               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS



                 NOS. PD-0275-18 & PD-0276-18

                SHANNA LYNN HUGHITT, Appellant

                                    v.

                        THE STATE OF TEXAS

      ON STATE’S PETITION FOR DISCRETIONARY REVIEW
           FROM THE ELEVENTH COURT OF APPEALS
                      BROWN COUNTY

      N EWELL, J., delivered the opinion of the Court, in which
K EASLER, H ERVEY, R ICHARDSON, Y EARY, K EEL, W ALKER, and S LAUGHTER ,
JJ., joined. K ELLER, P.J., concurred.

     Shanna Lynn Hughitt was charged with and convicted of engaging

in organized criminal activity (“engaging”) based on the predicate offense

of possession of a controlled substance with intent to deliver. The issue

here is whether that offense—possession of a controlled substance with

intent to deliver—is a valid predicate offense for the crime of engaging.
                                                               Hughitt — 2

     The issue turns on whether the phrase “unlawful manufacture,

delivery” as it modifies “controlled substance” in Section 71.02(a)(5) of

the Texas Penal Code references the offense of “possession of a controlled

substance with intent to deliver.” If it does, then possession with intent

to deliver is a predicate offense.   If not, then it is not.   The court of

appeals   concluded   that   the   words   “manufacture,   delivery”   were

inconsistent with the offense of “possession with intent to deliver.”

Consequently, the court of appeals held that possession with intent to

deliver was not a predicate offense for the crime of engaging. We agree

and affirm.

I.   Background

     Shanna Lynn Hughitt was living with Kevin Sliger, a self-described

drug addict and methamphetamine dealer. The Brown County Sheriff’s

Office was conducting an investigation into methamphetamine distribution

in Brownwood, Texas. In furtherance of that investigation, the Sheriff’s

Office executed a search warrant at Hughitt and Sliger’s home.

     When executing the warrant, police found Sliger in the dining room

with illegal drugs on his person. Hughitt was found in a bedroom with

about one gram of meth and a glass pipe under her clothes. There was

also an ounce of marijuana in the bedroom closet and a gallon-sized
                                                                                  Hughitt — 3

ziploc bag with meth residue under the mattress. Other items found in

the house included cash, drug packaging, rolling papers, syringes, scales,

a digital police scanner, and a large amount of MSN “cut.” 1

       The State charged Hughitt with the offense of engaging predicated

on committing the offense of possession of a controlled substance with

intent to deliver.2 Hughitt filed a motion to quash the indictment, arguing

that possession of a controlled substance with intent to deliver is not a

predicate offense under the engaging statute. In other words, prior to

trial, Hughitt asserted that the indictment failed to allege the offense of

engaging.3 The trial court denied the motion. Hughitt proceeded to trial,

and a jury found her guilty. The trial court sentenced Hughitt to 18 years’

imprisonment.


       1
        At trial, Investigator Carlyle Noe Grover with the Brown County Sheriff’s Office
explained that MSN is “like a supplem ent used for horses.” He further explained the
m eaning of “cut”: “Cut is just like— it creates m ore volum e or m ore weight for the drug. . . .
And what they will do is, say, if you buy an ounce of m etham phetam ine and you put
another ounce of cut in there, now you have 2 ounces of m etham phetam ine. So, you can
double your profits.”

       2
         Hughitt was also charged with possession with intent to deliver m etham phetam ine
in an am ount between four and 200 gram s for which she was convicted and sentenced to 10
years’ im prisonm ent. The court of appeals held that the evidence was insufficient to support
that conviction and ordered it reform ed to reflect the lesser included offense of possession
with intent to deliver between one and four gram s. That conviction is not at issue here.
See note 44.

       3
          Hughitt does not argue that the indictm ent in this case failed to vest the district
court with subject-m atter jurisdiction. See, e.g., Teal v. State, 230 S.W .3d 172, 182 (Tex.
Crim . App. 2007) (holding that an indictm ent failing to allege every elem ent of the felony
offense of hindering apprehension nevertheless vested the district court with subject m atter
jurisdiction).
                                                                                Hughitt — 4

       Hughitt appealed, arguing, among other things, that the trial court

erred in denying her motion to quash the indictment.                          The court of

appeals agreed, holding that possession with intent to deliver is not a

predicate offense under the engaging statute.4                     The court of appeals

reasoned that the engaging statute only lists manufacture or delivery of

a controlled substance as relevant possible predicate offenses—not the

distinct offense of possession with intent to deliver.5 The court further

explained that incorporating possession with intent to deliver into

“unlawful manufacture, delivery, . . . of a controlled substance” in

Section 71.02(a)(5) would be inconsistent with the Health and Safety

Code’s definitions of “manufacture” and “delivery.” 6 Thus, the court of

appeals in this case vacated Hughitt’s engaging conviction and dismissed

the indictment because the indictment failed to allege an offense under



       4
           Hughitt v. State, 539 S.W .3d 531 (Tex. App.— Eastland 2018).

       5
           Id. at 537.

       6
          Id. The Health and Safety Code defines “m anufacture,” in relevant part, as: “[T]he
production, preparation, propagation, com pounding, conversion, or processing of a
controlled substance other than m arihuana, directly or indirectly by extraction from
substances of natural origin, independently by m eans of chem ical synthesis, or by a
com bination of extraction and chem ical synthesis, and includes the packaging or
repackaging of the substance or labeling or relabeling of its container. . . .” T EX . H EALTH &
S AFETY C O D E § 481.002(25). The definition for “delivery” states: “[T]o transfer, actually or
constructively, to another a controlled substance, counterfeit substance, or drug
paraphernalia, regardless of whether there is an agency relationship. The term includes
offering to sell a controlled substance, counterfeit substance, or drug paraphernalia.” T EX .
H EALTH & S AFETY C O D E § 481.002(8).
                                                                           Hughitt — 5

the engaging statute.

      The State              Prosecuting Attorney’s Office filed a petition for

discretionary review with this Court. The SPA argues that the court of

appeals erred in vacating the conviction and dismissing the indictment.

The SPA asks us to hold that possession with intent to deliver is a

predicate offense under the engaging statute. We decline to do so.

II.   Standard of Review and Applicable Law

      “An ‘indictment’ is the written statement of a grand jury accusing a

person therein named of some act or omission which, by law, is declared

to be an offense.”7 In other words, an indictment must state facts that,

if proved, show an actual violation of the law.8                  The sufficiency of an

indictment is a question of law.9 When reviewing the denial of a motion

to quash turns solely upon the issue of the sufficiency of the indictment,

we review the trial court’s decision de novo.10

      Generally, an indictment that tracks the language of the applicable




      7
          T EX . C O D E C RIM . P RO C . art. 21.01.

      8
          Posey v. State, 545 S.W .2d 162, 163 (Tex. Crim . App. 1997).

      9
          State v. Moff, 154 S.W .3d 599, 601 (Tex. Crim . App. 2004).

      10
           Id.
                                                                              Hughitt — 6

statute will satisfy constitutional and statutory requirements.11 The first

step in this analysis is to identify the elements of the offense.12 Here, the

State argues that the predicate offense of possession of a controlled

substance with intent to deliver can be an element of the offense of

engaging. Hughitt argues that it cannot. To determine who is correct, we

must analyze the engaging statute to determine whether the indictment

alleges the necessary elements of the offense charged.

       Our precedents hold that, when interpreting a statute, we seek to

effectuate the “collective” intent or purpose of the legislators who enacted

the legislation.13 We read the statute as a whole and give effect to the

plain meaning of the statute’s language, unless the statute is ambiguous

or the plain meaning leads to absurd results.14                      To determine plain

meaning, we look to the statute’s literal text and construe the words

according to rules of grammar and usage.15 We presume that every word


       11
            State v. Mays, 967 S.W .2d 404, 406 (Tex. Crim . App. 1998).

       12
            State v. Jarreau, 512 S.W .3d 352, 354 (Tex. Crim . App. 2017).

       13
            Yazdchi v. State, 428 S.W.3d 831, 837 (Tex. Crim . App. 2014).

       14
          Liverm an v. State, 470 S.W .3d 831, 836 (Tex. Crim . App. 2015); see also Boykin
v. State, 818 S.W.2d 782, 785 (Tex. Crim . App. 1991) (“[I]f the m eaning of the statutory
text, when read using the established canons of construction relating to such text, should
have been plain to the legislators who voted on it, we ordinarily give effect to that plain
m eaning.”).

       15
            Yazdchi, 428 S.W .3d at 837.
                                                                               Hughitt — 7

in a statute has been used for a purpose and that each word, clause, and

sentence should be given effect if reasonably possible.16

III. The Words “Manufacture, Delivery” in Section 71.02(a)(5)
     Do Not Reference the Distinct Offense of “Possession of a
     Controlled Substance With Intent to Deliver”

       Section 71.02 of the Penal Code makes it an offense to engage in

organized criminal activity.17 A person commits that offense if the person

“commits or conspires to commit one or more” predicate offenses (with

the specific intent described in the statute).18 Part (a) of Section 71.02

lists the predicate offenses for engaging.                     Subsection (a)(5)—the

subsection at issue here—lists as a predicate:

       unlawful manufacture, delivery, dispensation, or distribution
       of a controlled substance or dangerous drug or unlawful
       possession of a controlled substance or dangerous drug
       through forgery, fraud, misrepresentation, or deception.19

       Here, only the first clause of (a)(5) is at issue. Both parties assert

that the statutory language—“unlawful manufacture, delivery, . . . of a

controlled substance”—is unambiguous.                   And we agree. However, the

       16
            Liverm an, 470 S.W .3d at 836.

       17
            T EX . P ENAL C O DE § 71.02.

       18
            T EX . P ENAL C O DE § 71.02(a).

       19
          T EX . P ENAL C O DE § 71.02(a)(5) (em phasis added). The SPA does not argue that
Hughitt’s conduct falls within the second clause of (a)(5)— specifically, “unlawful possession
of a controlled substance or dangerous drug through forgery, fraud, m isrepresentation, or
deception.”
                                                                                   Hughitt — 8

parties disagree on the meaning of the statutory language and how it

should be interpreted. There is no question that Section 71.02(a) does

not explicitly include the crime of “possession with intent to deliver” as a

predicate offense. The issue instead is whether our Legislature’s use of

the words “manufacture, delivery” to modify “controlled substance”

includes, by way of reference, the offense of “possession with intent to

deliver.” We conclude that it does not.

       In the SPA’s view, the words “manufacture, delivery” in (a)(5)

should be treated as a broader reference to offense headings rather than

as a description of specific offenses.                Treated as such, the use of the

words “manufacture, delivery” demonstrates the Legislature’s intent to

include the offense of possession with intent to deliver as a predicate

offense for the greater offense of engaging.                        The SPA asserts that,

reading the original statute as a whole, “most of the predicate offenses

are listed by statutory section heading.” This suggests, according to the

SPA, that the phrase “manufacture, delivery . . . of a controlled

substance” is a reference to offense headings in the Controlled

Substances Act.20



       20
        State’s Br. 18; see, e.g., T EX . H EALTH & S AFETY C O D E § 481.112 (“Offense:
Manufacture or Delivery of Substance in Penalty Group 1.”).
                                                                                Hughitt — 9

       The SPA points to the fact that, “[w]hen the [engaging statute] was

created in 1977, there was a single, comprehensive offense in the

Controlled Substances Act with the section heading ‘Unlawful Manufacture

or Delivery of Controlled Substances.’”21 Possession with intent to deliver

was an offense under that section heading.22                     In the SPA’s view, the

Legislature intended to reference that section heading in the Controlled

Substances Act (which, following some amendments, was codified in the

Health and Safety Code). Therefore, the SPA concludes, “manufacture,

delivery” includes the offense of possession of a controlled substance with

intent to deliver, making it a predicate offense under the engaging

statute.

       We have addressed the language of (a)(5) in another context. In

Nichols v. State, the appellant argued that (a)(5) was vague because

“deliver” and “controlled substance” are not defined in the Penal Code.23


       21
           State’s Br. 18. The Controlled Substances Act has been am ended a few tim es
since its original enactm ent. As the SPA points out, the Act originally had one
com prehensive Manufacture or Delivery heading for all penalty groups. See Act of 1973,
63rd Leg., R.S., ch. 429, § 4.03, 1973 Tex. Gen. Laws 1132, 1153-54. One of the
am endm ents split that statute into m ultiple statutory sections by penalty group. See Act of
1981, 67th Leg., R.S., ch. 268, § 3, secs. 4.03, 4.031, 4.32, 1981 Tex. Gen. Laws 696,
698–99. The Controlled Substances Act was later codified into the Health and Safety Code.
See T EX . H EALTH & S AFETY C O D E §§ 481.112, .1121, .113, .114.

       22
            See Act of 1973, 63rd Leg., R.S., ch. 429, § 4.03, 1973 Tex. Gen. Laws 1132,
1153-54.

       23
            Nichols v. State, 653 S.W .2d 768, 771 (Tex. Crim . App. 1981) (panel op.).
                                                                             Hughitt — 10

We held that the statute was not vague, reasoning:

       We think it obvious that the references of Sec. 71.02(a)(5) to
       “unlawful manufacture, delivery, dispensation, or distribution
       of a controlled substance or dangerous drug, or unlawful
       possession of a controlled substance or dangerous drug
       through forgery, fraud, misrepresentation, or deception” are
       necessarily references to those offenses as defined in the
       Controlled Substances Act and the Dangerous Drugs Act.24

       In a possession with intent to deliver case, Lopez v. State, we

recognized the purpose of including possession with intent to deliver

under “manufacture or delivery” offenses.25 We stated that, through that

inclusion, the Legislature has

       ensured that society’s hands are not tied in prosecuting what
       is, for all intents and purposes, a delivery, merely because the
       drugs did not actually make it all the way into the buyer’s
       hands. Under Section 481.112, [which proscribes manufacture
       or delivery of a substance in penalty group 1,] the fact that a
       transfer is thwarted will not negate conviction for delivery of
       that drug.26

Nichols, at least, would seem to support the SPA’s contention that (a)(5)

merely references offense headings and does not set out specific




       24
            Id.

       25
            Lopez v. State, 108 S.W.3d 293, 300 (Tex. Crim . App. 2003).

       26
           Id.; see also id. at 303 (Keller, P.J., concurring) (“By also including a clause
proscribing possession with intent to m anufacture or deliver, the Legislature m ade evident
its intent that equal punishm ent should be im posed against those who are stopped by law
enforcem ent from reaching their objective, whether it is the m anufacture or the delivery of
the illegal drug.”).
                                                                             Hughitt — 11

offenses. That interpretation, however, fails to give effect to the plain

meaning of “manufacture” and “delivery.”

        When determining the meaning of a statutory term, the most

obvious place to start is the statutory definition. Here, the Penal Code

does not define “manufacture” or “delivery.” But the Health and Safety

Code, which outlines the offenses dealing with controlled substances,

does.

        The Health and Safety Code defines “manufacture,” in relevant part,

as:     “[T]he         production,         preparation,       propagation,   compounding,

conversion, or processing of a controlled substance[,] . . . directly or

indirectly by extraction from substances of natural origin, independently

by means of chemical synthesis, or by a combination of extraction and

chemical synthesis, and includes the packaging or repackaging of the

substance or labeling or relabeling of its container. . . .” 27 In short, that

definition requires the act of extraction or chemical synthesis, packaging

or repackaging, or labeling or relabeling. It does not include possession

with intent to deliver, by itself, without one of those specified acts.

        And, as a plurality of this Court has previously recognized in the




        27
             T EX . H EALTH & S AFETY C O DE § 481.002(25).
                                                                                 Hughitt — 12

double-jeopardy context, manufacturing and possessing with intent to

deliver “do not have a common ‘focus.’ The focus of the manufacturing

offense is on the production of a controlled substance while the focus of

the possession-with-intent-to-deliver offense is on delivering what has

been manufactured.”28 Thus, we conclude that our Legislature’s use of

the word “manufacture” was not intended as a reference to the distinct

offense of “possession with intent to deliver.” We now turn to “delivery.”

        The Health and Safety Code defines “deliver,” in relevant part, as:

“[T]o transfer, actually or constructively, to another a controlled

substance . . . .”29            That definition requires more than the act of

possessing a controlled substance even if the act is accompanied by an

intent to later deliver that substance; it requires an act of transfer—either

actual or constructive—to constitute “delivery.” 30

       The Health and Safety Code’s definition is consistent with standard


       28
            Guerrero v. State, 305 S.W .3d 546, 556 (Tex. Crim . App. 2009) (plurality op.).

       29
          T EX . H EALTH & S AFETY C O DE § 481.002(8). W hile the wording of the definition was
slightly different when the EOCA was originally enacted, the substance of the relevant part
rem ains the sam e. See Act of 1973, 63rd Leg., R.S., ch. 429, § 1, sec. 1.02(8), 1973 Tex.
Gen. Laws 1132, 1133 (“‘Deliver’ or ‘delivery’ m eans the actual or constructive transfer from
one person to another of a controlled substance, whether or not there is an agency
relationship. . . .”).

       30
           Actual Delivery, B LACK ’S L AW D ICTIO NARY (11th ed. 2019) (“The act of giving real and
im m ediate possession to the buyer or the buyer’s agent.”); Constructive Delivery, B LACK ’S
L AW D ICTIO NARY (11th ed. 2019) (“An act that am ounts to a transfer of title by operation of
law when actual transfer is im practical or im possible. . . .”).
                                                                                      Hughitt — 13

dictionary definitions of “delivery.”31 For example, Webster’s Third New

International Dictionary defines “deliver” as: “[T]he act of putting

property into the legal possession of another . . . whether involving the

actual transfer of the physical control of the object from one to the other

or being constructively effected in various other ways . . . .” 32                           Other

dictionaries provide similar definitions.33 Therefore, reading “delivery” to

reference the offense of “possession with intent to deliver” would be

inconsistent with both the Health and Safety Code’s definition of “deliver”

and standard dictionary definitions of “delivery.”

       Further, we must read the words “manufacture, delivery” in the

context of the whole statute.34 Doing so leads to two important indicators


       31
          See Ram os v. State, 303 S.W .3d 302, 306 (Tex. Crim . App. 2009) (“W hen
attem pting to discern that fair, objective m eaning, we m ay consult standard dictionaries.”).

       32
            Delivery, W EBSTER ’S T H IRD N EW I NTERNATIO NAL D ICTIO NARY (3d ed. 2002).

       33
           Delivery, A M ERICAN H ERITAG E D ICTIO NARY (5th ed. 2016) (“2a. The act of transferring
to another. b. Law A form al act of transferring ownership of property to another: delivery of
a deed. . . .”) (em phasis rem oved); Delivery, B LACK ’S L AW D ICTIO NARY (11th ed. 2019) (“The
form al act of voluntarily transferring som ething. . . .”); Delivery, N EW O XFO RD A M ERICAN
D ICTIO NARY (3d ed. 2010) (“Law [T]he form al or sym bolic handing over of property, esp. a
sealed deed, to a grantee or third party. . . .”); Delivery, W EBSTER ’S N EW W O RLD C O LLEG E
D ICTIO NARY (5th ed. 2014) (“Law a) the irrevocable transfer of a deed or other instrum ent of
conveyance b) the transfer of goods or interest in goods from one person to another.”);
Delivery, D ICTIO NARY O F L EG AL T ERM S (4th ed. 2008) (“[A] voluntary transfer of title or
possession from one party to another; a legally recognized handing over to another one’s
possessory rights. Where actual delivery is cum bersom e or im possible, the courts m ay find
constructive delivery sufficient if the intention is clearly to transfer title. . . .”) (em phasis
rem oved).

       34
         State ex rel. W ice v. Fifth Jud. Dist. Ct. App., ___ S.W .3d ___, 2018 W L 6072183,
at *6 (Tex. Crim . App. Nov. 21, 2018); A NTO NIN S CALIA & B RYAN A. G ARNER , R EAD ING L AW 167
                                                                                Hughitt — 14

of legislative intent. First, if the Legislature wanted to reference specific

statutory sections to identify viable predicate offenses, it could have done

so. In fact, the Legislature did just that in other statutory subsections.

For example, Section 71.02(a)(11) designates “any offense under Section

37.11(a)” as a viable predicate for the offense of engaging.35 Similarly,

Section 71.02(a)(15) designates “any offense under Section 42.10” as a

viable predicate offense.36               And, when our Legislature wanted to

designate a broader array of offenses within a statutory scheme, it

identified possible predicate offenses as contained within statutory

chapters.37

       Indeed, our Legislature demonstrated its intent to reference offense

headings within the Health and Safety Code in another section of the

Organized Crime Chapter in the Penal Code. Section 71.023 creates the

umbrella offense of directing activities of criminal street gangs.38                           As


(2012) (“Context is a prim ary determ inant of m eaning.”).

       35
         T EX . P ENAL C O DE § 71.02 (a)(11). Section 37.11(a) m akes it an offense to
im personate a public servant. See T EX . P ENAL C O D E § 37.11(a).

       36
          T EX . P ENAL C O DE § 71.02 (a)(15). Section 42.10 m akes specific activities regarding
dog fighting an offense. See T EX . P ENAL C O D E § 42.10.

       37
         T EX . P ENAL C O DE § 71.02(a)(10) (“any offense under Chapter 34, 35, or 35A”).
Chapter 34 covers m oney laundering offenses, Chapter 35 covers insurance fraud, and
Chapter 35A covers health care fraud. See T EX . P ENAL C O D E chs. 34, 35, 35A.

       38
         Specifically, Texas Penal Code § 71.023 states: “A person com m its an offense if
the person, as part of the identifiable leadership of a crim inal street gang, knowingly
                                                                               Hughitt — 15

Hughitt points out, Section 71.023—unlike Section 71.02(a)—explicitly

references Health and Safety Code provisions. Hughitt asserts that “[i]f

the legislature intended for the [engaging] statute to be read in

conjunction with the Health and Safety Code, it could have referenced the

Health and Safety Code in Section 71.02, as it did in Section 71.023.” 39

The State argues that this supports its argument because it is improbable

that the Legislature would exempt possession with intent to deliver as a

predicate offense for gang members but include it for gang leaders.

       We agree with Hughitt. The Legislature knows how to specifically

reference chapters, headings, and sections in the Penal Code, as well as

other codes, so that all offenses under those chapters, headings, and

sections are included within that reference.40 Yet it chose not to explicitly

reference the Health and Safety Code in Section 71.02(a), suggesting

that the Legislature did not intend the words “manufacture, delivery” as

references to offense headings within the Health and Safety Code.



finances, directs, or supervises the com m ission of, or a conspiracy to com m it, one or m ore
of the following offenses by m em bers of a crim inal street gang: . . . (3) an offense that is
punishable under Section 481.112(e), 481.112(f), 481.1121(b)(4), 481.115(f), or
481.120(b)(6), Health and Safety Code.” T EX . P ENAL C O D E § 71.023(a)(3).

       39
            Hughitt’s Br. 8.

       40
         Cf. Cornet v. State, 359 S.W .3d 217, 222 (Tex. Crim . App. 2012) (stating that
“when the Legislature desires to convey a certain level of specificity within a statutory
provision, it knows how to do it”).
                                                                                  Hughitt — 16

       Second, Section 71.02(a)(5) also provides for possession of a

controlled substance as a predicate offense when that offense is

committed under certain circumstances. The second clause of (a)(5) lists

as a predicate: “unlawful possession of a controlled substance or

dangerous          drug      through       forgery,       fraud,    misrepresentation,            or

deception.” 41         So unlawful possession of a controlled substance plus

forgery, fraud, misrepresentation, or deception is a predicate offense.

Our Legislature’s limitation of the use of possession of a controlled

substance as a predicate felony to those circumstances—forgery, fraud,

misrepresentation, or deception—implies that the Legislature intended to

exclude possession with an intent to deliver as a possible predicate

offense.42

       The statutory text is “the best indicator of legislative intent[.]” 43

Here, our Legislature’s use of the words “manufacture, delivery” to



       41
            T EX . P ENAL C O DE § 71.02(a)(5) (em phasis added).

       42
         A general rule of statutory interpretation is that the expression of one thing im plies
the exclusion of other, unexpressed things. Cham bers v. State, ___ S.W .3d ___, 2019 W L
2612770, at *4 (Tex. Crim . App. June 26, 2019) (citing State v. Hill, 499 S.W .3d 853, 866
n.29 (Tex. Crim . App. 2016); S CALIA & G ARNER , R EAD ING L AW 107).

       43
           Shipp v. State, 331 S.W .3d 433, 437 (Tex. Crim . App. 2011) (plurality op.); City of
Round Rock v. Rodriguez, 399 S.W .3d 130, 133 (Tex. 2013) (“W e exam ine the statute’s
text, as it provides the best indication of legislative intent.”); S CALIA & G ARNER , R EAD ING L AW
56 (“The words of a governing text are of param ount concern, and what they convey, in
their context, is what the text m eans.”).
                                                                             Hughitt — 17

modify “controlled substance” were not intended as a reference to the

distinct offense of “possession of a controlled substance with intent to

deliver.” Holding otherwise would require us to write language from the

Health and Safety Code into the engaging statute in the Penal Code.

IV.    Conclusion

       Possession with intent to deliver is not a valid predicate under

Section 71.02(a) of the Penal Code because the plain meaning of

“manufacture, delivery” requires more than “possession with intent to

deliver.” Therefore, we agree with the court of appeals that the

indictment in this case failed to allege an offense under the engaging

statute.     We affirm the judgment of the court of appeals vacating

Hughitt’s conviction for engaging and dismissing the indictment. We also

dismiss PD-0276-18, as improvidently granted because the cause number

for that conviction was erroneously included in                        the    petition for

discretionary review. 44




       44
          See Hughitt, 539 S.W .3d at 544–45 (reversing conviction in Cause No.
11-15-00278-CR for possession with intent to deliver m etham phetam ine in an am ount
between four and 200 gram s in a drug-free zone; rem anding the cause to the trial court to
reform the judgm ent to reflect a conviction for the offense of possession with intent to
deliver m etham phetam ine in the am ount of one gram or m ore but less than four gram s in a
drug-free zone and to conduct a new trial as to punishm ent only).
                            Hughitt — 18

Filed: September 25, 2019

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