concurring.
The majority mistakenly concludes that applicant’s conviction in the tax case cannot be considered in addressing his claim. I nevertheless concur because the tax offense and the delivery offense are “different” under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and therefor punishment under the tax provision has no jeopardy implications for punishment under the delivery provision.
Applicant was indicted for aggravated delivery of cocaine. Applicant received a notice from the Comptroller of tax due on his possession of cocaine. Applicant never paid any of this tax. Applicant was then indicted for failure to pay the tax.. Applicant pled guilty to both indictments in a single proceeding. As to the delivery conviction, the court assessed punishment at imprisonment for eighteen years and a fine. In the tax case, applicant’s punishment was assessed at ten years imprisonment and a fine. Applicant’s prison term was suspended and probated in the tax case. After applicant filed this writ application, the Comptroller dismissed the tax assessment and any state tax liens filed on account thereof.
The majority says applicant claims his conviction for delivery was barred by double jeopardy because he had already been “punished” by the Comptroller’s assessment of the drug tax against him. The majority dispenses with any consideration of applicant’s conviction in the tax case by explaining that since applicant was placed on probation in that case, the conviction is not final and therefore cannot be challenged under 11.07. Majority opinion at 628.
But it is not all that clear to me that applicant is challenging the tax conviction. Rather, he seems to be attacking his delivery conviction on the ground that he was punished for the same offense by virtue of the tax assessment and the tax ease conviction.1 The fact that the tax case conviction is not final for purposes of challenging that conviction in a writ does not mean that the tax case conviction may not serve as evidence of “punishment” for purposes of challenging a different conviction (the delivery conviction) on double jeopardy grounds. The majority fails to make this critical distinction.
Even so, applicant’s claim has no merit. The offense of delivery of cocaine requires proof that (1) a person (2) knowingly or intentionally (3) delivers (4) cocaine. Tex. Health and safety code § 481.112(a). The term “deliver” is defined in part as meaning “to transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship.” Id. at § 481.002(8). The offense of possession of cocaine if tax unpaid requires proof that (1) a dealer (2) possesses (3) cocaine (4) on which the tax imposed has not been paid. *631Tex. Tax code § 159.201. “A dealer” is “a person who in violation of the law of this state imports into this state or manufactures, produces, acquires, or possesses in this state” certain amounts of a taxable substance consisting of a controlled substance or marihuana. Id. at § 159.001(3). Under Blockburger, supra, each statutory offense requires proof of at least one fact which the other does not. Delivery requires proof that the cocaine was “transferfed], actually or constructively, to another.” The tax offense does not require proof of any transfer. The tax offense requires proof that no tax had been paid on the cocaine. Delivery does not require proof of tax not paid.2
For these reasons, I concur.
BAIRD, J., joins.. Granted, the instant pro se writ application is not exceedingly articulate, but it appears fairly clear to me that applicant is, at least in part, challenging his delivery conviction by pointing to his tax conviction as a "punishment." Never mind that applicant might also be challenging his tax conviction based upon his punishment for his delivery conviction. His reliance on the tax conviction as "punishment” so as to bar the delivery conviction should be addressed by the majority, distinguished and apart from any challenge applicant might be making to the tax conviction itself.
. The same conclusion is reached by conducting-a Blockburger analysis based on the two indictments. The indictment in the delivery case alleges that applicant (1) intentionally and knowingly (2) deliver[ed] (3) by actual transfer to Wayne Dial (4) cocaine in an amount of less than four hundred grams but not more than twenty-eight grams. The indictment for the tax offense alleges that applicant (1) while acting as a dealer (2) did intentionally and knowingly (3) possess (4) a taxable substance, namely 56 grams of a mixture of materials that contained cocaine, and (5)on which no controlled substance tax had been paid. The delivery case required proof of "actual transfer to Wayne Dial." The tax case required no proof of a transfer of the cocaine to any other person. The tax case required proof that "no controlled substance tax had been paid” on the cocaine. The delivery case required no proof as to nonpayment of a tax.
Because applicant pled guilty to both offense in a single proceeding, however, the double jeopardy issue is one of multiple punishments rather than successive prosecutions. See Ex parte Kopecky, 821 S.W.2d 957, 958 (Tex.Crim.App.1992). In a multiple punishments case, it is appropriate to compare statutory provisions rather than charging instruments. See id. at 959-60; see also State v. Perez, 947 S.W.2d 268, 272 (Tex.Crim.App.1997).