Lead Opinion
delivered the opinion of the Court
The question in this case is whether intoxication assault and felony DWI (driving while intoxicated) are the same offense for double-jeopardy purposes when they arise out of the same transaction. We hold that they are not.
I. BACKGROUND
Applicant was convicted of both intoxication assault and felony DWI. These convictions arose from the same incident, a traffic accident on October 17, 2010 in which Charles Bundrant suffered serious bodily injury. The felony DWI count was based on the fact that applicant had two prior DWI convictions. Applicant filed a habeas application alleging, among other things, that conviction for both intoxication assault and felony DWI violated his double-jeopardy right to be free from multiple punishments. We filed and set the application on the double-jeopardy claim and ordered briefing.
Relying heavily upon Bigon v. State
Citing a variety of Texas cases, the State contends that the two prior DWI convictions are treated as elements of the offense of felony DWI for a number of
II. ANALYSIS
A. Double-Jeopardy Principles
1. Multiple-Punishment Protection
The Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”
2. One Statute Versus Two Statutes
How legislative intent is ascertained depends in part on whether the offenses at issue are codified in a single statute or in two distinct statutory provisions.
The elements analysis conducted in the two-statute context begins with the Blockburgers&me-elements test.
In Ex parte Ervin, we set forth a non-exclusive list of factors to consider in determining whether the legislature intended only one punishment for offenses that contain different elements under Blockburger: (1) whether offenses are in the same statutory section or chapter; (2) whether the offenses are phrased in the alternative; (3) whether the offenses are
Whether a court is comparing elements pursuant to Blockburger or analyzing factors pursuant to Ervin, the offenses compared in an “elements” analysis are derived solely from the pleadings and the relevant statutory provisions.
4. “Units” Analysis
Even when the offenses in question are proscribed by a single statute or are otherwise the same under an “elements” analysis, the protection against double jeopardy is not violated if the offenses constitute separate allowable units of prosecution.
B. Different Elements
The offense of intoxication assault, defined in Texas Penal Code § 49.07, occurs if a person “by accident or mistake ... while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another.”
Because the offenses at issue here are codified in different statutory sections, they must qualify as the same under an “elements” analysis before a double-jeopardy violation is shown.
A statutorily prescribed aggravating fact plays one of three roles in enhancing an offense: (1) creating a new aggravated offense- in which the aggravating fact is an element, (2) enhancing the level of the offense, or (3) enhancing the punishment for the offense.
Applicant concedes that we have construed the required prior DWI convictions to be elements of the offense of felony DWI, and he is corre'ct in that concession. In examining §§ 49.04 and 49.09 in Gibson v. State, we observed that the “prior intoxication-related offenses ... serve the purpose of establishing whether the instant offense qualifies as felony driving while intoxicated. The prior intoxication-related offenses are elements of the offense .... [and] define the offense as a felony.”
In a later case, we emphasized the elemental nature of the § 49.09 prior-conviction requirement, saying, “[U]nder our penal statutes, two (or more) prior intoxication-related offenses are specific attendant circumstances that serve to define, in part, the forbidden conduct of the crime of felony driving while intoxicated.”
Moreover, the same conclusion may be reached by following the reasoning in Lo-max v. State.
From this discussion, it is abundantly clear that the offenses of felony DWI and intoxication assault are different under the Blockburger same-elements test. Consequently, these offenses are presumed to be different for double-jeopardy purposes, and we must turn to whether that presumption has been rebutted by other factors. In deciding whether the presumption has been rebutted, we must conduct an analysis of various factors under Ervin to determine whether the legislature nevertheless clearly intended the offenses to be treated as the same.
C. Ervin Factors
1. Prior Cases
Three of our cases subsequent to Ervin have involved extensive Ervin anal-yses. In Bigon and Shelby, an analysis of factors under Fhpmpersuaded us that the legislature did not intend separate punishments for the offenses at issue.
2. Different Characterizations for Different Purposes
While acknowledging that the prior convictions are jurisdictional, applicant argues that we should treat them differently in a double-jeopardy analysis. He argues that, using the “facts required” test in Bigon, the facts required for the two offenses are
But the legislature’s decision to treat the prior convictions as elements has substantial procedural consequences. As we have explained above, according the prior convictions the status of elements has the effect of conferring jurisdiction in district court and requiring that the prior convictions be listed in the indictment, proved at the guilt stage of trial, and submitted in the guilt-stage jury charge. Further, the requirement that the convictions be in the indictment means that a grand jury must pass on them and that the defendant will be guaranteed pretrial notice of them. By contrast, if the prior convictions were mere punishment enhancers, the prosecutor could simply give written notice of them, and such notice would not necessarily be required prior to trial.
3. Placement of the Offenses within the Statutory Scheme
We have suggested that the presence of two offenses in the same chapter of the Penal Code is a factor in favor of treating them as the same offense, although our Ervin-analysis eases have not addressed offenses that were actually codified within the same chapter.
But we must further ask not merely whether the offenses are in the same chapter, but how they are structured within that chapter. This concept is at least partially expressed by the Ervin factor “whether the offenses are phrased in the alternative” and the factor “whether the offenses are contained in the same statutory section.” The offenses at issue in Er-vin — manslaughter and intoxication manslaughter — were, before September 1, 1994, “merely alternate methods of committing the offense of involuntary manslaughter under former § 19.05.”
That plausible explanation does not apply to the present case. Both offenses at issue here are intoxication .offenses that are contained in the same chapter of the Penal Code. Had the legislature wished to set up alternative methods of committing an enhanced DWI offense that included the existence of prior convictions as one alternative and the causing of serious bodily injury as another, it could have easily done so. Under § 49.09(b), there are currently two methods of elevating a DWI to a felony DWI: (1) one prior conviction for the offense of intoxication manslaughter or substantially similar offense in another state, or (2) two prior convictions of an intoxication offense
4. Naming of the Offenses
We have concluded that offenses were similarly named if they shared a common word in the title, such as “manslaughter” in the manslaughter and intoxication-manslaughter statutes
The statutes codifying DWI and intoxication assault both contain a form of the word “intoxicate” in their titles. The word is contained as a modifier in both statutes rather than as the noun. This fact may somewhat weaken the inference to be drawn when compared to the offenses at issue in Ervin, Bigon, and Shelby, in which the common word was the noun. On the other hand, the intoxicated/intoxication modifiers denote offenses that belong to a particular class that are grouped within the same title of the Penal Code. On balance, we conclude that the offenses of felony DWI and intoxication assault are named similarly enough for that to be a
5. Punishment Ranges
Felony DWI and intoxication assault have the same punishment range — that of a third-degree felony.
If one posits that felony DWI and intoxication assault are co-equal offenses, being aggravated DWIs. of third-degree-felony status, having the same punishment range would make sense. But, as we explained above, the structure of these offenses within Chapter 49 strongly militates against any conclusion that these offenses were meant to be co-equal alternatives. If one posits that intoxication assault and felony DWI are analogous to greater- and lesser-included offenses — as applicant does — then one would not expect the offenses to necessarily have the same punishment range. Having the same punishment range would not necessarily be inconsistent with a greater- and lesser-included offense relationship if felony DWI is conceived as analogous to a lesser-included offense that is then subject to punishment enhancement, but the sámeness of the punishment ranges would be coincidental and not particularly probative of the relationship between the offenses. On balance, we conclude that the sameness of the punishment ranges in the present case is a slight factor in favor of treating the offenses as the same.
6. Focus or Gravamen / Unit of Prosecution
In every case in which we have found the offenses to be the same under an Ervin analysis, the focus of each of the offenses and the units of' prosecution for the offenses have been the same. Ervin and Bigon each involved homicide offenses, with the focus of both offenses at issue being on the result of the defendant’s conduct — the death of an individual.
By contrast, the offenses at issue in Garfias did not have the same focus and did not prescribe the same unit of prosecution.
As in Garfias, the focus of each of the offenses in the present case is different. To begin with, the offenses at issue in this case each have a different type of focus. Intoxication assault is a result-oriented offense.
As a consequence, the units of prosecution for the offenses are not only not the same, but they do not completely line up spatially and temporally, although they overlap. For example, a person could, after two prior DWI convictions, drive on a road while intoxicated a third time for half an hour, and at the end of that half-hour, his vehicle could collide with a car occupied by four individuals, all of whom are injured. Applicant would have committed only one felony DWI, which took place in the space
Although the felony-DWI and intoxication-assault offenses are both designed to protect against the “carnage caused by drunk drivers,”
7. History
We finally consider the history of the statutes that prescribe the offenses at issue here. In Ervin, we examined a prior version of the statute that codified what are now manslaughter and intoxication manslaughter and how it had changed, and we considered some changes to other statutes that related to the offenses.
Prior to 1941, there existed only one offense of driving while intoxicated, codified in Article 802 of the old Penal Code.
But in 1965, the newly enacted Article 36.01 of the Code of Criminal Procedure introduced language that was not found in its predecessor: “When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07.”
In Diamond v. State, we were confronted with a provision of the theft statute that made theft a felony if two prior theft convictions were proven.
With the advent of the modern Penal Code in 1974, the legislature moved Article 802b to Article 6701¿-2 of the revised civil statutes, where it continued to codify every element of the felony DWI offense without regard to the “plain vanilla” DWI offense, which had been moved to Article 6701l-1.
Effective January 1, 1984, Article 6701l-2 was repealed and repeat-offender provisions were placed in Article 6701l-1, along with a provision that increased punishment if the DWI offense caused another person to suffer serious bodily injury.
In Bucek v. State, the Fort Worth Court of Appeals addressed whether the “serious bodily injury” requirement of Subsection (f) was an element of an enhanced DWI offense or was simply a punishment enhancement.
[S]ubsections (c), (d), (e), and (f) are merely punishmént provisions of driving while intoxicated and ... subsection (b) of the article, driving while intoxicated, is not a lesser included offense of subsection (f).... [Sjubsection (b) defines the offense of driving while intoxicated. Subsection (c) prescribes the ordinary punishment for that [DWI] offense and subsections (d), (e), and (f) prescribe extraordinary punishment which is applicable in the event of certain aggravating factors.110
In Addington, however, the Texarkana Court of Appeals distinguished Bucek’s fact situation and held that, while the “punishment provisions” in Subsections (d) through (f) were “enhancement provisions in the broad sense, [Subs]ection (e) is a special enhancement because it elevates the offense from a misdemeanor to a felony.”
In 1989, we handed down Wilson v. State.
At issue in Wilson was Subsection (f), the serious-bodily-injury provision, not Subsection (e), the two-prior-convictions provision. In support of its holding, Wilson pointed to language in Subsection (f) that was also contained in Subsection (e), but Wilson also pointed to language that was unique to Subsection (f). Construing Wilson’s holding broadly, the Austin Court of Appeals concluded that Subsection (e), the two prior convictions provision, “does not create a separate offense, but only provides an extraordinary punishment for the single offense of driving while intoxicated.”
Other courts of appeals, however, continued to view Subsection (e) as codifying elements of an offense of felony DWI. Following Addington, the Amarillo Court of Appeals concluded that “prior convictions are jurisdictional elements of the offense under article 6701l-1 (e) and properly part of the proof at the guilt-innocence stage of trial.”
Effective September 1, 1994, various intoxication-related offenses were codified in Chapter 49 of the Penal Code.
The new legislative scheme plainly superseded Wilson’s holding in at least one respect: “serious bodily injury” was no longer part of a punishment enhancement; it was an element of the new intoxication-assault offense. Whether Wilson ⅛ holding extended to the provisions of § 49.09 was at least partially answered by Gibson and our subsequent cases that held that the two-prior-convictions provision in § 49.09(b), in combination with § 49.04, created the offense of felony DWI, with the prior convictions as elements of that offense.
The history of the DWI provisions reveals that, during most of the time that there was a felony-repeat-offender provision for DWI, the provision was a standalone offense with the prior conviction indisputably being an element of that offense. That history also reveals that, when the felony-repeat-offender provision was made part of an integrated scheme, most courts that weighed in on the matter construed the newer felony provision consistently with its predecessor. This treatment was also consistent with this Court’s treatment of similar theft provisions, in which the prior convictions were construed as elements of the offense of felony theft. The legislature has had plenty of notice that Texas courts were treating prior convictions under repeat-offender provisions that raised an offense to felony status as elements of a felony offense, even in integrated statutory schemes. If the legislature did not wish the prior convictions to be elements, or did not wish them to be- elements for all purposes, it could have so specified when it enacted Chapter 49, or at the various times that Chapter 49 has been amended.
Instead, legislative action has reinforced the notion that the prior convictions are elements. The “jurisdictional” exception in Article 36.01 appears to be a tacit recog
Finally, in the few cases that we have found in other jurisdictions that involve similar facts, the double-jeopardy question has turned on whether the prior convictions are elements of an aggravated offense or are part of a punishment enhancement. In jurisdictions in which the prior convictions are considered elements, the offenses at issue have been deemed different offenses for double-jeopardy purposes.
D. Conclusion
The offenses at issue are in the same chapter, are similarly named, and have the same punishment ranges. Those factors weigh in applicant’s favor, but none are particularly weighty. The prior-convictions provision could colorably be characterized as akin to a punishment enhancement under a liberalized Block-burger analysis, some dicta from the Wilson case lends some support for that view, and there was at one time a minority view in the courts of appeals that a former version of the prior-convictions-provision was a punishment enhancement.
But the factors that militate against applicant’s position are more substantial. The prior convictions are currently consid
Even if an analysis of the Ervin factors were inconclusive, applicant’s double-jeopardy claim would fail, because the presumption established by the offenses having different elements under the Blockburger analysis would remain unre-butted.
We deny relief.
. Ex parte Benson, 443 S.W.3d (Tex.Crim. App.2014) (not designated for publication).
. 252 S.W.3d 360 (Tex.Crim.App.2008).
. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
. U.S. Const, amend 5, cl. 2.
. Brown v. Ohio, 432 U.S. 161, 164, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Ex parte Den-ton, 399 S.W.3d 540, 545 (Tex.Crim.App. 2013).
. Brown, 432 U.S. at 165, 97 S.Ct. 2221; Denton, 399 S.W.3d at 545.
. Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Gonzales v. State, 304 S.W.3d 838, 845 (Tex.Crim.App. 2010).
. See Blockburger, 284 U.S. at 304, 52 S.Ct. 180 (referring, in the same-elements test, to the situation in which the same act or transaction "constitutes the violation of two distinct statutory provisions”).
. Vick v. State, 991 S.W.2d 830, 832 (Tex.Crim.App.1999) (Parsing a single statute "is unlike a situation involving different statutes, which, by itself, is some indication of legislative intent to authorize multiple prosecutions simply because the offenses are separately defined in different statutes.”).
. Garfias v. State, 424 S.W.3d 54, 58 (Tex.Crim.App.2014) ("[A]n 'elements’ analysis is appropriate when the offenses in question come from different statutory sections.”); Rubalcado v. State, 424 S.W.3d 560, 571 (Tex.Crim.App.2014) ("Offenses that have the same elements under the Blockburger test are nevertheless separate if they involve separate allowable units of prosecution.”). See also Brown, 432 U.S. at 164-69, 97 S.Ct. 2221 (elements analysis), 169-70 & n.8 (units analysis); Ex parte Hawkins, 6 S.W.3d 554, 555-56 & n.6, 557 n.8 (Tex.Crim.App. 1999) (discussing Brown and Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978)); Denton, 399 S.W.3d at 548-50 (Keller, P.J., concurring) (“[T]he Blockburger test sets up a presumption in a multiple-statute elements inquiry.... Nevertheless, if offenses under different statutes are the 'same' elementally, then a units analysis could be appropriate if, for example, the pleadings or the evidence indicates that there are different victims.”).
.See Gatfias, 424 S.W.3d at 58 ("[A] ‘units’ analysis is employed when the offenses are alternative means of committing the same statutory offense.”); Loving v. State, 401 S.W.3d 642, 645 (Tex.Crim.App.2013) ("Both parties’ arguments are predicated on the assumption that the proper analysis includes the
. Price v. State, 434 S.W.3d 601, 609 (Tex. Crim.App.2014).
. Blockburger, 284 U.S. at 304, 52 S.Ct. 180.
. Ex parte Amador, 326 S.W.3d 202, 206 n.5 (Tex.Crim.App.2010) ("The court of appeals also erred in considering the charging instruments of both the greater and the lesser offenses in conducting its own lesser-included-offense analysis in the present case. [W]e do not consider the charging instrument, of the alleged lesser-included offense in such analyses. Rather, we compare the statutory elements of the greater offense, as they have been alleged in the charging instrument of that offense, with only the statutory elements of the lesser-included offense.”); Ex parte Watson, 306 S.W.3d 259, 273 (Tex.Crim.App. 2009) (op. on reh'g) ("Both statutory elements and any descriptive averments alleged in the indictment for the greater-inclusive offense should be compared to the statutory elements of the lesser offense.”). See also Garfias, 424 S.W.3d at 54.
. Hunter, 459.U.S. at 366-68, 103 S.Ct. 673; Price, 434 S.W.3d at 609-10.
. Hunter, 459 U.S. at 367, 103 S.Ct. 673 (discussing Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) and citing American Tobacco Co. v. United ' States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946)); Gonzales, 304 S.W.3d at 845.
. Price, 434 S.W.3d at 609-10; Ex parte Er-vin, 991 S.W.2d 804, 807 (Tex.Crim.App. 1999) ("[T]he Blockburger test cannot authorize two punishments where the legislature clearly intended only one.’b- See also Alber-naz, 450 U.S. at 340, 101 S.Ct. 1137 ("The Blockburger test is a ‘rule of statutory construction,' and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example,
. Ervin, 991 S.W.2d at 814. See also Shelby v. State, 448 S.W.3d 431, 436 (Tex.Crim.App. 2014); Garfias, 424 S.W.3d at 59; Bigon, 252 S.W.3d at 371.
. Shelby, 448 S.W.3d at 436; Garfias, 424 S.W.3d at 59. See also discussion of "units” analysis below.
. Shelby, 448 S.W.3d at 436; Gaifias, 424 S.W.3d at 59; Bigon, 252 S.W.3d at 371-72.
. Hall v. State, 225 S.W.3d 524, 532-33 (Tex. Crim.App.2007) (citing United States v. Dixon, 509 U.S. 688, 711-12, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) and Hunter, 459 U.S. at 367-68, 103 S.Ct. 673).
. Id.
. See this opinion, nn. 11 & 12.
. See Denton, 399 S.W.3d at 549 (Keller, P.J., concurring).
. See e.g. Vick, 991 S.W.2d at 832-34 (penetration of anus and sexual organ are different units in aggravated sexual assault); Hawkins, 6 S.W.3d at 556 (different victims are different units in a robbery); Ex parte Cava-zos, 203 S.W.3d 333, 335-37 (Tex.Crim.App. 2006) (entry is the unit in a burglary).
. See authorities cited in previous footnote. See also Blockburger, 284 U.S. at 303, 52 S.Ct. 180 (Second drug sale was a separate offense because it "was not the result of the original impulse, but of a fresh one.”); Ex parte Goodbread, 967 S.W.2d 859, 860-61 (Tex. Crim.App.1998) (can have multiple prosecutions for different incidents of the same type of sexual assault).
. Jones v. State, 323 S.W.3d 885, 888 (Tex. Crim.App.2010).
. Loving, 401 S.W.3d at 647; Jones, 323 S.W.3d at 889.
. See Blockburger, 284 U.S. at 303, 52 S.Ct. 180; Hawkins, 6 S.W.3d at 557 n.8 (discussing Blockburger and units of prosecution); Goodbread, 967 S.W.2d at 860 ("For Double Jeopardy purposes, the same offense means the identical criminal act, not the same offense by name.... [Wjhen one cannot determine from the State’s pleadings whether the offenses prosecuted are the same, the court must look to the proof offered at trial.”) (citing and quoting favorably from Luna v. State, 493 S.W.2d 854 (Tex.Crim.App. 1973)); id. at 861 (We look to evidence at trial to determine what instances of conduct conforming to the indictment are jeopardy-barred.). See also Aekins, 447 S.W.3d at 285 (Keller, P.J., concurring).
. Tex. Penal Code § 49.07(a)(1).
. Id. §§ 49.04(a), 49.09(b)(2). There are other statutory methods of committing the offenses of intoxication assault and felony DWI, but here we recite only the portions of the relevant statutory provisions that conform to the allegations in the indictment. We also note that the indictment fleshes out the statutory allegations for both offenses with specific facts, but none of those specific facts affect our analysis in this case.
. See Garfias, 424 S.W.3d at 58 (appropriate to conduct an "elements” analysis for convictions of aggravated robbery and aggravated assault because those offenses, codified in Tex Penal Code §§ 29.03 and 22.02 respectively, stemmed from different statutory sections).
. See Reinke v. State, 370 S.W.3d 387, 389 & n.3 (Tex.Crim.App.2012) (drawing the distinction between "enhancing the level of the offense and enhancing the level of punishment, and referring in footnote to another category that includes "jurisdictional elements” of the offense).
. 995 S.W.2d 693, 696 (Tex.Crim.App. 1999).
. Id.
. Weaver v. State, 87 S.W.3d 557, 560 (Tex. Crim.App.2002) (emphasis in original).
. Hollen v. State, 117 S.W.3d 798, 802 (Tex. Crim.App.2003).
. Martin v. State, 200 S.W.3d 635, 639 (Tex. Crim.App.2006).
. Id. at 640.
. Barfield v. State, 63 S.W.3d 446, 448 (Tex. Crim.App.2001); Tamez v. State, 11 S.W.3d 198, 202 (Tex.Crim.App.2000).
. Lomax, 233 S.W.3d 302, 311 (Tex.Crim. App.2007).
. Id. at 303.
. Id. at 310. See also Tex. Penal Code , § 19.02(b)(3) ("commits or attempts to commit a felony, other than manslaughter”); Johnson v. State, 4 S.W.3d 254, 258 (Tex. Crim.App.1999) ("[A] conviction for felony murder ... will not lie when the underlying felony is manslaughter or a lesser included offense of manslaughter.”).
. Lomax, 233 S.W.3d at 311. We assumed, without deciding, that the statutory bar in the felony-murder offense to using manslaughter as the underlying felony extended to intoxication manslaughter. Id. at 310-11.
. Mat 311.
. The various statutory methods of committing intoxication assault are lesser-included offenses of counterpart statutory methods of committing intoxication manslaughter, with the distinction between the offenses being whether the injury inflicted is "serious bodily injury” or "death.” Compare Tex, Penal Code §§ 49.07(a) & 49.08(a).
. See Ervin, 991 S.W.2d 804; Bigon, 252 S.W.3d 360; Shelby, 448 S.W.3d 431.
. See 991 S.W.2d at 817.
. See 252 S.W.3d at 363.
. See 448 S.W.3d at 434.
. See 424 S.W.3d at 60-61, 64,
. Villescas v. State, 189 S.W.3d 290 (Tex. Crim.App.2006).
. Similarly, these practical consequences weigh against the dissent’s suggestion that we treat “jurisdictional” elements as being different from other elements for double-jeopardy purposes. Moreover, the Tamez rule upon which the dissent relies — that the State is prohibited from introducing the details of a prior conviction that is an element of the offense if the defendant is willing to stipulate to the prior conviction — is simply a specific application of Texas Rule of Evidence 403. See Tamez, 11 S.W.3d at 200-02. The application of Rule 403 to a recurring fact scenario is, at best, weak evidence to consider in the double-jeopardy context. We also note that the Tamez rule was derived from a Supreme Court case involving the offense of felon in possession of a firearm, see id. at 200 (noting that Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) involved a prosecution for possession of a firearm by a felon), and that at least two courts of appeals have found the rule to be applicable in cases involving such an offense. Adekeye v. State, 437 S.W.3d 62, 72 (Tex.App.-Houston [14th Dist.] 2014, pet. ref'd); Mcllroy v. State, 188 S.W.3d 789, 793-96 (Tex.App.-Fort Worth 2006, no pet.). We further note that the fact of a prior conviction does not by itself distinguish the Texas felon-in-possession offense from a lesser-included offense.
.See Shelby, 448 S.W.3d at 437 (discussing fact that the offenses were not contained in the same Penal Code chapter); Bigon, 252 S.W.3d at 371 (referring to the fact that intoxication manslaughter was no longer in the same "section” as "all of the homicide offenses” but meaning that it was no longer in the same chapter); Ervin, 991 S.W.2d at 815-lb (intoxication manslaughter moved from Chapter 19 to Chapter 49). See also Garfias, 424 S.W.3d at 61 (referring to the fact that offenses were not in the same statutory section as a factor against construing them to be the same for double-jeopardy purposes; offenses at issue also not in the same chapter).
. Bigon, 252 S.W.3d at 371; Ervin, 991 S.W.2d at 815-16;
. Shelby, 448 S.W.3d at 437-38.
. Emn, 991 S.W.2d at 815.
. Id. at 816.
. Shelby, 448 S.W.3d at 438; Bigon, 252 S.W.3d at 371.
. See Tex. Penal Code § 49.09(b)(1), (2).
. See Tex. Penal Code §§ 30.04(d)(2) (burglary of a vehicle offense is a state-jail felony if (1) the defendant has been previously convicted two or more times under the statute, or (2) the vehicle he entered is a rail car), 31.03(e)(4) (numerous alternative ways of committing a state-jail-felony theft, including (1) the property stolen is valued at $1,500 or more but less than $20,000, or (2) the value of the property was less than $1,500 and the defendant has previously been convicted two or more times of any grade of theft), 33.02 (breach of computer security is a state-jail felony if (1) the defendant has two prior convictions under the chapter, or (2) the computer equipment is owned by the government or a critical infrastructure facility), 33A.02(b)(3) (unauthorized use of telecommunications service is state-jail felony if (1) the value of the service is $1500 or more but less than $20,000 or (2) the defendant has previously been convicted two or more times under the chapter), 33A.04(b)(3) (same). See also Tex Penal Code § 38.04(b)(1) (West 2010) (evading arrest or detention was a state-jail felony if (1) the actor had previously been convicted under the section, or (2) the actor used a vehicle while in flight and had not been previously convicted under the section). Cf. Tex Penal Code § 22.01(b)(l)-(4) (one of the alternative methods of committing a third-degree-felony assault [subsection (2)(A) ] includes a prior conviction as one of the elements).
. The dissent contends that the fact that misdemeanor DWI is a lesser-included offense of intoxication assault is some evidence that the legislature did not intend to separately punish intoxication assault and felony DWI. But it is not uncommon for offenses that are different for double-jeopardy purposes to share a common lesser-included offense. For example assault by causing bodily injury is, in the abstract, a lesser-included offense of murder, injury to a child by causing bodily injury (at least by act), and robbery by causing bodily injury. See and compare Tex. Penal Code §§ 22.01(a)(1) (assault), 19.02(b)(1) (murder), 22.04(a)(3), (f) (injury to a child), 29.02(a)(1) (robbery). Yet, it cannot be seriously questioned that the latter three offenses are different from each other, at least in the abstract, for double-jeopardy purposes.
. Ervin, 991 S.W.2d at 816.
. 448 S.W.3d at 438.
. 252 S.W.3d at 371.
. 424 S.W.3d at 61.
. Tex. Penal Code §§ 49.04(b) (referring to § 49.09), 49.07(c) (intoxication assault), 49.09(b) (felony DWI).
. See 252 S.W.3d at 371-73.
. See Shelby, 448 S.W.3d at 438 (observing that the two offenses having different punishment ranges was not dispositive and citing Bigon).
. Ervin, 991 S.W.2d at 816 (”[M]anslaughter and intoxication manslaughter have a common focus: the death of an individual. Both ■ crimes are result of conduct crimes with death being the result."); Bigon, 252 S.W.3d at 371 ("The focus of the two offenses is the same: the death of an individual. Both offenses are result oriented.”).
. Bigon, 252 S.W.3d at 371-72-(addressing the allowable unit of prosecution for an as-
. Shelby, 448 S.W.3d at 438-39 ("The indictment that charged appellant with aggravated assault with a deadly weapon against a public servant alleged that appellant caused bodily injury.... Like aggravated assault with a deadly weapon against a public servant, intoxication assault is a result-oriented offense with the gravamen of causing bodily injury.”).
. Id. at 439-40.
. 424 S.W.3d at 60-61 ("[T]he individual gravamina of assault or robbery by threat and assault or robbery causing bodily injury differ significantly!,]” and "the allowable units of prosecution for the two offenses are not the same.”).
.Id. at 60.
. Id. at 61.
. Id.
. Id. at 59-61, 63-64.
. Shelby, 448 S.W.3d at 439.
. Id. at 439-40.
. See Hanna v. State, 426 S.W.3d 87, 96 (Tex.Crim.App.2014) ("court of appeals correctly noted that the offense of DWI does not require a victim” though "the whole purpose of criminalizing driving while intoxicated is to prevent ‘[tjhe carnage caused by drunk drivers’ — fatalities, serious injuries and property damage”).
. See id.
. See Albemaz, 450 U.S. at 343, 101 S.Ct. 1137 (concluding that "importation” and "distribution” of marijuana "are directed to separate evils presented by drug trafficking” and "impose diverse societal harms”).
. See id. ("Congress has in effect determined that a conspiracy to import drugs and to distribute them is twice as serious as a conspiracy to do either object singly.”).
. 991 S.W.2d at 814-17.
. 252 S.W.3d at 371.
. Tex. Penal Code art. 802 (1925).
. See id.
. See Vercher v. State, 145 Tex.Crim. 530, 531, 170 S.W.2d 232, 232 (1943) (quoting Tex. Penal Code art. 802b, enacted by the 47th legislature: "Any person who has been convicted of the misdemeanor offense of driving or operating an automobile or other motor vehicle upon any public road or highway in this State or upon any street or alley within an incorporated city, town or village, while intoxicated or under the influence of intoxicating liquor, and who shall thereafter drive or operate an automobile or other motor vehicle upon any public road or highway in this State or upon any street or alley within the limits of an incorporated city, town or village, while such person is intoxicated or under the influence of intoxicating liquor, shall be guilty of a felony and upon conviction be punished by confinement in the penitentiary for any term of years not less than one (1) nor more than five (5).”).
.Broughton v. State, 148 Tex.Crim. 445, 448, 188 S.W.2d 393,- 395 (1945). See also Stephens v. State, 161 Tex.Crim. 407, 409, 277
. Hill v. State, 158 Tex.Crim. 313, 314-15, 256 S.W.2d 93, 94 (1953), overruled on other grounds by Vasquez v. State, 477 S.W.2d 629, 632 (Tex.Crim.App.1972).
. See this opinion nn. 88, 90.
. See Tex.Code Crim. Proc. art. 36.01(1) (Vernon's 1981) (emphasis added); Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722 (emphasis added); John F. Onion, Jr., Special Commentary, Tex.Code Crim. Proc. art. 36.01 (Vernon’s 1981) ("Section 1 of old article has had added” the quoted language, which, combined with the new section 8, "should end the raging controversy about whether the reading of an indictment alleging prior convictions prejudices a defendant before the jury hears the facts on the instant or primary offense.”). Compare to Tex.Code Crim. Proc. art. 642 (1925), the predecessor statute, which does not contain the language.
. But see Calton v. State, 176 S.W.3d 231, 234-36 (Tex.Crim.App.2005) (a prior-conviction requirement in a statute can be an element of an offense even if it is not jurisdictional).
. 530 S.W.2d 586, 586-87 (Tex.Crim.App. 1975).
. See Tex. Penal Code § 31.03 (Vernon’s 1974).
. Diamond, 530 S.W.2d at 587.
. 606 S.W.2d 867, 871-72 (Tex.Crim.App. 1980).
. See Luedke v. State, 711 S.W.2d 657, 659 n.2 (Tex.Crim.App. 1986) (text of old version of Tex.Rev.Civ. Stat. art. 6701/-2); Thompson v. State, 626 S.W.2d 750, 752 (Tex.Crim.App. 1981) (quoting from old version of Tex.Rev. Civ. Stat. art. 6701Z-1).
. Luedke, 711 S.W.2d at 659. (“A prior conviction is an essential element of felony driving while intoxicated.... Unlike Perez v. State, 678 S.W.2d 85 (Tex.Crim.App. 1984), wherein we held that a punishment allegation used for enhancement purposes does not constitute a new or different offense, -the prior conviction is, in the instant case, an element of the felony offense itself, and must be proved at the guilt-innocence stage of trial in order to authorize a conviction.”).
. Acts 1983, 68 ⅛ Leg., p. 1574, ch. 303, §§ 3, 27.
. Id. (Art. 6701Z-1(b)) ("A person commits an offense if the person is intoxicated while driving or operating a motor vehicle in a public place. The fact that any person charged with a violation of this section is or has been entitled to use a controlled substance or drug under the laws of this state is not a defense.”).
. Id. (Art. 670lZ-l(c)) ("Except as provided by Subsections (d), (e), and (f) of this articl.e, an offense under this article is punishable by: (1) a fine of not less than $100 or more than $2,000; and (2) confinement in jail for a term of not less than 72 hours or more than two years.”).
. Id. (Art. 6701Z-l(d)) (“If it is shown on the trial of an offense under this article that the person has previously been convicted one time of an offense under this article, the offense is punishable by: (1) a fine of not less than $300 or more than $2,000; and (2) confinement in jail for a term of not less than 15 days or more than two years.”). '
. Id. (Art. 6701Z-l(e)) ("If it is shown on the trial of an offense under this article that the person has previously been convicted two or more times of an offense under this article, the offense is punishable by: (1) a fine of not less than $500 or more than $2,000; and (2) confinement in jail for a term of not less than 30 days or more than two years or imprisonment in the state penitentiary for a term of not less than 60 days or more than five , years.”).
. Id. (Art. 6701Z — 1(f)) ("If it is shown on the trial of a person punished for an offense under Subsection (c), (d), or (e) of this article that the person committed the offense and as a direct result of the offense another person suffered serious bodily injury, the minimum term of confinement for the offense is in
.Hogue v. State, 752 S.W.2d 585, 588 (Tex. App.-Tyler 1987, pet. ref’d) ("Two prior convictions for driving while intoxicated are essential elements of the offense of felony driving while intoxicated.” Citing Art. 6701Z-1(e)); Addington v. State, 730 S.W.2d 788, 789-90 (Tex.App.-Texarkana 1987, pet. ref’d); Freeman v. State, 733 S.W.2d 662, 663-64 (Tex.App.-Dallas 1987, pet. ref'd); State v. Kindred,'17S S.W.2d 766, 768 (Tex.App.-Corpus Christi 1989, no pet.) (citing Hogue)', State v. Wheeler, 790 S.W.2d 415, 416 (Tex. App.-Amarillo 1990, no pet.); Will v. State, 794 S.W.2d 948, 952-53 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd).
. 724 S.W.2d 129, 130-31 (Tex.App.-Fort Worth 1987, no pet.).
. Id. at 131.
. 730 S.W.2d at 790 (emphasis in original).
. Id.
. 772 S.W.2d 118 (Tex.Crim.App.1989).
. Id. at 120.
. Id. at 121.
. Id. at 122.
. Id. at 123.
. Id.
. Id. (emphasis in original).
. Id.
. Pope v. State, 802 S.W.2d 418, 421 (Tex. App.-Austin 1991, no pet.). See also Love v. State, 833 S.W.2d 264 (Tex.App.-Austin 1992, pet. ref'd) (holding, on the basis of Pope, that subsection (d), the one-prior-conviction provision that imposed enhanced misdemeanor punishment, was a punishment-enhancement provision and did not prescribe an element of an offense).
. Pope, 802 S.W.2d at 421. Another court of appeals has criticized the two pronouncements in the Austin court’s opinion as being inconsistent. Porter v. State, 921 S.W.2d 553, 558 n.3 (Tex.App.-Waco 1996, no pet.) ("We are unable to reconcile the Austin court's 'jurisdiction' exception, which allows the State to allege and prove a felony under subsection (e) during the guilt phase in order to invoke the jurisdiction of a district court, with the Austin court’s holding that subsection (e) is not a separate offense.”); Williams v. State, 946 S.W.2d 886, 898 n.13 (Tex.App.-Waco 1997, no pet.).
. Wheeler, 790 S.W.2d at 416. The court also concluded that "the prior convictions fall within the 'jurisdictional' exception of article 36.01(a)(1) and must be read to the jury.” Id.
. Will, 794 S.W.2d at 952-53.
. Id.
. Id. at 953.
. Acts 1993, 73rd Leg., ch. 900, § 1.01. See also Ervin, 991 S.W.2d át 815-16; Bigon, 252 S.W.3d at 371.
. Acts 1993, 73«> Leg., ch. 900, § 1.01 (Tex. Penal Code § 49.04(a)).
. Id. (Tex. Penal Code § 49.04(b)).
. Id. (Tex. Penal Code § 49.09(title), (a), (b)).
. Id. (Tex. Penal Code § 49.07).
. See this opinion, Part II.B.
. See Wood v. State, 260 S.W.3d 146, 147-49 (Tex.App'.-Houston [1st Dist.] 2008, no pet.) (where DWI was enhanced by one prior conviction, prior conviction should not have been introduced at guilt phase of trial, unlike the situation in. which a DWI is enhanced to a felony by two prior convictions). But see Mapes v. State, 187 S.W.3d 655, 659 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd) (concluding that "one prior DWI is a required element of the offense of Class A misdemean- or DWI under § 49.09(a)”).
. See State v. Letell, 103 So.3d 1129, 1137 (La.App.2012), writ denied, 112 So.3d 838 (La.2013) (vehicular homicide by unlawful blood-alcohol concentration and fourth-offense driving while intoxicated are not- the same offense for double-jeopardy purposes; defendant would have to establish three prior offenses to establish fourth-offense DWI); State v. Smits, 241 Wis.2d 374, 383-84, 626 N.W.2d 42, 46-47 (App.), review dism'd, 242 Wis.2d 548, 629 N.W.2d 786 (2001) (prohibited alcohol concentration with two or more prior convictions and prohibited alcohol concentration causing injury are not the same offense for double-jeopardy purposes; prior convictions are elements of PAC with prior convictions).
.State v. Dragoo, 277 Neb. 858, 863-66, 765 N.W.2d 666, 670-72 (2009) (driving under the influence (DUI) and DUI causing serious bodily injury were the same offense for double-jeopardy purposes; prior offenses were sentencing enhancement provisions, not elements of the offense); State v. Royal, 277 S.W.3d 837, 842 (Mo.App.2009) (second-degree assault and felony DWI were not separate offenses for double-jeopardy purposes; prior convictions required to enhance the DWI offense to a felony did not constitute additional elements of the DWI offense but were enhancements of punishment).
. See Albernaz, 450 U.S. at 340-43, 101 S.Ct. 1137 (rejecting claim that statute is ambiguous and that rule of lenity should be applied when Blockburger same-elements test indicates that the offenses are different and other factors do not give "a clear indication of contrary legislative intent.”).
. Id. at 340, 101 S.Ct. 1137; Price, 434 S.W.3d at 610 (Blockburger same-elements test is a rule of statutory construction and cannot be the basis for authorizing two punishments where the Legislature "clearly” intended only one); Eivin, 991 S.W.2d at 807.
Dissenting Opinion
DISSENTING OPINION
filed a dissenting opinion in which JOHNSON and ALCALA, JJ., joined.
The majority holds that when a felony DWI and an intoxication assault offense arise out of the same transaction, the two crimes are not the same offense for double-jeopardy purposes. However, I disagree with the court’s analysis and conclusion.
As the majority discusses, we have determined that prior intoxication-related convictions are elements of felony DWI. Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim.App.1999). However, the prior convictions are only jurisdictional elements that, once pled in the indictment, confer jurisdiction to the district court. Martin v. State, 200 S.W.3d 635, 640 (Tex.Crim. App.2006). Jurisdictional elements are not traditional elements and should not be treated as such. For example, in felony DWI cases where defendants agree to stipulate to their two prior convictions, the State is prohibited from presenting any further evidence of the convictions during its case-in-chief in order to prevent unfair prejudice. Tamez v. State, 11 S.W.3d 198, 202 (Tex.Crim.App.2000); Hernandez v. State,- 109 S.W.3d 491, 495 (Tex.Crim.App.
Further rebutting that presumption is the fact that misdemeanor DWI and intoxication assault would be presumed to be jeopardy barred under Blockburger because there are no jurisdictional priors to act as differing elements. See Tex. Penal Code §§ 49.04, 49.07. There exists no clearly expressed legislative intent to impose multiple punishments for a misdemeanor DWI and intoxication assault that arise from the same transaction, and it does not logically follow that such an intent suddenly appears when it is a felony DWI rather than a misdemeanor.
For the foregoing reasons, I believe that, although the offenses may have different elements under the Blockburger test, prosecuting an individual for a felony DWI and an intoxication assault that arose from the same transaction is unconstitutional and should be barred by double jeopardy. I would grant Appellant relief and, therefore, I respectfully dissent.