* Local Rule 47.5 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession." 

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-50031

Summary Calendar

__________________

JARRETT NELSON,

Petitioner-Appellant,

versus

WAYNE SCOTT, Director

Texas Dept. of Criminal

Justice, Institutional

Division,

Respondent-Appellee.

______________________________________________

Appeal from the United States District Court for the

Western District of Texas

(W 93 CA 410)

______________________________________________

(August 17, 1995)

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.*

GARWOOD, Circuit Judge:

Petitioner-appellant Jarrett Nelson (Nelson), a Texas state

prisoner, appeals the district court's denial of his petition for

a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm.
2

Facts and Proceedings Below

On August 22, 1991, a Texas grand jury returned an indictment

charging Nelson with the delivery of a controlled substance, namely

cocaine. The indictment also alleged that Nelson had used and

exhibited a deadly weapon (cocaine) during the commission of the

offense. The indictment recounted that Nelson delivered a

controlled substance to Darrell Deloach (Deloach) on or about

February 26, 1991, in Robertson County, Texas, by "actually

transferring, constructively transferring, or offering to sell said

controlled substance." In addition, the indictment included three

enhancement paragraphs reciting that Nelson had three prior felony

convictions. On October 8, 1991, Nelson moved to quash the

indictment on the ground that it did not describe in sufficient

detail the offense for which he was being charged. The trial court

denied this motion, and the case proceeded to trial on October 9,

1991.

The evidence at trial showed that on February 26, 1991,

Deloach, a member of the Brazos Valley Narcotics Trafficking Task

Force, and Eddie Wood (Wood), a confidential informant, parked

their vehicle behind a club in Hearne, Texas. Hood called out to

some men who were standing behind the building, and four men,

including Nelson, approached the vehicle. Describing the ensuing

drug transaction, Deloach testified that Nelson handed a rock of

crack cocaine to one of the four men, who then sold the rock to

Deloach for $15. Deloach testified that he negotiated the price

with Nelson and that he gave the $15 to Nelson. The entire
3

transaction was recorded by video camera, and the prosecution

played the video tape at trial.

On October 9, 1991, the jury found Nelson guilty of the

delivery of a controlled substance as charged in the indictment.

The trial court made an affirmative finding that Nelson used a

deadly weapon, cocaine, during the commission of the offense.

After Nelson pleaded true to each of the three enhancements alleged

in the indictment, the trial court sentenced him to eighty years in

prison. On appeal, the Texas Tenth Court of Appeals affirmed

Nelson's conviction but modified the judgment to delete the deadly

weapon finding. Nelson did not file a petition for discretionary

review with the Texas Court of Criminal Appeals, but he did file a

state application for a writ of habeas corpus. On May 23, 1993,

the trial court entered findings rejecting the arguments raised in

Nelson's state habeas application. On September 8, 1993, the Texas

Court of Criminal Appeals denied Nelson's habeas application

without written order on the findings of the trial court. 

Proceeding pro se and in forma pauperis, Nelson then filed

this section 2254 petition in the district court below, raising the

same arguments that he raised in his state habeas application.

Nelson argued that (1) the indictment in his case was insufficient,

(2) the evidence was insufficient to support his conviction, (3)

one of his prior convictions used to enhance his sentence was void

because there was no proof that it was a final conviction, and (4)

all three of his prior convictions used for enhancement were void

because there was insufficient evidence to support his guilty pleas
1 On March 25, 1995, respondent Wayne Scott filed a motion in

the district court to amend the judgment pursuant to Fed. R. Civ.

P. 60(a) to state that Nelson's case is dismissed with prejudice. 

On March 28, 1995, the district court issued an order amending

the December 21, 1994, judgment to reflect that Nelson's suit was

dismissed with prejudice.

4

in those cases. The district court referred the case to a

magistrate judge on December 8, 1993. On November 10, 1994, the

magistrate judge issued a report that recommended denying Nelson's

petition. In his report, the magistrate judge stated that Nelson's

indictment claim provided no basis for federal habeas relief, that

the evidence was sufficient to support his conviction, and that he

had waived his challenges to the enhancement convictions by

pleading true to the enhancement paragraphs of the indictment.

Nelson filed written objections to the magistrate judge's report.

In a judgment dated December 21, 1994, the district court adopted

the magistrate judge's report, denied Nelson's petition, and

dismissed his case without prejudice.1 Nelson filed a timely

notice of appeal, and on January 25, 1995, the district court

granted him a certificate of probable cause to appeal and leave to

proceed in forma pauperis on appeal.

Discussion

Nelson argues that the charging indictment was defective

because it failed to specify the exact manner or theory of the

transfer of the cocaine, thereby failing to give him adequate

notice to allow him to prepare a defense. The sufficiency of a

state indictment is not cognizable under section 2254 unless it can

be shown that the indictment is so defective that the convicting
5

court had no jurisdiction. McKay v. Collins, 12 F.3d 66, 68 (5th

Cir.), modified on reh'g, 12 F.3d 70 (5th Cir.), cert. denied, 115

S.Ct. 157 (1994). Furthermore, when the state courts have held

that the indictment is sufficient under state law, a federal habeas

court need not consider such a claim. Alexander v. McCotter, 775

F.2d 595, 598 (5th Cir. 1985) ("[A] federal habeas court will not

consider such claims when it appears . . . that the sufficiency

of the indictment was squarely presented to the highest court of

the state on appeal, and that court held that the trial court had

jurisdiction over the case.") (internal quotation marks and

citations omitted).

Nelson raised the same argument concerning the allegedly

defective indictment in his state habeas application. Rejecting

his argument, the state trial court stated, "[T]he State was not

required to specify which one of the disjunctively-charged theories

of delivery it was going to prove at trial. The indictment placed

[Nelson] on notice that he needed to prepare his defense under all

three theories." The Texas Court of Criminal Appeals denied

Nelson's habeas application without written order "on [the]

findings of [the] trial court." "By refusing to grant [Nelson]

relief, . . . the Texas Court of Criminal Appeals has

necessarily, though not expressly, held that the Texas courts have

jurisdiction and that the indictment is sufficient for that

purpose." Id. (footnote omitted). Accordingly, we will not
2 We also note that a defendant has, of course, a Sixth

Amendment right to adequate notice of the charges against him. 

McKay v. Collins, 12 F.3d 66, 69 (5th Cir. 1994). We hold that

the indictment in the instant case provided Nelson with adequate

notice of the charges against him. We find support for our

holding in Schad v. Arizona, 111 S.Ct. 2491 (1991). There, the

defendant was found guilty of first-degree murder by a unanimous

jury. The trial court instructed the jury that it must reach a

unanimous verdict that the defendant committed first degree

murder, which Arizona defined as either premeditated murder or

felony murder. The trial court, however, did not instruct the

jury that it was required to reach a unanimous verdict with

respect to either premeditated murder or felony murder. 

Rejecting the defendant's argument that the trial court should

have instructed the jury that it was required to agree

unanimously on one of the alternative theories of first-degree

murder, a plurality of the Court affirmed the defendant's

sentence, reasoning that "the State had proved what, under state

law, it had to prove: that petitioner murdered either with

premeditation or in the course of committing a robbery." Id. at

2496. By way of analogy, we note that if unanimity is not

required at the jury stage, it is not required at the notice

stage. See id. ("Our cases reflect a long-established rule of

the criminal law that an indictment need not specify which overt

act, among several named, was the means by which the crime was

committed.").

6

consider Nelson's argument that the indictment was insufficient.2

Nelson next argues that the evidence at trial was insufficient

to support his conviction for delivery of a controlled substance,

asserting that there was no evidence that he actually transferred

or offered to sell the cocaine and that the evidence demonstrated

that a third person passed, sold, and delivered the cocaine to

Deloach. In evaluating whether a state conviction is supported by

sufficient evidence, we view the evidence in the light most

favorable to the prosecution and then determine whether a rational

trier of fact could have found the petitioner guilty beyond a

reasonable doubt. Jackson v. Virginia, 99 S.Ct. 2781, 2789 (1979).

We apply this standard with reference to the substantive elements
7

of the criminal offense as defined by state law. Isham v. Collins,

905 F.2d 67, 69 (5th Cir. 1990). Under Texas law, delivery of a

controlled substance may be proved through the mutually exclusive

methods of actual transfer, constructive transfer, or offer to

sell. Lacy v. State, 782 S.W.2d 556, 557-558 (Tex.App.--Houston

[14th Dist.] 1989, no writ).

Because the trial court instructed the jury on all three

methods of delivery, the jury only had to find that the prosecution

proved one of the three. Moreover, the trial judge properly

instructed the jury on the law of parties, stating that a "person

is criminally responsible for an offense committed by the conduct

of another if: acting with intent to promote or assist the

commission of the offense, he solicits, encourages, directs, aids,

or attempts to aid the other person to commit the offense." Based

on our review of the evidence presented at trial, we hold that the

prosecution presented sufficient evidence to prove all three

theories.

Nelson contends that one of his prior convictions used to

enhance his sentence was invalid because it was not a final

conviction. He also asserts that all three of his prior

convictions used for enhancement are void because there was no

evidence to support his guilty pleas in those cases. Nelson raised

this same argument in his state habeas application. Rejecting this

argument, the state trial court found that Nelson "plead[ed] true

to all three enhancement paragraphs and acquiesced in the admission

of the three pen packets which proved up the three prior
8

convictions of which he now complains." We have held that a habeas

petitioner who has pleaded true to enhancement charges and is not

currently serving a prison sentence for one of his prior

convictions has "waived any complaints he may have had concerning

the former offenses which were set out in the enhancement charge."

Long v. McCotter, 792 F.2d 1338, 1340 (5th Cir. 1986) (citation

omitted), see id. at 1343 (holding that a defendant's plea of true

to enhancement charges constitutes an admission that he "had been

duly and legally convicted of the prior charge[s]") (emphasis in

original; internal quotation marks and citation omitted). Nelson

does not allege that he was still serving the sentences for any of

the convictions set forth in the enhancement paragraphs. He is

attacking only the enhancement of his 1991 sentence. His

challenges to his prior convictions are barred. 

Conclusion

For the foregoing reasons, the judgment of the district court

is 

AFFIRMED.