No. 01-03-00064-CR
Opinion issued October 16, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 253rd District Court, Chambers County, Texas, Trial Court Cause No. 12114.
Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
SHERRY RADACK, Chief Justice.
This is an appeal from the denial of appellant's pretrial writ of habeas corpus relief based on double jeopardy. In her petition for habeas corpus relief, appellant contended that the trial court should have quashed her indictment for possession of marihuana on which no tax had been paid because she had already pleaded guilty to possession of marihuana. We affirm.
BACKGROUND
Appellant was indicted for possession marihuana in an amount of more than four ounces, but less than five pounds ("the possession case"). See Tex. Health Safety Code Ann. § 481.121 (Vernon 2003). Appellant was also indicted for possessing a taxable substance, to-wit: 391 grams of marihuana, on which no tax had been paid ("the tax case"). See Tex. Tax Code Ann. § 159.201 (Vernon 2002). Appellant pleaded guilty in the possession case and then filed an application for writ of habeas corpus, contending that the subsequent prosecution in the tax case violated the constitutional protection afforded her by the Double Jeopardy Clause. The trial court denied habeas corpus relief and this appeal followed. In two related points of error, appellant contends the trial court erred by denying her habeas corpus relief. LAW AND ANALYSIS
The double jeopardy clause protects against multiple punishments for the same offense as well as multiple prosecutions for the same offense after a conviction or an acquittal. Brown v. Ohio , 432 U.S. 161, 97 S.Ct. 2221 (1977); State v. Perez , 947 S.W.2d 268, 270 (Tex.Crim.App. 1997). Because the case before us involves the validity of the second prosecution, we are concerned with the double jeopardy protection prohibition against multiple prosecutions. See Perez , 947 S.W.2d at 269. The resolution of this case is governed by Perez , in which the defendant, like the defendant in this case, pleaded guilty to possession of marihuana, then claimed that the subsequent prosecution for failure to pay tax on the marihuana was barred by double jeopardy. 947 S.W.2d at 269. The Court of Criminal Appeals began its analysis by noting that the threshold question was whether the defendant was being prosecuted for the "same offense" in the second prosecution, i.e., the prosecution of the tax case. Id. To decide this issue, the court, citing Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180 (1932), compared the elements alleged in the initial indictment with the elements alleged in the second indictment. Id. at 270-71. The court noted that the possession case required proof of a usable amount of marihuana, whereas the tax case required proof that the defendant purchased marihuana. Id. at 271-72. Because each indictment required proof of an element that the other did not, the Perez court concluded that they were not the "same offense" for purposes of double jeopardy. Id. at 272. Therefore, the court concluded that prosecution of the tax case was not barred by the previous conviction in the possession case. Id. In this case, the indictment in the possession case provided that appellant did then and there intentionally and knowingly possess a usable quantity of marihuana in an amount of five pounds or less but more than four ounces . . . The indictment in the tax case provided that appellant did intentionally and knowingly possess a taxable substance, to-wit: 391 grams of marihuana on which no marihuana tax has been paid to the Texas Comptroller of Public Accounts. After comparing the elements alleged in the two indictments, we conclude that the possession case and the tax case do not charge the "same offense." The possession case requires proof of a usable quantity of marihuana, whereas the tax case requires proof that no marihuana tax has been paid to the Texas Comptroller. The Perez court acknowledged that such differences in the indictments mean that the charged offenses are not the "same offense." See 947 S.W.2d at 272 n. 7. CONCLUSION
Because the possession case and the tax case do not charge the "same offense," the trial court did not err by denying appellant habeas corpus relief. Accordingly, we affirm the judgment of the trial court.