Thursday, July 1, 2010

Cutting Out the Middle Man - Manufacture and Possession Combined

Pursuant to a State's petition for discretionary review of the holding of the 7th District Court of Appeals (Amarillo) in Weinn v. State, the Texas Court of Criminal Appeals was presented the following issues:
  1. Can a defendant be convicted and punished for both Manufacture and the subsequent Possession with Intent to Deliver of the same quantity of controlled substances? and
  2. Are the offenses of Manufacturing a Controlled Substance and Possession with Intent to Deliver a Controlled Substance the same for double jeopardy purposes, even though the separate offenses are meant to punish separate dangers?
In a shocking 6-3 decision, the CCA held:
the legislature intended that manufacture and simultaneous possession with intent to deliver of the same single quantity of controlled substances constitutes a single offense.  Punishing appellant twice for the same offense would violate his constitutional rights against double jeopardy.
Presiding Judge Keller and Judge Keasler filed dissenting opinions and were joined by Judge Hervey.  Presiding Judge Keller wrote:
the big problem with the [majority's holding] is that it means that a person who manufactures a
controlled substance is free to later sell that substance to a third party without subjecting himself to prosecution for an additional offense.
Perhaps Judge Keller failed to read the entire majority opinion, which clearly explained on the final page that
our holding [does] not bar a prosecution for delivery of a controlled substance if a person who manufactures (and thereby possesses) a quantity of a controlled substance later delivers that same quantity to a third party. A later sale of that substance to a third party would be a second distinct act, a separate violation of the statute, and a basis for a second punishment.
This appears to be a well-reasoned holding by the CCA.  If you really think about it, a person that manufactures drugs is obviously going to, at the same time, possess those drugs, and most likely will also have the intent to sell the drugs.  So long as the State is free to charge to subsequent delivery as a separate and distinct offense, I don't really see that the State loses anything (other than a stacked charge sheet) from this holding.  It should actually make the entire process simpler, as the State will be able to charge one or the other (manufacture or possession with intent to deliver), but not both.