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PD-0275-18 & PD-0276-18 05/23/2018

“Is possession with intent to deliver a predicate offense for engaging in organized criminal activity because it falls within ‘unlawful manufacture, delivery . . . of a controlled substance’ which is one of EOCA’s enumerated predicate offenses?”

Hughitt was charged with engaging in organized criminal activity (EOCA) by possessing a controlled substance with intent to deliver. Hughitt filed motions to quash and for directed verdict in which she argued that possession with intent to deliver was not one of the enumerated predicate offenses for EOCA. Tex. Penal Code § 71.02(a). The trial court denied both motions.

On appeal, the court of appeals held that the trial court should have granted the motion to quash because possession with intent to deliver is not a predicate offense. It rejected the State’s argument that the word “delivery” in the list of predicates was a reference to the Health & Safety Code offenses for manufacture and delivery of controlled substances—which include possession with intent to deliver as one manner or means. The court of appeals vacated the conviction and dismissed the indictment.

The State argues that “unlawful manufacture, delivery . . . of a controlled substance” in the list of EOCA predicate offenses refers to the umbrella offense of manufacture and delivery —Tex. Health & Safety Code § 481.112, in this case.  The State contends that the statute should be interpreted based on the objective meaning of the text at the time of its enactment.  At that time there was a single comprehensive offense entitled “Unlawful Manufacture or Delivery of Controlled Substances,” that included (as it does today) possession with intent to deliver.  The State also argues that a Court of Criminal Appeals case decided not long after EOCA’s enactment, Nichols v. State, 653 S.W.2d 768, 771 (Tex. Crim. App. 1981), supports its reading of the statute.   

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