Guerrero v. State

but I don’t know what this ruling,” court’s GUERRERO, Appellant, Eduardo majority has done Apparently,

means. sufficiency analysis of all the their own v. the trial in relation to court’s evidence out, previously pointed But I findings.7 of Texas. STATE report bring fails to forth facts officer’s PD-1661-08, Nos. PD-1662-08. setting suspicion proba- out reasonable Appel- to conduct a search of ble cause Appeals of Texas. Court Criminal be the lant’s truck. This should issue for appeals to resolve on remand. the court of Dec. 2009. conclusion, agree In while I Rehearing Denied Jan. 2010. that the trial court majority permitted was I report,

to consider the arrest feel that appeals given

the court of should now be opportunity report to review the arrest supports

and decide whether the trial Therefore, findings

court’s of fact.8 I re-

spectfully dissent.9 Because there was no

applicable exception authorizing a warrant- vehicle, Appellant’s

less search of I believe resulting conclusion would be that the

trial judge denying erred the motion to

suppress. appeals 7. majori- opposed Neither court of nor the rule to which I was first in Granados ty report discussed whether the arrest (Tex.Crim.App. legally judge's ruling. correct to sustain the 2002) J., “Now, (Meyers, dissenting): long so Obviously, majority feels their conclusion as there is some evidence in of the favor justify judge ruling is sufficient to a ruling suppress, regardless on the motion to warrantless search is OK in a case like this. I be, might of how unreliable that evidence significant find this to be and unfortunate. judge trial cannot abuse his discretion.” my majority opinion, predict dissent to that I again, exactly Ap- Once this would be what presented ed the exact situation in this case: pellant requested point in his of error to the law, majority's reading “Under the appeals. court of nothing prevent there now trial court deciding By concluding suppression judge may from merits of a that a trial base by relying exclusively suppression-hearing ruling on an unsworn motion on an unsworn police report, majority police report report.” now at 240. reaffirms or lab Id. Robbins,

Michael D. Asst. Public De- fender, Antonio, appellant. San for Asst., Campbell, Special Charles State Horn, Prosecuting Atty., Jeffrey L. Van Austin, Atty., State’s for state. OPINION HERVEY, J., the opinion delivered KELLER, P.J., Court which PRICE, KEASLER, JJ., joined. granted discretionary We review in this “multiple-punishments” double-jeopardy case appellant to decide whether may law- (two fully be convicted and 45- terms) year prison concurrent in the same proceeding for for also deliver more than grams but less than 200 of the same (methamphetamine). controlled substance We decide that pun- these convictions and ishments do double-jeopardy not violate principles. 2006-CR-9269,

In cause number appel- lant was more indicted than 4 grams but less than metham- phetamine. In cause number 2006-CR- 4524, he for possessing was indicted than 4 to deliver more but less than 1) (count methamphetamine grams and also more than 4 but grams methamphetamine less than 200 (count 2). together These cases were tried in a single proceeding. evidence appellant discovered police shows operating methamphetamine lab in his police glass home where the seized three what Q. total of 80.45 And substance —controlled containing a containers as being? substance did come back grams (74.62 in one con- had manufactured A. It did contain container, tainer, in another grams 4.49 that solution. container). in the other 1.34 Next, your I Q. want to draw attention yet been methamphetamine had not

This to the Converse Evidence Number final, A product. a usable into converted is a contains bucket that also the Safety Public Chemist Department you Number Did conduct Lab the (Budge) testified testing on 06-229? in a container was

amine in each A. Yes. two-layered, liquid a solution. layer of what items Q. And was 06-229—the Budge testified: it that was submitted? at- your I to draw Q. want [STATE]: plastic A. It was a—like a soda-water few, guess, I specifically to a tention containing again it was a bottle —once within an ex- items and —located specific liquid. I two-layer And did tests on hibit, in one Exhibit Number 40 State’s both solutions and determined the buckets, was a Number of the Converse layer the bottom would have been one 06-220, they assigned the a number that methamphetamine, that contained the so police at the station? evidence there my weight just net indication is the Yes. A. [BUDGE]: layer. bottom your contains Q. And that bucket also Q. weight? And what was the you Did conduct lab number grams. A. It was 4.49 found under analysis on that item And, again, Q. what was the substance Number 06-220? that it tested for? Yes, I

A. did. A. And I did the do similar —the test you per- kind did Q. exhibit, what of test And prelimi- as I did on other GCMS, that item? form on nary test and the and it did methamphetamine. contain also pre- a I did a weight. A. I did obtain Next, I on And liminary Q. your test the substance. I’d like to draw attention 06-235, test on it. And to Converse Exhibit which is also did the confirmation located within State’s Exhibit Number quantita- I a test because—it’s also did also which is a bucket with Lab percentage tive to determine the test you Number 345971. Did conduct an ingredient in the substance the active analysis on 06-235? also. Yes, A. I did. 06-220, Exhibit what was the

Q. And Q. exhibit? And what item that was the was for testing submitted num- glass exhibit container A. The ber? It containing two-layered solution. layer layer. glass jar containing A. It was a top

was a and a bottom two- my layer liquid. I tested the layers. I tests on And And bottom And did both layer. And it And grams. was 1.34 the meth would testing indicated methamphetamine. did contain layer. that’s top have been on So weight given just net that I have Budge process also described top layer. methamphetamine Q. weight you what did obtain for And converting process manufactured layer? top final, into a usable grams. product. A. It was 74.62 pseudoephedrine, safety matches —of matches. And there Q. ephedrine phosphorus pads is red on those striker that used in the manufac- is that the—is so quite easy using it’s to extract it out methamphetamine? turing process of organic some land of solvent. ephedrine hap- Pseudoephedrine A. pseudoephedrine, iodine, You mix red precursor the immediate pens to be phosphorus together typically so, methamphetamine, yes, it’s —and type it’s heated in some of container mostly chemical we see associated— you plate. this, on a hot And once do mostly mostly associated with the —-or you actually create methamphetamine. manufacturer [sic] mean, pseudoephedrine. from the I you jury through talk the the Q. Could really simple that’s it how is. It’s a process one-step-type thing. you process amine or at least the believe there, And then from there’s a series of on would have been used based the that procedures you get use to rid of the laboratory. items seized from this iodine the red phosphorous and [sic] very, very short— procedure A. The you your cause those in fin- don’t want quick- I’ll quickly, try go through to as there’s an product. ished And extrac- ly encompasses taking pseu- as I can— procedure get tion rid of those. Once them doephedrine crushing tablets and those, you get you rid of have to convert up, extracting pseudoephedrine the out your methamphetamine into a usable that, them, you and when do it leaves product. typically And it’s turned into a pill dough this—what we call behind using hydrochloric water-soluble salt be the—it would be similar to 06- would acid. 06-241, 0241—the Number Converse ingredient So the actual active or the that would be what would be left over. methamphetamine actual form the is in Q. The powder? blue hydrochloride. So A. Yes. methamphetamine; it’s a form of it’s salt you pseu- then once extract And Methamphetamine by water it- soluble. tablets, doephedrine you out of the what slightly self is not water soluble. It’s a you you would do is would take that and that’s not—that doesn’t liquid volatile couple would add a of other chemicals to And it’s kind of dissolve water. so procedure it. And then the one consume, you go hard to so have to appeared this—what this be would be through procedure, they what call this using phosphorous iodine and red they’ll [sic]. powdering using typically, out a— hydro- And iodine could be attained from—usu- generator use a that creates ally being gen hydrochloric it’s attained from tincture of or the acid. chloride that, you’re you And once do done. procedure iodine. And the how do product. you take tincture of iodine That’s end that is you hydrogen peroxide take Q. you pictures. I want to show some hydrochloric you mix them to- acid In Exhibit been testi- is—there’s Exhibit, I gether mony and the iodine will come out of this was the be- lieve, you 220 that was submitted to gray powder pow- the solution as testing that’s located within the dery actually metal-looking sub- —it’s iodine, bucket. you stance. And take this they phosphorus. mix it with the red Okay. A. quite easily talking at- about phosphorus Q. you’re

And red Is that what pads separation process? from the striker off tained chloride, it becomes their finished really good gen the—a indi- That is A. Yes. gas generators call them product. We two-layer solution cation of what gas though it makes even because layer a top like. There’s look would gas hydrogen is—it’s chloride. solution and a bottom organic an that’s (Emphasis supplied).1 or—it aqueous is an solution layer which in it. means it has water During closing jury arguments, only State referred to the container with Q. Okay. A. So that’s a tion of the two home. It’s a coffee— Q. This item was seized from the n liquids. good picture ^{[*] [*]} of a separa- this case.”2 The State made no claim that 74.62 dence of the “between at that level that we’re containers was grams methamphetamine in each of the three four dealing offense, with here in 200 grams evi pot. A. It’s a coffee might required have election generally Phillips State. coming out of it. Q. —pot with a tube For (Tex.Cr.App.2006). S.W.3d 904 exam might kind of what that you explain Can made no claim that it ple, the State was for. have been used grams methamphet the 74.62 of relying on thing a real common that I A. This is amine in one of the containers for a convic generator hydro- as a being see used charged tion on one of the offenses they they And what do is chloric acid. relying methamphet that it was on the pot. in the And when mix chemicals (one any amine in of the other containers together, hy- it mix them creates they containing grams 4.49 and the other con chloride, anhydrous hy- which is drogen taining any 1.34 for a conviction on grams) drochloric acid. charged of the other offenses.3 And the actually Hydrochloric hydrogen acid is jury instructed under each- in water. And so to chloride dissolved container-is-a-separate-offense theory of li away from the water or create it get ability, might required juror have can gas you something as a use like this. unanimity gen as to each container. See they they gas And what do is will (Tex. erally Ngo —the 175 S.W.3d 738 you come out of hose and stick Cr.App.2005). jury appel convicted your solution of metham- hose charged lant of all three offenses “as phetamine. And when charged the indictment.”4 We also note hydro- amine comes in contact with the on argued appeal State direct that methamphetamine, clearly, 1. No claim is made in this case that between four two-layered grams in the solution and 200 at that level that we’re deal- in each container does not meet the Health with here in this case. Safety Code of “controlled definition sub- rely solely 3. We note that the State could not 481.002(5), § stance.” See Health & Tex. Safe- grams on the container with 1.34 of metham- ("controlled substance” is a substance ty Code phetamine all offense since Penalty Group listed in 1 and includes “the charged quantity three offenses involved mixture, solution, aggregate weight any grams. of more than containing a other substance controlled sub- stance”). Methamphetamine is listed as appeals The State conceded the court of Penalty Group 1 controlled substance. See appellant's possessing conviction for 481.102(6), § Safety Health & Tex. Code grams more than 4 but than 200 meth- less argued: 2. The State (count amphetamine 2 in cause number 2006-CR-4524) double-jeopardy And this was the one that the lab technician violated you positive principles this is a lesser-included told tested 74.62 because “was convicted for amphetamine on the basis that those grams” with intent 74.62 to deliver were the offenses result of the same “appellant guilty original was also found impulse and could not pun- be separate offense of manufacture of a con separately. ished That opinion Court’s trolled substance in cause number 2006- misconstrues this opinion Court’s in [Lo- CR-9269, conviction, ], along and this with pez and the Appeals’ Court of holding possession of a contrary controlled substance holding to the in several with intent to deliver under cause number federal circuit on this same vitally courts 2006-CR-4524, is, important should affirmed.” It question of state and federal thus, clear that appellant was convicted for law. with also Safety 481.112(a), Section Tex. Health & to deliver the methamphet Code, defines the “offense” of “Manufac- amine. ture or Delivery of Substance in Penalty

Appellant Group claimed 1.” In appeal part, on direct relevant it provides that double-jeopardy person it violated commits an if principles person offense “manufactures, delivers, him possesses to be convicted and for these intent to a Penalty two deliver” Finding Group offenses. this Court’s deci- con- trolled Lopez, substance. Lopez controlling, sion v. State5 defen- dant delivery was convicted of appeals court of cocaine decided these two sell) (by offer to and also offenses are the “same” under double-jeop- with intent to deliver the same cocaine on ardy principles appellant’s because “manu- evidence that morning one he offered of, facture sell an undercover officer cocaine which he distribute, the same cache of possessed evening later in the to complete amine were original the result of the same the Lopez, sale. See 108 at S.W.3d 294-95. impulse” along “a continuum in the line of The defendant claimed that double-jeopar- drug State, distribution.” See Guerrero v. dy principles prohibited him from being 309, 271 (Tex.App.-San S.W.3d 316-18 An- twice punished convicted and for this sin- 2008).6 tonio appeals The court of vacated gle sale of the same controlled substance. the manufacturing conviction and upheld See id. possession with intent to deliver con- granted viction. See id. We review on Relying portion Supreme on the of the following ground presented in the Blockburger addressing Court’s decision discretionary petition: State’s review propriety ‘multiple punishments’ “the defendant, The Appeals finding Court of erred in against single assessed a in a jeopardy prosecution that barred the for his proceeding, multiple violations of manufacturing methamphetamine and the same narcotics statute different acts,”7 possession intent to deliver meth- this Court stated that the double- possession offense of with intent to deliver 6. The State made no claim that the court of more than 4 but than appeals appellant’s less of meth- affirm should manufactur- (count amphetamine ing possession-with-intent-to-deliver 1 in cause number con- 2006-CR-4524). appeals The court of each-container-is-a-sepa- set victions under an theory liability. aside the conviction on basis. rate-offense If the in each of the three prosecuted containers was as States, of- Blockburger v. See United 284 U.S. fenses, 299, then the former would not have been a (1932); 52 S.Ct. 76 L.Ed. 306 lesser-included offense of the latter. Manrique see also P.J., 1999) (McCormick, (Tex.Cr.App. (Tex.Cr.App.2003). concurring). 5. 108 S.W.3d 293 in cir- would violate “double for “sameness” these jeopardy test in Blockburger steps this sin- because cumstances is all ‘the gle drug transaction were result of acts prohibit- individual are whether the original therefore each impulse,’ step ed, they action the course bargain.” Lopez, was not a new former, If the then each act constitute. 300-01; compare Blockburger, S.W.3d latter, separately.... If the is 303, 52 (holding 284 U.S. at S.Ct. penalty. one be but Under there can quantity each distinct sale of a discrete hinges leg- test on purchaser the same the same on of the statute at issue. islative a different occasions constituted distinct (footnote at 296 Lopez, offense, transaction, re- because “the first omitted). quotes internal sale, sulting had come to The end. Lopez, The issue in double-jeopardy sale of the original next was not the result therefore, question legisla- turned on impulse, say, of a fresh one—that but Lopez, tive S.W.3d at 296. intent. See bargain”). of a new We set out the hold- “[Djid intend that Legislature individu- Lopez: single al sale of a steps taken toward 481.112(a)], however, [Section cannot single of a controlled substance quantity turned on head to allow several its “de- violation of Section constitute one livery” there only convictions where 481.112(a), intend or did Therefore, single drug. one one sale of toward step that each taken we hold that the offer to sell a different sale constitutes violation itself drugs complete statute, there so that would be specific one Al- sale is offense. many different potentially as offenses as though may charge the the State offense taken?” See steps Lopez, there are being committed in either of these (footnote omitted). S.W.3d at 296 modes, it cannot obtain two convictions ways violating Section Noting that sale under Section 481.112(a) along “points are continuum 481.112(a). entry of two convictions distribution, from drag origi- the line its in this case violates double un- physical its delivery nal manufacture until Blockburger der the test because the to the consumer” that ultimate and steps drug in this transaction “gravamen delivery of the offense all original were “the of the im- result particular quantity par- driven pulse,” step and therefore each was not substance,” ticular contraband this Court a “new bargain.” that the intended that decided (footnotes Lopez, 108 S.W.3d at 300-01 particular an drag offer to sell a omitted). that drug to com- subsequent possession disagree any suggestion We with in the plete sale one specific that offense opinion court of that the appeals’ not obtain “contin- the State two convic- uum” in Lopez, language Lopez requires tions. at 297-300.8 a deci- See that sion that cannot allowing appellant This Court also stated two be convicted for convictions these circumstances and also for with manufacturing possessing Presiding Judge concurring subsequent Keller filed a the view that manufacture opinion criticizing delivery Lopez “continuum” same controlled in substance are language majority opinion. clearly Lopez, separate offenses under in two Section (Keller, P.J., 481.112(a) majority’s 108 S.W.3d at 302-03 concur- but continuum ring judgment). Presiding language require they in the court’s a decision would Judge concurring opinion expressed are id. Keller’s one offense. See offenses, clearly sub- these indicating intent to deliver the same controlled two separate intent that each is a offense. language “continuum” stance. This addition, 481.112(a) the act of manufacturing meth- imply that Section not meant to amphetamine subsequent and the act of all-encompassing creates some offense this with in- engaging business generally tent to deliver are discrete acts with (manufac- penalizing rather than each act (one impulses different to impulse manu- delivery) that it describes. See ture and possess facture and another impulse Blockburger, 284 52 S.Ct. 180 U.S. what purpose delivering has been (“The Narcotic Act does not create the manufactured). Possessing this controlled in the engaging offense of business sell- substance with intent to deliver it is a penalizes any but drugs, the forbidden from the bargain” “original impulse” “new in the absence of either of the sale made it. manufacturing Lopez, forth.”). qualifying requirements set 296-97, S.W.3d at 300-01. When accom- not appel And we do understand acts, plished by sepa- different these are Instead, lant to claim otherwise. we un rate offenses under Lopez that, to claim even appellant derstand plain and the of Section language possible it is though 481.112(a).9 to deliver the disagree appellant And we with lawfully controlled could same substance his “manufacture and punished separate as prosecuted be were one deliver and the same accomplished by when different offenses act under the facts of this case.” The acts, they may lawfully prosecut be so appellant evidence shows that manufac ed and this case “because the punished tured the that was in with intent to manufacture and two-layered solution each container. deliver were one and the same act [or manufacturing process was complete This under the facts of this case.” transaction] production methamphet with the of this pos We decide though, during appellant’s amine even sub sessing with intent deliver sequent possession with intent to deliver may lawfully pros controlled substance methamphetamine, was to ecuted and offenses perform procedures” “a series of on the accomplished by methamphet when different acts. Sec solutions to “convert 481.112(a) proscribes product.”10 Appel- amine into a disjunctively tion usable provi- (defining re- 9. We further note that there are other offense of unlawful transfer or Safety making laboratory ceipt apparatus); sions in the Health and Code of chemical 481.138, illegal possess (defining to various chemicals and other § Safety Tex. Health & Code manufacturing process laboratory ap- items used in the of offense of transfer of chemical drugs including manufacture). methamphetamine. various paratus We take for unlawful 481.124, (de- § See statutory this scheme as another indication Safety Tex. Health & Code fining transport possession or of offense of Legislature that the has not intended to treat certain intent to manufacture chemicals with possession with intent to manufacture and substance); 481.1245, § controlled only deliver the same controlled substance as Tex. (defining pos- offense of Legislature Safety one offense and that the considers Health & Code ammonia; anhydrous transport session or "impulse” underlying manufacture as tampering equipment); or with use very "impulse” underlying different from the 481.136, (defining § Safety possession with intent to deliver. Tex. Health & Code receipt offense of unlawful transfer or 481.137, disagree § precursor); 10. We with the State that focus chemical Tex Healths (defining manufacturing a controlled substance is on offense of transfer of Safety Code precursor production of a controlled substance "un- substance for unlawful manufac- 481.138, ture); product § a obtained” and that Lis] til finished Safety Tex. Health & Code the same act or transaction con- where manufacture lant’s with a violation of two distinct statu- subsequent possession stitutes amine and his it, tory provisions, applied the test to be to though probably close intent to deliver whether there are two of- time, determine discrete acts with different in were (one only provi- fenses or one is whether each impulse to manufacture and impulses fact requires proof sion additional possess purpose to for impulse another manufactured). which the other does not. has been delivering what did, therefore, manufacture and Appellant Blockburger, 284 U.S. S.Ct. with intent to deliver subsequently possess 180.11 by substance different

the same controlled Blockburger statutory this rule of Under acts. and discrete construction, posses the manufacture and “manufacture are not Assuming appellant’s sion-with-intent-to-deliver offenses appellant intent to deliver were the same because evidence that with the facts of manufactured is not re one and the same act under case,” reject quired possession-with-in to establish the we would still his double- this ap in- and evidence of claim. This scenario would tent-to-deliver offense (simulta- pellant’s required act transaction intent to deliver is not volve the same neously manufacturing establish offense. We it) courts, with intent to deliver also note that federal on facts le statutory indistinguishable from provisions gally two distinct those violating (manufacture case, delivery) as set out have decided that 481.112(a). Section In these circum- to deliver the same stances, separate contains a rule of controlled substance are offenses Blockburger “virtually a statutory construction which states: federal statute identical” presumed Legislature regard possession with intent to deliver did not the focus of product” statutorily "possession a two defined is on finished offenses to be not, if, provision requires proof deliver it. This does in this 'each of a fact However, case, comport Safely pur with the Health and which the other does not.' poses multiple-punishments analysis, Code definitions of "controlled substance” require Blockburger only statutory and "manufacture” and would deci- test is a tool of not commit either even an sion that did construction —and not exclusive one. may punished manufacture or with intent to de- An accused be for two offenses regarded liver controlled substance. that would as the same under a 481.002(5) (defining § Blockburger analysis "controlled substance” if the has Penalty Group substance listed made intention that he otherwise manifest its (footnotes be.”) aggregate weight any omitted); “the mix- includes should Patterson ture, solution, containing or other substance (Tex.Cr.App. substance”); 481.002(25), 2004) J., § (in (Hervey, controlled concurring) determining Tex. (defining "manufacture” whether a defendant Safety be convicted and & Code Health production mean the of a controlled sub- proceeding in the same "directly indirectly by act, stance extraction statutory offenses committed the same origin, indepen- from substances of natural separate statutory if these offenses are the dently by synthesis, by means chemical or multiple Blockburger, "same” under then con syn- combination and of extraction chemical punishments may imposed and victions not be thesis”). Legislature clearly provided unless the has otherwise, but, separate statutory if these of State, 273, Blockburger, 11. v. See also Littrell fenses are not the "same” under ("The (Tex.Cr.App.2008) generally presumed multiple 276 traditional indi then it is that legislative punishments may imposed cium of ... so-called convictions and be Blockburger clearly provided 'same elements' test of v. United unless the has test, otherwise). According States. to that it should be

555 481.112(a). construing analogous See United States v. to Section federal controlled (6th statute”).13 Miller, 1067, substance 870 F.2d 1068-72 Cir. 1989) (manufacturing possessing and with Appellant acknowledges that the “Block marijuana intent to deliver the same are test, alone, burger standing lends credence separate offenses under federal statute argument to the State’s [appellant] that

which, part, disjunctively in relevant made was separate convicted two offenses” manufacture, any person “to it unlawful for that and this “conclusion appear would in dispense, possess distribute or or with by bolstered the federal Circuit Court manufacture, distribute, tent dis by cases cited the State.”14 Appellant substance”);12 pense, a controlled United argues nevertheless that he cannot be con Zamora, 1025, v. States F.2d victed punished and for manufacturing and (10th Cir.1986) (same respect to man for possessing also with intent to deliver ufacturing possessing and with intent to the same controlled substance under this methamphetamine deliver the same Court’s decision Ervin which recognizes stating police plas also that a small seized that, even if two offenses are not the same bag containing gram tic about of meth 1/4 under Blockburger’s rule of con statutory amphetamine and “3 bottles full of a struction, this rule of statutory construc sludge-like liquid containing methamphet tion “cannot authorize punishments two amine”); Lopez, see also at 301 S.W.3d legislature where the clearly only intended persuasive State, it (considering holding parte its one.” See Ex Ervin v. 804, comports “also with those of federal courts (Tex.Cr.App.1999).15 S.W.2d rejected the 12. We also note that Miller defen session is a lesser-included offense of the argument statutory dant's that the rule of manufacture and these offenses are the same Blockburger apply construction should not Blockburger under because a defendant can- “Congress placed because not manufacture without to distribute of it); possessing also Patton v. 35 P.3d fenses into one subsection” as these offenses 124, (Co.2001) (same noting but also Miller, 481.112(a). are defined in Section may lawfully “a defendant be convicted 870 F.2d at 1071-72. both manufacture and of a con- trolled substance if the defendant is convicted States, also Gore v. United 357 U.S. during the substance one time 386, 1280, 388-90, 78 S.Ct. 2 L.Ed.2d 1405 period during another claim, (1958) (5-4 rejecting decision in case period, separate pos- time transactions of involving three convictions and three consec- session and manufacture in the same time violating utive sentences for one act of three Davis, statutes, period”); but see State v. 117 Wash. separate Blockburger (de- (2003) App. stating should be 72 P.3d overruled also 1137-39 point clining what "is more to the about Block- follow Patton because “a defendant burger decision is that the unanimous Court engage methamphetamine can manufactur- that rendered it included three then Justices possessing, actually without or construc- conspicuous safeguard- for their alertness in tively, the controlled substance that is the ing the interests of defendants in criminal product”). apply final These cases do not compas- and in their cases insistence on the pos- here because this is a manufacture and interests”). regard sionate for such session-with-intenl-to-deliver case. Appellant cites no federal Circuit Court Patterson, 15.See also 152 S.W.3d at 92-94 contrary, any. cases to the nor have we found J., (in (Hervey, concurring) determining deciding We have found cases that simulta- whether a defendant be convicted and neously manufacturing proceeding in the same are the same under act, statutory See, offenses committed the same Stale, Blockburger. Beaty e.g., separate statutory if (when these offenses are the (Ky.2003) defen- multiple “same” simultaneously pos- dant then con- manufactures and methamphetamine, pos- punishments may imposed sesses same victions and not be Ervin, at 816. This Legisla- whether the See 991 S.W.2d Court then is The issue in Ervin said: intend for a defendant clearly not ture did for manufac- punished and Finally, manslaughter to be convicted and intoxication with intent for have a common focus: the turing manslaughter and also controlled substance death of an individual. Both crimes are to deliver the same Ervin, crimes with death be- In this result of conduct single act or transaction. person the result. Because a can clearly did Legislature that the Court held once, only die two result-of-conduct to be convicted not intend for defendant involving the same homicide offenses manslaughter and also involve the same necessarily victim must of the same manslaughter intoxication result. Given that the result is focus during the same traffic accident victim offenses, the sameness of the these being these two offenses not despite Legis- result is some indication Ervin, Blockburger. See the same under impose multiple to lature did not intend Ervin, In punishments. manslaughter noted that and intoxi- Court manslaughter clearly were alterna- original). cation (Emphasis Id. committing the same offense tive means of clearly We believe that this case is dis 1, 1994, that prior September to sub- tinguishable from Ervin. We are aware sequent legislative changes applica- to the law), any prior (statutory law or case change ble statutes did not intend to this. none, cites that has ever appellant Ervin, This 991 S.W.2d at 814-17.16 treated it persuasive Court also found intent to deliver the same controlled sub hold “that majority jurisdictions” “vast of committing stance as alternative means within the variants of murder contained Moreover, offense.17 these crimes of- statutory section are the same have a common “focus.” The focus do not jeopardy purposes fense for double when offense is on the Ervin, the same victim is involved.” See production of a controlled while substance at 815. This also noted Court possession-with-intent-to- the focus of the man- manslaughter and intoxication delivering deliver offense is on what has addition, slaughter are result-of-conduct crimes been manufactured. cases, any both of an individual. has not cited to and we have focus on the death "manufacture!], deliver[], Legislature clearly provided person pos- unless the has or otherwise, but, separate statutory if these of- sess with intent to deliver” a controlled [] 481.112(a) clearly fenses are not the "same” under substance. Section does generally multiple manufacturing, delivering pos- presumed then it is not make punishments may imposed sessing convictions and to deliver alternative clearly provided committing (e.g., unless the has means of offense otherwise). business). generally engaging in the 1, 1994, September homi- 17. We note that the Penal Code made it Before reckless (which ], person cide constitutes the offense of man- an offense for a to "manufacture[ Code) deliver!], slaughter possess!] current Penal with intent to under the manu- (which intoxication homicide constitutes the facture or deliver” a controlled substance. 4476-15, 4.03(a), manslaughter § offense of intoxication See Art. Acts 63rd this, Code) Leg., the current Penal were alternative ch. 429. Before was unlawful for "manufacture, have, committing any person possess, in the same statute of means control, administer, (which sell, involuntary manslaughter prescribe, dispense, offense sell, buy any longer compound, Penal or offer to no an offense under the current offer P.C., Code). very drug.” Section Vernon's Ann. Arts. This different from narcotic 481.112(a), which makes it an offense for a 725b to 725d. none, holding manufacturing jeopardy principles “prohibit that found two convic- simultaneously tions for manufacturing possessing with intent to deliver the possessing with intent to deliver the controlled substance are the “same” same substance”). same container of controlled The cases jeopardy purposes. for double However, primary holding the other and in contrary. have are that we found opinion appellant’s this is that manufacture Miller, 1067; Zamora, 870 F.2d at See subsequent possession and his in- with Gore, 1029; F.2d at see also 357 U.S. at tent to deliver the same 388-90, (construing applica 78 S.Ct. 1280 separate were and discrete acts with each to authorize mul ble federal statutes act a bargain different with a different tiple single drug convictions for a sale and impulse Legislature which the intended any if “the reveals noting legislation that treat as offenses under Section thing, it the determination of Con reveals 481.112(a). 553-54; supra See at see also gress to turn the screw of the criminal (“Two Concurring Op. at 561 distinct acts machinery detection, prosecution — 481.112”). equal two violations of section tighter.”). punishment tighter and We — testimony clearly chemist’s shows that Legisla no indication that the have found appellant’s manufacture of all of the meth- clearly only ture has intended one convic amphetamine in this case and his subse- punishment manufacturing tion and quent possession intent to with deliver this with intent to deliver the methamphetamine were separate, and not during same controlled substance the same simultaneous, acts. act or transaction.18 pseudoephedrine, You mix [BUDGE]: Judge concurring opinion ad- Cochran’s iodine, red phosphorus together —and only holding dresses the alternative in this typically it’s heated in type some of con- opinion appellant’s “simultaneously” plate. tainer on a hot And once you do this, you actually create to deliver pseudoephedrine. amine from the I double-jeopardy princi- mean, does not violate simple really that’s how it is. It’s (double ples.19 Op. See at 561 Concurring one-step-type thing.20 18.Appellant significant Lopez, it is sions.” See 108 S.W.3d at 296 11. n. claims 481.112(a) however, Lopez, title of Section commences with This Court’s decision in did 481.112(a) Ap- the word “Offense” instead of "Offenses.” not decide that Section defined pellant legislative Post-Lopez claims that this "indicates the intent one offense. silence proscribed bearing question presented to treat the behavior as alternative has no on the committing Ap- means of offense." this case. pellant does not indicate what this of- (manufacture, supra ("Assuming appel- at delivery fense would be called else). in- lant’s ‘manufacture and something We note that the also act tent to deliver were one and the same Legislature expressly provided has case,' under the facts of this we would still expand tide of a statute "does not limit or claim.”). 311.024, reject double-jeopardy his meaning § of a statute.” See Tex. Gov’t Code. Appellant significant Appellant's claims it is act of a con- also Legislature (methamphetamine) met since deci- trolled has twice our substance Lopez making any changes point complete without in time. sion this 481.112(a). ("con- 481.002(5), Appellant § Section claims that Safety Tex. Health & Code that, "gives supposition rise to the had trolled substance” means a substance listed Penalty Group aggregate § “the intended 481.112 to define and includes offense, mixture, solution, weight any than have other sub- more one would amend- substance”); during containing ed the statute to reflect stance a controlled such 481.002(25),

post-Lopez legislative § 2005 and 2007 ses- Safety Tex. Health & Code that, there, inconsistent with several other states there’s series then from

And of the you get use to rid procedures have according concurring opinion, to the phosphorous [sic] the red iodine and act of concluded that “the simultaneous your in fin- want those you don’t cause (with manufacturing possessing or there’s an extrac- product. And ished deliver) intent the same without Once get rid those. procedure tion is a quantum of controlled substance those, convert you have to you get rid of offense, offenses, for double multiple not methamphetamine into a usable your Concurring Op. See jeopardy purposes.” into a typically it’s turned And product. this, using hydrochloric support concurring salt at 564. To water-soluble acid. cases in footnote 14 opinion cites to several opinion eases, claims that concurring

The opinion.21 of its None of these how holding opinion in this the alternative (''manufacture'' the Colorado Su- production of a 21. One of these cases is means Patton, "directly indirectly by preme or substance Court’s decision in controlled origin, of natural opinion. extraction from substances 14 of this See also cited footnote synthe- by chemical independently means of Concurring Op. n. 14 and at n. at 564 sis, by of extraction and a combination Patton, In the defendant was convicted synthesis”); Supra at n. 1 and chemical manufacturing possessing the and also for Appellant's subsequent act at 554 n. guilty methamphetamine pleading same after possessing with intent to deliver this metham- that, according to the ma- to an information step bargain phetamine a new moti- was allegation jority opinion, other "contained no impulse that occurred vated a different [methamphet- possessed that Patton than original impulse to manufacture this after the in connection with it.” amine] though appellant methamphetamine even was Patton, deciding at 127-28. In See 35 P.3d procedures” "a on the perform series greater pled guilty "to both the that Patton two-layered solutions to "convert the meth- and lesser included offenses for the same product.” amphetamine into a useable transaction," also noted that a "differ- Patton 553; Lopez, supra 108 S.W.3d at 300-01. at presented been if the ent case would have concurring opinion asserts that each of pleaded guilty The which Patton recited counts to more than the two containers contained period possession exceeded the of the methamphetamine “was in a dif- period pos- of the manufacture or that Patton stage manufacturing process.” ferent of the independently sessed the controlled substance Concurring Op. concurring at 565. The Patton, of manufacture of it...See his opinion further states that the container with ("a P.3d at 133 and at 131 defendant grams "was while it was at an 74.62 seized lawfully convicted of both manufacture and stage methamphetamine earlier of the manu- if of a controlled substance facturing process two-layered liquid than the defendant is convicted of the sub- containing Pepper in the Dr. bottle” 4.49 during period stance one time and manufac- grams methamphetamine. See id. during turing period”). time another portions of the record set out above case, appellant's this the evidence shows that pages through opinion and on two six of this "period possession [with of the intent to deliv- support an that these two do not assertion period exceeded the manufacture” er] stage containers were "in a different appellant "possessed and that intent to [with [methamphetamine] process.” [methamphetamine] independent- deliver] portions

These of the record show that the Patton, ly of his manufacture of it." See two-layered in the solution methamphetamine support P.3d at 133. Patton does already these containers had been in each of position concurring opinion set out in the Safety manufactured under the Health and holding actually supports primary Code definition "manufacture” case that manufactured and subse- 481.002(25) § and that the quently possessed with intent to deliver the manufacturing process already complete by separate police when the seized these containers. acts. ever, simultaneously See Concurring Op. hold that manufactur (Blockburger is merely statutory to deliver rule of construction and “is not a shibboleth that the same defines controlled substance is double jeopardy”).23 The alternative holding in offense. These hold that simulta cases however, opinion, this did apply not “a neously possessing manufacturing the strict Blockburger elements test” rely same controlled is a of substance solely on as “a Blockburger shibboleth that essentially fense because the latter (pos defines double jeopardy.” Upon session) conclud ais lesser-included offense of the ing that manufacturing and possessing (manufacturing).22 former Possession with intent to deliver same controlled to deliver controlled sub substance are not the “same” under Blockb stance, however, not a lesser-included urger,24 the in analysis support manufacturing offense of the same con alternative holding opinion in this then trolled substance because Blockbur legislative-intent conducted the analysis ger each of a requires proof fact which the required by law settled case such Er as Miller, other does not. 870 at See F.2d (issue vin. See at supra is whether (“The 1071 offense of with in the Legislature clearly did not intend for a tent undoubtedly distribute can be defendant to be convicted and for proved any proof without of manufacture and also Furthermore, of that substance. the of intent to deliver the same controlled sub fense of while manufacturing, likely involv stance in a single act transaction and ing proof of possession, require does not concluding that is no there indication that any proof intent to regarding an distribute clearly has intended that Thus, each statutory substance.... of same); these offenses are the see also requires fense of an proof additional fact States, 684, Whalen v. United U.S. not.”); Zamora, which the other does 784 693, (1980) 1432, 100 S.Ct. 63 L.Ed.2d 715 (“courts F.2d at 1029 have uniformly held (when simultaneously two committed stat that manufacture and with in utory offenses are not “same” under tent to distinct distribute are offenses for Blockburger, consecutive sentences are which different must be proven”). facts permitted Congress “expressly pro unless

The concurring opinion dismisses these otherwise;” and, vides where these of (i.e., “few federal cases” Miller and Zamo fenses are the “same” under ) ra that support holding the alternative consecutive are not permitted sentences Cong opinion this apparently they ap because unless “specially authorized plied Blockburger ress”).25 “strict elements test.” (also supra citing opinion comports

22. See n. 14 also at 555 "with also those of deciding simultaneously construing cases analogous manufac- federal courts feder- turing the same controlled al controlled statute.” substance substance Blockburger are the same under distinguishing these cases on the basis Miller, 1071; Zamora, 24. at See 870 F.2d possession- that this is a manufacture and F.2d at 1029. case). with-intenl-to-deliver States, 25. Accord Ball v. United 470 U.S. It should be noted author of the (1985) 84 L.Ed.2d 740 105 S.Ct. concurring opinion Lopez, also authored (assumption underlying Blockburger rule persuasive holding which found it its Congress ordinarily is that does not intend to comported "with of federal those courts con- punish under two struing the “same” offense differ analogous federal controlled sub- 276; statutes); Littrell, Lopez, ent 271 S.W.3d at Er stance statute." S.W.3d at vin, 807; Patterson, Apparently persuasive not so S.W.2d at as it J., Lopez (Flervey, holding concurring); that the alternative S.W.3d at 92-94 Gonzalez, Count jeop 640-41. claiming that double Though charged indictment II of defendant’s convictions “prohibit two ardy principles in a elderly to an individual injury pos simultaneously were id. These counts paragraph. See the same deliver sessing with intent single proceeding in a prosecuted substance,”26 the of controlled container actually jury were submitted to af opinion would nevertheless concurring charged. jury See id. convicted Noting convictions. appellant’s firm general offenses in a defendant both by prose- are bound “[ajppellate courts claimed See id. The defendant verdict. deciding when whether theories cutorial it was appeal the first time on that for jeop establishes double the trial record violated that these convictions possible violation,” concurring opinion the ardy in- double-jeopardy principles “because the convictions based appellant’s affirm would is a elderly to an individual offense jury time on theory, for the first on a fabricated aggravated offense the lesser included review, discretionary that the two different robbery paragraphs as set out in offense methamphetamine containers caches jury’s guilty general one and three and the 4 weighing grams separate more than are have robbery could aggravated verdict (this to be as the has come known offenses See paragraphs.” rested on one of these theory liability). See “multiple beaker” original). This (Emphasis id. Court 562-63, (under Concurring at this Op. that the defendant could not raise decided “multiple theory, beaker” could “appellant appeal claim for the first time on this of two of man have been convicted counts any jeopardy violation was because double ufacturing methamphetamine, two counts “clearly on apparent” not the face methamphetamine with the possessing Gonzalez, at 643. record. S.W.3d each”).27 it, to or one intent deliver count distinguishable This case from Gonza- Relying on decision in Gonza this Court’s it is face of clearly apparent lez as on the State,28 concurring opinion would lez v. “multiple record the- this that beaker” that, appellant decide since has not shown not to ory jury was submitted methamphetamine that these two caches manufacturing jury appellant convicted manufactured, then simultaneously were and also with intent to de- possessing has to show that a double- appellant failed one of meth- liver undifferentiated cache “clearly on jeopardy apparent” violation at 562 amphetamine. Concurring Op. the face of See id. the record. (also noting that “the State treated the support this. Gonzalez does [‘multiple as one undifferentiated beakers’] Gonzalez, in- trial”); Count I of the defendant’s methamphetamine cache of at (also robbery Guerrero, charged aggravated noting dictment at 271 S.W.3d three alter- paragraphs alleging convicted for manufac- committing turing possessing offense. and also for native means of this (McCor Manrique, theory at in- charged since all three offenses mick, P.J., concurring). quantity volved a weighing grams. than Under a "mul- more concurring It should be noted that analysis, tiple beaker” it would seem single holding opinion does not cite case concurring might to address opinion have pos- simultaneous manufacture and jury three would one of these offenses to deliver same con- session acquit appellant have to of. trolled substance is offense. weighing 27. The container 1.34 could (Tex.Cr.App.2000). 28.8 "multiple used support not be beaker” COCHRAN, J., concurring filed a cache of “the same to deliver amine”). J., clearly apparent WOMACK, on joined. Since it is in which opinion, appellant’s this record that the face of I judgment, concur the Court’s offenses were based for these convictions respectfully disagree person but I that a cache of undifferentiated on the same for both concurring opinion methamphetamine, with intent to deliver convictions have to decide these would at cache of principles. See violate double specific one time. I think that federal and (“double jeopardy Concurring Op. principles prohibit Texas double-jeopardy convictions for si- prohibit two principles simultaneously two convictions for manu possess- multaneously facturing with the intent to deliver the same ing with the intent substance”). deliver the same container of controlled container of controlled that, agree given But I also substance. concurring opinion cites no Finally, the case, particular circumstances of this authority support its assertion for manu appellant may both by bound “[ajppellate prose- courts are not facturing methamphetamine pos and for deciding when whether cutorial theories sessing methamphetamine with intent to clearly establishes a dou the trial record police deliver it because the found three Court, ble-jeopardy violation.” And stages separate bottles—in different following Supreme States Court United manufacturing process-two of which con law, pre process has held that “due case tained than four of metham more affirming from a appellate vents an court Thus, phetamine. appellant’s factual manufactur upon legal conviction based and were not submitted to the a grounds one bottle of was State, 273 jury.” Wooley than his the sec different act Court, (Tex.Cr.App.2008). This con-' ond bottle with intent distribute its therefore, not, could consistent with due equal Two distinct acts two viola tents. affirm convictions process, appellant’s of the Texas tions of section 481.112 “multiple theory a beaker” fabricating (si Code, Safety but one act Health and discretionary review even the first time on possession manufacture and multaneous concurring opin though, according to the deliver) by one evidenced ion, not violate double theory such a does only equals at one time one bottle seized jeopardy principles. See id.29 of that section. violation of the court portion judgment The vacating appellant’s manufactur- appeals I. The remainder

ing conviction is reversed. operated methamphetamine Appellant affirmed. judgment of its suburb his home in the San Antonio lab at COCHRAN, J., concurring filed anonymous tipped caller An Converse. WOMACK, J., joined. in which opinion the lab. When police off about investigating front for the opened his door HOLCOMB, J., dissenting filed a officers, they immediately smelled in which MEYERS and opinion JOHNSON, JJ., odor associated “overwhelming” chemical joined. packages metham- individually wrapped concurring opinion’s "multiple beak- 29. The liability support theory would opinion er” also separate offense. This phetamine is a individually pack- wrapped each decision that question. not decide that does age methamphetamine in a of other bundle Appellant charged their was with and convict- lab. odor “burned” with a meth (1) They appellant, methamphetamine; arrested lungs and noses. ed of (2) them that a meth “burner” was who told with intent to deliver meth- (3) department The fire operating still inside. amphetamine; of meth- turn off the had to outside responders amphetamine. Although police gath- because the house was power main switch up packaged ered each three drug paraphernalia, meth so cluttered each separately, containers content of they detritus that cooking supplies, and analyzed weighed sepa- container was power strip for the were unable to find rately, and the DPS chemist discussed plate appellant’s hot bedroom separately, each container the State treat- bubbling meth brew. still its ed the three distinct containers as one cache of undifferentiated police, DEA wear- agents Converse Nonetheless, appellant amine at trial. suits, ing hazmat “broke down” the meth any double-jeopardy failed to raise claim fifty lab and carted off over different items trial, methamphetamine-manu- during thus was his burden on relating to the facturing operation. appeal prove undisputed Three of those items facts plastic jars containing meth- glass were “show the double violation is amphetamine: clearly on face of the rec- apparent 1 Appellate courts are not bound ord[.]” (cid:127) large glass A container filled with by prosecutorial deciding theories when

two-layered liquid The top, substance. clearly whether the trial record establishes layer contained double-jeopardy a violation. weighed grams; lay- 74.62 the bottom “junky, a “sledge” er was more of —the II. at the oil-based” substance “sets separates” Jeopardy it The Double bottom of meth when Clauses both “goes pile.” then into the trash the United States and Texas Constitutions (cid:127) prohibit punishing person the state from A Pepper plastic containing Dr. bottle twice for the two-layered protec substance. The same offense.2 This liquid layer specifically guarantee

bottom tion includes a contained weighed grams. amine and 4.49 subject the accused will not be to multiple (cid:127) punishments the assessed in same criminal A glass purplish-col- container with a trial for the statutory same offense.3 As two-layered liquid.

ored The bottom stated, layer previously this court has in Block contained 1.34 of metham- States, phetamine. burger v. the Supreme United State, (Tex. V; 1, 1. v. 643 U.S. Const. amend. Tex Const art. Gonzalez 14; 163, 168, parte (“[B]ecause Lange, § Ex see 85 U.S. Crim.App.2000) the fundamen (1873) ("If Wall. L.Ed. 872 there is jeopardy protections, tal nature of double anything jurisprudence Eng in the settled jeopardy double be raised the claim for America, land and it is that no man can be appeal undisputed time on ... when first the lawfully punished twice the same offence. the facts show double violation is any And ... there never been has doubt of clearly apparent on the face of the record and complete protection [’this entire and rule's] procedur when enforcement of usual rules of party punishment pro when a second is legitimate al default serves no state inter court, facts, posed in tire same on the ests.''). Raising double-jeopardy issue in offence.”); statutory Lopez for the same important the trial court is it insofar as is (Tex.Crim.App. necessary to make a clear record on which to 2003). appellate base an claim. See id. at 645-46. Id. time, propriety “multiple them at the same Court addressed so the real issue is against a whether legislature assessed defen punishments” subject intended to dant, single proceeding, drugs in a for his multi those who manufacture pun to two of the same narcotics statute ishments for the same act ple violations at the same acts committed on different time: manufacture plus possession different double-jeop quantities out the small days.4 plus That court set and manufacture pos ardy test for “sameness” these circum session with intent to large deliver for quantities? stances: “the test is whether individual prohibited, acts are or the course of action plain We must look first to the language former, they If the then constitute. of the statute in determining legisla- punishable separately.... each act is If First, tive intent.9 the title of the statute latter, penalty.”5 there can be but one reads, Delivery “Offense: Manufacture or hinges “this test on Under of Substance in Penalty Group 1.” This legislative intent of the statute at is title indicates either the manufacture sue.” the delivery of a substance in penalty The test in the case is similar to present group constitutes the offense. As we prior Lopez7 out in our case: in Lopez, set did stated the statute is aimed at distribution, Legislature drug intend that traffickers no single large bottle of matter where the stopped defendant simultaneously manufacture, that bottle along the line from pos- deliver, with an intent to deliver to someone else session with intent to actual delivery one violation drugs constitute Section those to the consumer.10 481.112(a),8 penalty or did the intend The is the same no matter where large along that those who manufacture a bottle the continuum the defendant simultaneously stopped. penalty But the increases de- possess it with the intent deliver it pending upon quantity drugs manufactured, delivered, commit two different and distinct offenses possessed course, at the same time? Of who the those intent to the deliver.11 So the legisla- drugs always manufacture almost ture’s focus to possess upon seems be the amount Lopez, (citing Methamphetamine 4. Penalty Group 108 S.W.3d at 296 Blockbur is a 1 con- 299, States, ger v. United 284 U.S. 52 S.Ct. (listing § trolled substance. See id. 481.102 180, (1932)). substances). L.Ed. 76 306 Penalty Group 1 180; 302, 5. 284 U.S. at 52 S.Ct. State, 782, (Tex. Boykin 9. v. 818 S.W.2d 785 State, 640, Manrique see also v. 994 S.W.2d Crim.App.1991). 1999) (McCormick, P.J., (Tex.Crim.App. 646 concurring) (quoting Blockburger). ("Section Lopez, 108 S.W.3d at 299-300 10. provides 481.112 several different means for Manrique, 6. 994 S.W.2d at 646. committing single delivery the a offense of that, quantity drugs so no matter where Lopez, 7. See 108 S.W.3d at 296. along delivery the line of actual the —from sell, 481.112(a) drugs offer to to the of the § 8. Tex. Health Safety & Code them, reads, with the intent deliver the to to actual delivery itself—the dealer be held Except by chapter, per- as authorized a of the offense— n gravamen accountable for the person if the son commits offense know- dangerous drugs distribution of our manufactures, ingly intentionally or deliv- society."). ers, possesses or with intent manufacture or deliver a controlled substance listed in 481.112(b)-(l). Penalty Group § 1. Safety Health & Tex. Code Thus, Ervin.12 involved, jeopardy would any double upon not dis- drugs of the single prohibit multiple punishments for they were manu- whether tinction between manufacturing act or delivered, with the factured, possessed at a intent to deliver would indicate that This intent to deliver. single point time.13 pro- was to treat intent legislative alternative means as scribed behavior that have consid- Several other states with ever-in- committing single offense question the same have reached the ered spe- creasing penalties regardless the simultaneous act of same conclusion: — ever-greater (with involved —for cific act sum, In drug. deliver) specified amounts without the intent same indicates a 481.112 the focus of section single of controlled substance is a quantum punish single offense, offenses, act for double- legislative multiple This conclusion That because single punishment. jeopardy purposes.14 with a is Block- consequence a natural of its “possession our “liberalized also accords with parte out in Ex These cases follow the manufacture.”15 burger standard” as set Commonwealth, State, 804, Beaty v. 125 S.W.3d v. 991 S.W.2d parte 12. Ex Ervin Ervin, 196, (“Most (Ky.2003) jurisdictions that we held (Tex.Crim.App.1999). agree that have considered the issue convic person who commits statu- that a 'manufacturing' 'possessing' manslaughter tory intoxication tions offenses of unit of controlled substance fail the manslaughter has committed the “same" same test.”); People, double-jeopardy purposes Blockburger Patton v. 35 P.3d and can offense for State, 124, (Colo.2001); Craig v. punished only once for one death caused 825, 585, (1993) ("In (“[W]e Ark. 863 S.W.2d at 817 con- that act. 991 S.W.2d manufacturing, manslaughter proving the offense of and intoxication clude that necessarily show the defendant has manslaughter are the offenses for dou- state must same they purposes when involve the control of the controlled substance order to ble-jeopardy so, victim, being possession of imposing convictions for manufacture it. That necessarily a lesser included this situation violates Double substance both in course, Clause.”). manufacturing."); Jeopardy if more than of the offense of Anderson Of State, (Fla.Dist.Ct. defendant's 447 So.2d 238 n. 3 person died as a result of the one act, (possession marijuana App.1983) is “con then the defendant could be con- (or manslaughter sidered the 'same' offense for double intoxication victed of two purposes” marijuana); manslaughter) both offenses offenses because as (Ind.Ct. of an indi- Mudd v. 483 N.E.2d “have a common focus: the death 816; ("The required parte App.1985) proof to establish Id. at see also Ex Rath- vidual.” mell, (Tex.Crim.App.1986) marijuana necessarily manufacture of estab deaths, well; (when resulted in two lishes one cannot know a act ingly intentionally drug of two involun- or manufacture the defendant could be convicted end.”). offenses). possessing tary manslaughter it to that without also Cf. 146, Buchanan, United States v. 830 F.2d (10th Cir.1987) (holding held, that convictions for Supreme 13. The Court possession manufacturing explosive of and separate and deliveries of the distinct Blockburger noting device failed and test days type different constitut- same of on recognized ... have offenses, that "numerous courts the distinct acts of ed so always is incidental to manu Monday manufacturing methamphetamine on merge facture and that the two offenses simultaneously possessing metham- while purposes sentencing."). of phetamine that had been manufactured on offenses, Sunday distinct as are the are also Patton, 127, manufacturing (“Comparing 35 P.3d at distinct acts of meanings Mondays, Tuesdays, ‘posses- 'manufacture' and amine on and Wednes- of 302, sion,’ days. Blockburger, 284 U.S. at 52 S.Ct. it is evident that one who manufactures possesses a also the sub- controlled substance Blockburger ele- rejected a strict expressed Court rationale same common-sense clear- States,16 “Congress the Su- ments test because seems in which Ball v. United that a felon who ly recognized double to have held that Court preme it, possess for both a firearm must also convictions receives the defendant’s barred felon subjecting a convicted no intention of a firearm and thus had receipt of receipt of that for the incidental to to two convictions same person is such a Similarly, Because there in the context firearm.17 criminal act.”20 same the act of overlap Delivery between of the offense of “Manufacture substantial drugs specific quantum 1,” Penalty Group the Tex- of Substance drugs of those rec- clearly and the act to have seems (the simultaneous- begins act of possession who manufactures ognized person that a manufacturing, posses- it, ly with start possess also methamphetamine must of manufactur- after the act sion continues subjecting and thus it had no intention they are delivered completed until ing for the to two convictions person are consumed), acts the two simultaneous criminal act. purposes. double-jeopardy

the “same” III. Attorney correct- Prosecuting The State double-jeop- not end our But that does that, Blockburger a strict ly notes sup- the trial record ardy inquiry because elements only to the formal that looks test committed ports finding statute, cases have a few federal act of manufactur- more than one held that a defen- way other gone the Appellant pos- ing methamphetamine. simulta- twice for punished dant could be bottles of metham- sessed three different manufacturing and neously liquid. At least two phetamine-saturated But, illegal drugs.18 intent to deliver more than four Ball, of them contained stated in Supreme itself as the Court those and each of merely a rule of Blockburger “test” is stage of the manu- two in a different ascertain con- statutory construction to large The first —the facturing process. not a intent.19 It is shibboleth gressional Ball, top layer both glass jar jeopardy. that defines double —contained 864, S.Ct. Id. at it. der the circumstances.” stance in the course omitted). (internal knowing citations requires immediate and ‘Possession’ Logic dictates over the substance. control Miller, 870 F.2d States v. 18. See United required produc- in the that such control Cir.1989) (6th (holding that no We can envision tion of the substance.... marijuana possession of manufacture can manufac- which an individual scenario in marijuana distribute are two with intent to possess- also ture without statutory offenses it.”). Zamora, 784 cumulatively); United States Cir.1986) (10th (holding F.2d 856, 105 S.Ct. 84 L.Ed.2d 16. 470 U.S. possession with in- that “manufacture (1985). [methamphetamine] are dis- tent to deliver facts must for which different tinct offenses 862, (applying S.Ct. 1668 Block- 17. Id. at 105 proven.”). finding burger firearm statutes and test to the Congress not intend clear that did that "it is ("The 861, Ball, 105 S.Ct. 1668 19. 470 U.S. at convictions; proof subject to two felons underlying Blockburger rule is assumption the necessarily in- illegal receipt firearm of a Congress ordinarily not intend to does proof illegal possession of that cludes two different punish offense under the same noted, Supreme Court weapon.”). As the statutes.”). independent overlapping statutes but "[t]he 862, 105 S.Ct. 1668. separate un- 20. Id. at simply are not ‘directed to evils' Here, layer “sledge.” Blockburger, a lower the first act in and liquid meth while it at an seized starting “brew” was to manufacture “brew” of meth This of the stage earlier liquid evidenced in the Dr. Pepper two-lay- than the process manufacturing bottle been before the completed had sec- Pepper in the Dr. bottle. liquid ered starting ond act of to manufacture a Thus, did not manufacture these appellant large glass jar “brew” of meth be- distinct caches gan.23 act or continuum of acts. He case, therefore, appellant In this could for one batch of meth started the brew have been convicted of two counts of man- steps several in the through and took it' ufacturing methamphetamine, two counts the brew for before he started process possessing methamphetamine with the Each “brew” batch of meth. second it, intent to deliver or one count of each.

required culpable a new and consti- separate This is because there were two a new act. The record is prohibited tuted brews, manufacturing separate acts of two much time could have or not clear how nearly product one the ready finished for passed starting have between must delivery, the other still in the manufactur- starting and then the second first “brew” ing process. “brew,”21 chemist was but state’s I agree appellant therefore has process was not simulta- clear double-jeopardy failed to show that a viola- double-jeopardy neous. There is no bar “clearly tion multiple apparent” vio- on the face of the multiple punishments statutory the same offense.22 trial lations of record. State, 701, double-jeopardy appellant (Tex.App. raised his 762 S.W.2d Had Diaz court, 1988) might (possession in the trial the witnesses Houston [14th Dist.] claim cocaine), testimony delivery ref’d, pet. clearer in their concern- have been 796 S.W.2d 183 But, 1990). ing separate processes. (Tex.Crim.App. the distinct and See also Patton v. Peo 124, (Colo.2001) (double any ple, did raise such issue because 35 P.3d court, jeopardy multiple he the burden to show the trial has bars convictions for both “clearly” simultaneously that the trial record shows double- violation; carry jeopardy methamphetamine, the State does not the same cache of but Gonzalez, any noting such burden. See that "a defendant be convicted ("Timely raising [double-jeopardy] lawfully of both manufacture and provided matter in the trial court would have aof controlled substance if the defendant is prosecution oppor- the trial an during court and the convicted of the substance tunity objection, period to remove the basis of the one time it in an provided prosecu- period, and it have also would other time transactions of opportunity aggravated tion to obtain and manufacture in the same time robbery paragraph period.”). conviction based on two unnecessary without the risk of an retrial in multiple punishments the face a valid 302-03, 23.Blockburger, 284 U.S. at 52 S.Ct. claim.”). ("The petitioner contention on behalf of sales, [drug] having is that these two been 302, purchaser 284 U.S. at 52 S.Ct. 180. following made to the same other, prosecution Double does not bar each with no substantial interval of possession, delivery, delivery distinct or manufactur time between the in the ing separate drug quantities where payment offenses first transaction and the for the sec- sold, each quantity are identified for offense. See Smith v. ond constitute a continu- State, 773, case, (Tex.App.-Fort 873 S.W.2d present offense.... In the the first transaction, sale, pet.) (possession delivery resulting Worth no in a had come to cocaine); Toro v. an end. The next sale was not the result of (Tex.App.-San original pet.) impulse, Antonio no but of a fresh one—that cocaine); (possession delivery say, bargain."). and is to of a new Torrez

HOLCOMB, J., dissenting possessed filed a with the intent to deliver. So in which MEYERS and opinion, legislature’s upon focus seems to be JOHNSON, JJ., joined. involved, drugs the amount of the upon any distinction between whether multiple punish-

A defendant suffers manufactured, delivered, they were or Jeopardy ments in violation of Double possessed with the intent to deliver. of, pun- when he is convicted and Clause This legislative would indicate that the for, Legisla- offenses than the ished more State, intent proscribed was to treat the behav- v. ture intended. Ervin S.W.2d (Tex.Crim.App.1999). ior as alternative means of committing a single offense with ever-increasing pen- prosecuted The State Eduardo Guerrero regardless specific act in- for, County jury a Bexar found him alties — ever-greater volved—for amounts of the of, guilty possess- both sum, specified drug. the focus of single quantity with intent to deliver section 481.112 a legislative indicates in- single place in a at a tent to punish single act with a single point in time. Texas Health and Thus, 481.112(a), punishment.... jeop- double [the] Safety § the statute un- Code convicted, ardy prohibit would multiple [clause] der which Mr. Guerrero was provides person punishments that a commits an offense for a act of manufac- “manufactures,” person knowingly if the turing or with intent to deliv- deliver,” “possesses with intent to or “de- single quantity er [a of] methamphetamine. livers” a quantity single point amine at a in time.” 481.002, turn, Section defines the terms State, Guerrero v. 563- “manufacture,” “possession,” “deliver.” (Cochran, J., (Tex.Crim.App.2010) this, Given all of concurring). ways “there five are least commit Accordingly, my view the Legis- is that an Section 481.112: offense under lature intended that the manufacture of a 1) 2) manufacture;

through knowing single quantity 3) sell; offer to or the simultaneous that meth- deliver; through knowing delivery or amphetamine with intent to deliver it to 4) 5) transfer; actual constructive someone else would constitute but one vio- transfer. All of these methods are 481.112(a), § lation of for which there points along continuum the line of pun- could be but one conviction and one distribution, from its manufacture ishment. Given the evidence in this case physical delivery until its to the ultimate given apparent legislative Thus, consumer. no matter where the 481.112(a), Jeop- § underlying Double [quantity actor and his of controlled sub than ardy prohibits inflicting Clause more apprehended along stance] is that con on Mr. punishment one conviction and tinuum, prosecuted the actor would, therefore, I affirm the Guerrero. Lopez under Section 481.112.” judgment appeals. the court of Because (Tex.Crim.App. so, I majority respectfully does not do (footnote 2003) omitted). dissent. Furthermore, penalty is the same no matter

“[t]he along

where the continuum the defen- in- stopped. penalty

dant But the upon quantity

creases depending manufactured, delivered,

the drugs

Case Details

Case Name: Guerrero v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 9, 2009

Citation: 305 S.W.3d 546

Docket Number: PD-1661-08, PD-1662-08

Court Abbreviation: Tex. Crim. App.