State v. Mark Earl Hailey

• Court: Court of Appeals of Texas
• Decided: April 28, 2009
• Docket: 14-07-00497-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed April 28, 2009

Affirmed and Memorandum Opinion filed April 28, 2009.

In The

Fourteenth Court of Appeals

_______________

NO. 14-07-00497-CR

THE STATE OF TEXAS, Appellant

V.

MARK EARL HAILEY, Appellee

On Appeal from the 21st District Court

Washington County, Texas

Trial Court Cause No. 14,862  

M E M O R A N D U M   O P I N I O N

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 Awith intent to unlawfully manufacture a controlled substance, namely methamphetamine, possess an immediate precursor, to-wit: Pseudophedrine@ on or about August 4, 2006 (the Afirst 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 Ain the interest of justice@;^[1] 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 Asecond 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 Adouble 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,^[2] 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, 295B96 (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 300B01 (A[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.^[3]  Thus, under both the first and second indictments,^[4] the State was required to prove that appellee was in possession of pseudoephedrineCwhether it was a chemical or immediate precursorCwith 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, 275B76 (Tex. Crim. App. 2008) (A[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, 351B52 (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 300B01 (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.

IV.  Conclusion

The trial court did not err in granting appellee=s motion to quash the second indictment.  We therefore overrule the State=s sole issue on appeal and affirm the judgment of the trial court.

/s/        Eva M. Guzman

Justice

Panel consists of Justices Yates, Guzman, and Sullivan.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  In its statement of facts, the State asserts ACause No. 14,761 proceeded to trial on the merits.  After the State had rested its case, the State moved for a dismissal, asserting that effective February 16, 205, PSEUDOPHEDRINE was no longer an IMMEDIATE PRECURSOR pursuant to TEX. HEALTH & SAFETY CODE ANN. ' 481.002(22) (Vernon Supp. 2005).@  (first emphasis added).

^[2]  Blockburger v. United States, 284 U.S. 299, 304 (1932).

^[3]  Pseudoephedrine is listed as a chemical precursor in the Controlled Substances Act.  See Tex. Health & Safety Code Ann. ' 481.002(51)(O).  The parties agree that pseudoephedrine was included in the list of immediate precursors propounded by the commissioner of public health, but was removed from this list prior to the date of the offense appellee allegedly committed.  See id. ' 481.002(22) (defining Aimmediate precursor@). 

^[4]  See Bigon, 252 S.W.3d at 369B70.