Ex Parte: Frank Eugene Watson ( 2007 )

                                                NO. 12-07-00127-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

§                      APPEAL FROM THE 294TH

EX PARTE:

§                      JUDICIAL DISTRICT COURT OF

FRANK EUGENE WATSON

§                      VAN ZANDT COUNTY, TEXAS

MEMORANDUM OPINION

            Frank Eugene Watson appeals from the trial court’s denial of relief on his pretrial application for writ of habeas corpus. In one issue he argues that double jeopardy principles bar prosecution for the offense of intoxication assault because he pleaded no contest to the traffic offense of failure to yield right of way arising from the same incident.  We affirm.

Background

            On July 13, 2003, Appellant was involved in a wreck with another vehicle.  The police investigated the wreck.  Appellant was charged by complaint with the class “C” misdemeanor offense of failure to yield right of way¹ and was later indicted for the felony offense of intoxication assault.  Appellant pleaded no contest to the failure to yield charge in a justice of the peace court on August 26, 2003.  The trial court accepted his plea, deferred the disposition, and dismissed the case on October 27, 2003. 

            The indictment for intoxication assault was returned in 2005, and Appellant filed an application for writ of habeas corpus alleging that the prosecution for failure to yield was a former jeopardy and barred prosecution for intoxication assault.  The trial court denied relief after a hearing.  This appeal followed.

Double Jeopardy

            The Fifth Amendment to the U.S. Constitution contains a Double Jeopardy Clause, which provides that “[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V.  This provision has been interpreted to forbid prosecution for the same offense after an acquittal or conviction and multiple punishments for the same offense.  See Illinois v. Vitale, 447 U.S. 410, 415, 100 S. Ct. 2260, 2264–65, 65 L. Ed. 2d 228 (1980); Watson v. State, 900 S.W.2d 60, 61 (Tex. Crim. App. 1995). The seemingly simple language of the Fifth Amendment has proved difficult to apply.  See, e.g., Albernaz v. United States, 450 U.S. 333, 343, 101 S. Ct. 1137, 1144, 67 L. Ed. 2d 275 (1981) (“While the Clause itself simply states that no person shall ‘be subject for the same offence to be twice put in jeopardy of life or limb,’ the decisional law in the area is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator.”).

            The pivot in the cases construing the Fifth Amendment is the term “same offence.”  For a time, the Supreme Court construed the term to mean that offenses arising from the same conduct were the “same offence.”  See Grady v. Corbin, 495 U.S. 508, 522–23, 110 S. Ct. 2084,  2094, 109 L. Ed. 2d 548 (1990).  This case is factually similar to Corbin.  The defendant in that case was charged with driving while intoxicated and failing to keep to the right of the median.  Id., 495 U.S. at 511-12, 110 S. Ct. at 2087.  The Court determined that those offenses arose from the same conduct that formed the basis for the homicide and assault charges for which the defendant was later indicted and held that prosecution on the homicide and assault charges was barred by the Double Jeopardy Clause.  Id., 495 U.S. at 522–23, 110 S. Ct. at 2094. Three years later, the Court decided that Corbin lacked constitutional roots and was inconsistent with earlier precedent.  United States v. Dixon, 509 U.S. 688, 704, 113 S. Ct. 2849, 2860, 125 L. Ed. 2d 556 (1993).  The Court overruled Corbin and reverted to the previous  Blockburger² rule or test.  Id., 509 U.S. at 703–04, 113 S. Ct. at 2059–60.

            Under the Blockburger test, two offenses are the “same offence” for double jeopardy purposes only if neither offense has a statutory element that the other does not.  Blockburger, 284 U.S. at 304, 52 S. Ct. at 182; Ortega v. State, 171 S.W.3d 895, 899–900 (Tex. Crim. App. 2005). Applying the Blockburger test to the elements of the offenses here, it is plain that the offense of failure to yield right of way is not the “same offence” as intoxication assault. Failure to yield right of way has the following elements: 1) an operator shall yield the right of way, 2) to turn left at an intersection or into an alley or private road or driveway, 3) to a vehicle that is approaching from the opposite direction and that is in the intersection or in such proximity to the intersection as to be an immediate hazard. Tex. Transp. Code Ann. § 545.152 (Vernon Supp. 2007).  The elements of intoxication assault are 1) a person, by accident or mistake, 2) while operating a motor vehicle in a public place while intoxicated, 3) by reason of that intoxication causes serious bodily injury to another.  Tex. Penal Code Ann. § 49.07 (Vernon Supp. 2007).  The two offenses do not have elements in common, except for an “operator,” and each has elements that the other does not. 

            Appellant argues that the traffic offense is a lesser included offense of intoxication assault and that we must compare the actual charging instruments to see if elements are in common.  Generally, a greater offense is the “same” as any lesser offense included in it, and so the intoxication assault prosecution would be barred if the dismissed misdemeanor prosecution is a former jeopardy³ and if it is a lesser included offense.  See, e.g., Brown v. Ohio, 432 U.S. 161, 168–69, 97 S. Ct. 2221, 2226–27, 53 L. Ed. 2d 187 (1977) (Joyriding is a lesser included offense of theft of an automobile.); Stephens v. State, 806 S.W.2d 812, 815 (Tex. Crim. App. 1990); see also Hayward v. State, 158 S.W.3d 476, 479 (Tex. Crim. App. 2005).

            Appellant is correct that the charging instruments must be examined to determine if one of these is a lesser included offense of the other.  There are two common ways that an offense can be a lesser included offense of another. Some offenses have an element that is another offense.  For example, when conviction for felony murder requires proof of a predicate felony, the predicate felony is the “same offence” as the felony murder offense for double jeopardy purposes.  See Harris v. Oklahoma, 433 U.S. 682, 682, 97 S. Ct. 2912, 2913, 53 L. Ed. 2d 1054 (1972).  But the charging instrument of the greater offense must be examined to determine if it is the predicate offense that is alleged, or just allegations about the predicate offense.  See Langs v. State, 183 S.W.3d 680, 686 (Tex. Crim. App. 2006) (Whether burglary is the same offense as a predicate offense depends on whether the predicate offense is pleaded as an element or if intent to commit that offense is pleaded.).  This issue is not present in this case because intoxication assault, unlike felony murder and one variant of burglary, does not require proof of another offense as an element.

            Traditional lesser included offenses are those established by the same evidence required to prove the greater offense.  Tex. Code Crim. Proc. Ann. art. 37.09(1) (Vernon Supp. 2007);   Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007).  In Hall, the court of criminal appeals has adopted the “cognate pleadings” test to evaluate whether an offense is a lesser included offense of another.  Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007).  This test is different from the Blockburger test in that the statutory elements of the greater offense, as modified by the particular allegations in the indictment, are compared with the statutory elements of the lesser offense, rather than a comparison of the statutory elements of each.  Id. at 536 (emphasis added); see also Girdy v. State, 213 S.W.3d 315, 319 (Tex. Crim. App. 2006) (An offense is a lesser included offense if it is “established by proof of the same or less than all the facts required to establish the commission” of the greater offense.).

            But even if a traffic offense can be pleaded as a lesser included offense of intoxication assault,⁴ and even if the dismissed misdemeanor prosecution can act as a jeopardy bar, the trial court properly denied relief.  In the indictment, the grand jury alleged that Appellant, while intoxicated and operating a vehicle in a public place, caused serious bodily injury to another by accident or mistake by “failing to yield the right of way while turning left.” The indictment did not allege that the accident or mistake occurred in an intersection, which is an element of the misdemeanor offense of failure to yield.  Tex. Transp. Code Ann. § 545.152.  Nor did the indictment allege that Appellant committed the offense of failure to yield.  Therefore, that the offense occurred in an intersection is an element of the misdemeanor offense, but is not an element of intoxication assault as charged.  See Parrish v. State, 869 S.W.2d 352, 355 (Tex. Crim. App. 1994) (Speeding is not the same offense as driving while intoxicated.); Ephraim v. State, No. 06-07-00030-CR, 2007 Tex. App. LEXIS 8382, at *5 (Tex. App.–Texarkana Oct. 24, 2007, no pet. h.) (mem. op., not designated for publication) (Unsafe speed is not the same offense as intoxication assault.). The State’s evidence may show that the wreck occurred in an intersection, but that fact is not necessary or required for a conviction.  And a failure of proof on that issue would not lead to an acquittal, as it would in the prosecution for the failure to yield offense.  Therefore, the misdemeanor failure to yield is not an included offense of the felony intoxication assault. 

            The class “C” misdemeanor offense of failure to yield right of way is not the same offense as intoxication assault.  The State’s pleading of the intoxication assault indictment to include the words “failing to yield right of way” does not make the misdemeanor offense a lesser included offense because intoxication assault does not require proof of an underlying offense and because the State did not allege all of the elements of the misdemeanor offense in the indictment for intoxication assault.  Because the two offenses are different offenses, the State may seek punishment on each.  We overrule Appellant’s sole issue.

Disposition

            We affirm the judgment of the trial court.

                                                                                                    SAM GRIFFITH   

                                                                                                               Justice

Opinion delivered December 12, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

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¹ The title of the offense is “Vehicle Turning Left.”  Tex. Transp. Code Ann. § 545.152 (Vernon Supp. 2007).  For ease of reading, we refer to it as “failure to yield right of way” or “failure to yield.”

² Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

³ Because the offenses are not the same, we do not reach the question of whether the dismissed misdemeanor offense is a former jeopardy.  See, e.g., Akhil Reed Amar, Double Jeopardy Law Made Simple, 106 Yale L. J. 1807, 1840 (1997) (“Until there is a final winner [acquittal or conviction], the first jeopardy has not ended, and further proceedings do not place a person in jeopardy a second time - ‘twice.’”).

⁴ We express no opinion on this question, but the Supreme Court has never cleaved to the notion that every lesser included offense, even those whose elements are included in the greater offense, is the “same offence” as the greater offense. See Garrett v. United States, 471 U.S. 773, 790-93, 2416–18, 85 L. Ed. 2d 764 (1985); Diaz v. United States, 223 U.S. 442, 449, 32 S. Ct. 250, 251, 56 L. Ed. 500 (1912).