When a defendant has been charged with delivering cocaine to a minor "on or about" a certain date and the minor testifies that the defendant delivered cocaine to her "maybe 20 or 30 times" during the nine-month period preceding this date, has the minor provided testimony of offenses extraneous to the charged offense? No. And, can a minor be an accomplice to a defendant's delivery of cocaine to her? No.

A jury convicted appellant of delivering a controlled substance to a minor. See Section 481.122, Health and Safety Code. The indictment alleged that appellant committed this offense "on or about" September 9, 1998. K.R., who is appellant's daughter, testified that appellant delivered cocaine to her on September 9, 1998.

She also testified on redirect examination that appellant delivered cocaine to her "maybe 20 or 30 times" during the nine-month period preceding the September 9^th date alleged in the indictment. Appellant objected to this evidence on the basis that it was extraneous to the offense charged in the indictment and offered solely for a character conformity purpose under Rule 404(b) of the Texas Rules of Evidence. The prosecution offered the evidence as extraneous offense evidence that was admissible for a noncharacter conformity purpose under Rule 404(b). The trial court decided that the evidence was admissible for a noncharacter conformity purpose under Rule 404(b). The trial court also decided that "those occasions [other than the September 9^th delivery] are within the three-year statute of limitations; and, therefore, are offenses that are described within the indictment." Our review of the record indicates that neither party claimed that the trial court erroneously admitted the evidence on this latter basis.

[PROSECUTION]: Okay. I don't know if that suffices for the high points. And I think the door is basically has been opened in order to prove something other than character conformity in regard to those extraneous offenses, which technically would be probably the same criminal episode under the definition of Criminal Episode in that it is-the criminal episode-it's either the Penal Code or Code of Criminal Procedure. But it's 302, I believe.

Whichever book we're talking about says that it's the same as a repeated commission of the same offense. And we're dealing with on or about September 9^th. We're basically talking about the same criminal episode in that these are repeated offenses that tend to indicate something other than character conformity, such as identity, since identity is evidently an issue based upon the cross-examination; and also opportunity; knowledge; and lack of mistake or accident.

You know, the repeated commission of that under the Doctrine of Chances-and I can go run and get the case law that indicates to you the analysis and rationale behind that. I'm not going to say that I can spout it off-off my tongue as to why that type of evidence is admissible, but it's under those theories when there has been some type of cross-examination.

Certainly I would even request a limiting instruction to properly curtail the jury's consideration of that evidence to focus in on those issues. Identity clearly has been brought into question here as to who has provided this specific drug.

And I tried to very surgically limit the questions on direct to that one occasion, and I think that on cross is the first time that the true emphasis in regarding identity came into play.

[THE COURT]: What are your objections?

[APPELLANT]: My objections are under 403 and 404. And I do have case law, if I may approach and provide you a copy. I've outlined the portions, Your Honor. I think the sole purpose for this would be to try to prove the act or conformity of that, and that's not allowed under 404.

The case, I think, has a very appropriate paragraph back on about the-I think it's Page 22, the right-hand column. This case is dealing with a possession of cocaine. They claimed he possessed cocaine previously in the Perry case, and we have the same type of problem here. He's claiming that he's given-the evidence by the D.A. is that he had allegedly given her cocaine sometime previously. That's not the crime he's been accused of today.

As far as it being a criminal episode, it seems like a long time: nine months. I don't think that's still the same episode. This is the first time he has tried to introduce this type of evidence. I think when you look at the Montgomery case that it clearly talks about how the Court needs to weigh the evidence and the likelihood that what the witness is saying is true and accurate.

There's absolutely no supporting evidence for that, Your Honor. No one else can confirm that he's been giving her this cocaine on 30 separate occasions. She could say 50, and no one could confirm that. I think the likelihood of this occurring is very suspect, Your Honor. I think that was one of the things that was considered in not allowing this type of evidence in.

I believe that the prejudicial value-the probative value is substantially outweighed by the prejudicial effect it will have on my client

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[THE COURT]: Let the record reflect that it is Wednesday morning and the jury is not in the courtroom. The issues that were brought before the Court yesterday evening regarding [K.R.'s] testimony as to the occasions other than September 9^th wherein she will allege that cocaine was provided to her by the defendant has been discussed in depth and reviewed in depth by the Court.

And, Counsel, the Court is of the opinion that-and according to the case law that I have reviewed and have been provided to me-that those occasions are within the three-year statute of limitations; and, therefore, are offenses that are described in the indictment.

In the alternative, I do not believe I have to go to the balancing portion of 404(b) regarding extraneous offenses. However, if I do, I believe that it is a rebuttal of a defensive theory. It goes to identity, opportunity, possibly even motive. And, therefore, if it were to be within the Court's discretion under 404(b), I would allow it there, also.

Appellant claimed on direct appeal that the trial court erroneously admitted as extraneous offense evidence under Rule 404(b) K.R.'s testimony that appellant delivered cocaine to her "maybe 20 or 30 times" during the nine-month period preceding the September 9^th date alleged in the indictment. Relying on this Court's decisions in Sledge v. State and Rankin v. State, the Court of Appeals decided that this evidence "was not evidence of extraneous offenses, but rather evidence of the repeated commission of the offense alleged in the indictment" and that, under these circumstances, appellant's remedy was to require the prosecution "to elect the occurrence in which it sought to rely for conviction." Rodriguez, 31 S.W.3d at 775-76; see Sledge v. State, 953 S.W.2d 253 (Tex.Cr.App. 1997); Rankin v. State, 953 S.W.2d 740 (Tex.Cr.App. 1996). ⁽¹⁾

Appellant also challenged on direct appeal the sufficiency of the evidence to support his conviction. In support of this claim, he argued for the first time that K.R. was an accomplice whose testimony was not "adequately corroborated" which made the evidence insufficient to support the conviction. Rodriguez v. State, 31 S.W.3d 772, 774-75 (Tex.App.-Austin 2000). Though the record reflects that appellant did not request and the trial court did not sua sponte submit an accomplice witness instruction in the jury charge, the Court of Appeals nevertheless addressed appellant's sufficiency claim and decided that K.R. was not an accomplice. Id.

We granted appellant's discretionary review petition to determine: (1) whether the Court of Appeals erroneously held that K.R.'s testimony that appellant delivered cocaine to her "maybe 20 or 30 times" during the nine-month period preceding the September 9^th date alleged in the indictment was not extraneous offense evidence; ⁽²⁾ and (2) whether appellant was entitled to an accomplice witness instruction under Article 38.14 of the Texas Code of Criminal Procedure. ⁽³⁾ We will affirm the judgment of the Court of Appeals.

I. GROUND ONE

The Court of Appeals applied well-settled law set out in our decisions in Rankin and Sledge and we are not inclined to revisit those decisions which answer the contentions made in appellant's brief. See, e.g., Rankin, 953 S.W.2d at 742-43 (Meyers, J., concurring) (summarizing the well-settled law applicable to cases like this). Based on these decisions, we hold that K.R.'s testimony that appellant delivered cocaine to her "maybe 20 or 30 times" during the nine-month period preceding the September 9^th date alleged in the indictment was not evidence of extraneous offenses and that appellant's remedy was to require the State to elect the occurrence on which it sought to rely for conviction. See id.

The benefit a defendant receives in cases like this is that, absent an election, he cannot later be prosecuted for the separate acts of misconduct upon which the jury could have convicted the defendant. See Rankin, 953 S.W.2d at 743 (Meyers, J., concurring) (subsequent prosecution for any such instance of misconduct is jeopardy-barred because it is impossible to determine which offense the jury actually found the defendant guilty of). Appellant, therefore, cannot be prosecuted for delivering cocaine to K.R. "maybe 20 or 30 times"during the nine-month period preceding the September 9^th date alleged in the indictment. See id.

It has been suggested that Rankin and Sledge should not apply here because K.R.'s "general and vague" testimony that appellant delivered cocaine to her "maybe 20 or 30 times" proved no offense especially in the absence of testimony "identifying the substance delivered on the 20 to 30 occasions." Testimony that a defendant delivered cocaine "maybe 20 or 30 times" is sufficient to support a conviction for a delivery offense. See Jackson v. Virginia, 99 S.Ct. 2781, 2789 (1979).

It has also been suggested that the usual remedy of an election in cases like this does not apply here because "it would have been impossible for the State to make an election in the absence of any testimony distinguishing one incident from another." The State, however, could have easily made an election. It could have elected "at least one occurrence" instead of "maybe 20 or 30" occurrences.

II. GROUND TWO

Appellant asserts that K.R. was a party (and, therefore, an accomplice) to the delivery offense. A "person is an accomplice if he participates before, during, or after the commission of the crime and can be prosecuted for the same offense as the defendant or for a less-included offense." Medina v. State, 7 S.W.3d 633, 641 (Tex.Cr.App. 1999), cert. denied, 529 U.S. 1102 (2000). A "person is criminally responsible [as a party to] an offense committed by another if ... acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids or attempts to aid the person to commit the offense." Section 7.02, Texas Penal Code.

K.R. is not a party to the delivery offense that appellant committed even though appellant could not have committed this offense without K.R.'s participation. As the Third Court of Appeals discussed in Robinson v. State, there is an exception to the law of criminal responsibility "where the crime is so defined that participation by another is inevitably incident to its commission." 815 S.W.2d 361, 363 (Tex.App.-Austin 1991, no pet.) (citing 2 W. LaFave & A. Scott, Substantive Criminal Law Section 6.8(e) at 165-66 (1986)). Delivery is such an offense. Like the Third Court of Appeals, we find the opinion of the Wyoming Supreme Court in Wheeler v. State instructive:

There is a definite distinction between a seller and a buyer. Their separate acts may result in a single transaction, but the buyer is not aiding the "selling act" of the seller and the seller is not aiding the "buying act" of the buyer. The buyer and seller act from different poles ... . An accomplice is one who participates in the same criminal conduct as the defendant, not one whose conduct is the antithesis of the defendant, albeit the conduct of both is involved in a single transaction.

Wheeler, 691 P.2d 599, 602 (Wyo. 1984).

Here, K.R., as the recipient of the cocaine, was not aiding the "delivering act" by appellant. Any offense stemming from K.R.'s receipt of the cocaine is separate from the delivery that appellant committed. Once appellant transferred possession of the cocaine to K.R., his participation in that offense, the offense with which he was charged, ceased. The two offenses are hermetically separated. While K.R. may have committed some type of offense by receiving the cocaine, she did not commit the same offense that appellant committed, and, therefore, she could not have been prosecuted for the delivery offense that appellant committed. Any other holding would require the Court to accept the nonsensical proposition that in this particular case K.R. was guilty of delivering cocaine to herself and that a female minor who has consensual sex with an adult can be guilty of committing a sexual assault against herself.

The judgment of the Court of Appeals is affirmed.

Hervey, J.

Delivered: March 26, 2003

Publish

1. Though the record reflects that the prosecution offered the evidence as extraneous offense evidence for a noncharacter conformity purpose under Rule 404(b), the prosecution did not object when the Court of Appeals upheld the admission of the evidence on the basis that it was nonextraneous offense evidence of misconduct charged in the indictment. See Rankin, 953 S.W.2d at 742-43 (Meyers, J., concurring). We will, therefore, consider the evidence to have been admitted for this purpose.

2. Ground one of appellant's discretionary review petition states:

Where the indictment on its face alleges only one (1) occurrence of delivery of a controlled substance, does [Sledge] allow the introduction of 20 to 30 prior controlled substance deliveries to the same person under the theory that the deliveries are actually part of the charged offense, and thereby evade the provisions of Rules 404(b) and 403, Texas Rules of Evidence?