Vance Lee Masters v. State ( 2020 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00626-CR
Vance Lee MASTERS,
Appellant
v.
The STATE of Texas,
Appellee
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. B19-89
Honorable M. Rex Emerson, Judge Presiding
rcm
Opinion by: Rebeca C. Martinez, Justice
sbm
Sitting: Rebeca C. Martinez, Justice rcm
Irene Rios, Justiceir
Beth Watkins, Justice
Delivered and Filed: August 5, 2020
AFFIRMED
A jury convicted Vance Lee Masters of delivery of a controlled substance and possession
of a controlled substance. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(a), 481.115(a). On
appeal, Masters contends he was improperly convicted of the two offenses in violation of the
Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. We affirm the
trial court’s judgment.
04-19-00626-CR
BACKGROUND
The underlying facts are not in dispute. Investigator Jeff Purvis of the Kerrville Police
Department testified that, on October 31, 2018, Marty Dolan agreed to cooperate with law
enforcement to purchase heroin from Masters. According to Purvis, Dolan paid Masters $200 in
marked currency for a quarter ounce of heroin in an O’Reilly’s parking lot. Masters then drove to
his drug source to purchase the heroin. Thereafter, Masters returned to the O’Reilly’s parking lot
and delivered the heroin to Dolan. Dolan then left the O’Reilly’s parking lot and handed the
purchased heroin over to Purvis. Meanwhile, Investigator Lucas Flores of the Kerr County
Sheriff’s Office arrested Masters inside the O’Reilly’s for delivery of a controlled substance to
Dolan. When questioned by Investigator Flores, Masters admitted that he had an additional
amount of heroin in his vehicle. An additional amount of heroin was recovered from Masters’s
vehicle.
In two counts, Masters was indicted for delivery of a controlled substance and possession
with intent to deliver a controlled substance. After a trial by jury, Masters was convicted of
delivery of a controlled substance and of possession of a controlled substance, a lesser-included
offense of possession with intent to deliver a controlled substance. See TEX. HEALTH & SAFETY
CODE ANN. §§ 481.112(a), 481.115(a). The jury sentenced Masters to twelve years’ confinement
and ten years’ confinement, respectively. The sentences were ordered to run concurrently.
DOUBLE JEOPARDY
Masters concedes that he did not present his double jeopardy claim to the trial court.
However, Masters argues his double jeopardy claim may be raised for the first time on appeal
“when the undisputed facts show the double jeopardy violation is clearly apparent on the face of
the record and when enforcement of usual rules of procedural default serves no legitimate state
interests.” Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000). The State does not
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04-19-00626-CR
dispute that Masters may raise his double jeopardy claim for the first time on appeal; rather, the
State contends that there is no double jeopardy violation apparent on the face of the record or
otherwise. We agree there was no violation.
The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be
subject for the same offence to be twice put in jeopardy of life or limb.” U.S. CONST. amend. V.
The Double Jeopardy Clause “protects an accused against 1) a second prosecution for the same
offense after acquittal, 2) a second prosecution for the same offense after conviction, and 3)
multiple punishments for the same offense.” Ex Parte Denton, 399 S.W.3d 540, 545 (Tex. Crim.
App. 2013) (citing Brown v. Ohio, 432 U.S. 161, 165 (1977); Ex parte Amador, 326 S.W.3d 202,
205 (Tex. Crim. App. 2010)).
Masters contends that the offenses of delivery of a controlled substance and possession of
a controlled substance constitute one specific offense because the offenses arose out of the same
criminal transaction and involved the same quantity of a controlled substance. Thus, Masters
argues his convictions for the offenses of delivery of a controlled substance and possession of a
controlled substance violate the Double Jeopardy Clause’s protection against multiple
punishments for the same offense. We disagree.
“Double jeopardy does not bar prosecution for distinct possession, delivery, or
manufacturing offenses where separate drug quantities are identified for each offense.” Guerrero
v. State, 305 S.W.3d 546, 566 n.22 (Tex. Crim. App. 2009) (Cochran, J., concurring). Here,
Masters delivered 4.23 grams of heroin to Dolan. The offense of delivery of a controlled substance
was complete when the delivery was made to Dolan. See Toro v. State, 780 S.W.2d 510, 512 (Tex.
App.—San Antonio 1989, no writ). Thereafter, when Investigator Flores arrested Masters for
delivery of a controlled substance, Masters admitted that he had an additional quantity of heroin
in his vehicle. In Masters’s vehicle, 5.47 grams of heroin was found. Masters’s delivery of a
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04-19-00626-CR
quantity of heroin to Dolan and his possession of an additional quantity of heroin in his vehicle
may be properly characterized as two separate and distinct offenses. See Smith v. State, 873
S.W.2d 773, 775 (Tex. App.—Fort Worth 1994, no writ) (holding the appellant could be convicted
of two separate offenses when the appellant delivered a quantity of cocaine to an undercover
officer and, while being arrested for that delivery, “threw down an additional quantity of cocaine
that he had on his person”); see also Toro, 780 S.W.2d at 512 (finding delivery and possession as
separate and distinct offenses where the “first plastic-enclosed cocaine delivered to [the
undercover officer] was not the same as the packet in the brown bag found in possession of
appellant”). Accordingly, Masters’s convictions for delivery of a controlled substance and
possession of a controlled substance do not violate the Fifth Amendment’s Double Jeopardy
Clause. Appellant’s sole issue on appeal is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Rebeca C. Martinez, Justice
DO NOT PUBLISH
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