Lopez v. State

• Decision Date: 11 June 2003
• Docket Number: No. 1080-02.,1080-02.
• Citation: 108 S.W.3d 293
• Parties: Arturo Arteaga LOPEZ, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

108 S.W.3d 293

Arturo Arteaga LOPEZ, Appellant, v. The STATE of Texas.

No. 1080-02.

Court of Criminal Appeals of Texas.

June 11, 2003.

J.R. Molina, Fort Worth, for appellant.

Sharon A. Johnson, Assist. DA, Fort Worth, Matthew Paul, State's Attorney, Austin, for state.

OPINION

COCHRAN, J., delivered the opinion of the Court, in which MEYERS, PRICE, WOMACK, JOHNSON and HOLCOMB, J.J., joined.

We are asked to decide whether a person's offer to sell three kilos of cocaine in the morning and his possession of cocaine with the intent to deliver it to complete that same sale in the evening constitutes one offense or two.¹ The court of appeals held that double jeopardy barred two separate convictions based upon the single sale of the single quantity of cocaine.² We agree and therefore affirm the court of appeals.

I.

On the morning of October 14, 1997, appellant and Rose Maria Guzman 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 Guzman around 12:30 p.m., and she told him that appellant was in Roma, Texas. She explained that he was having trouble getting the cocaine, but she reassured the officer that they had another supply source in Fort Worth. Barrera and Guzman arranged to complete the sale at the mall around 5:00 p.m. Appellant arrived a little after 5:00 p.m., and said that his source would be bringing the cocaine to Town Center. Appellant left, and then returned shortly after 6:30 p.m. with Guzman. They told Barrera that "the source of supply, Mr. Ledesma, was in fact in route and that he was going to bring one kilogram of cocaine" because "Mr. Ledesma wanted to conduct the transaction one kilogram at a time." Mr. Ledesma arrived around 7:30 p.m. Guzman then led Barrera to Ledesma's car, while appellant stood by his vehicle. When Barrera asked to see the cocaine, Ledesma showed him the package, Barrera cut it open, saw that it was white powder, and he then gave the arrest signal to other, waiting officers.

Appellant was indicted on two counts. Count one of the indictment charged that, on or about October 14, 1997, appellant did "then and there intentionally or knowingly deliver to G. Barrera a controlled substance, namely cocaine of four hundred grams or more, including any adulterants or dilutants, by offering to sell said controlled substance[.]" Count two alleged that, on or about October 14, 1997, appellant did "then and there intentionally or knowingly possess a controlled substance, namely: cocaine of four hundred grams or more, including any adulterants or dilutants, with intent to deliver said controlled substance[.]" The jury, based upon the law of parties, found appellant guilty on both counts and sentenced him to twenty-five years imprisonment on each count.

On appeal, appellant argued that his two convictions for one sale were one too many. The State countered that this was not a case of "multiple punishments for the same offense" because appellant had been found guilty of two different offenses: the first, the delivery by offer to sell, which occurred in the morning, and the second, possession with intent to deliver, which occurred when Mr. Ledesma arrived with the drugs to consummate that sale. 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.

The court of appeals relied on Gongora v. State,³ in which the First Court of Appeals held that, when the defendant was prosecuted for delivery of two bricks of cocaine and later prosecuted for possession with intent to deliver one of the two bricks, the second prosecution violated double jeopardy. The State, in its petition for review, argues that this case is different from Gongora because in that case, each offense was supported by the same physical evidence, whereas here, the first offense, the offer to sell cocaine, was not supported by any physical evidence and did not need to be. The State contends that both convictions were appropriate in this case because the Legislature intended for each act, the delivery by the offer to sell and the possession with intent to deliver, to be a discrete allowable unit of prosecution under Section 481.112(a) of the Texas Health & Safety Code. Therefore, the State argues, conviction under both counts — though supported by acts committed pursuant to a continuing course of conduct — does not offend the Double Jeopardy Clause.

II.

The Fifth Amendment provides that "kilo person shall ... be subject for the same offence to be twice put in jeopardy of life or limb ...." In North Carolina v. Pearce,⁴ the Supreme Court stated that the Fifth Amendment guarantee against double jeopardy consists of three separate constitutional protections: first, it protects against a second prosecution for the same offense after acquittal; second, it protects against a second prosecution for the same offense after conviction; and third, it protects against multiple punishments for the same offense.⁵

The present situation invokes the third prong or "multiple punishments" aspect of double jeopardy analysis. In Blockburger v. United States,⁶ 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.⁷ The Court set out the double jeopardy test for "sameness" in these circumstances: "[t]he 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."⁸ Under Blockburger, "this test hinges on the legislative intent of the statute at issue."⁹

The test in the present case therefore, is: did the Legislature intend that individual steps taken toward a single sale of a single quantity of a controlled substance constitute one violation of Section 481.112(a),¹⁰ or did the Legislature intend that each step taken toward that single sale itself constitutes a different violation of the statute, so that there would be potentially as many different offenses as there are steps taken? For example, suppose Dan walks up to Joe, offers to sell him a rock of cocaine, then holds the rock in his outstretched hand, and finally puts the rock into Joe's palm. Did the Legislature intend that sequence of events to be punished as one offense or three distinct offenses under Section 481.112(a)?¹¹

In Blockburger, the Supreme Court held that each distinct sale of a discrete quantity of the same drug to the same purchaser on different occasions constituted a distinct offense, because "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."¹² Each sale involved a separate quantity of drugs and each sale was a separate quid pro quo transaction.

The State's position in this case is that, under the Texas Controlled Substances Act, each part of each of those two sales in Blockburger — the negotiation of the sale, the possession with intent to deliver, and the actual delivery — is itself a separate "impulse" that the Texas Legislature intended to punish. Thus a defendant's sale of one baggie of cocaine could be subdivided into three separate offenses: his offer to sell, his possession of the drugs with the intent to deliver them, and the actual consummated delivery. Under this construction, appellant's offer to sell cocaine to Barrera in the morning, before he had the cocaine in hand, was one offense, while his possession of the cocaine with intent to deliver, which occurred once Ledesma arrived with the drugs, was another. The State's reading of this statute and of the Legislature's intent is overly literal, and does not comport with common sense, our cases, the courts of appeals' cases interpreting it.

III.

Under Texas Health & Safety Code Section 481.112(a), a person commits the offense of manufacture or delivery of cocaine if he "knowingly manufactures, delivers, or possesses with intent to deliver" it. Under Section 481.002(8), the word "`deliver' means to transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship." Furthermore, "[t]he term includes offering to sell a controlled substance, counterfeit substance, or drug paraphernalia." Under Section 481.002(9), "delivery" or "drug transaction" means the act of delivering.

Thus, there are at least five ways to commit an offense under Section 481.112: through knowing 1) manufacture; 2) an offer to sell; or 3) possession with intent to deliver; or through knowing delivery by 4) actual transfer; or 5) constructive transfer.¹³ All of these methods are points along a continuum in the line of drug distribution, from its original manufacture until its physical delivery to the ultimate consumer. Thus, no matter where the actor and his individual baggie, brick, or rock of cocaine is apprehended along that continuum, the actor may be prosecuted under Section 481.112.

The State's argument suggests that the Legislature could have intended multiple prosecutions for the same drug sale because Section 481.132 provides that a defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode.¹⁴ As we stated in Watson v. State,¹⁵ the joinder statute allows for the efficient disposition of cases and also provides a benefit for the accused...