Watson v. State, 816-94

• Decision Date: 07 June 1995
• Docket Number: No. 816-94,816-94
• Parties: Charles Lee WATSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 60

900 S.W.2d 60

Charles Lee WATSON, Appellant, v. The STATE of Texas, Appellee.

No. 816-94.

Court of Criminal Appeals of Texas,

En Banc.

June 7, 1995.

J. Rex Barnett, Fort Worth, for appellant.

Tim Curry, Dist. Atty., and Betty Marshall, Charles M. Mallin, Anne E. Swenson and Greg Miller, Asst. Dist. Attys. Fort Worth, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MANSFIELD, Judge.

Appellant, Charles Lee Watson, was convicted by a jury on March 24, 1993, of the following two offenses:

(1) possession with intent to deliver a controlled substance, heroin, and

(2) possession with intent to deliver a controlled substance, cocaine.

The jury assessed punishment at imprisonment for 65 years for each offense, with the sentences ordered to run concurrently pursuant to Texas Health and Safety Code § 481.132(d) (1992). The convictions and sentences were affirmed by the court of appeals. Watson v. State, 877 S.W.2d 826 (Tex.App.--Fort Worth 1994).

This Court granted appellant's petition for discretionary review to consider two grounds raised by appellant:

(1) Whether separate convictions for possession of a controlled substance with intent to deliver both heroin and cocaine resulting from a single incident of possession violate appellant's protection against double jeopardy.

(2) Whether separate convictions for two counts in a single indictment violate the prohibition against multiple convictions arising out of a single charging instrument.

I. Appellant's Double Jeopardy Protection Was Not Violated Because He was Charged With and Convicted of Two Separate Offenses

Appellant was charged with possession with intent to deliver two different drugs, heroin and cocaine. In order to meet its burden of proof beyond a reasonable doubt, the State was required to present evidence that appellant possessed both heroin and cocaine. A chemical analysis of the capsules seized from appellant showed some tested positive for cocaine and others tested positive for heroin.

The double jeopardy clause of the Fifth Amendment protects against: (1) a second prosecution for the same offense after conviction; (2) a second prosecution for the same offense after acquittal; and (3) multiple punishments for the same offense. Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Appellant claims that he is, in effect, being punished twice for the same offense.

Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), established the test to be applied to appellant's claim. The test is whether each offense requires proof of an element that the other offense (or offenses) does not. See also United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). It is quite clear that this test is met here. The charge of possession of heroin requires proof of possession of heroin. The State offered evidence of a chemical analysis that some of the capsules tested positive for heroin. Likewise, the charge of possession of cocaine requires proof of possession of cocaine, and the State offered evidence of a chemical analysis that some of the capsules tested positive for cocaine. Different proof is required for possession of cocaine than for possession of heroin, and that proof is provided in this case.

Blockburger also requires that the Legislature intended that each violation be a separate offense. Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985); Cervantes v. State, 815 S.W.2d 569 (Tex.Cr.App.1991), cert. denied, 502 U.S. 1110, 112 S.Ct. 1213, 117 L.Ed.2d 451 (1992).

The Texas Health and Safety Code classifies heroin and cocaine as Penalty Group 1 substances for the purpose of establishing criminal penalties for violations of the Texas Controlled Substances Act. Texas Health and Safety Code § 481.112 (1992) provides: "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."

Appellant argues, in effect, that the Legislature intended to make the penalty group, rather than the individual controlled substance, an essential element of the offense. This interpretation would mean an individual could possess ten different substances described in Penalty Group 1 and be chargeable with only one offense, yet he could be charged with two offenses if he possessed one Penalty Group 1 substance and one Penalty Group 2 substance. Appellant offers no legislative history or other authority in support of his position. The Legislature, in writing the Texas Health and Safety Code, Subchapter D, classified controlled substances into four penalty groups for the purpose of establishing criminal penalties for possession, manufacture, or sale of various controlled substances. Tex.Health & Safety Code, §§ 481.102-481.105. Paragraph (a) of §§ 481.112 through 481.118 makes it clear that it is an offense to possess, manufacture or deliver a controlled substance listed in the particular penalty group. This language cannot reasonably be construed, as appellant claims, to make possession, sale or delivery of two or more controlled substances within the same penalty group one offense. We hold that the Legislature intended to make possession of each individual substance within the same penalty group a separate and distinct offense.

Appellant cites Ex Parte Crosby, 703 S.W.2d 683 (Tex.Cr.App.1986), and Cook v. State, 840 S.W.2d 384 (Tex.Cr.App.1992), to support his contention that he is being punished twice for the same offense. In Cook and in Crosby, this Court held that there could be only one conviction for aggravated robbery, regardless of the number of victims of the assaultive conduct, because there was only one theft. "There is no indication that the Legislature intended multiple punishments under the aggravated robbery statute for conduct involving more than one victim where there is only one theft." Cook at 389. In the present case, appellant was convicted of two distinct possession offenses, not one. This situation is nothing like Cook or Crosby, where the State improperly used one theft to convict each defendant of multiple aggravated robberies.

Thus, appellant's multiple punishments do not violate the Fifth Amendment's protection against double jeopardy because each punishment is for a separate and distinct offense. ¹ Appellant's ground for review number one is overruled.

II. Joinder of the Two Offenses in the Same Charging

Instrument Was Proper Under Texas Health and Safety Code § 481.132 (1992)

"A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode. If a single criminal action is based on more than one charging instrument within the jurisdiction of the trial court, not later than the 30th day before the date of the trial, the state shall file written notice of the action." Tex.Health & Safety Code § 481.132(b) (1992).

"In this section, 'criminal episode' means the commission of two or more offenses under this chapter under the following circumstances:

(1) the offenses are committed pursuant to the same transaction...." Tex.Health & Safety Code § 481.132(a) (1992).

In the present case, appellant was observed by the police doing acts consistent with dealing drugs. When they arrested him, they seized a plastic bag containing capsules, some of which tested positive for heroin and others of which tested positive for cocaine. Given these facts, both of the charged offenses arose out of the same "criminal episode" as defined in section 481.132(a) of the Texas Health and Safety Code. Therefore, joinder of the two offenses in a single indictment was proper under Texas Health and Safety Code § 481.132(b) (1992).

Appellant argues, however, that neither this section nor Article 21.24, Texas Code of Criminal Procedure, authorizes multiple convictions arising from the same indictment. It is true that the common law rule is one conviction per indictment. See Ex parte Siller, 686 S.W.2d 617 (Tex.Cr.App.1985). Appellant, however, fails to cite LaPorte v. State, 840 S.W.2d 412 (Tex.Cr.App.1992), in which this Court held: "As long as the offenses met the definition of 'criminal episode' under [Tex.Pen.Code] Section 3.01 and were tried in a single trial, multiple convictions were permissible either based upon one charging instrument or several." LaPorte at 413. The Legislature has decided to permit two or more violations of the Texas Health and Safety Code to be charged in one indictment as a single criminal action, provided they arise out of the same criminal episode. This allows for the efficient disposition of cases and also provides a benefit for the accused since, if he is found guilty of more than one offense, any sentences imposed must run concurrently.

Significantly, appellant failed to file any motion for severance with the trial court, pursuant to Texas Health and Safety Code § 481.132(e), alleging that joinder of the offenses would prejudice him. Having failed to do so, appellant waived his right on appeal to complain about joinder of the offenses. See Marin v. State, 851 S.W.2d 275 (Tex.Cr.App.1993). Appellant's ground for review number two is overruled.

The judgment of the court of appeals is affirmed.

OVERSTREET and MALONEY, JJ., concur in the result.

CLINTON, Judge, concurring.

Subsection (a) of Section 481.112 of the Health and Safety Code provides:

"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."

In ipse dixit, apparently relying upon nothing more than its naked intuition, a plurality of the...