            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                  NO. PD-1661/1662-08



                          EDUARDO GUERRERO, Appellant

                                              v.

                                THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE FOURTH COURT OF APPEALS
                            BEXAR COUNTY

       C OCHRAN, J., filed a concurring opinion, in which W OMACK, J., joined.

                                         OPINION

       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. I think that federal and Texas double-jeopardy

principles prohibit two convictions for simultaneously manufacturing and possessing with

the intent to deliver the same container of controlled substance. But I also agree that, given

the particular circumstances of this case, appellant may be punished both for manufacturing
                                                      Guerrero   Concurring Opinion     Page 2

methamphetamine and for possessing methamphetamine with intent to deliver it because the

police found three separate bottles–in different stages of the manufacturing process–two of

which contained more than four grams of methamphetamine.                   Thus, appellant’s

manufacturing one bottle of methamphetamine was a different act than his possessing the

second bottle with intent to distribute its contents. 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.

                                              I.

       Appellant operated a methamphetamine lab at his home in the San Antonio suburb of

Converse. An anonymous caller tipped off police about the lab. When appellant opened his

front door for the investigating officers, they immediately smelled the “overwhelming”

chemical odor associated with a meth lab. The odor “burned” their lungs and noses. They

arrested appellant, who told them that a meth “burner” was still operating inside. The fire

department responders had to turn off the outside main power switch because the house was

so cluttered with drug paraphernalia, meth cooking supplies, and detritus that they were

unable to find the power strip for the hot plate in appellant’s bedroom that was still bubbling

its meth brew.

       DEA agents and Converse police, wearing hazmat suits, “broke down” the meth lab

and carted off over fifty different items relating to the methamphetamine-manufacturing
                                                       Guerrero    Concurring Opinion      Page 3

operation. Three of those items were glass or plastic jars containing methamphetamine:

       C       A large glass container filled with a two-layered substance. The top, liquid
               layer contained methamphetamine and weighed 74.62 grams; the bottom layer
               was more of a “sledge”– the “junky, oil-based” substance that “sets at the
               bottom of meth when it separates” and then “goes into the trash pile.”

       C       A Dr. Pepper plastic bottle containing a two-layered liquid substance. The
               bottom layer contained methamphetamine and weighed 4.49 grams.

       C       A glass container with a purplish-colored two-layered liquid. The bottom layer
               contained 1.34 grams of methamphetamine.

       Appellant was charged with and convicted of (1) manufacturing methamphetamine;

(2) possession with intent to deliver methamphetamine; and (3) possession of

methamphetamine.       Although the police gathered up and packaged each of the three

containers separately, the content of each container was analyzed and weighed separately,

and the DPS chemist discussed each container separately, the State treated the three distinct

containers as one undifferentiated cache of methamphetamine at trial. Nonetheless, appellant

failed to raise any double-jeopardy claim during trial, thus it was his burden on appeal to

prove that the undisputed facts “show the double jeopardy violation is clearly apparent on

the face of the record[.]” 1 Appellate courts are not bound by prosecutorial theories when



       1
          Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000) (“[B]ecause of the
fundamental nature of double jeopardy protections, a double jeopardy claim may be raised for the
first time on appeal . . . when the undisputed facts show the double jeopardy violation is clearly
apparent on the face of the record and when enforcement of usual rules of procedural default
serves no legitimate state interests.”). Raising the double-jeopardy issue in the trial court is
important insofar as it is necessary to make a clear record on which to base an appellate claim.
See id. at 645-46.
                                                        Guerrero     Concurring Opinion      Page 4

deciding whether the trial record clearly establishes a double-jeopardy violation.

                                                II.

       The Double Jeopardy Clauses of both the United States and Texas Constitutions

prohibit the state from punishing a person twice for the same offense.2 This protection

specifically includes a guarantee that the accused will not be subject to multiple punishments

assessed in the same criminal trial for the same statutory offense.3 As this court has

previously stated, in Blockburger v. United States, the Supreme Court addressed the propriety

of “multiple punishments” assessed against a defendant, in a single proceeding, for his

multiple violations of the same narcotics statute by different acts committed on different

days.4 That court set out the double-jeopardy test for “sameness”in these circumstances: “the

test is whether the individual acts are prohibited, or the course of action which they

constitute. If the former, then each act is punishable separately. . . . If the latter, there can be

but one penalty.” 5 Under Blockburger, “this test hinges on the legislative intent of the statute




       2
         U.S. CONST . amend. V; TEX . CONST . art. 1, § 14; see Ex parte Lange, 85 U.S. 163, 168
(1873) (“If there is anything settled in the jurisprudence of England and America, it is that no
man can be twice lawfully punished for the same offence. And … there has never been any
doubt of [this rule’s] entire and complete protection of the party when a second punishment is
proposed in the same court, on the same facts, for the same statutory offence.”); Lopez v. State,
108 S.W.3d 293, 296 (Tex. Crim. App. 2003).
       3
           Id.
       4
           Lopez, 108 S.W.3d at 296 (citing Blockburger v. United States, 284 U.S. 299 (1932)).
       5
        Blockburger, 284 U.S. at 302; see also Manrique v. State, 994 S.W.2d 640, 646 (Tex.
Crim. App. 1999) (McCormick, P.J., concurring) (quoting Blockburger).
                                                        Guerrero    Concurring Opinion     Page 5

at issue.” 6

        The test in the present case is similar to that set out in our prior Lopez 7 case: did the

Legislature intend that manufacturing a single large bottle of methamphetamine and

simultaneously possessing that bottle with an intent to deliver it to someone else constitute

one violation of Section 481.112(a),8 or did the Legislature intend that those who

manufacture a large bottle of methamphetamine and simultaneously possess it with the intent

to deliver it commit two different and distinct offenses at the same time? Of course, those

who manufacture drugs almost always possess them at the same time, so the real issue is

whether the legislature intended to subject those who manufacture drugs to two punishments

for the same act at the same time: manufacture plus possession for small quantities and

manufacture plus possession with intent to deliver for large quantities?

        We must look first to the plain language of the statute in determining the legislative

intent.9 First, the title of the statute reads, “Offense: Manufacture or Delivery of Substance

in Penalty Group 1.” This title indicates that either the manufacture or the delivery of a



        6
            Manrique, 994 S.W.2d at 646.
        7
            See Lopez, 108 S.W.3d at 296.
        8
       T EX HEALTH & SAFETY CODE § 481.112(a) reads,
      Except as authorized by this chapter, a person commits an offense if the person
      knowingly or intentionally manufactures, delivers, or possesses with intent to
      manufacture or deliver a controlled substance listed in Penalty Group 1.
Methamphetamine is a Penalty Group 1 controlled substance. See id. § 481.102 (listing Penalty
Group 1 substances).
        9
            Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
                                                          Guerrero     Concurring Opinion      Page 6

substance in penalty group 1 constitutes the offense. As we stated in Lopez, the statute is

aimed at drug traffickers and drug distribution, no matter where the defendant is stopped

along the line from manufacture, to possession with intent to deliver, to actual delivery of

those drugs to the consumer.10 The penalty is the same no matter where along the continuum

the defendant is stopped. But the penalty increases depending upon the quantity of the drugs

manufactured, delivered, or possessed with the intent to the deliver.11 So the legislature’s

focus seems to be upon the amount of the drugs involved, not upon any distinction between

whether they were manufactured, delivered, or possessed with the intent to deliver. This

would indicate that the legislative intent was to treat the proscribed behavior as alternative

means of committing a single offense with ever-increasing penalties–regardless of the

specific act involved–for ever-greater amounts of the specified drug. In sum, the focus of

section 481.112 indicates a legislative intent to punish a single act with a single punishment.

This conclusion also accords with our “liberalized Blockburger standard” as set out in Ex

parte Ervin.12 Thus, double jeopardy would prohibit multiple punishments for a single act


       10
          Lopez, 108 S.W.3d at 299-300 (“Section 481.112 provides several different means for
committing the offense of delivery of a single quantity of drugs so that, no matter where along
the line of actual delivery–from the offer to sell, to the possession of the drugs with the intent to
deliver them, to the actual delivery itself–the drug dealer may be held accountable for the
gravamen of the offense–the distribution of dangerous drugs in our society.”).
       11
        T   EX . HEALTH   & SAFETY CODE § 481.112(b)-(f).
       12
         Ex parte Ervin, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999). In Ervin, we held that a
person who commits the separate statutory offenses of intoxication manslaughter and
manslaughter has committed the “same” offense for double-jeopardy purposes and can be
punished only once for one death caused by that act. 991 S.W.2d at 817 (“[W]e conclude that
manslaughter and intoxication manslaughter are the same offenses for double-jeopardy purposes
                                                       Guerrero     Concurring Opinion     Page 7

of manufacturing or possessing with intent to deliver methamphetamine at a single point in

time.13

          Several other states that have considered the same question have reached the same

conclusion: the simultaneous act of manufacturing and possessing (with or without the intent

to deliver) the same quantum of controlled substance is a single offense, not multiple

offenses, for double-jeopardy purposes.14         That is because “possession is a natural


when they involve the same victim, and imposing convictions for both in this situation violates
the Double Jeopardy Clause.”). Of course, if more than one person died as a result of the
defendant’s single act, then the defendant could be convicted of two manslaughter (or
intoxication manslaughter) offenses because both offenses “have a common focus: the death of
an individual.” Id. at 816; see also Ex parte Rathmell, 717 S.W.2d 33, 36 (Tex. Crim. App.
1986) (when a single act resulted in two deaths, defendant could be convicted of two involuntary
manslaughter offenses).
          13
          The Supreme Court held, in Blockburger, that distinct and separate deliveries of the
same type of drug on different days constituted separate offenses, so the distinct acts of
manufacturing methamphetamine on Monday while simultaneously possessing
methamphetamine that had been manufactured on Sunday are also distinct offenses, as are the
distinct acts of manufacturing methamphetamine on Mondays, Tuesdays, and Wednesdays.
Blockburger, 284 U.S. at 302.
          14
           See Beaty v. Commonwealth, 125 S.W.3d 196, 211 (Ky. 2003) (“Most jurisdictions that
have considered the issue agree that convictions of ‘manufacturing’ and ‘possessing’ the same
unit of a controlled substance fail the Blockburger test.”); Patton v. People, 35 P.3d 124, 128-33
(Colo. 2001); Craig v. State, 863 S.W.2d 825, 827 (Ark. 1993) (“In proving the offense of
manufacturing, the state must necessarily show the defendant has control of the controlled
substance in order to manufacture it. That being so, possession of the substance is necessarily a
lesser included of the offense of manufacturing.”); Anderson v. State, 447 So. 2d 236, 238 n.3
(Fla. Dist. Ct. App. 1983) (possession of marijuana is “considered the ‘same’ offense for double
jeopardy purposes” as manufacturing marijuana); Mudd v. State, 483 N.E.2d 782, 784 (Ind. Ct.
App. 1985) (“The proof required to establish manufacture of marijuana necessarily establishes
possession as well; one cannot knowingly or intentionally manufacture the drug without also
possessing it to that end.”). Cf. United States v. Buchanan, 830 F.2d 146, 148 (10th Cir. 1987)
(holding that convictions for possession of and manufacturing an explosive device failed the
Blockburger test and noting that “numerous courts . . . have recognized that possession is always
incidental to manufacture and that the two offenses merge for the purposes of sentencing.”).
                                                         Guerrero     Concurring Opinion      Page 8

consequence of its manufacture.” 15 These cases follow the same common-sense rationale

expressed in Ball v. United States,16 in which the Supreme Court held that double jeopardy

barred the defendant’s convictions for both receipt of a firearm by a convicted felon and

possession incidental to receipt of that same firearm.17 Because there is such a substantial

overlap between the act of manufacturing a specific quantum of drugs and the act of

possessing of those drugs (the act of possession begins simultaneously with start of

manufacturing, and possession continues after the act of manufacturing is completed until

they are delivered or consumed), the two simultaneous acts are the “same” for double-

jeopardy purposes.

       The State Prosecuting Attorney correctly notes that, under a strict Blockburger test

that looks only to the formal elements of the statute, a few federal cases have gone the other

way and held that a defendant could be punished twice for simultaneously manufacturing and




       15
          Patton, 35 P.3d at 127, 131 (“Comparing the meanings of ‘manufacture’ and
‘possession,’ it is evident that one who manufactures a controlled substance also possesses the
substance in the course of manufacturing it. ‘Possession’ requires immediate and knowing
control over the substance. Logic dictates that such control is required in the production of the
substance. . . . We can envision no scenario in which an individual can manufacture
methamphetamine without also possessing it.”).
       16
            470 U.S. 856 (1985).
       17
          Id. at 862 (applying Blockburger test to the firearm statutes and finding that “it is clear
that Congress did not intend to subject felons to two convictions; proof of illegal receipt of a
firearm necessarily includes proof of illegal possession of that weapon.”). As the Supreme Court
noted, “[t]he independent but overlapping statutes simply are not ‘directed to separate evils’
under the circumstances.” Id. at 864 (internal citations omitted).
                                                       Guerrero     Concurring Opinion     Page 9

possessing with intent to deliver illegal drugs.18 But, as the Supreme Court itself stated in

Ball, the Blockburger “test” is merely a rule of statutory construction to ascertain

congressional intent.19 It is not a shibboleth that defines double jeopardy. In Ball, the Court

rejected a strict Blockburger elements test because “Congress seems clearly to have

recognized that a felon who receives a firearm must also possess it, and thus had no intention

of subjecting that person to two convictions for the same criminal act.” 20 Similarly, in the

context of the offense of “Manufacture or Delivery of Substance in Penalty Group 1,” the

Texas Legislature seems clearly to have recognized that a person who manufactures

methamphetamine must also possess it, and thus it had no intention of subjecting a person

to two convictions for the same criminal act.

                                               III.

       But that does not end our double-jeopardy inquiry because the trial record supports

a finding that appellant committed more than one single act of manufacturing

methamphetamine.          Appellant possessed three different bottles of methamphetamine-

saturated liquid. At least two of them contained more than four grams of methamphetamine



       18
          See United States v. Miller, 870 F.2d 1067, 1069-72 (6th Cir. 1989) (holding that
manufacture of marijuana and possession of marijuana with intent to distribute are two statutory
offenses which may be punished cumulatively); United States v. Zamora, 784 F.2d 1025, 1029
(10th Cir. 1986) (holding that “manufacture and possession with intent to deliver
[methamphetamine] are distinct offenses for which different facts must be proven.”).
       19
         Ball, 470 U.S. at 861 (“The assumption underlying the Blockburger rule is that
Congress ordinarily does not intend to punish the same offense under two different statutes.”).
       20
            Id. at 862.
                                                       Guerrero    Concurring Opinion      Page 10

and each of those two was in a different stage of the manufacturing process. The first– the

large glass jar– contained both a top layer of meth liquid and a lower layer of “sledge.” This

“brew” was seized while it was at an earlier stage of the methamphetamine manufacturing

process than the two-layered liquid in the Dr. Pepper bottle. Thus, appellant did not

manufacture these distinct caches of methamphetamine with a single act or continuum of

acts. He started the brew for one batch of meth and took it through several steps in the

process before he started the brew for the second batch of meth. Each “brew” required a new

culpable intent and constituted a new prohibited act. The record is not clear how much time

could have or must have passed between starting the first “brew” and then starting the second

“brew,”21 but the state’s chemist was clear that the process was not simultaneous. There is

no double-jeopardy bar to multiple punishments for multiple violations of the same statutory

offense.22 Here, as in Blockburger, the first act in starting to manufacture a “brew” of meth


       21
          Had appellant raised his double-jeopardy claim in the trial court, the witnesses might
have been clearer in their testimony concerning the distinct and separate processes. But, because
appellant did not raise any such issue in the trial court, he has the burden to show that the trial
record “clearly” shows a double-jeopardy violation; the State does not carry any such burden. See
Gonzalez, 8 S.W.3d at 645-46 (“Timely raising the [double-jeopardy] matter in the trial court
would have provided the trial court and the prosecution an opportunity to remove the basis of the
objection, and it also would have provided the prosecution the opportunity to obtain an
aggravated robbery conviction based on paragraph two without the risk of an unnecessary retrial
in the face of a valid multiple punishments claim.”).
       22
         Blockburger, 284 U.S. at 302. Double jeopardy does not bar prosecution for distinct
possession, delivery, or manufacturing offenses where separate drug quantities are identified for
each offense. See Smith v. State, 873 S.W.2d 773, 775 (Tex. App.–Fort Worth 1994, no pet.)
(possession and delivery of cocaine); Toro v. State, 780 S.W.2d 510, 512 (Tex. App.–San
Antonio 1989, no pet.) (possession and delivery of cocaine); Torrez Diaz v. State, 762 S.W.2d
701, 704 (Tex. App.–Houston [14th Dist.] 1988) (possession and delivery of cocaine), pet. ref'd,
796 S.W.2d 183 (Tex. Crim. App.1990). See also Patton v. People, 35 P.3d 124, 131 (Colo.
                                                        Guerrero     Concurring Opinion       Page 11

evidenced by the liquid in the Dr. Pepper bottle had been completed before the second act

of starting to manufacture a “brew” of meth in the large glass jar began.23

       In this case, therefore, appellant could have been convicted of two counts of

manufacturing methamphetamine, two counts of possessing methamphetamine with the

intent to deliver it, or one count of each. This is because there were two separate acts of

manufacturing two separate brews, one the nearly finished product ready for delivery, the

other still in the manufacturing process.

       I therefore agree that appellant has failed to show that a double-jeopardy violation is

“clearly apparent” on the face of the trial record.

Filed: December 9, 2009

Publish




2001) (double jeopardy bars multiple convictions for both manufacturing and simultaneously
possessing the same cache of methamphetamine, but noting that “a defendant may be convicted
lawfully of both manufacture and possession of a controlled substance if the defendant is
convicted of possessing the substance during one time period and manufacturing it in another
time period, or separate transactions of possession and manufacture in the same time period.”).
       23
           Blockburger, 284 U.S. ast 302-03 (“The contention on behalf of petitioner is that these
two [drug] sales, having been made to the same purchaser and following each other, with no
substantial interval of time between the delivery of the drug in the first transaction and the
payment for the second quantity sold, constitute a single continuing offense. . . . In the present
case, the first transaction, resulting in a sale, had come to an end. The next sale was not the result
of the original impulse, but of a fresh one–that is to say, of a new bargain.”).
