             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

             K ELLER, P.J., filed a dissenting opinion in which K EASLER, and
H ERVEY, 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,



       1
           Lopez v. State, 108 S.W.3d 293 (Tex. Crim. App. 2003).
                                                                                WEINN DISSENT - 2

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.


Filed: June 30, 2010
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        2
            Id. at 302 (Keller, P.J., concurring).
        3
            Guerrero v. State, 305 S.W.3d 546 (Tex. Crim. App. 2009).
