OPINION ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW

Appellee was indicted for possession of more than five but less than fifty pounds of marijuana (“the possession case”) and, in a separate indictment, for possession of marijuana on which no tax had been paid (“the tax case”). Appellee pled guilty in the possession case and moved to quash the indictment in the tax case on double jeopardy grounds, alleging the tax was an additional punishment for the “same offense,” as interpreted in Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), and that the tax case charged the “same offense” as the possession case so as to be a successive prosecution. The trial court quashed the indictment.1 The State appealed, arguing that double jeopardy was not implicated because the tax was not punitive and also because the possession case and the tax case did not involve the same offense. The Court of Appeals held that the State’s argument that the tax is not punishment is irrelevant in this case because the issue here is not the assessment of the tax, but the criminal prosecution. State v. Perez, 906 S.W.2d 558, 559-60 (Tex.App. — San Antonio 1995). In other words, appellee faces multiple prosecutions, not multiple punishments and for this reason neither Kurth Ranch nor our recent opinion in Stennett v. State, 941 S.W.2d 914 (Tex. *270Crim.App. 1996), is applicable. Turning to the issue of whether the possession ease and the tax case charged the “same offense,” the Court of Appeals applied the Supreme Court’s “same elements” test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and held that possession of marijuana under the Health and Safety Code is not the “same offense” as possession of marijuana without paying a tax under the Tax Code. In reaching this conclusion, the Court of Appeals relied in part on Ex parte Kopecky, 821 S.W.2d 957 (Tex.Crim.App. 1992), in which this Court held that possession of phenylaee-tone was not the same offense as possession of phenylacetone without payment of tax because each provision required proof of a fact the other did not. Even though Kopecky was a multiple punishments case, the Court of Appeals reasoned, the “same elements” test has identical application whether utilized in the context of multiple punishments or multiple prosecutions. Perez, 906 S.W.2d at 560-61. We granted review to address whether the Court of Appeals erred in concluding that the two offenses were not the same for purposes of barring the successive prosecution under the double jeopardy clause

of the Fifth Amendment to the United States Constitution.2 We affirm.

The double jeopardy clause of the Fifth Amendment protects against multiple punishments for the same offense as well as multiple prosecutions for the same offense after a conviction or an acquittal. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Ex parte Kopecky, 821 S.W.2d at 958. While different policy considerations are at issue in the two contexts,3 a threshold question in either case is whether the defendant is being punished or prosecuted for the “same offense.” United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 2855-56, 125 L.Ed.2d 556 (1993). The Court of Appeals was correct in turning to the Supreme Court’s “same elements” test for determining whether the separate provisions charge the same offense for purposes of double jeopardy. Under this analysis, two statutes do not charge the same offense if “each provision requires proof of an additional fact which the other does not.” Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. But more than the statutory elements are relevant in conducting a “same elements” test. The elements contained in the charging instruments, rather than the penal provisions, are controlling. *271Parrish v. State, 869 S.W.2d 352, 354 (Tex.Crim.App. 1994).

Appellant was charged in the possession case with third degree felony possession of marijuana under the Controlled Substances Act.4 The indictment alleged that appellant “did then and there knowingly possess a usable quantity of marijuana, to-wit: in an amount more than 5 lbs. but not more than 50 lbs.” Appellant was charged in the tax case under Texas Tax Code § 159.201(a), Possession of Item if Tax Unpaid.5 The tax case indictment ehai'ged that appellant:'

did then and there intentionally and knowingly purchase, acquire, and produce a taxable substance, namely: 9,000 grams of marijuana, on which a tax has not previously been paid; and the defendant did not securely affix in the manner required by the comptroller to the taxable substance the appropriate tax payment certificate to show payment of the tax.

Examination of the two indictments reveals that appellant was not charged with the “same offense” in the two cases. The possession case indictment alleges that appellant possessed “a usable quantity” of marijuana.6 The tax case does not require proof of a “usable quantity.” The tax case indictment alleges that appellant did “purchase” marijuana. The possession case does not *272require proof of purchasing marijuana. Because the possession case requires proof of a “usable quantity” which the tax case does not and because the tax case requires proof that appellant purchased marijuana which the possession case does not, the two indictments do not charge the “same offense.”7 We accordingly hold that the offense of possession of marijuana and the offense of possession of item if tax unpaid are not the “same offense” as alleged in this ease, so as to bar the successive prosecution.8

In also concluding that the “same offense” was not at issue in this case, the Court of Appeals compared the statutory elements and relied on Ex parte Kopecky. Reliance on that case is somewhat misguided, although we reach the same result. Ex parte Kopecky was a multiple punishments case in which we held that the offense of possession of phenylacetone was not the same as possession of phenylacetone without payment of tax. In reaching that conclusion, we examined the two statutory provisions and other evidence of legislative intent “that those who possess a controlled substance and fail to pay the tax thereon should be punished separately for each transgression.” In the instant case, we have focused upon the elements as pled in the charging instruments in deciding whether appellant is being subject to prosecution twice for the same offense. While Parrish, supra, does not make this distinction, it is logical to compare statutory elements in the multiple punishments context where Blockburger is a rule of statutory construction to be used in determining legislative intent, but compare charging instrument elements in the successive prosecutions context where there are two charging instruments to examine and where the underlying policy is to prevent retrying a defendant for something he has already been tried for. See fn.2, supra.

Agreeing with the Court of Appeals that the “same offense” is not at issue here so as to bar the successive prosecution, we affirm the judgment of the Court of Appeals.

concurring.

I join the opinion of the Court. The situation presented here is analagous to a well-established practice under federal law: prosecution of an individual for bank robbery followed by prosecution of the same individual for tax evasion for failing to report (and pay taxes on) the proceeds of the bank robbery as taxable income under the Internal Revenue Code. Clearly, these are two separate and distinct offenses, albeit arising from the same criminal transaction, with separate and distinct elements. Similarly, the double jeopardy clause of the Fifth Amendment is not implicated because possession of marihuana and failure to pay tax on the same marihuana are not the “same offenses.” See Blockburger v. United States, 284 U.S. 299, *27352 S.Ct. 180, 76 L.Ed. 306 (1932); United States v. Woodward, 469 U.S. 105, 105 S.Ct. 611, 83 L.Ed.2d 518 (1985) (Making a false statement to a customs officer about the amount of currency being carried and willfully failing to report carrying in excess of $5,000 are not the same crime under Block-burger as Congress intended these to be separate offenses and the applicable statutes address “separate evils”).

dissenting.

The question in the instant case is whether the offenses of possession of marihuana, and the failure to pay tax on that marihuana are the same for jeopardy purposes. For the following reasons, I believe the question should be answered in the affirmative.

The relevant inquiry in this case is governed by Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), where the Supreme Court set out the test to determine whether two offenses are the same for jeopardy purposes:

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.

Id., 284 U.S. at 304, 52 S.Ct. at 182.

The majority correctly states, “[t]he elements contained in the charging instruments, rather than the penal provisions, are controlling.” Ante, at 270.1 Comparing the indictments in each case, I find the elements of the possession case are:

(1) appellee

(2) did knowingly

(3) possess

(4) a useable quantity of

(5) marihuana

(6)in an amount more than 5 lbs but not more than 50 lbs.

and the elements of the tax case are:

(1) appellee

(2) did knowingly or intentionally

(3) purchase, acquire2 or produce

(4) 9,000 grams of

(5) marihuana

(6) a taxable substance,

(7) on which a tax has not previously been paid;

(8) and the defendant did not securely affix in the manner required by the Comptroller to the taxable substance the appropriate tax payment certificate to show payment of the tax.

While the words may be slightly different, “possess” and “acquire” are synonymous in this context. And, 9,000 grams is clearly a useable quantity. See, King v. State, 675 S.W.2d 514, 516 (Tex.Cr.App. 1984); and, Lejeune v. State, 538 S.W.2d 775, 777 (Tex.Cr. App. 1976). Therefore, under Blockburger, the possession of marihuana offense is the same as the tax offense for jeopardy purposes. Because the Majority does not so hold, I respectfully dissent.