Gonzalez, Kimberly
PD-1455-16
| Tex. App. | Dec 22, 2016Background
- Defendant Kimberly Gonzalez was involved in a single vehicle rollover with three child passengers (ages ~6, 7, and 10 months) who were injured; police observed signs of intoxication.
- Indictment charged Gonzalez with three counts of DWI with a child passenger (one count per child) and three counts of intoxication assault; two intoxication-assault counts were later dismissed.
- Gonzalez pleaded guilty pursuant to a plea bargain to the three DWI-with-child-passenger counts, received concurrent state-jail-felony sentences (suspended), and reserved right to appeal.
- The Thirteenth Court of Appeals held there was a double-jeopardy violation: the allowable unit of prosecution for Tex. Penal Code § 49.045 is one offense per incident of driving (not per child), vacated two of three convictions, and affirmed the first.
- The State petitioned the Court of Criminal Appeals, raising three principal issues: (1) whether the unit of prosecution is per child (State’s position) or per driving incident (court of appeals); (2) whether a plea-bargaining defendant may raise this double-jeopardy claim on appeal under Tex. R. App. P. 25.2(a)(2); and (3) whether a defendant can waive a multiple-punishments double-jeopardy claim as part of a plea bargain.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Gonzalez) | Held (Thirteenth Court of Appeals) |
|---|---|---|---|
| Unit of prosecution for § 49.045 (DWI w/ child passenger) | Gravamen is the particular child placed at risk; statute’s element “a passenger who is younger than 15 years” supports one offense per child | Gravamen is the act of driving while intoxicated; presence of a child is a circumstance—one offense per driving incident | Allowable unit is one offense per incident of driving; multiple convictions for the single incident violated double jeopardy (vacated 2 of 3) |
| Appealability by plea-bargaining defendant under Tex. R. App. P. 25.2(a)(2) | The State: Rule limits appeals but double-jeopardy claims may be procedural and not properly raised pretrial; appellate review should be constrained | Gonzalez raised double-jeopardy via pretrial motion to quash and on appeal; claims may be reviewed if apparent on face of record | Court reviewed claim despite plea; found double-jeopardy violation clearly apparent on record and held procedural-default prong did not bar appellate review |
| Waiver of double-jeopardy claims in plea bargains | State: defendant can affirmatively waive double-jeopardy claims; absence of reporter’s record leaves open possibility of explicit waiver, which would preclude relief | Gonzalez: no clear record of waiver; she reserved limited appeal and challenged multiplicity | Court rejected waiver argument as preventing relief absent clear showing of legitimate state interest in finality; vacated duplicative convictions |
Key Cases Cited
- Loving v. State, 401 S.W.3d 642 (Tex. Crim. App. 2013) (gravamen/unit-of-prosecution analysis)
- Harris v. State, 359 S.W.3d 625 (Tex. Crim. App. 2011) (grammatical/syntactic analysis of unit of prosecution)
- Jones v. State, 396 S.W.3d 558 (Tex. Crim. App. 2013) (tools for determining gravamen)
- Ex parte Denton, 399 S.W.3d 540 (Tex. Crim. App. 2013) (when double-jeopardy claims may be raised for first time on appeal)
- Ex parte Cavazos, 203 S.W.3d 333 (Tex. Crim. App. 2006) (remedy when multiple convictions violate double jeopardy)
- Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008) (assaultive-offense unit of prosecution often one per victim)