Lead Opinion
OPINION
delivered the opinion of the Court
We granted discretionary review in this “multiple-punishments” double-jeopardy case to decide whether appellant may lawfully be convicted and punished (two 45-year concurrent prison terms) in the same proceeding for manufacturing and also for possessing with intent to deliver more than 4 but less than 200 grams of the same controlled substance (methamphetamine). We decide that these convictions and punishments do not violate double-jeopardy principles.
In cause number 2006-CR-9269, appellant was indicted for manufacturing more than 4 but less than 200 grams of methamphetamine. In cause number 2006-CR-4524, he was indicted for possessing with intent to deliver more than 4 but less than 200 grams of methamphetamine (count 1) and also for possessing more than 4 but less than 200 grams of methamphetamine (count 2). These cases were tried together in a single proceeding. The evidence shows that the police discovered appellant operating a methamphetamine lab in his home where the police seized three glass
Q. [STATE]: I want to draw your attention specifically to a few, I guess, specific items and — located within an exhibit, State’s Exhibit Number 40 in one of the buckets, was a Converse Number 06-220, a number that they assigned the evidence there at the police station?
A. [BUDGE]: Yes.
Q. And that bucket also contains your lab number of 345971. Did you conduct an analysis on that item found under Number 06-220?
A. Yes, I did.
Q. And what kind of test did you perform on that item?
A. I did obtain a weight. I did a preliminary test on the substance. And I also did the confirmation test on it. And I also did a test because — it’s a quantitative test to determine the percentage of the active ingredient in the substance also.
Q. And Exhibit 06-220, what was the exhibit?
A. The exhibit was a glass container containing a two-layered solution. It was a top layer and a bottom layer. And I did tests on both layers. And my testing indicated that the meth would have been on the top layer. So that’s the net weight that I have given is just of the top layer.
Q. And what weight did you obtain for the top layer?
A. It was 74.62 grams.
Q. And what substance — controlled substance did it come back as being? A. It did contain methamphetamine in that solution.
Q. Next, I want to draw your attention to the Converse Evidence Number 41, which is a bucket that also contains the Lab Number 345971. Did you conduct testing on 06-229?
A. Yes.
Q. And what was 06-229 — the items in it that was submitted?
A. It was a — like a soda-water plastic bottle containing — once again it was a two-layer liquid. And I did tests on both solutions and determined that the bottom layer would have been the one that contained the methamphetamine, so my net weight indication is of just the bottom layer.
Q. And what was the weight?
A. It was 4.49 grams.
Q. And, again, what was the substance that it tested for?
A. And I did do the similar — the test as I did on the other exhibit, the preliminary test and the GCMS, and it did contain also methamphetamine.
Q. Next, I’d like to draw your attention to Converse Exhibit 06-235, which is located within State’s Exhibit Number 39, which is also a bucket with the Lab Number 345971. Did you conduct an analysis on 06-235?
A. Yes, I did.
Q. And what was the item that was submitted for testing under that number?
A. It was a glass jar containing a two-layer liquid. And I tested the bottom layer. And it was 1.34 grams. And it did contain methamphetamine.
Budge also described the process for manufacturing methamphetamine and the process for converting this manufactured methamphetamine into a final, usable product.
Q. The ephedrine or pseudoephedrine, is that the — is that used in the manufacturing process of methamphetamine?
A. Pseudoephedrine or ephedrine happens to be the immediate precursor to the methamphetamine, so, yes, it’s the chemical we see mostly associated— mostly — -or associated mostly with the manufacturer [sic] of methamphetamine. Q. Could you talk the jury through the process of manufacturing methamphetamine or at least the process you believe would have been used based on the items seized from this laboratory.
A. The procedure very, very short— quickly, I’ll try to go through it as quickly as I can — encompasses taking pseu-doephedrine tablets and crushing them up, extracting the pseudoephedrine out of them, and when you do that, it leaves behind this — what we call pill dough that would be the — it would be similar to 06-0241 — the Converse Number 06-241, that would be what would be left over. Q. The blue powder?
A. Yes.
And then once you extract the pseu-doephedrine out of the tablets, what you would do is you would take that and you would add a couple of other chemicals to it. And then the one procedure that this — what this appeared to be would be using iodine and red phosphorous [sic]. And iodine could be attained from — usually it’s being attained from tincture of iodine. And the procedure how to do that is that you take tincture of iodine and you take hydrogen peroxide and hydrochloric acid and you mix them together and the iodine will come out of the solution as gray powder or powdery — it’s actually a metal-looking substance. And you take this iodine, and they mix it with the red phosphorus. And red phosphorus is quite easily attained from the striker pads off matches — of safety matches. And there is red phosphorus on those striker pads so it’s quite easy to extract it out using some land of organic solvent.
You mix pseudoephedrine, iodine, red phosphorus together — and typically it’s heated in some type of container on a hot plate. And once you do this, you actually create methamphetamine from the pseudoephedrine. I mean, that’s how simple it really is. It’s a one-step-type thing.
And then from there, there’s a series of procedures that you use to get rid of the iodine and the red phosphorous [sic] cause you don’t want those in your finished product. And there’s an extraction procedure to get rid of those. Once you get rid of those, you have to convert your methamphetamine into a usable product. And it’s typically turned into a water-soluble salt using hydrochloric acid.
So the actual active ingredient or the actual form the methamphetamine is in is methamphetamine hydrochloride. So it’s a salt form of methamphetamine; it’s water soluble. Methamphetamine by itself is not water soluble. It’s a slightly volatile liquid that’s not — that doesn’t dissolve in water. And so it’s kind of hard to consume, so you have to go through this procedure, what they call powdering out using a — typically, they’ll use a generator that creates the hydrogen chloride or the hydrochloric acid. And once you do that, you’re done. That’s the end product.
Q. I want to show you some pictures. In Exhibit 27, this is — there’s been testimony that this was the Exhibit, I believe, 220 that was submitted to you for the testing that’s located within the bucket.
A. Okay.
Q. Is that what you’re talking about the separation process?
A. Yes. That is the — a really good indication of what the two-layer solution would look like. There’s a top layer that’s an organic solution and a bottom layer which is an aqueous solution or — it means it has water in it.
Q. Okay.
A. So that’s a good picture of a separation of the two liquids.
⅜ * *
Q. This item was seized from the home. It’s a coffee—
A. It’s a coffee pot.
Q. —pot with a tube coming out of it. Can you explain kind of what that might have been used for.
A. This is a real common thing that I see being used as a generator of hydrochloric acid. And what they do is they mix chemicals in the pot. And when they mix them together, it creates hydrogen chloride, which is anhydrous hydrochloric acid.
Hydrochloric acid is actually hydrogen chloride dissolved in water. And so to get it away from the water or create it as a gas you can use something like this. And what they do is they — the gas will come out of the hose and you stick the hose under your solution of methamphetamine. And when the methamphetamine comes in contact with the hydrogen chloride, it becomes their finished product. We call them gas generators because it makes gas even though the gas is — it’s hydrogen chloride.
(Emphasis supplied).
During closing jury arguments, the State referred only to the container with 74.62 grams of methamphetamine as evidence of the “between four and 200 grams at that level that we’re dealing with here in this case.”
Appellant claimed on direct appeal that it violated double-jeopardy principles for him to be convicted and punished for these two offenses. Finding this Court’s decision in Lopez v. State
The Court of Appeals erred in finding that jeopardy barred the prosecution of manufacturing methamphetamine and possession with intent to deliver methamphetamine on the basis that those offenses were the result of the same original impulse and could not be punished separately. That Court’s opinion misconstrues this Court’s opinion in [Lopez ], and the Court of Appeals’ holding is contrary to the holding in several federal circuit courts on this same vitally important question of state and federal law.
Section 481.112(a), Tex. Health & Safety Code, defines the “offense” of “Manufacture or Delivery of Substance in Penalty Group 1.” In relevant part, it provides that a person commits an offense if the person “manufactures, delivers, or possesses with intent to deliver” a Penalty Group 1 controlled substance. In Lopez, the defendant was convicted of delivery of cocaine (by offer to sell) and also of possession with intent to deliver the same cocaine on evidence that one morning he offered to sell an undercover officer cocaine which he possessed later in the evening to complete the sale. See Lopez,
Relying on the portion of the Supreme Court’s Blockburger decision addressing “the propriety of ‘multiple punishments’ assessed against a defendant, in a single proceeding, for his multiple violations of the same narcotics statute by different acts,”
whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punished separately.... If the latter, there can be but one penalty. Under Blockburger, this test hinges on the legislative intent of the statute at issue.
See Lopez,
The double-jeopardy issue in Lopez, therefore, turned on a question of legislative intent. See Lopez,
Noting that the ways of violating Section 481.112(a) are “points along a continuum in the line of drag distribution, from its original manufacture until its physical delivery to the ultimate consumer” and that the “gravamen of the offense of delivery is driven by the particular quantity of a particular contraband substance,” this Court decided that the Legislature intended that an offer to sell a particular drag and the subsequent possession of that drug to complete that specific sale is one offense for which the State may not obtain two convictions. See Lopez,
[Section 481.112(a) ], however, cannot be turned on its head to allow several “delivery” convictions where there is only one single sale of one drug. Therefore, we hold that the offer to sell and the possession of drugs to complete that specific sale is one single offense. Although the State may charge the offense as being committed in either of these modes, it cannot obtain two convictions for the same sale under Section 481.112(a). The entry of two convictions in this case violates double jeopardy under the Blockburger test because the steps in this single drug transaction were all “the result of the original impulse,” and therefore each step was not a “new bargain.”
Lopez,
We disagree with any suggestion in the court of appeals’ opinion that the “continuum” language in Lopez requires a decision that appellant cannot be convicted for manufacturing and also for possessing with
And we do not understand appellant to claim otherwise. Instead, we understand appellant to claim that, even though it is possible that manufacturing and possessing with intent to deliver the same controlled substance could lawfully be prosecuted and punished as separate offenses when accomplished by different acts, they may not lawfully be so prosecuted and punished in this case “because the manufacture and possession with intent to deliver were one and the same act [or transaction] under the facts of this case.” We decide that manufacturing and possessing with intent to deliver the same controlled substance may lawfully be prosecuted and punished as separate offenses when accomplished by different acts. Section 481.112(a) disjunctively proscribes these two offenses, clearly indicating an intent that each is a separate offense. In addition, the act of manufacturing methamphetamine and the subsequent act of possessing this methamphetamine with intent to deliver it are discrete acts with different impulses (one impulse to manufacture and another impulse to possess for the purpose of delivering what has been manufactured). Possessing this controlled substance with intent to deliver it is a “new bargain” from the “original impulse” of manufacturing it. See Lopez,
And we disagree with appellant that his “manufacture and possession with intent to deliver were one and the same act under the facts of this case.” The evidence shows that appellant manufactured the methamphetamine that was in the two-layered solution in each container. This manufacturing process was complete with the production of this methamphetamine even though, during appellant’s subsequent possession with intent to deliver this methamphetamine, appellant was to perform “a series of procedures” on the solutions to “convert the methamphetamine into a usable product.”
Assuming that appellant’s “manufacture and possession with intent to deliver were one and the same act under the facts of this case,” we would still reject his double-jeopardy claim. This scenario would involve the same act or transaction (simultaneously manufacturing and possessing methamphetamine with intent to deliver it) violating two distinct statutory provisions (manufacture and delivery) as set out in Section 481.112(a). In these circumstances, Blockburger contains a rule of statutory construction which states:
where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.
See Blockburger,
Under this Blockburger rule of statutory construction, the manufacture and possession-with-intent-to-deliver offenses are not the same because evidence that appellant manufactured methamphetamine is not required to establish the possession-with-intent-to-deliver offense and evidence of appellant’s intent to deliver is not required to establish the manufacturing offense. We also note that federal courts, on facts legally indistinguishable from those in this case, have decided that manufacturing and possessing with intent to deliver the same controlled substance are separate offenses under a federal statute “virtually identical”
Appellant acknowledges that the “Blockburger test, standing alone, lends credence to the State’s argument that [appellant] was convicted of two separate offenses” and that this “conclusion would appear to be bolstered by the federal Circuit Court cases cited by the State.”
Finally, manslaughter and intoxication manslaughter have a common focus: the death of an individual. Both crimes are result of conduct crimes with death being the result. Because a person can die only once, two result-of-conduct homicide offenses involving the same victim must necessarily involve the same result. Given that the result is the focus of these offenses, the sameness of the result is some indication that the Legislature did not intend to impose multiple punishments.
Id. (Emphasis in original).
We believe that this case is clearly distinguishable from Ervin. We are not aware of any prior law (statutory or case law), and appellant cites none, that has ever treated manufacturing and possessing with intent to deliver the same controlled substance as alternative means of committing a single offense.
Judge Cochran’s concurring opinion addresses only the alternative holding in this opinion that appellant’s “simultaneously” manufacturing and possessing with intent to deliver the same methamphetamine does not violate double-jeopardy principles.
[BUDGE]: You mix pseudoephedrine, iodine, red phosphorus together — and typically it’s heated in some type of container on a hot plate. And once you do this, you actually create methamphetamine from the pseudoephedrine. I mean, that’s how simple it really is. It’s a one-step-type thing.20
And then from there, there’s a series of procedures that you use to get rid of the iodine and the red phosphorous [sic] cause you don’t want those in your finished product. And there’s an extraction procedure to get rid of those. Once you get rid of those, you have to convert your methamphetamine into a usable product. And it’s typically turned into a water-soluble salt using hydrochloric acid.
The concurring opinion claims that the alternative holding in this opinion is inconsistent with several other states that, according to the concurring opinion, have concluded that “the simultaneous act of manufacturing and possessing (with or without the intent to deliver) the same quantum of controlled substance is a single offense, not multiple offenses, for double jeopardy purposes.” See Concurring Op. at 564. To support this, the concurring opinion cites to several cases in footnote 14 of its opinion.
The concurring opinion dismisses these “few federal cases” (i.e., Miller and Zamora ) that support the alternative holding in this opinion apparently because they applied a “strict Blockburger elements test.” See Concurring Op. at 565 (Blockburger is merely a rule of statutory construction and “is not a shibboleth that defines double jeopardy”).
Gonzalez does not support this. In Gonzalez, Count I of the defendant’s indictment charged aggravated robbery in three separate paragraphs alleging alternative means of committing this offense. See Gonzalez,
This case is distinguishable from Gonzalez as it is clearly apparent on the face of this record that the “multiple beaker” theory was not submitted to the jury and the jury convicted appellant for manufacturing and also for possessing with intent to deliver one undifferentiated cache of methamphetamine. See Concurring Op. at 562 (also noting that “the State treated the [‘multiple beakers’] as one undifferentiated cache of methamphetamine at trial”); Guerrero,
Finally, the concurring opinion cites no authority to support its assertion that “[ajppellate courts are not bound by prose-cutorial theories when deciding whether the trial record clearly establishes a double-jeopardy violation.” And this Court, following United States Supreme Court case law, has held that “due process prevents an appellate court from affirming a conviction based upon legal and factual grounds that were not submitted to the jury.” See Wooley v. State,
The portion of the judgment of the court of appeals vacating appellant’s manufacturing conviction is reversed. The remainder of its judgment is affirmed.
Notes
. No claim is made in this case that the methamphetamine in the two-layered solution in each container does not meet the Health and Safety Code definition of “controlled substance.” See § 481.002(5), Tex. Health & Safety Code ("controlled substance” is a substance listed in Penalty Group 1 and includes “the aggregate weight of any mixture, solution, or other substance containing a controlled substance”). Methamphetamine is listed as a Penalty Group 1 controlled substance. See § 481.102(6), Tex. Health & Safety Code
. The State argued:
And this was the one that the lab technician told you tested positive at 74.62 grams of methamphetamine, clearly, between four and 200 grams at that level that we’re dealing with here in this case.
. We note that the State could not rely solely on the container with 1.34 grams of methamphetamine as a separate offense since all three charged offenses involved a quantity of methamphetamine of more than 4 grams.
. The State conceded in the court of appeals that appellant's conviction for possessing more than 4 but less than 200 grams of methamphetamine (count 2 in cause number 2006-CR-4524) violated double-jeopardy principles because this is a lesser-included
.
. The State made no claim that the court of appeals should affirm appellant’s manufacturing and possession-with-intent-to-deliver convictions under an each-container-is-a-separate-offense theory of liability.
. See Blockburger v. United States,
. Presiding Judge Keller filed a concurring opinion in Lopez criticizing the “continuum” language in the majority opinion. See Lopez,
. We further note that there are other provisions in the Health and Safety Code making it illegal to possess various chemicals and other items used in the manufacturing process of various drugs including methamphetamine. See § 481.124, Tex. Health & Safety Code (defining offense of possession or transport of certain chemicals with intent to manufacture controlled substance); § 481.1245, Tex. Health & Safety Code (defining offense of possession or transport of anhydrous ammonia; use or tampering with equipment); § 481.136, Tex. Health & Safety Code (defining offense of unlawful transfer or receipt of chemical precursor); § 481.137, Tex Healths Safety Code (defining offense of transfer of precursor substance for unlawful manufacture); § 481.138, Tex. Health & Safety Code (defining offense of unlawful transfer or receipt of chemical laboratory apparatus); § 481.138, Tex. Health & Safety Code (defining offense of transfer of chemical laboratory apparatus for unlawful manufacture). We take this statutory scheme as another indication that the Legislature has not intended to treat manufacture and possession with intent to deliver the same controlled substance as only one offense and that the Legislature considers the "impulse” underlying manufacture as very different from the "impulse” underlying possession with intent to deliver.
. We disagree with the State that the focus of manufacturing a controlled substance is on the production of a controlled substance "until a finished product Lis] obtained” and that
. See also Littrell v. State,
. We also note that Miller rejected the defendant's argument that the rule of statutory construction in Blockburger should not apply because “Congress placed the manufacturing and possession with intent to distribute offenses into one subsection” as these offenses are defined in Section 481.112(a). See Miller,
. See also Gore v. United States,
. Appellant cites no federal Circuit Court cases to the contrary, nor have we found any. We have found cases deciding that simultaneously manufacturing and possessing the same methamphetamine are the same under Blockburger. See, e.g., Beaty v. Stale,
.See also Patterson,
. Before September 1, 1994, reckless homicide (which constitutes the offense of manslaughter under the current Penal Code) and intoxication homicide (which constitutes the offense of intoxication manslaughter under the current Penal Code) were alternative means in the same statute of committing the offense of involuntary manslaughter (which is no longer an offense under the current Penal Code). This is very different from Section 481.112(a), which makes it an offense for a person to "manufacture!], deliver[], or possess [] with intent to deliver” a controlled substance. Section 481.112(a) clearly does not make manufacturing, delivering or possessing with intent to deliver alternative means of committing a single offense (e.g., generally engaging in the drug business).
. We note that the 1973 Penal Code made it an offense for a person to "manufacture[ ], deliver!], or possess!] with intent to manufacture or deliver” a controlled substance. See Art. 4476-15, § 4.03(a), Acts 1973, 63rd Leg., ch. 429. Before this, it was unlawful for any person to "manufacture, possess, have, control, sell, prescribe, administer, dispense, compound, offer to sell, or offer to buy any narcotic drug.” See Vernon's Ann. P.C., Arts. 725b to 725d.
.Appellant claims it is significant that the title of Section 481.112(a) commences with the word “Offense” instead of "Offenses.” Appellant claims that this "indicates the intent to treat the proscribed behavior as alternative means of committing a single offense." Appellant does not indicate what this single offense would be called (manufacture, delivery or something else). We also note that the Legislature has expressly provided that the tide of a statute "does not limit or expand the meaning of a statute.” See § 311.024, Tex. Gov’t Code.
Appellant also claims it is significant that the Legislature has met twice since our decision in Lopez without making any changes to Section 481.112(a). Appellant claims that this "gives rise to the supposition that, had the Legislature intended § 481.112 to define more than one offense, it would have amended the statute to reflect such intent during the post-Lopez 2005 and 2007 legislative sessions.” See Lopez,
. See supra at 554 ("Assuming that appellant’s ‘manufacture and possession with intent to deliver were one and the same act under the facts of this case,' we would still reject his double-jeopardy claim.”).
. Appellant's act of manufacturing a controlled substance (methamphetamine) was complete at this point in time. See § 481.002(5), Tex. Health & Safety Code ("controlled substance” means a substance listed in Penalty Group 1 and includes “the aggregate weight of any mixture, solution, or other substance containing a controlled substance”); § 481.002(25), Tex. Health & Safety Code
The concurring opinion asserts that each of the two containers that contained more than 4 grams of methamphetamine “was in a different stage of the manufacturing process.” See Concurring Op. at 565. The concurring opinion further states that the container with 74.62 grams "was seized while it was at an earlier stage of the methamphetamine manufacturing process than the two-layered liquid in the Dr. Pepper bottle” containing 4.49 grams of methamphetamine. See id.
The portions of the record set out above and on pages two through six of this opinion do not support an assertion that these two containers were "in a different stage of the [methamphetamine] manufacturing process.” These portions of the record show that the methamphetamine in the two-layered solution in each of these containers had already been manufactured under the Health and Safety Code definition of "manufacture” in § 481.002(25) and that the methamphetamine manufacturing process was already complete when the police seized these containers.
. One of these cases is the Colorado Supreme Court’s decision in Patton, which is also cited in footnote 14 of this opinion. See Concurring Op. at 564 n. 14 and at 564-65 n. 15. In Patton, the defendant was convicted for manufacturing and also for possessing the same methamphetamine after pleading guilty to an information that, according to the majority opinion, "contained no allegation other than that Patton possessed [methamphetamine] in connection with manufacturing it.” See Patton,
. See also supra at 555 n. 14 (also citing cases deciding that simultaneously manufacturing and possessing the same controlled substance are the same under Blockburger and distinguishing these cases on the basis that this is a manufacture and possession-with-intenl-to-deliver case).
. It should be noted that the author of the concurring opinion also authored Lopez, which found it persuasive that its holding comported "with those of federal courts construing the analogous federal controlled substance statute." See Lopez,
. See Miller,
. Accord Ball v. United States,
. It should be noted that the concurring opinion does not cite a single case holding that the simultaneous manufacture and possession with intent to deliver the same controlled substance is a single offense.
. The container weighing 1.34 grams could not be used to support this "multiple beaker” theory since all three charged offenses involved a quantity of methamphetamine weighing more than 4 grams. Under a "multiple beaker” analysis, it would seem that the concurring opinion might have to address which one of these three offenses a jury would have to acquit appellant of.
.
. The concurring opinion’s "multiple beaker” theory of liability would also support a decision that each individually wrapped package of methamphetamine in a bundle of other individually wrapped packages of methamphetamine is a separate offense. This opinion does not decide that question.
Concurrence Opinion
filed a concurring opinion, in which WOMACK, J., joined.
I concur in the Court’s judgment, but I respectfully disagree that a person may be punished for both manufacturing and possessing with intent to deliver the same single cache of methamphetamine at one specific time. I think that federal and Texas double-jeopardy principles prohibit two convictions for simultaneously manufacturing and possessing with the intent to deliver the same container of controlled substance. But I also agree that, given the particular circumstances of this case, appellant may be punished both for manufacturing methamphetamine and for possessing methamphetamine with intent to deliver it because the police found three separate bottles — in different stages of the manufacturing process-two of which contained more than four grams of methamphetamine. Thus, appellant’s manufacturing one bottle of methamphetamine was a different act than his possessing the second bottle with intent to distribute its con-' tents. Two distinct acts equal two violations of section 481.112 of the Texas Health and Safety Code, but one act (simultaneous manufacture and possession with intent to deliver) evidenced by one bottle seized at one time equals only one violation of that section.
I.
Appellant operated a methamphetamine lab at his home in the San Antonio suburb of Converse. An anonymous caller tipped off police about the lab. When appellant opened his front door for the investigating officers, they immediately smelled the “overwhelming” chemical odor associated
DEA agents and Converse police, wearing hazmat suits, “broke down” the meth lab and carted off over fifty different items relating to the methamphetamine-manufacturing operation. Three of those items were glass or plastic jars containing methamphetamine:
• A large glass container filled with a two-layered substance. The top, liquid layer contained methamphetamine and weighed 74.62 grams; the bottom layer was more of a “sledge” — the “junky, oil-based” substance that “sets at the bottom of meth when it separates” and then “goes into the trash pile.”
• A Dr. Pepper plastic bottle containing a two-layered liquid substance. The bottom layer contained methamphetamine and weighed 4.49 grams.
• A glass container with a purplish-colored two-layered liquid. The bottom layer contained 1.34 grams of methamphetamine.
Appellant was charged with and convicted of (1) manufacturing methamphetamine; (2) possession with intent to deliver methamphetamine; and (3) possession of methamphetamine. Although the police gathered up and packaged each of the three containers separately, the content of each container was analyzed and weighed separately, and the DPS chemist discussed each container separately, the State treated the three distinct containers as one undifferentiated cache of methamphetamine at trial. Nonetheless, appellant failed to raise any double-jeopardy claim during trial, thus it was his burden on appeal to prove that the undisputed facts “show the double jeopardy violation is clearly apparent on the face of the record[.]”
II.
The Double Jeopardy Clauses of both the United States and Texas Constitutions prohibit the state from punishing a person twice for the same offense.
The test in the present case is similar to that set out in our prior Lopez
We must look first to the plain language of the statute in determining the legislative intent.
Several other states that have considered the same question have reached the same conclusion: the simultaneous act of manufacturing and possessing (with or without the intent to deliver) the same quantum of controlled substance is a single offense, not multiple offenses, for double-jeopardy purposes.
The State Prosecuting Attorney correctly notes that, under a strict Blockburger test that looks only to the formal elements of the statute, a few federal cases have gone the other way and held that a defendant could be punished twice for simultaneously manufacturing and possessing with intent to deliver illegal drugs.
III.
But that does not end our double-jeopardy inquiry because the trial record supports a finding that appellant committed more than one single act of manufacturing methamphetamine. Appellant possessed three different bottles of methamphetamine-saturated liquid. At least two of them contained more than four grams of methamphetamine and each of those two was in a different stage of the manufacturing process. The first — the large glass jar — contained both a top layer of
In this case, therefore, appellant could have been convicted of two counts of manufacturing methamphetamine, two counts of possessing methamphetamine with the intent to deliver it, or one count of each. This is because there were two separate acts of manufacturing two separate brews, one the nearly finished product ready for delivery, the other still in the manufacturing process.
I therefore agree that appellant has failed to show that a double-jeopardy violation is “clearly apparent” on the face of the trial record.
. Gonzalez v. State,
. U.S. Const. amend. V; Tex Const art. 1, § 14; see Ex parte Lange,
. Id.
. Lopez,
. Blockburger,
. Manrique,
. See Lopez,
. Tex. Health & Safety Code § 481.112(a) reads,
Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally manufactures, delivers, or possesses with intent to manufacture or deliver a controlled substance listed in Penalty Group 1.
Methamphetamine is a Penalty Group 1 controlled substance. See id. § 481.102 (listing Penalty Group 1 substances).
. Boykin v. State,
. Lopez,
. Tex. Health & Safety Code § 481.112(b)-(l).
. Ex parte Ervin v. State,
. The Supreme Court held, in Blockburger, that distinct and separate deliveries of the same type of drug on different days constituted separate offenses, so the distinct acts of manufacturing methamphetamine on Monday while simultaneously possessing methamphetamine that had been manufactured on Sunday are also distinct offenses, as are the distinct acts of manufacturing methamphetamine on Mondays, Tuesdays, and Wednesdays. Blockburger,
. See Beaty v. Commonwealth,
. Patton,
.
. Id. at 862,
. See United States v. Miller,
. Ball,
. Id. at 862,
. Had appellant raised his double-jeopardy claim in the trial court, the witnesses might have been clearer in their testimony concerning the distinct and separate processes. But, because appellant did not raise any such issue in the trial court, he has the burden to show that the trial record “clearly” shows a double-jeopardy violation; the State does not carry any such burden. See Gonzalez,
. Blockburger,
.Blockburger,
Dissenting Opinion
filed a dissenting opinion, in which MEYERS and JOHNSON, JJ., joined.
A defendant suffers multiple punishments in violation of the Double Jeopardy Clause when he is convicted of, and punished for, more offenses than the Legislature intended. Ervin v. State,
The State prosecuted Eduardo Guerrero for, and a Bexar County jury found him guilty of, both manufacturing and possessing with intent to deliver a single quantity of methamphetamine in a single place at a single point in time. Texas Health and Safety Code § 481.112(a), the statute under which Mr. Guerrero was convicted, provides that a person commits an offense if the person knowingly “manufactures,” “possesses with intent to deliver,” or “delivers” a quantity of methamphetamine. Section 481.002, in turn, defines the terms “manufacture,” “possession,” and “deliver.” Given all of this,
“there are at least five ways to commit an offense under Section 481.112: through knowing 1) manufacture; 2) an offer to sell; or 3) possession with intent to deliver; or through knowing delivery by 4) actual transfer; or 5) constructive transfer. All of these methods are points along a continuum in the line of drug distribution, from its manufacture until its physical delivery to the ultimate consumer. Thus, no matter where the actor and his [quantity of controlled substance] is apprehended along that continuum, the actor may be prosecuted under Section 481.112.” Lopez v. State,108 S.W.3d 293 , 297 (Tex.Crim.App.2003) (footnote omitted).
Furthermore,
“[t]he penalty is the same no matter where along the continuum the defendant is stopped. But the penalty increases depending upon the quantity of the drugs manufactured, delivered, or possessed with the intent to deliver. So the legislature’s focus seems to be upon the amount of the drugs involved, not upon any distinction between whether they were manufactured, delivered, or possessed with the intent to deliver. This would indicate that the legislative intent was to treat the proscribed behavior as alternative means of committing a single offense with ever-increasing penalties — regardless of the specific act involved — for ever-greater amounts of the specified drug. In sum, the focus of section 481.112 indicates a legislative intent to punish a single act with a single punishment.... Thus, [the] double jeopardy [clause] would prohibit multiple punishments for a single act of manufacturing or possessing with intent to deliver [a single quantity of] methamphetamine at a single point in time.” Guerrero v. State,305 S.W.3d 546 , 563-64 (Tex.Crim.App.2010) (Cochran, J., concurring).
Accordingly, my view is that the Legislature intended that the manufacture of a single quantity of methamphetamine and the simultaneous possession of that methamphetamine with intent to deliver it to someone else would constitute but one violation of § 481.112(a), for which there could be but one conviction and one punishment. Given the evidence in this case and given the apparent legislative intent underlying § 481.112(a), the Double Jeopardy Clause prohibits inflicting more than one conviction and punishment on Mr. Guerrero. I would, therefore, affirm the judgment of the court of appeals. Because the majority does not do so, I respectfully dissent.