Opinion
No. 14-07-00497-CR
Opinion filed April 28, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 21st District Court Washington County, Texas, Trial Court Cause No. 14,862.
Panel consists of Justices YATES, GUZMAN, and SULLIVAN.
MEMORANDUM OPINION
The State of Texas appeals from the trial court's order quashing an indictment against appellee Mark Earl Hailey. In a single issue, the State contends the trial court erred in quashing the indictment on double jeopardy grounds. We affirm.
I. BACKGROUND
In October 2006, appellee was indicted in Cause No. 14,761 for the felony offense of possession of certain chemicals with intent to manufacture a controlled substance. Specifically, the indictment alleged that appellant "with intent to unlawfully manufacture a controlled substance, namely methamphetamine, possess an immediate precursor, to-wit: Pseudophedrine" on or about August 4, 2006 (the "first indictment"). A jury trial on the merits of this indictment commenced on March 5, 2007. On March 6, 2007, the State moved to dismiss the action "in the interest of justice"; the trial court signed the dismissal order that same day. In April 2007, in Cause No. 14,862, the State subsequently charged appellee by indictment with the felony offense of possession of a chemical precursor, pseudoephedrine, with intent to manufacture methamphetamine, alleged to have occurred on or about August 4, 2006 (the "second indictment"). Appellee filed a motion to quash the second indictment pursuant to the state and federal constitutions and the Texas Code of Criminal Procedure, asserting a double jeopardy claim. The trial court held a hearing on appellee's motion to quash in May 2007. After the hearing, the trial court granted appellee's motion to quash the second indictment under the "double jeopardy clause of the laws of the State of Texas" and ordered the second indictment dismissed with prejudice. The State timely filed this accelerated appeal.II. ISSUE PRESENTED
In a single issue, the State asserts that the trial court erred in granting appellee's motion to quash.III. ANALYSIS
A. Standard of Review and Applicable Law
We review de novo a trial court's ruling on a motion to quash where, as here, the issue is purely a question of law. See State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App. 2004). The double jeopardy provisions of the state and federal constitutions protect citizens from repeated attempts at prosecution for the same criminal offense. Ex parte Wheeler, 203 S.W.3d 317, 322 (Tex.Crim.App. 2006). If a trial court dismisses an indictment on the State's motion after jeopardy attaches, then the State is prohibited from re-prosecuting the defendant for that offense. Ex parte Goodman, 152 S.W.3d 67, 71 (Tex.Crim.App. 2004). Jeopardy attaches, in a jury trial, when the jury is empaneled and sworn. Id. at n. 6 (citing Crist v. Bretz, 437 U.S. 28, 38 (1978)). Here, neither party disputes that jeopardy attached to the first indictment; the only question is whether the second indictment represents an attempt by the State to prosecute appellee for the same offense twice. Generally, under the Blockburger test for double jeopardy, two offenses do not constitute the same offense if each offense contains an element that the other does not. See United States v. Dixon, 509 U.S. 688, 696 (1993); see also Lopez v. State, 108 S.W.3d 293, 295-96 (Tex.Crim.App. 2003). In conducting the Blockburger test, the elements in the charging instruments, rather than solely those in the penal provisions, are controlling. Bigon v. State, 252 S.W.3d 360, 370 (Tex.Crim.App. 2008) (applying Blockburger test in the context of multiple punishments). Additionally, in the context of a drug offense, a defendant cannot be convicted of both possession and delivery of the same specific quantity and type of a controlled substance during the same transaction because the convictions would violate double jeopardy. See Lopez, 108 S.W.3d at 300-01 ("[W]e hold 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. . . ."). According to the Texas Health Safety Code,[a] person commits an offense, if with intent to unlawfully manufacture a controlled substance, the person possesses or transports:
(1) anhydrous ammonia;
(2) an immediate precursor; or
(3) a chemical precursor. . . .TEX. HEALTH SAFETY CODE ANN. § 481.124(a) (Vernon Supp. 2008). Here, both indictments specifically charge appellee with possessing a precursor with the intent to manufacture methamphetamine. In the first indictment, the State alleged appellee was in possession of an immediate precursor, and in the second, the State alleged appellee was in possession of a chemical precursor. But the specific precursor alleged in both indictments was the same: pseudoephedrine. Thus, under both the first and second indictments, the State was required to prove that appellee was in possession of pseudoephedrine — whether it was a chemical or immediate precursor — with the intent to manufacture methamphetamine. The State dismissed the charges in the first indictment after a jury was empaneled and it had presented its case. The State then re-indicted appellant for what is, in essence, the same offense; there are no additional facts necessary to establish appellant's guilt under the second indictment beyond those that were necessary to establish appellant's guilt under the first indictment. Cf. Littrell v. State, 271 S.W.3d 273, 275-76 (Tex.Crim.App. 2008) ("[I]t should be presumed that the Legislature did not regard two statutorily defined offenses to be the same if each provision requires proof of a fact which the other does not.'") (quoting Garza v. State, 213 S.W.3d 338, 351-52 (Tex.Crim.App. 2007)). Regardless of the rationale behind the State's decision to dismiss the case against appellee, it cannot re-prosecute him for the same offense for which he has already been placed in jeopardy. See Goodman, 152 S.W.3d at 72; cf. Lopez, 108 S.W.3d at 300-01 (convictions for both possession and sale of same quantity and type of controlled substance in same transaction would violate double jeopardy). We therefore overrule the State's issue.