NO. 1080-02






Keller, P.J., filed a concurring opinion in which KEASLER, and HERVEY, JJ., joined.


I agree that appellant's conduct constitutes only one offense, but I do not agree with the Court's analysis of 481.112. The Court says that under the statute there is a continuum from manufacture to delivery. (1) I do not understand the statute to describe such a continuum. I believe instead that manufacture and delivery are simply two separate offenses, each of which includes possession with intent to do the specified act (manufacture or delivery, as the case may be). Although the Court explicitly declines to address whether the manufacture and subsequent delivery of a quantity of drugs by a defendant is one offense or two, I think that if the statute does indeed describe a continuum, then the answer would necessarily be "one offense." That is the wrong answer.

In the multiple punishments double jeopardy arena, legislative intent is the key. (2) The question is whether the defendant was convicted of more offenses than the Legislature intended. (3) In conducting this inquiry, we should examine the structure and language of the statute in question. (4) We conducted just such an inquiry in Vick, which addressed the sexual assault statute. (5) We found that the criminalization of specific conduct and the separation of each type of conduct by the word "or" indicated that the Legislature intended each separately described type of conduct to constitute a separate offense. (6)

The statute before us shares some similarities to the one analyzed in Vick. The statute provides in relevant part: "a person commits an offense if the person knowingly or intentionally manufactures, delivers, or possesses with intent to manufacture or deliver a controlled substance in Penalty Group 1." (7) The title of the statute is "Offense: Manufacture or Delivery of Substance in Penalty Group 1." The drug statute criminalizes specific behavior: manufacture and delivery. And these terms are listed disjunctively in both the body of the statute and its title. It could also be argued that possession is a specifically criminalized behavior in the body of the statute, but the phrase "possession with intent" relates back to manufacture and delivery - indicating that, here, possession is ancillary to the other two. This conclusion is buttressed by the title, which includes the terms "manufacture" and "delivery," but does not include "possession." (8)

This interpretation of the statute avoids at least one conceptual difficulty: if a person manufactures a quantity of a drug and then splits it up and delivers it to ten different people, what can he be charged with? Each delivery constitutes a separate offense, so that there are ten delivery offenses. But if manufacture and delivery are parts of one continuum, then the manufacture offense disappears. That is, the State could pursue one charge of manufacturing or ten charges of delivery, but not both. Given the structure of the statute, the better answer is that "manufacture" and "delivery" are separately criminalized.

The court's "continuum" approach is also undercut by the actual wording of the "possession" language found in the statute. One can possess with intent to manufacture as well as possess with intent to deliver. A continuum that begins with manufacturing does not square with this language, which criminalizes conduct that occurs before manufacture. Rather, the statute appears to create two different offenses: manufacture and delivery. The Court's continuum discussion mixes the definition of "deliver" with the elements of the offense found in 481.112. "Actual transfer," "constructive transfer," and "offer to sell" are alternate methods by which one may deliver a controlled substance, (9) and as such, can be plugged in to statutes that use the word "deliver," but that fact does not change the way 481.112 is structured, with its emphasis on manufacture and delivery as the criminalized elements, and possession with intent as ancillary to those elements.

This interpretation also recognizes that the Legislature may have good reason to criminalize both the manufacture and the delivery of a controlled substance. The Legislature could rationally believe that the act of creating the contraband is itself dangerous apart from any delivery of that contraband. By also including a clause proscribing possession with intent to manufacture or deliver, the Legislature made evident its intent that equal punishment should be imposed against those who are stopped by law enforcement from reaching their objective, whether it is the manufacture or the delivery of the illegal drug. The Court's "continuum" interpretation, on the other hand, inaccurately reflects the structure of the statute and leads to a conclusion that manufacture and delivery of a single quantity of drugs is a single offense - a conclusion that I believe is not in keeping with the intent of the Legislature or the structure and title of the statute.

In the present case, the State sought to punish appellant separately for (1) a delivery (via offer to sell) and (2) a possession with intent to deliver (the intended sale that was prevented by law enforcement officials). Because both of these are "delivery" offenses under 481.112, and they involve the same intended sale, they are the same offense for double jeopardy purposes.

I concur in the court's judgment.

KELLER, Presiding Judge

Date filed: June 11, 2003



1. See Court's opinion at 7.

2. Missouri v. Hunter, 459 U.S. 359, 366 (1983); Ervin v. State, 991 S.W.2d 804, 807 (Tex. Crim. App. 1999).

3. Ball v. United States, 470 U.S. 856 (1985); Ervin, 991 S.W.2d at 807.

4. See Vick v. State, 991 S.W.2d 830, 832-833 (Tex. Crim. App. 1999).

5. Id.

6. Id.

7. Texas Health & Safety Code 481.112(a)(emphasis added).

8. For this reason, the Court's discussion of Vick is inapt. 481.112 is not about possession. It is about manufacture and delivery, with possession being ancillary to those two.

9. 481.002(8).