326 S.W.3d 189
Tex. Crim. App.
2010

Lead Opinion

OPINION

JOHNSON, J.,

delivered the opinion of the Court

in which MEYERS, PRICE, WOMACK, HOLCOMB, and COCHRAN, JJ., joined.

After his plea in bar on double-jeopardy grounds was overruled, appellant plead nolo contendere to possession with intent to deliver and guilty to manufacture of methamphetamine, both in amount less than 400 grams, but at least 200 grams. After a punishment trial, a jury assessed punishment at 30 years’ imprisonment for each offense. The trial court ordered the two sentences to run concurrently.

On appeal, appellant contended that his conviction of both manufacturing and possession with intent to deliver violated the Fifth Amendment’s prohibition against double jeopardy. Weinn v. State, 281 *191S.W.3d 633, 636 (Tex.App.-Anarillo 2009). The court of appeals agreed with appellant and the state (which initially conceded the issue), holding that the two charges punished appellant twice for the same offense. Id. at 642-43. The court of appeals vacated the conviction for manufacturing methamphetamine and affirmed the trial court with respect to the conviction for possession with intent to deliver. Id. at 643. The state appealed the court’s order vacating of the manufacturing conviction.

We granted review of the double-jeopardy issues raised in the state’s petition for discretionary review.

1. Can a defendant be convicted and punished for both manufacture and the subsequent delivery or possession with the intent to deliver of the same quantity of controlled substances, or does Texas Health and Safety Code § 481.112 allow more than one “allowable unit of prosecution,” i.e. one for the manufacture and one for the delivery?
2. Did the court of appeals err in finding that the offenses of manufacturing a controlled substance and possession with intent to deliver a controlled substance are the same for double-jeopardy purposes, even though the separate offenses are meant to punish separate dangers?

We conclude that the legislature intended that manufacture and simultaneous possession with intent to deliver of the same single quantity of controlled substances constitutes a single offense. Punishing appellant twice for the same offense would violate his constitutional rights against double jeopardy. Therefore, we affirm the court of appeals.

Facts

The record reflects that, in response to a complaint about strange smells, sheriffs deputies approached appellant’s property. They detected a strong odor of anhydrous ammonia and observed appellant put a box in the back of his pickup truck. After detaining appellant, the deputies searched the property, the house, the truck, and appellant himself. They discovered evidence of methamphetamine manufacture, including numerous empty blister packs of Sudafed, a microwave containing Sudafed residue, an anhydrous ammonia dump, lithium batteries, muriatic acid, drain cleaner, cans of Heet, 15 cans of starter fluid, a hydrogen-chloride generator, rock salt, and a single plastic jug with 224.96 grams of liquid that contained methamphetamine in one of the late stages of manufacture. They also found a bottle of a cutting agent, a razor blade, plastic baggies, including one that contained methamphetamine residue, and digital portable scales.

The state filed a three-count indictment. The first count, possession with intent to manufacture, was dismissed before trial. The state alleged in count two that appellant knowingly possessed methamphetamine, with intent to deliver. Count three alleged that appellant knowingly manufactured methamphetamine. All counts alleged an aggregate weight less than 400 grams, but at least 200 grams of methamphetamine, making each offense a first-degree felony. Texas Health and Safety Code § 481.112.

Arguments of the Parties

Appellant contends that the legislature intended to create only one allowable unit of prosecution in the circumstances presented here because the statute lists a “continuum” of offenses designed as alternative means of prosecuting a defendant for engaging in the drug-trafficking process. Furthermore, appellant contends that, even under the Blockburger test, appellant’s conviction violates double jeopardy because he engaged in only a single act, specifically manufacture, and that posses*192sion was an inevitable result of manufacture, requiring no additional evidence to prove possession. Finally, in the event that legislative intent is unclear, the court should apply the rule of lenity to find in favor of appellant.

The state contends that each offense requires proof of different elements, thus satisfying the Blockburger test. Further, based on the use of the disjunctive, the distinct differences in nature and dangers of manufacturing and delivery offenses, and a legislative history of increasing intolerance for drug crimes, the legislature intended to permit multiple convictions.

Double Jeopardy

The Fifth Amendment’s Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Constitution, Amendment V. It protects an accused against: 1) a second prosecution for the same offense after acquittal; 2) a second prosecution for the same offense after conviction; and 3) multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). A claim of multiple punishments may be valid if one offense is a lesser-included offense of the other and the same conduct is punished twice or if the same criminal act is punished under two distinct statutes when the legislature intended the conduct to be punished under either statute, but not both. Langs v. State, 183 S.W.3d 680, 685 (Tex.Crim.App.2006).

To determine whether there have been multiple punishments for the same offense, we begin with the “same elements” test from Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). “[W]here 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.” Id. The Blockburger test is the starting point in the analysis of a multiple-punishments double-jeopardy claim: Bigon v. State, 252 S.W.3d 360, 370 (Tex.Crim.App.2008). “Under the Blockburger test, two offenses are not the same if one requires proof of an element that the other does not.” Bigon, 252 S.W.3d at 370. The analysis in Blockburger is based upon the face of the statute at issue. Blockburger, 284 U.S. at 304, 52 S.Ct. 180. “But in Texas, when resolving whether two crimes are the same for double-jeopardy purposes, we focus on the elements alleged in the charging instrument.” Bigon, 252 S.W.3d at 370, citing Parrish v. State, 869 S.W.2d 352, 354 (Tex.Crim.App.1994).

In the present case, the two charges presented in the indictment each require proof of elements that the other does not. Clearly, possession with intent to deliver requires the proof of intent to deliver, and a conviction for manufacturing a controlled substance requires proof of manufacture. Thus, under the Blockbur-ger test, there is no double-jeopardy violation.

Legislative Intent

“Application of Blockburger does not serve, however, to negate otherwise clearly expressed legislative intent.” Villanueva v. State, 227 S.W.3d 744, 747 (Tex.Crim.App.2007). In the multiple-punishments context, the Blockburger test is no more than a rule of statutory construction, useful in determining legislative intent as to the scope of punishment where the intent is not otherwise manifested, and does not operate to “trump ‘clearly expressed legislative intent.’ ” Garza v. State, 213 S.W.3d 338, 351-52 (Tex.Crim.*193App.2007), citing Ex parte Kopecky, 821 S.W.2d 957, 959 (Tex.Crim.App.1992)(quoting Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983)).

In Ex parte Ervin v. State, 991 S.W.2d 804 (Tex.Crim.App.1999) we addressed the issue of double-jeopardy and legislative intent, and we “laid out a nonexclusive list of factors to consider when examining if two offenses are the same in the context of multiple punishment.” Bigon v. State, 252 S.W.3d at 371. These factors included: 1) whether offenses are in the same statutory section; 2) whether the offenses are phrased in the alternative; 3) whether the offenses are named similarly; 4) whether the offenses have common punishment ranges; 5) whether the offenses have a common focus; 6) whether the common focus tends to indicate a single instance of conduct; 7) whether the elements that differ between the two offenses can be considered the same under an imputed theory of liability that would result in the offenses being considered the same under Blockburger; and 8) whether there is legislative history containing an articulation of an intent to treat offenses as the same for double-jeopardy purposes. Id. citing Ervin, 991 S.W.2d at 814. We further explained that the common-focus factor includes whether the gravamens of the offenses are the same. Ervin, 991 S.W.2d at 814.

Guerrero v. State

In Guerrero v. State, we applied Block-burger and the Ervin factors while addressing a closely analogous double-jeopardy case. See Guerrero v. State, 305 S.W.3d 546 (Tex.Crim.App.2009). Guerrero was in possession of three batches of methamphetamine in various stages of manufacture. Id. at 547-48. Two of the batches contained greater than 4 grams of methamphetamine. Id. Guerrero was convicted of both manufacturing and possessing with intent to deliver methamphetamine, in quantities greater than 4 grams but less than 200 grams, under Texas Health and Safety Code § 481.112. Id.

Guerrero sought review on double-jeopardy grounds and contended that the legislature did not intend for multiple convictions and punishments for his actions. Id. We issued split opinions. A four-judge plurality held that Guerrero’s conviction for manufacturing and possessing with intent to deliver the same cache of methamphetamine did not violate the Double Jeopardy Clause. Id. at 553-54, 557, 560-61. But a majority, comprised of two concurring judges1 and three dissenting judges,2 noted that the legislature did not intend multiple punishments for manufacture and simultaneous possession with intent to deliver with respect to a single quantity of controlled substances. Id. at 563-64, 567 (Cochran, J., concurring; Holcomb, J., dissenting). However, the concurring judges noted that Guerrero had engaged in more than one distinct act by separately producing three distinct batches of methamphetamine. Id. at 561. Two of the batches were of a sufficient amount to sustain separate convictions for manufacturing or pos*194session with intent to deliver at the charged weight. Therefore, the concurrence agreed with the plurality that there was no violation of double jeopardy in that case. Id. “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.” Id.

The five concurring and dissenting judges relied on our earlier analysis of the same statute in Lopez v. State, 108 S.W.3d 293, 297 (Tex.Crim.App.2003). Id. at 563-64. In Lopez, we noted that manufacturing, possessing with intent to deliver, and delivering were all points along the spectrum of the offense of drug trafficking. Lopez v. State, 108 S.W.3d at 299-300. Further, in light of the fact that the legislature enumerated differing punishments based solely on the quantity of drugs discovered, the gravamen of the statute seems to be on the quantity of drugs as opposed to the type of action taken. Id. Therefore, we concluded that the statute established alternative ways to commit a single offense of “distribution of dangerous drugs in our society” and was designed to allow prosecution regardless of where on the continuum the perpetrator is caught. Id.

Conclusion

The present case is distinguished from Guerrero in that, unlike Guerrero’s indictment for manufacture and possession involving three distinct batches of methamphetamine, this appellant was charged and convicted based on the manufacture and simultaneous possession of a single quantity of methamphetamine. In accordance with our analysis of the statute in Lopez, we hold that the legislature intended that Texas Health and Safety Code § 481.112 establishes alternative means of punishing an offense in the continuum of drug distribution. Manufacturing and possession with intent to deliver both create the singular danger that controlled substances will be distributed to society. Therefore, a single act (simultaneous manufacture and resulting possession with intent to deliver) with respect to a single quantity of controlled substances constitutes a single violation of Texas Health and Safety Code § 481.112.

While one cannot manufacture methamphetamine without simultaneously possessing it, this is not true of delivery of that same single quantity of methamphetamine; one can possess without delivering. We reiterate that our holdings here and in Guerrero do not bar a prosecution for delivery of a controlled substance if a person who manufactures (and thereby possesses) a quantity of a controlled substance later delivers that same quantity to a third party. A later sale of that substance to a third party would be a second distinct act, a separate violation of the statute, and a basis for a second punishment. See Blockburger, 284 U.S. at 301-02, 52 S.Ct. 180.

Appellant’s convictions for both the manufacture and simultaneous possession with intent to deliver of a single container of methamphetamine violated the Double Jeopardy Clause. We affirm the judgment of the court of appeals.

KELLER, P.J., filed a dissenting opinion in which KEASLER, and HERVEY, JJ., joined.

KEASLER, J., filed a dissenting opinion in which KELLER, P.J., and HERVEY, J., joined.

Notes

. Id. at 561. (Cochran, J., joined by Womack, J., concurring)("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.”)

. Id. at 567 (Holcomb, J., joined by Meyers and Johnson, JJ., dissenting)("[T]he 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.”)



Dissenting Opinion

*195KELLER, P.J.,

filed a dissenting opinion in which KEASLER, and HERVEY, JJ., joined.

The Court relies on Lopez1 for the proposition that the gravamen of the statute at issue here is “the quantity of drugs” as opposed to “the type of action taken.” The Court bases its holding today on the Lopez “continuum theory,” which says that manufacturing, possessing with intent to deliver, and delivering are “all points along the spectrum of the offense of drug trafficking.” They are all alternative ways to commit a single offense — the offense of “distribution of dangerous drugs in our society,” “regardless of where on the continuum the perpetrator is caught.” As I have said before, the big problem with the continuum theory is that it means that a person who manufactures a controlled substance is free to later sell that substance to a third party without subjecting himself to prosecution for an additional offense.2

In order to avoid this irrational outcome, the Court engages in some strange maneuvers. It refers to supposed holdings in this case and in Guerrero3 that manufacture and delivery of drugs are separate offenses, even though those were not the offenses at issue in either case, and even though Guerrero was a plurality opinion. More importantly, it chops off the end of the Lopez continuum, even though that is the only basis for its holding in this case. If “distribution of dangerous drugs” is not a single offense, as the Court held in Lopez, then not only has the Court overruled that opinion sub silentio, it has lost the footing for its holding today.

I respectfully dissent.

. Lopez v. State, 108 S.W.3d 293 (Tex.Crim. App.2003).

. Id. at 302 (Keller, P.J., concurring).

. Guerrero v. State, 305 S.W.3d 546 (Tex.Crim.App.2009).



Dissenting Opinion

KEASLER, J.,

filed a dissenting opinion in which KELLER, P.J., and HERVEY, J., joined.

The majority incorrectly distinguishes the facts of this case from those in our recent decision in Guerrero v. State.1 But the facts of Guerrero are identical. In Guerrero, a plurality of us held that Guerrero’s convictions for manufacturing and possessing with intent to deliver the same cache of methamphetamine did not violate the Double Jeopardy Clause.2 Though Guerrero’s manufacture and possession with intent to deliver were close in time, they “were discrete acts with different impulses” — “one impulse to manufacture and another impulse to possess for the purpose of delivering what has been manufactured.”3 The same can and should be said here. I would therefore hold that there is no jeopardy violation and reverse the court of appeals’s judgment.

. 305 S.W.3d 546 (Tex.Crim.App.2009) (plurality op.).

. Id. at 553-54, 557, 560-61.

.Id. at 554.