Ex Parte Rathmell , 1986 Tex. Crim. App. LEXIS 802 ( 1986 )

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Judge.

This is a pretrial habeas corpus application. The applicant seeks to have an indictment which alleges that he committed involuntary manslaughter dismissed because he reasons that a trial on the merits of the charge will expose him to double jeopardy. See Ex parte Robinson, 641 S.W.2d 552 (Tex.Cr.App.1982).

Applicant was originally denied his writ by the 109th District Court in Nueces County. Applicant then appealed this denial to the Thirteenth Court of Appeals. The Court of Appeals granted applicant’s request for relief and ordered the indictment dismissed. The State in turn filed a petition for discretionary review with this Court, which we granted.

At the habeas corpus hearing, applicant and the State stipulated to the facts. Applicant, driving while intoxicated, struck an automobile in which two women were riding. Both women died as a result. Applicant was separately indicted for involuntary manslaughter for both deaths under V.T.C.A., Penal Code, Section 19.05(a)(2). He was subsequently convicted of the involuntary manslaughter of one of the women and punishment was assessed at two years’ confinement in prison. Rathmell v. State, 653 S.W.2d 498 (Tex.App.-Corpus Christi, 1983, pet. refused). The State is now proposing to try applicant for the death of the second woman.

Essentially, the State alleges on review two things. First, the State argues that an application for a pretrial writ of habeas corpus is not the appropriate vehicle by which applicant should seek relief. Secondly, the State argues that nothing in the legal concept of double jeopardy bars the applicant’s trial for the death of the second woman.

This Court has established in the case of Ex parte Robinson, supra, that the pretrial writ of habeas corpus is an appropriate remedy to review an individual’s double jeopardy claim. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 691 (1977). Indeed, the Supreme Court made it clear that under the circumstances of this case an interlocutory appeal is not only a proper but a preferred remedy:

“Finally, the rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence. To be sure, the Double Jeopardy Clause protects an individual against being twice convicted for the same crime, and that aspect of the right can be fully vindicated on an appeal following final judgment, as the Government suggests. However, the Court has long recognized that the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense.” (emphasis in original). 431 U.S. at 660, 97 S.Ct. at 2040.

The State’s contention that the case of Ex parte Ruby, 403 S.W.2d 129 (Tex.Cr. App.1966), is controlling in this matter is without merit. We overrule this ground of error.

The State next contends that the appellate court erred in ruling that a second trial of applicant would offend the prohibition against double jeopardy which is a fundamental feature of both the Federal and State Constitutions. Amendment V, U.S. Constitution; Article I, Section 10, Texas Constitution. The State contends that the contemplated trial of applicant at issue is in accordance with this Court’s holding in Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr. App.1982), and the rule of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed.2d 306 (1932).

The appeals court correctly noted that the Blockburger doctrine is not precisely applicable to the case at bar. ' The Block-burger/McWilliams rationale applies to situations in which the criminal conduct violates two separate distinct statutory provisions. In this case the applicant's conduct violates one distinct statutory act, though it violates it twice.

Section 19.05(a)(2) of the Texas Penal Code reads as follows:

“(a) A person commits an offense if he: U * * *

“(2) by accident or mistake when operating a motor vehicle while intoxicated and, by reason of such intoxication, causes the death of an individual.”

An individual is defined in V.T.C.A., Penal Code, Section 1.07(a)(17), as follows:

“ ‘Individual’ means a human being who has been born and is alive.”

It is clear from the language of these statutes that the Legislature has determined and intends that the offense of involuntary manslaughter (as defined in Section 19.05(a)(2), supra) is completed with the death of a single individual. Whether the other death in question occurred prior to, contemporaneously with, or subsequent to the death for which the appellant was first tried is of no consequence. Each individual death constitutes a complete and distinct offense (albeit under the terms of the one statute) and as such each death constituted a separate “allowable unit of prosecution.” Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978).

As this Court stated in the McWilliams case:

“... The constitutional provisions speak of double jeopardy in terms of the ‘same offense’ rather than ‘same transaction.’ ...” 634 S.W.2d at 823.

With the abolition of the carving doctrine, we are left with little Texas precedent as to the resolution of the present issue. However, there is guidance in the jurisprudence of our sister states. In 7A Am.Jur.2d, Automobiles and Highway Traffic, Section 391, it is written:

“Most courts hold that there are as many separate and distinct offenses as there are persons injured or killed by the unlawful operation of a motor vehicle, so that successive prosecutions may be instituted against the person who committed the unlawful act without violating the rule against double or former jeopardy.”

The Supreme Court of Tennessee recently had occasion to examine the same issue. Rejecting their previous position which would bar multiple prosecutions in cases such as that before us, the Court overruled its prior holdings and adopted the majority position. State v. Irvin, 603 S.W.2d 121 (Tenn.1980).

“We are of the opinion that the [prior] analysis improperly focuses upon the fictional ‘intent’ of the accused rather than upon the elements of the criminal offense with which he is charged. In that case as in this, the offense was homicide — the killing of another person. In our opinion, when more than one person is killed, there is more than one homicide — regardless of any fictional ‘intent’ or whether the deaths result from a single ‘act’ or a series of acts. It seems illogical to us, as a general proposition, to hold that when two persons have been killed by an accused, he has committed only one homicide. Prior cases in this state so holding are overruled or modified to the extent that they conflict herewith.” State v. Irvin, supra, at 123.

For other cases which are in accord, see White v. State, 378 So.2d 239 (Ala.Cr.App. 1979) writ denied 378 So.2d 247; State v. Salazar, 539 P.2d 946, 24 Ariz.App. 472 (1975); Holder v. Fraser, 215 Ark. 67, 219 S.W.2d 625 (1949); Neal v. State, 55 Cal.2d 11, 9 CaLRptr. 607, 357 P.2d 839 (1960); People v. Smith, 182 Colo. 228, 512 P.2d 269 (1973); State v. Dubina, 164 Conn. 95, 318 A.2d 95 (1972); Murray v. United States, 358 A.2d 314 (D.C.App.1976); McHugh v. State, 160 Fla. 823, 824, 36 So.2d 786 (1948), cert, denied 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081 (1949); People v. Allen, 368 Ill. 368, 14 N.E.2d 397 (1938); State v. Cook, 158 N.W.2d 26, 261 Iowa 1341 (1968); Fleming v. Commonwealth, 284 Ky. 209, 144 S.W.2d 220 (1940); State v. Pettle, 286 So.2d 625 (La.1973); Cousins v. State, 354 A.2d 825, 277 Md. 383 (1976); People v. Winquest, 115 Mich.App. 215, 320 N.W.2d 346 (1982); State v. Fredlund, 200 Minn. 44, 273 N.W. 353,113 A.L.R. 215 (1937); Burton v. State, 226 Miss. 31, 79 So.2d 242 (1955); State v. Whitley, 382 S.W.2d 665 (Mo.1964); State v. Pierce, 199 Mont. 57, 647 P.2d 847, dissented, 199 Mont. 57, 651 P.2d 62 (1982); Jeppesen v. State, 154 Neb. 765, 49 N.W.2d 611 (1951); State v. Hoag, 21 N.J. 496, 122 A.2d 628 (1956); State v. Johnson, 208 S.E.2d 206, 23 N.C.App. 52, certiorari denied 210 S.E.2d 59, 286 N.C. 339 (1974); Com. ex rel Lockhart v. Myers, 193 Pa.Super. 531, 165 A.2d 400 (1960); People v. Dean, 392 N.Y. S.2d 134, 56 A.D.2d 242 (1977), affirmed 412 N.Y.S.2d 353, 45 N.Y.2d 651, 384 N.E.2d 1277 (1978); State v. Martin, 154 Ohio St. 539, 96 N.E.2d 776 (1951); Fay v. State, 62 Okl.Cr. 350, 71 P.2d 768 (1937); State v. Seidschlaw, 304 N.W.2d 102 (S.D. 1981); State v. Irvin, 603 S.W.2d 121 (Tenn.1980); Lawrence v. Commonwealth, 181 Va. 582, 26 S.E.2d 54 (1943); State v. Taylor, 185 Wash. 198, 52 P.2d 1252 (1936); State v. Rabe, 96 Wis.2d 48, 291 N.W.2d 809 (1980); Goodman v. State, 601 P.2d 178 (Wyo.1979); 7 Am.Jur.2d Automobiles and Highway Traffic subsection 344 (1963); 22 C.J.S. Criminal Law subsection 9(2), 298 (1961); Annot., 172 A.L.R. 1053, 1062 (1948); West’s General Digests, Criminal Law subsection 200(8).

We now adopt the reasoning of the Supreme Court of Tennessee as it pertains to this case. Because we find that applicant has violated Section 19.05(a)(2), supra, twice, by causing the death of two individuals, we find that two distinct and separate offenses have been committed. Under these circumstances, the trial of applicant for the death of the second woman is not barred by the prohibition against double jeopardy.

The State’s petition is granted; the Court of Appeals’ decision granting relief is reversed and applicant’s application for habe-as corpus is, denied.