Just because an offense can be considered a lesser included offense does that mean we can't charge both? i.e possession w/ intent to deliver requires knowing mental state but possession is intentionally or knowingly. Campbell 149 SW3d 149 says possession is a lesser included, but does not address whether Blockburger test applies.

not sure I understand your question; it is well settled that a defendant cannot be convicted of both (1) possession and (2) possession with intent to deliver, for the same quantity of drugs.

Price v. State, 15 S.W.3d 577, 578 (Tex.App.-Waco 2000, pet. ref'd)(for double jeopardy purposes, possession of cocaine is a lesser-included offense of possession with intent to deliver cocaine unless separate quantities of cocaine are identified for each offense).

Berger v. State, 104 S.W.3d 199, 205 (Tex.App.-Austin 2003)("Appellant was arrested with 1.05 grams of methamphetamine in his pocket. This is the single transaction giving rise to the convictions [possession and possession with intent to deliver] at issue. While it was permissible to submit both offenses the appellant was charged with to the jury, appellant could not be convicted of both.

[This message was edited by D.Merritt on 07-26-05 at .]

You can charge all the separate offenses you want in a single indictment. But, a jury can only convict for a single offense within the meaning of double jeopardy law.

Thanks, that is what I thought but I am only an appellate attorney so trial attorneys don't always agree.