BURGESS, Justice.
Johnny Ray Phillips was indicted for delivery of marijuana. He elected a jury trial and filed an application for probation. After a hearing, the trial court denied such application. Mr. Phillips then elected to have the jury only determine guilt or innocence. The jury found Mr. Phillips guilty and the court assessed punishment at six years confinement in the Texas Department of Corrections. This appeal followed.
The indictment reads in part as follows:
". . . that TOM SHIRLY EVANS and JOHNNY RAY PHILLIPS on or about the 4th day of February One Thousand Nine Hundred and Eighty-three, and anterior to the presentment of this indictment, in the County of Jefferson and State of Texas, did then and there intentionally and knowingly deliver by actual transfer to Samuel Lee Henry, Jr., more than two hundred (200) pounds of marihuana but less than two thousand (2,000) pounds, against the peace and dignity of the State."
Appellant's first ground of error alleges there exists a fatal variance between the facts proved and the allegation in the indictment, in that the state alleged an actual delivery, but proved a constructive delivery. The second ground of error alleges the evidence is insufficient to sustain a conviction.
In a well presented, well reasoned brief, appellant's attorney correctly states that the indictment must specify which type of delivery the state will rely upon. Queen v. State, 662 S.W.2d 338 (Tex.Crim.App. 1983). Further, the type of transfer alleged must be proved. Davila v. State, 664 S.W.2d 722 (Tex.Crim.App. 1984).
In analyzing sufficiency of the evidence the relevant question is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential element of the crime beyond a reasonable doubt. Bonham v. State, 680 S.W.2d 815 (Tex.Crim.App. 1984). In both direct and circumstantial evidence cases the reviewing court will look at all the evidence in the light most favorable to the verdict. Houston v. State, 663 S.W.2d 455 (Tex.Crim.App. 1984).
The question posed by the two grounds of error revolves around the testimony of a police detective who witnessed the transfer. The transfer described by the detective was a direct transfer from the occupants of the van to the occupant of the house. The detective testified the three men were "handing each other what appeared to be garbage bags", all three of them touched the bags and they appeared to be helping one another. This is an actual transfer. A constructive transfer has been discussed at length in Rasmussen v. State, 608 S.W.2d 205 (Tex.Crim.App. 1980) and Daniels v. State, 674 S.W.2d 388 (Tex.App. — Austin 1984, pet. granted). An actual transfer was also defined in Daniels, supra. See and compare Westfall v. State, 663 S.W.2d 664 (Tex.Crim.App. — Corpus Christi 1983, pet. ref'd) which is an actual transfer through the law of parties. The allegations of an actual transfer between Mr. Phillips and Mr. Henry were proven. Ground of error number one is overruled.
Pertinent portions of his direct testimony are as follows:
"Q When that van pulled in did you see some people get out of the van?
"A Yes, I did.
"Q How many people got out of the van?
"A Two.
"Q How did they get out of the van, which part of the van?
"A One, the driver got out on the driver's side, which is the left side of the vehicle. The side rider got out on the right side or the front of the vehicle.
"Q Where did they, what did they do when they got out?
"A Immediately walked up to the back porch. I couldn't tell if they knocked, went on inside the porch and knocked on the door or what. And then another man came out with them."
The jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Bonham, supra. Further, it is their province to resolve or reconcile conflicts in the testimony. Banks v. State, 510 S.W.2d 592 (Tex.Crim.App. 1974). Using the applicable standard of review, we find the evidence sufficient to sustain the conviction. Ground of error number two is overruled.
The final ground of error alleges the court erred in denying Mr. Phillips' eligibility for probation from the jury.
The evidence showed that Mr. Phillips had been convicted of a federal offense under 21 U.S.C.A. sec. 841 (1981 Supp. 1985) and had been sentenced to five years in the penitentiary which was reduced to one year. Mr. Phillips argues first that under 18 U.S.C.A. sec. 1 (1969) his conviction was a misdemeanor. Secondly, he argues that even if his federal conviction was a felony, he was still eligible for probation under TEX. CODE CRIM.PROC.ANN. art. 42.12 B, sec. 3a(a) (Vernon Supp. 1986).
As to the first argument, the burden was on the appellant to prove his eligibility for probation. Baker v. State, 519 S.W.2d 437 (Tex.Crim.App. 1975). There was evidence, not complained of here, that the offense for which Mr. Phillips was convicted was a felony under the federal system. Having reviewed the evidence and federal statutes, we reach the same conclusion.
Secondly, having been convicted of a felony in the federal system, we conclude Mr. Phillips was ineligible for probation from a jury. While the Court of Criminal Appeals has not spoken directly on this issue there are analogous holdings. In White v. State, 618 S.W.2d 65 (Tex.Crim.App. 1981) the court held that prior federal convictions punishable by imprisonment in the penitentiary were previous felony convictions for enhancement purposes. An even more persuasive case is Watkins v. State, 572 S.W.2d 339 (Tex.Crim.App. 1978) which held where a defendant had received an unlimited presidential pardon of his federal conviction, he was, none-the-less, not entitled to probation. This ground of error is overruled. The judgment of the trial court is affirmed.
AFFIRMED.