A defendant with two sequential trips to the institutional division delivered .9 grams of meth. Then, hours later on the same day, she was arrested in possession of an additional .8 grams of meth. Is there any way to charge her with one count of possession of 1 to 4 grams of meth? Has anyone done that before? Of course the difference is 2 to 20 versus 25 to 99 or life. As always, thanks for your help.

I say no unless there was some way to show that she actually possessed both units of drugs at the same time.

A crack head could go buy and smoke .5g rocks all day and he still never possessed more than a state jail amount at any one time. Even if everything is deemed to fall within the same transaction, I still don't think you can aggregate drug weights like that.

I think you can charge in separate indictments and seek to stack. No way defense can argue single criminal episode without at least opening the door to aggregating the weights.

I don't think you can stack following a single trial. Law provides for automatic concurrent sentences following since criminal action involving same criminal episode. Definition of a criminal episode includes repetition of same or similar offense. [Not saying this really makes sense; it is just the way the law was written.]

Of course, you can have separate indictments, try separately and then stack. Really, though, for two state jail felony crimes?

I also don't know of any law that permits you to aggregate the drugs from two separate deliveries into a single charge. Would make for a nice law if someone wants to get it passed.

I was assuming separate trials. With the 2 prior pen trips, I though enhancement might be possible, so it would not be like having 2 trials for state jail felonies. And there is every likelihood that after one trial with a guilty verdict you could get a plea on the second case.

Sec. 481.132. MULTIPLE PROSECUTIONS. (a) In this section, "criminal episode" means the commission of two or more offenses under this chapter under the following circumstances:

(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme, plan, or continuing course of conduct; or

(2) the offenses are the repeated commission of the same or similar offenses.

(b) A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode. If a single criminal action is based on more than one charging instrument within the jurisdiction of the trial court, not later than the 30th day before the date of the trial, the state shall file written notice of the action.

(c) If a judgment of guilt is reversed, set aside, or vacated and a new trial is ordered, the state may not prosecute in a single criminal action in the new trial any offense not joined in the former prosecution unless evidence to establish probable guilt for that offense was not known to the appropriate prosecution official at the time the first prosecution began.

(d) If the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, sentence for each offense for which the accused has been found guilty shall be pronounced, and those sentences run concurrently.

(e) If it appears that a defendant or the state is prejudiced by a joinder of offenses, the court may order separate trials of the offenses or provide other relief as justice requires.

(f) This section provides the exclusive method for consolidation and joinder of prosecutions for offenses under this chapter. This section is not a limitation of Article 36.09 or 36.10, Code of Criminal Procedure.

OK, that makes more sense. You would have two separate cases and trials with a second degree felony punishment range. Done that way, the judge would have the discretion to stack the second sentence. And, following the first trial, the defendant would be likely to agree to, perhaps, waive his right to appeal and plead guilt to some concurrent time to avoid that stacked sentence.

Does this statute allow the state to prosecute two separate deliveries in the same trial to the same jury

If my defendant sold crack to the same CI on multiple occasions could I aggregate the weight and charge as delivery of a large weight over a period of time?

Subject to the "anti-joinder" escape valve in subsection (e), two or more "separate" deliveries could be tried together to the same jury (for concurrent sentences).

Aggregating amounts would depend on the meaning of "the offense" in the phrase "the amount of the controlled substance to which the offense applies." That, in turn, may depend on the meaning of "delivers" in the "person commits an offense if ..." phrase.

Clearly mere initial spatial segregation of amounts (or placing them is separate containers or even separate delivery vehicles) would not split the delivery into pieces. But, if enough time passed between a series of discrete transfers, it seems to me you may have something that can be joined together for trial, but not an escalating penalty range. Poole effectively answered your question: you may catch a buyer in possession in larger amounts (acquired over time), but if the clock is ticking, the delivery offense meter is also turning over. How much intervening time is too much time: unknown. But, I do not think "transfer" is a continuing offense (even if the identity of the transferee is the same).

You might try to prove that there was a precedent offer to sell the whole enchilada (as no transfer is actually required in order to prove a delivery).