Ward v. State , 148 Tex. Crim. 186 ( 1945 )

This cause in the trial court bore No. 68,049, in which appellant was charged with driving an automobile upon a public highway while he was intoxicated.

Appellant waived a jury and was tried before the court who found him guilty and assessed his punishment at a fine of $200.00.

The facts in this case are precisely the same as found in cause No. 23,031 (our docket number) which was No. 68,048 in the lower court. We refer to our opinion in cause No. 23,031 (this date) (Page 96 of this volume) for a sufficient statement of the evidence.

The only bill of exceptions found in this record is that complaining of the admission in evidence of Officer Howard's testimony that appellant told the officer that he (appellant) was the driver of the car. For the reasons stated in our opinion in cause No. 23,031, this presents no error.

Appellant interposed a plea of jeopardy in the present case in a peculiar manner and under unusual circumstances. In the first place the plea of former jeopardy was not in compliance with Articles 508 and 509, C. C. P. It is a special plea which must be verified by the affidavit of the defendant. The plea here attempted to be interposed was only presented verbally. It came about in the following manner. All counsel agreed in open court that both causes No. 68,048 (charging aggravated assault) and No. 68,049 (charging drunken driving) would be tried at the same time and that evidence both for the State and defendant upon each and both offenses would be introduced during the same trial. No objection to such procedure was made by either counsel, but to the contrary, both counsel requested that such procedure be followed. After hearing the evidence the court found appellant guilty upon the aggravated assault charge and fixed his punishment at $200.00. Thereupon, appellant's counsel verbally pleaded former jeopardy to any conviction in the "drunken driving" case. This plea was overruled by the court, to which appellant excepted as shown by the court's order entered on the minutes.

In addition to the one already mentioned, other reasons obtain why the court's ruling was correct. The judgment of conviction in the aggravated assault case was not final as is evident from the appeal to this court in such case. Only where the judgment of conviction is final can a plea of former jeopardy by reason of such conviction be entertained. See Ramirez v. State, 177 S.W.2d 976, and many cases therein cited; Branch's Ann. Tex. P. C., p. 319, sec. 630.

If appellant based his plea upon the proposition that he could not be convicted and punished twice for the same criminal act, we think his position untenable. Driving while intoxicated, and an assault with a vehicle driven is not the same criminal acts. A person could be guilty of "drunk driving" without striking or injuring anyone with the vehicle driven. On the other hand, the driver might be duly sober and yet be guilty of an aggravated assault with the vehicle. The two offenses here charged are separate and distinct offenses. See Tex. Jur. Vol. 12, p. 560, sec. 241; Thompson v. State,99 Tex. Crim. 470, 269 S.W. 1048, and other cases cited in the notes under the foregoing text from Texas Jurisprudence.

In misdemeanor cases separate offenses may be charged in separate counts in the same indictment or information, and all may be disposed of in one trial and conviction had upon the different offenses so charged. Bishop's New Cr. Proc. (2d Ed.)., Vol. 1, sec. 452; Blackwell v. State, 92 Tex. Crim. 473,244 S.W. 532; Tucker v. State, 65 Tex.Crim. R.,145 S.W. 611; Gould v. State, 66 Tex.Crim. R., 147 S.W. 247. Of course, this rule would not apply if it developed that apparently different offenses constituted the same criminal act. In this case, if the State had so desired, the two offenses charged might have been included in the same information and complaint under separate counts. Under the agreement to try both cases at the same time the situation became much the same as though both offenses had been charged in separate counts of the same information and complaint.

No error appears calling for a reversal.

The judgment is affirmed.

ON MOTION FOR REHEARING.