concurring.
This case is foremost a case of legislative intent. The Court of Appeals and the majority confuse the issue presented by applying Blockburger before determining whether the Legislature intended that there be two offenses here. Only if there are two offenses, does it matter that they are “the same” for double jeopardy purposes under Blockburger.
The seminal question is whether appellant can be prosecuted more than once under the same statutory provision (section 43.26), for possession of two different things during the same transaction. In a case involving multiple prosecutions under the same statutory provision based upon theft of separate items of property belonging to different owners, the Court explained that the legislature’s intent to proscribe separate offenses was the preliminary question:
The first step in our double jeopardy analysis requires us to decide, as a matter of statutory interpretation, whether appellant’s conduct constituted more than one offense. This preliminary determination is necessary because, although this Court is bound by decisions from the United States Supreme Court in interpreting the scope of the double jeopardy clause of the United States Constitution, the determination of what constitutes an “offense” is largely a matter of state law: “The Legislature has the power to establish and define crimes [and ‘f]ew, if any, limitations are imposed by the Double Jeopardy Clause on the legislative power to define offenses.’ ” Spradling v. State, 773 S.W.2d 553 (Tex.Cr.App.1989), citing Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978). If we determine as a matter of statutory construction that appellant’s conduct comprises but a single offense, our inquiry is ended, as a successive prosecution for the same offense after appellant’s earlier conviction would be a prima facie violation of the double jeopardy clause.
Iglehart v. State, 837 S.W.2d 122, 127 (Tex.Crim.App.1992)(emphasis added); see also id. at 130 (Clinton, J., dissenting)(test announced in Blockburger is inapposite because that determines when jeopardy will and will not permit multiple prosecutions where two distinct statutes are violated by same conduct; here, the issue is whether double jeopardy :is violated when accused is prosecuted more than once under same statutory provision—root question is what Legislature intended as to units of prosecutions).1 The State Prosecuting Attorney states the posture of this case exactly right:
This case presents two distinct, but related, issues. First, what is the “allowable unit of prosecution”—i.e., the offense, prescribed by V.T.C.A., Penal Code § 43.26, relating to Possession of Child Pornography? Second, does a conviction for possession of a videotape in violation of Sec. 43.26, supra, constitute a double jeopardy bar to a succeeding prosecution for possession of a photograph, also in violation of Sec. 43.26, supra? The relevancy of the second issue depends upon the disposition of the first issue.
(Emphasis added).
And so the question is whether the Legislature intended that section 43.26 be divisible *841into separate units of prosecution depending upon types of film images possessed. We first look to see if the Legislature’s intent can be derived from the plain language of the provision.2 Penal Code section 43.26, as applicable to this case, provided in its entirety as follows:3
(a) A person commits an offense if:
(1) the person knowingly or intentionally possesses material containing a film image that visually depicts a child younger than 18 years of age at the time the film image of the child was made who is engaging in sexual conduct; and
(2) the person knows that the material depicts the child as described in Subdivision (1).
(b) In this section:
(1) “Film image” includes a photograph, slide, negative, film, or videotape, or a reproduction of any of these.
(2) “Sexual conduct” has the meaning assigned by Section 43.25.
(3) “Promote” has the meaning assigned by Section 43.25.
(c) The affirmative defenses provided by Section 43.25(f) also apply to a prosecution under this section.
(d) An offense under Subsection (a) is a felony of the third degree.
(e) A person commits an offense if:
(1) the person knowingly or intentionally promotes or possesses with intent to promote material described by Subsection (a)(1); and
(2) the person knows that the material depicts the child as described by Subsection (a)(1).
(f) A person who possesses six or more identical film images depicting a child as described by Subsection (a)(1) is presumed to possess the film images with the intent to promote the material.
(g) An offense under Subsection (e) is a felony of the third degree.
The defendant must possess “material containing a film image.” The term “material” suggests a number of items or multiple things. The section further provides that the material must include “a film image.” Therefore, while multiple things may be possessed (material), those items need only include one film image for an offense. But I am not convinced that this necessarily means that inclusion of more than one film image means the commission of more than one offense. Legislative intent is more apparent from subsection (c).
Under subsection (e), the following affirmative defenses are available:
(1) the defendant, in good faith, reasonably believed that the child who engaged in the sexual conduct was 18 years of age or older;
(2) the defendant was the spouse of the child at the time of the offense;
(3) the conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose; or
(4) the defendant is not more than two years older than the child.
The focus of the affirmative defenses is on the particular child depicted, thus requiring that each film image be considered individually rather than collectively. For instance, if a defendant possessed two film images of two different children, he might have an affirmative defense as to his possession of one but not the other, depending upon the status of the particular child. Each film image must considered independently in determining the applicability of an affirmative defense. The Legislature would not have structured the provision such that the film images are to be considered individually for purposes of determining the applicability of a given affirmative defense, but collectively for purposes of determining the “units of prosecution.” It follows that a defendant may commit more than one offense when he possesses more than one film image, whether the multiple film images *842are the same or different types.4 Nothing in this case suggests that the two images possessed are of the same children. Having possessed two separate film images, appellant committed two separate offenses.
The next question is whether these two offenses are “the same” under Blockburger. In this successive prosecutions ease, we look to the elements in the charging instrument rather than the penal code provision. State v. Perez, 947 S.W.2d 268, 272 (Tex.Crim.App.1997). Each indictment requires proof of a matter that the other does not. One alleges possession of a videotape, the other possession of a photograph. Appellant was not charged with the “same offense” , in the two cases; his second prosecution is not barred by double jeopardy. The Court of Appeals erred in concluding otherwise.
The judgment of the Court of Appeals should be reversed. I concur in the judgment of the Court.
BAIRD and PRICE, JJ., join.
. While the majority says the "main inquiry” is the question of “statutory interpretation” it nonetheless muddles exactly what the inquiry is by conducting a Blockburger analysis before deciding whether the Legislature intended that there be two offenses.
. The majority looks to legislative history for further support of its position. Consideration of legislative history is inappropriate when legislative intent is apparent from the face of the statute, as here.
. Section 43.26 has since been amended.
. A further question might be whether multiple offenses are presented when the defendant possesses more than one film image but all images are of the same child.