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Criminal Law No. 1080-02, 6/11/2003. Click here for the full text of this decision FACTS: On the morning of Oct. 14, 1997, the appellant and another person contacted Gabe Barrera, an undercover narcotics officer for the Fort Worth Police Department. Barrera negotiated with them to buy three kilograms of cocaine. The sale was to be consummated at the Town Center Mall in Fort Worth. Barrera first met with the other person around 12:30 p.m., and she told him that the appellant was in Roma. The appellant arrived a little after 5 p.m. and said that his source would be bringing the cocaine to Town Center. The appellant left and then returned shortly after 6:30 p.m with the other person. Guzman led Barrera to a car, while appellant stood by his vehicle. Barrera was given a package. Barrera cut it open, saw that it was white powder, and he then gave the arrest signal to other, waiting officers. The appellant was indicted on two counts. The jury, based upon the law of parties, found the appellant guilty on both counts and sentenced him to 25 years imprisonment on each count. The court of appeals treated the issue as a double jeopardy question and held that conviction and punishment on both counts – based on a single sale of cocaine – violated the double jeopardy clause. It vacated appellant’s conviction for possession of a controlled substance with intent to deliver but affirmed his conviction for delivery of a controlled substance. HOLDING: Affirmed. Texas Health and Safety Code �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, which is the distribution of dangerous drugs in society. The Legislature has thus 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 �481.112, the fact that a transfer is thwarted will not negate conviction for delivery of that drug. Similarly, if an actor possesses a quantity of drugs sufficient to permit the jury to conclude that he possessed them with the intent to distribute them, the statute does not require any existing offer to sell or prospective buyer before he may be held liable under �481.112. The statute, however, cannot be turned on its head to allow several “delivery” convictions where there is only one single sale of one drug. The court holds that the offer to sell and the possession of drugs to complete that specific sale is one single offense. Although the state may charge the offense as being committed in either of these modes, it cannot obtain two convictions for the same sale under �481.112(a). The entry of two convictions in this case violates double jeopardy under the Blockburger v. U.S., 284 U.S. 299 (1932), test because the steps in this single drug transaction were all “the result of the original impulse,” and therefore each step was not a “new bargain.” The court’s holding also comports with those of federal courts construing the analogous federal controlled substance statute. The federal law, like the Texas act, permits prosecution for a drug delivery committed in different ways: actual delivery, constructive delivery and possession with intent to deliver. A majority of federal circuits have taken the view that a defendant cannot be punished for two offenses under the analogous federal statute unless the violations arise out of two separate sales or transactions. For example, in United States v. McDonald, 242 F.3d 275 (5th Cir. 2001), the 5th U.S. Circuit Court of Appeals held that when the defendant offered to sell crack cocaine to an undercover officer, negotiated the sale, and then returned with the crack cocaine and delivered it to the officer, the defendant had committed one drug delivery offense, not two. The court agrees agree with the court of appeals in its conclusion that “it was a violation of double jeopardy prohibitions to punish Appellant for both delivery [by the offer to sell] and possession with intent to deliver the same quantity of cocaine.” OPINION: Cochran, J.; Meyers, Price, Womack, Johnson and Holcomb, JJ., join. CONCURRENCE: Keller, P.J.; Keasler and Hervey, JJ., join. “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. 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.”

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