            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                       NO. PD-0338-09



                             CORBETT K. WEINN, Appellant

                                               v.

                                  THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE SEVENTH COURT OF APPEALS
                            LUBBOCK COUNTY

      J OHNSON, J., delivered the opinion of the Court in which M EYERS, P RICE,
W OMACK, H OLCOMB, and C OCHRAN, JJ., joined. K ELLER, P.J., filed a dissenting
opinion in which K EASLER, and H ERVEY, JJ., joined. K EASLER, J., filed a dissenting
opinion in which K ELLER, P.J., and H ERVEY, J., joined.

                                         OPINION

       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
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with intent to deliver violated the Fifth Amendment’s prohibition against double jeopardy. Weinn

v. State, 281 S.W.3d 633, 636 (Tex. App.–Amarillo, 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, sheriff’s 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
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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 possession 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.
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       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 (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 (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
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analysis in Blockburger is based upon the face of the statute at issue. Blockburger, 284 U.S. at 304.

“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 Blockburger 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. App. 2007), citing Ex parte Kopecky, 821 S.W.2d 957,

959 (Tex. Crim. App. 1992)(quoting Missouri v. Hunter, 459 U.S. 359, 368 (1983)).

       In Ex parte Ervin, 991 S.W.2d 804 (Tex. Crim. App. 1999) we addressed the issue of double-

jeopardy and legislative intent, and we “laid out a non-exclusive 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
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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 Blockburger 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


         1
            Id. at 561. (Cochran, J., joined by W omack, 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.”)
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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 possession 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.

         2
            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.”)
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                                             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.

       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.


Delivered: June 30, 2010
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