*1 MONTANO Carlos Herman Clay WILSON Wendell v. v. STATE. STATE. 0682-91. No.
No. 0371-90. Texas, Appeals Criminal Court of En Banc. Texas, of Criminal Court En Banc. 11, 1991. Sept. June discretionary appellants’ petition for
On granted and remanded review: Appeals. Court discretionary appellants’ petition On appeals court of review: remanded that court.
reversed: cause Texas, Appellant, STATE
v. Wayne and Aaron ENGELKING Donald Sloan, Appellees. Lambert Richard AYCOCK Charles 0918-89, 0919-89. Nos. Texas, Appeals of Criminal Court of STATE. En Banc. Sept. discretionary petition appellants’ On and remanded granted
review: Appeals.
Court J.,
White, result. concurred McCormick, P.J., dissenting opin- ion. *2 to dis pretrial motions
grams. Both
miss these indictments
hearing, the trial
acquittal. After a
prior
ordered
granted the motions and
judge
ap
dismissed.
both indictments
Appeals,
to the First Court
pealed
and ordered that
the trial court
reversed
v. En
indictments be reinstated. State
(Tex.App.
gelking, 771 S.W.2d
—Hous
1989).
ton [1st Dist.]
argue
Appellees
that the instant
tion is for the same offense as
acquitted
earlier
in cause
were
417,547,
417,548
also
before
numbers
proceed
In those
the 177th District Court.
charged by indictment with
ings
both
Methamphetamine greater
Possession of
grams. Although
than or
to 400
appeal,
convicted at trial and affirmed
acquittal were nevertheless
judgments of
this Court held the evidence
ordered when
constitutionally insufficient
trial
adduced at
methamphetamine in
quantity alleged. En
was
(Tex.Cr.
State,
Appellees contend double constitu- provisions of the state and federal prosecution under prohibit successive these circumstances because charge lesser included or, acquitted of those for which alternative, both former because upon a were founded a statute which defines but Schneider, Troy McKinney, Stanley W. G. claim, event, pend- In either Moran, Houston, appellees. and Tom “the same of- ing prosecutions are for Holmes, Jr., Atty., and B. Dist. John prosecutions insofar fense” as the former Roe, Cochran, Jr., and Mike E. Winston prohibitions are con- jeopardy as double Houston, Hut Attys., Dist. Robert Asst. cerned. See Austin, tash, Atty., for the State. State’s I, 14; Art. I. opinions from our earlier apparent It is APPELLEES’ PETITIONS ON
OPINION 214, and 750 S.W.2d at Engelking, in REVIEW FOR DISCRETIONARY Sloan, S.W.2d at BENAVIDES, Judge. penal statute under a providing that: charged in num cause Appellees stand Act, authorized 516,042 Except as 516,136 the 177th before bers if he know- Metham commits Possession of District Court with possesses a con- intentionally ingly or consisting of phetamine Group (c), pro- Penalty 1 un- (d)(2). directly vided Subsections less the substance from, to, pursuant prescription valid Clearly, alleging Pos practitioner acting order while Methamphetamine than session *3 practice. professional of his the course grams, or to such as those 400 (b) (a) An under offense Subsection of prosecutions the of the felony this section is a of second based, charge of violations Section do degree if the amount the of controlled 4.04(c), provided in punishable as are is, possessed by aggregate substance (d)(2) Subsection of that Section. Of including any weight, course, adulterants or dilu- allege possession need the State not tants, grams. grams charge of more to a violation 400 or 4.04(c), only possession of of Section but (c) person A commits an grams or Whether the amount “28 more.” if commits an offense offense the equals grams punish 400 is a or exceeds under Subsection of this section and issue under ment to be resolved Subsec the amount the controlled substance of (d)(2) penalty phase at the weight, possessed is, aggregate in- by of trial. It is not an element of the offense dilutants, cluding any 28 adulterants or Wilson, 772 passim. itself. See S.W.2d grams or more. pending here in But the (c) (d) An offense under Subsection of question allege a meth- quantity do of not this section is: grams amphetamine “28 or more.” In- (1) punishable by confinement in the deed, they allege quanti- that the expressly Department life of Corrections for Texas ty grams.” 28 possessed “less than years 99 or a term of not more than for Accordingly, they charge do not years, a fine or less than 5 not 4.04(c) They against of the Act. Section $50,000, con- if the amount the exceed however, sufficiently do, allege a violation is, by possessed aggre- trolled substance 4.04(a), require not which does Section including gate weight, any adulterants or short, quantity. pending In the proof of dilutants, grams 28 or more but less than allege statutory of- different grams; 400 fenses than those (2) punishable by confinement in the previously acquitted. life Department of Texas Corrections Moreover, alleged statutory offenses years than 99 or for a term of not more pending and former indictments a fine years, than 10 not less relationship to one plainly stand in such $100,000, if amount of the excceed un- another is, by substance controlled 4.04(a) are for lesser included der Section including any aggregate weight, adulter- formerly un- offenses those dilutants, grams 400 or more. ants 4.04(c), they are der since “estab- Section Act,” 4476-15, Substances Art. “Controlled proof the same or less than all by lished V.T.C.A., See now Sec. Y.A.C.S. required to the commis- the facts establish Code, Sub- Safety & “Controlled Health in the former sion of” Act,” The 481.115. stances 37.09(1), Y.A.C.C.P. indictments. See upon this also founded prosecutions are definition, Indeed, of a commission Sec- statute. 4.04(c) requires “an proof of tion (a) of sec- under by offense Subsection analyzed way prescribed When proof the con- tion” in addition holding in our recent Wilson “28 grams amounted to (Tex.Cr.App.1989), the statute S.W.2d 4.04(a), already men- or more.” Section as separate offenses. question defines two tioned, require proof quanti- does not set out The of the elements first consists (b) provides pen- ty, although (a), provid- Subsection second, only quantity is alty its if the (b). aggra- an violation The ed in Subsection Accordingly, grams. the stat- than 28 elements found less contains the vated Moreover, 4.04(a) present utory does not elements of Section are entire- 4.04(c). ly recapitulated by us the reserved those Section if, is, therefore, a like result would follow whether The former a lesser included appellees’ earlier offense of the latter. charge an in- had included struction on the lesser included offense II. erroneously re- or if the trial court had pros- concedes that the instant request for a lesser fused the State’s ecutions, although on new indict- based offense instruction. ments, necessarily rely upon the same will does the n. 4. Neither S.W.2d gave historical facts as rise to the earlier *4 that record in the instant cause disclose
prosecutions, sub- and that the controlled given such instructions were stance now to have been trials, appellees’ any nor by appellees allegedly is the same as that requested by the State. possessed by them the cases where of the Court of is acquitted. The State also concedes reversed, and causes are remanded to these are for lesser for dismissal of the 177th District Court included offenses 516,- 516,136and the indictments numbered acquitted. appellees were earlier Nevertheless, argues
reprosecution for lesser included offenses WHITE, J., concurs in the result. greater following appellate acquittal McCORMICK, Presiding Judge, jeopardy prohibi is not offensive to double dissenting. tions of the state and federal constitutions. contention, however, This has since been my set forth in dissent For the reasons contrary position resolved to the State’s ing Stephens, opinion parte in Ex Haron (Tex.Cr.
Stephens v.
was insufficient evidence
aggravating element of that Jeopardy
Double
Clause bars a subse-
quent prosecution for
the lesser
REZAPOUR, Appellant,
Kamran
lees for lesser included offenses finding appeal of insufficient evidence greater, support of
fenses for which both state and fed an earlier trial. Under Rehearing Denied Oct. constitutions, as we have construed eral must all such issues be them may not be
resolved subject of successive
made the tions. U.S. I, 14;