)
Assistant Professor of Law, Texas Tech (on leave 2005-2006)

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