*1 ultra vires claims. Here Reconveyance Department
sued the Texas of Insur- Department
ance rather than act- officials capacities. in their official
Heinrich, Department retains its sov-
ereign immunity in this case and Texas subject-matter
courts are without jurisdic-
tion to entertain Reconveyance’s suit as
pleaded. Accordingly, hearing without argument,
oral we reverse the court of
appeals’ Reconveyance’s decision as to de-
claratory judgment action and render Tex.R.App.
judgment dismissing suit. its 60.2(c). 59.1,
P. Eugene WATSON,
Ex Parte Frank
Appellant.
No. PD-0294-08. Appeals
Court of Criminal of Texas.
6,May
Opinion Granting Discretionary Review
Dec. *2 Dallas, Bruder, Ap-
Melvin for Carson pellant. Dusenberry,
Amber Paige Assistant Canton, Attorney, Criminal District Jef- Austin, Horn, L. frey Van for State. OPINION HOLCOMB, J., the opinion delivered KELLER, P.J., the Court in which JOHNSON, KEASLER, HERVEY, and COCHRAN, JJ., joined. case,
In this
we must determine whether
(1) appellant’s prosecution for intoxication
assault1
its
included as one of
failure
right-of-
offense of
2 (2)
way;
the offense of failure to
But,
consistency,
§ 49.07.
the sake of
will refer
Tex Pen.Code
yield right-of-way,”
it
as “failure to
as the
The actual title of
offense is “Vehicle
court
done.
has
Turning
Left.” Tex.
545.152.
Transp.
Code
later,
of-
years
thus a lesser-included
two
About
fense of intoxication
assault
indicted
intoxication assault. He filed
pretrial
225 a
application
Court’s decision
Hall
for writ of habeas
*3
(3)
(Tex.Crim.App.2007);
corpus
S.W.3d 524
and
claiming
prosecution
that his
for
for
prosecution
intoxication assault was
intoxication assault was barred
already
therefore barred
he had
Jeopardy
because
Double
of
Clause
the Fifth
punished
been
for the
of
offense
failure
Amendment to the United States Constitu-
(1)
yield right-of-way. We hold that
tion because:
appel-
already
he has
been “con-
prosecution
lant’s
for intoxication assault is
and punished”
victed
for the offense of
(2)
not barred.
yield
failure to
right-of-way,
the offense
of
failure to
right-of-way has the
“same elements” as those of intoxication
Background
(3)
assault, and
the State
use
cannot
“the
14, 2003,
July
On
appellant Frank Eu-
same facts” necessary
prove
the offense
gene Watson was
for
arrested
intoxication
of failure to
right-of-way to now
given
assault and was
a traffic
citation
prove intoxication assault. The trial court
yield right-of-way.
failure to
The record
held a hearing
appellant’s
application
appellant,
shows
driving
pickup
that
and,
rule,”3
applying “the Blockburger
truck,
failed to
the right-of-way while
that
found
“the offenses [of intoxication
attempting to make a
turn at an
left
inter-
assault and
failure to
right-of-way]
motorcycle
section and struck a
coming
are
same” and that
there was
from the opposite
August
direction. On
therefore “no
of
jeop-
violation
the double
26, 2003, appellant pleaded no
contest
ardy clause.”
failure-to-yield
justice
of
charge
Appellant appealed. The
of ap
court
the peace
accepted
court. The court
peals, applying both the Blockburger rule
plea and ordered that
disposition
“further
cognate-pleadings
and the
test
that
be
adjudication
deferred without
of guilty
adopted
Court
for lesser-included-offense
period
sixty days.
for a
of
The court
[sic]”
Hall,
524,
analyses
225 S.W.3d
held that
(1)
also
pay
ordered
to:
of
yield right way
“offense
failure to
$51; (2)
court
no
costs of
commit
offenses
is not the same offense as intoxication
against the laws of the
State
Texas
Watson,
Ex parte
assault.”
No. 12-07-
(3)
any
States;
other state
the United
00127-CR,
*2,
4328265 at
WL
(4)
Course;
complete a Driver Safety
and
Tex.App.
(Tex.App.-
LEXIS 9661 at *3
appear
court again
sixty days
at the
2007) (not
Tyler,
12,
December
designated
(a) present a sworn statement that he had
publication).
granted
moving
received
pre-
no
violations
petition to
holding.
review that
(b)
ceding
days,
sixty
present proof of
having
Safety
completed the Driver
Discussion
(c)
Course,
pay
“Special
Fee”
Appellant
with
complied
Appellant
$104.
those
that
court
argues
terms, and the court dismissed the failure-
did not
apply
proper test
to-yield-right-of-way charge.
determining whether
the indictment for
States,
Blockburger
applied
United
284 U.S.
to determine whether there are
(1932):
one,
52 S.Ct.
intoxication
yield right-of- misapplies
it
the evidence
emphasizing
of failure
included
already
pun-
produced
example,
he
been
For
he
has
to be
trial.
for which
ap-
the court of
claims
“the
the fail-
argues
upon
ished.4 He
acts
which
standard,
the federal
peals applied
to yield right
[was]
ure
rule,
considers
Blockburger
gave
charged ... were the same acts that
ques-
the offenses
statutory elements
...
intoxication assault offense
rise
“the
tion,
it
not examine
facts
did
but
assault
and that his arrest for intoxication
the indictment” to deter-
*4
and elements
the
time he
issued
occurred at
same
elements of
lesser-
mine
“the
whether
yield right
failure to
[the citation]
from
could be deduced
offense
included
added.)5 In-
way
(Emphasis
of
offense.”
indictment,
required by Hall.”
as is
that
deed,
support
repeatedly tries to
appellant
“Blockburger is
argues that
used
Appellant
yield right-of-
to
his claim that
failure
is included with-
to test
offense
whether
is a
offense of
offense
lesser-included
the federal Dou-
in
offense under
another
by arguing
intoxication assault
that
Clause,” but
“in state
that
Jeopardy
ble
prove
have
that
State would
to
cases,
question of whether
offense
yield
way” by
“failed to
offense is determined
is a lesser-included
use
the same evidence considered
argues
he
law.”
state
justice-of-the-peace court
the fail-
at
have
appeals
applied
court
should
ure-to-yield-right-of-way proceeding. But
analysis,
Hall
lesser-included-offense
Hall,
that,
appellant fails to realize
have
that the offense
which would
shown
get
do
such
until
we
not even
to
evidence
yield right-of-way
to
is
lesser-
failure
the alleged
and unless
lesser offense meets
offense of intoxication assault be-
included
step
the first
requirements of
yield
the elements of failure to
cause all of
analysis. As
lesser-included-offense
we
in
right-of-way “are set out
the indictment
Hall,
questions
noted in
“the answers to
deduced from the facts and
or can be
must
about
lesser-included offenses
in
allegations in the indictment filed
this based on Article 37.09 of the Code of
intoxication assault.
case” for
Procedure,
Criminal
Texas’ first
problem
disagree.
general
with
statute
defined lesser-includ-
We
that, although
225
at
appellant’s reasoning is
he
ed offenses.”
526. We also
elements,
included,
argued
has
in
4. We
that the State
its
as one of its
the offense of
note
appel-
brief
did not
right-of-way,
attach
failure to
under this
failure-to-yield-right-of-way
lant's
case. But
Court’s decision Hall v. State.
ques-
appeals
not
did
address this
court
Watson,
tion,
3,
*2 n.
WL 4328265 at
see
2007
that,
language
just-quoted
note
("Be-
Tex.App.
*2 n. 3
LEXIS 9661
shows, appellant's approach
itself
in fact
same,
not the
we
cause the offenses are
do
seems
be more akin to the "same-conduct"
to
question
of whether
dis-
reach
Corbin,
by Grady
test
495 U.S.
introduced
[failure
to
missed misdemeanor
(1990).
110 S.Ct.
we] sault, “as were modified [those elements] giving the supports [lesser-ineluded-of- by particular allegations in the indict- to the Id. at 536. jury.” instruction fense] ment,” are as follows: the Hall lesser-in- apply We will now appellant 1.. analysis cluded-offense to the case before by accident or mistake again, us. Once “we do not consider the presented that have [would been] evidence operating 3. while a motor vehicle step analysis. at trial” the first of this public place in a “Instead, Id. we consider the statuto- 5. while intoxicated ry [intoxication assault] elements of that intoxication reason par- were elements] modified [those an- bodily injury 7. caused serious allegations in the indictment.” Id. ticular other. alleged, present The indictment case part, appellant: in relevant Following analysis, the Hall we must the above of intoxi- operate compare did then and there a motor vehi- now elements statutory with the elements public place cle in a while intoxicated cation assault alleged lesser offense of failure to having the normal use of mental or of the to determine whether physical yield right-of-way reason of the intro- faculties step conclude the first of the failure-to- any elements there ai'e analysis by in- Hall lesser-included-offense offense that could be yield-right-of-way 37.09(1) question that Article “ask[ing] offense. in the intoxication-assault cluded of poses: are the elements of lesser Transportation Sec- Texas Code Id. The by proof of the same or 545.152, fense ‘established referring to the offense of tion required the facts to estab less than all yield right-of-way as “Vehicle failure to of the offense Left,” the commission ] that offense as fol- Turning defines lish they charged’?” Id. The answer is lows: required prove are not. facts Turning Left. 545.152. Vehicle failure to alleged lesser offense of or into To turn left at an intersection include elements that right-of-way several driveway, alley private road or as, than, those are not the same or less right-of-way to a operator shall required alleged greater to establish the approaching op- from the vehicle that is offense of intoxication assault with that is in the inter- posite direction and namely, ele charged, had been inter- proximity or in such to the section ments 3-6 of failure to as to be an immediate hazard. section (“at given above an intersection or into an of failure alley private driveway”; road or “failed purpose for the yield right-of-way a vehicle right-of-way”; “to analysis are: Hall lesser-included-offense was”; “approaching direction” and “was in the intersection or 1. appellant *6 proximity in such to the intersection as to turning in left 2. hazard”). an immediate be (a) 3. at an intersection or analysis help The above should also (b) alley into in clarify appel the soui-ce of the error (c) road private reasoning. Appellant’s argument, lant’s (d) driveway brief, his whole on the indeed is centered yield the right-of-way failed to “failing fact that the State had mentioned right way turning to a vehicle that was while left” in the See the text of the indictment. (a) approaching quoted Appellant indictment earlier. mis direction and us when we in Hall that understood said (b) (1) inwas the intersection or statutory we must consider the (2)in proximity such to the inter- indicted/alleged-greater offense “as section as to be an immediate haz- par were modified [those elements] ard. allegations ticular in the indictment.” 225 Comparing opinion the above elements of the at 536. Nowhere in that offenses, in say any language two we see that ele- did we that the use of faihme-to-yield-right-of-way required by ments of the the indictment that not was language offense that can be included in the intoxi- the statute transforms such into “appellant” charged cation-assault offense are additional elements of the offense. (which a motor mention “operating “failing vehicle” is ex- The State’s pressly delineated an element in the left” in the as clearly intoxication-assault statute and im- intoxication assault de plied failure-to-yield- as element scribes the element of “accident statute). right-of-way or mistake.” While the use of such lan- case), guage might helpful present in the indictment at least in the first providing appellant notice to and later step of our analy- lesser-included-offense jury to the as to how proving sis.6 supposed bodily was to have caused the
injury question, it does not increase or Conclusion change the number of elements for the greater beyond that defined Because the offense of failure to above-quoted statute itself. As the text right-of-way qualify fails to as a lesser shows, plainly the intoxication-assault stat- intoxication assault under the merely requires showing ute step first of the Hall lesser-included-of- in a given defendant case seri- “cause[d]” analysis, fense we do not reach the second bodily injury “by ous to another reason of’ part analysis. of that therefore, hold his intoxicated state. See Tex. Pen.Code that failure-to-yield-right-of-way is not a say 49.07. It not anything does about the lesser-included offense of intoxication as- specific injury manner in which such sault and that prosecution for caused, merely requiring injury such to be intoxication assault is not barred the result of an “accident or mistake” as proceedings held connection with the opposed being intentional. failure-to-yield-right-of-way charge. The particular manner in which injury judgment of the court of appeals is af- caused is not an “element” of the intoxi- firmed. cation-assault and we therefore do any descriptive language consider such KELLER, P.J., concurring filed a (e.g., pertaining the indictment to the involved, type COCHRAN, J., of “accident or mistake” in which opinion joined. petition 6. We note that nowhere in his which the accident occurred. In other words, discretionaiy appel- review or in his brief has the failure to is not *7 offense, specifically argued language "by lant that the itself an element of the but a factual mistake, yield accident or to-wit: to allegation specify intended to the manner in right way turning the while left” in the (the which the "accident or mistake” actual "failing indictment Second, serves to transform to offense) element of the occurred. yield right way turning while left" itself assuming arguendo even that the use of the "by into the accident or mistake” element of language "failing yield right way to Rather, the intoxication-assault offense. as turning particular while left” in that context earlier, argument we have noted his whole is element, allegation transformed that into an that the State prove would have to the same alleged yield tire lesser offense of failure to (failure left) acts to turn for the intoxication- right-of-way still has several elements that the prove assault offense as were used to not, i.e., intoxication-assault offense does failure-to-yield right-of-way. As we ex- above-listed elements 5 and 6 of failure to plained, argument such an comes within the ("at yield right-of-way an intersection or into Grady realm of the "same-conduct” test that alley private driveway”; an or road or “to a expressly Supreme disavowed was”; “approaching vehicle that from the Court itself in Dixon. To the extent that our opposite direction” and in the "was intersec- decision in Hall would endorse such an inter- proximity tion or in such to intersection pretation, equally it would run afoul of Dixon. hazard”). an as to be immediate As we ex- further, however, plained, the intoxication-assault statute itself ap- We note that even if merely requires showing pellant argument, had made the defendant above that case, mistake,” given argument "by in a would still fail accident or for two reasons. First, bodily injury opinion, in another” "causefd] noted the text of the serious to language "failing yield "by right read the to reason of” his intoxicated state. Tex. way turning § while in specify left” the indictment as 49.07. It does not man- Pen.Code attempt specific injury an to show the manner in ner in which such caused. COCHRAN, J., “failing yield right to concurring allegation filed a turning left” like while sound opinion. it allegation particular of a but WOMACK, J., a dissenting opinion filed simply allegation is not. It an of con- is PRICE, JJ., MEYERS and Moreover, duct. a number of other trans- joined. could be portation provisions code violated KELLER, P.J., a concurring filed in such engaging someone conduct. J., COCHRAN, joined. opinion in which left, could, turning yield fail to One while yield right-of-way by failing to at a to wheth- need for us There is no decide stop sign, a traffic yield sign, light;3 or “failing yield allegation er the paved to traffic on a failing to left” is turning while an element an turning unpaved street when from intoxication the offense of assault street;4 by failing ap- traffic were, Even if it the intoxication case. “from proaching opera- an intersection not include the trans- assault offense does right”;5 by failing tor’s to traffic portation alleged by appellant code offense turning on a street while from a through transportation code offense because at a “T” street that terminates intersec- one extra that is contains at least element tion; failing yield right-of-way any of the allegations not included alley, an building, pri- from indictment. road, driveway vate to a ap- or vehicle upon Appellant Transportation relies proaching highway.7 on a Because the 545.152, Turning § titled: “Vehicle Code conduct, rather an than provides: Left.”1 That statute 545.152, offense under double an into an To turn left at intersection or prosecution does not bar for intoxication alley private driveway, road assault. shall to a operator I join With these comments Court’s approaching op- vehicle is from opinion. direction and that in the inter- posite is proximity section or such to the inter- COCHRAN, J., concurring filed a section as to be immediate hazard.”2 opinion. So the contains an that is statute element join indictment: there I opinion Court. I add “approaching emphasize vehicle these comments *8 not, resurrect, Hall v.
direction.” This statute
for ex-
State1 we did not
does
law,
ample,
purposes
when the
vehicle
the
apply
approaching
of Texas constitutional
left,
the
right
Grady
comes from the
instead of discredited
conduct” test of
“same
direction.
v.
briefly
Corbin2 that
defined federal dou-
Transp.
7. Id.,
§
545.155.
§
1. Tex.
Code 545.152.
(Tex.Crim.App.2007).
1.
267
Supreme Court,
Like the United
principles.3
States
jeopardy
ble
decisions,”
charges in
and
an
facts and
both this case
"unbroken line of
3. The
contained
Grady
Grady,
analysis,
analogous.
are
In
"less than accurate”
defen-
historical
and
"confusion,”
produced
a
traffic accident. He was
has
dant caused
fatal
do so here.
for,
to,
guilty
only
We
prosecuted
pled
two misde-
would mock stare decisis and
and
add
driving
our
jeopardy jurisprudence
traffic
while intoxi-
chaos to
double
meanor
offenses—
right
failing
keep
pretending
Grady
and
that
cated
to
to
survives when it
accept
median—that arose out
same transaction.
does not.
therefore
the Govern-
511,
(cita-
Grady.”)
U.S. at
110
2084. Two months
ment’s invitation to overrule
495
later,
S.Ct.
omitted); see,
Felix,
manslaughter,
charged
e.g.,
he was
with
tion
United States v.
homicide,
378, 390-91,
1377,
based on
acci-
and assault
the same
503 U.S.
112 S.Ct.
118
(1992)
prosecutor
particu-
The
filed "a bill
(criticizing Grady
dent.
L.Ed.2d 25
as diffi-
negli-
Turner,
three
apply);
that identified the
reckless or
Sharpton
lars
cult to
v.
964 F.2d
1284,
(2d
gent
rely
prove
Cir.1992)
would
acts on which it
to
(noting
Grady
1287
(1)
charges:
a
operating
and assault
proven
homicide
apply”);
test “has
Smith,
difficult to
Ladner v.
public highway
356,
(5th
Cir.1991)
motor vehicle on a
F.2d
941
362-64
(2)
condition,
keep
intoxicated
(setting
the complicated steps
out
that the test
median,
(3) driving approximately
and
undertake);
Grady
required courts to
see
rain,
per
heavy
to 50 miles
‘which
Poulin,
45
hour
Jeopardy
also
Bowen
Double
Anne
speed
road
too fast for
weather and
Against
Protection
Successive Prosecution in
"
513-14,
pending.’
then
Id. at
Model,
conditions
Complex Criminal Cases: A
25 Conn.
95,
2084. The defendant filed a
(1992)
S.Ct.
motion
(noting
complex-
104-05
L.Rbv.
indictments, arguing
traf-
dismiss
ity
jeopardy analysis
Grady
of double
under
v.
charges repre-
tickets and the
fic
homicide
Corbin).
explained
Professor Poulin
that a
they
the same
because
relied
sented
offense
[pjure Blockburger analysis
refers
underlying
Judge
upon the same
conduct.
elements of
offenses under
Brennan, writing
majority,
for a bare
held
Grady simply
consideration.
added consid-
any
Jeopardy
that "the Double
Clause bars
prosecutorial
theory.
eration of the actual
subsequent prosecution
govern-
in which the
According Grady,
two offenses that are
ment,
to establish an essential element of
Blockburger
different
because of their
charged
prosecution,
will
offense
legal
partic-
definition
be the same in a
prove conduct that constitutes an offense
applica-
ular case because of their de facto
already
prose-
has
been
which
defendant
Grady produces
jeop-
tion.
double
510,
cuted."
Id. at
we continue
Thus, “in
“Bloekburger” test4
“mistake or
the element of
acci
ments”
scribes
jeopardy
double
prosecution
provides
consecutive
notice to
due-process
dent” and
ap-
to be
Bloekburger test is
analysis, the
jeop
double
the defendant. Under federal
statutory
underlying
elements
plied to the
test,
Bloekburger
ardy principles and the
indictment,
count,
not to the aver-
each
a traffic ticket
paid
the fact
beyond
statutory
go
ele-
ments
the traffic
for
5
is,
compare
That
ments.”
subsequent
does not bar his
right
offenses,
not
two
elements
prosecution
intoxication assault.6
and means” that describes
“manner
1982,
unique
state-
Texas had
Until
statutory
element. An essential
essential
called “the carv-
jeopardy
level double
test
is
of intoxication assault
“mistake
element
doctrine,”
which held that
State
“Failing
or accident.”
“carve” but
conviction out of a
could
one
not an
left” is
essential
That
single criminal “transaction.”7
statutory element of intoxication assault.
doc-
States,
§
Blockburger
284
violation of
2119 also constituted
v. United
U.S.
viola
See
924(c),
299, 304,
180,
(1932).
all
S.Ct.
At trial there
be a substantial
offense; however,
each
proof
of
it is WOMACK, J.,
a dissenting opinion,
filed
statutory
separate
elements
each
JJ,
PRICE,
in which MEYERS and
must be
offense which
examined under this
joined.
we examine
test.”9 And
statuto-
prosecuted
appellant
The State
twice
elements,
ry
descriptive
not
aver-
arising
offenses
from a
traffic
single
ments.
question
collision. The
the sec-
whether
in-
Although
present prosecution
prosecution
ond
Jeop-
violated
Double
toxication assault would be barred under
did,
ardy Clause.
I believe that it
because
v.
Grxidy
and under
old Texas
Corbin
pleading
the State’s
the second offense
doctrine,
carving
it is not barred under
made the first
lesser-included
modern federal double
principles.
of the
second.
State,10
Indeed,
Ortega
recently
v.
held that
courts of Texas are bound
Police officers
“[t]he
arrested
Supreme
follow
Court’s rule that
the scene of the
him
They gave
collision.
jeopardy questions
Fifth
Amendment
must
traffic citation for failure
McWilliams, this
(Tex.Crim.App.2005).
Court stated
“the carv-
10.
270 placed jeop- in person a has been turning They left.1 also When while right-of-way offense, may he ardy for lesser-included a of intoxication him for the offense arrested the again in placed not be each of- prosecuted State The assault.2 greater offense. To do so violates separate courts. fense rule: Blockburger arrest, after the six weeks About is that where applicable rule court, justice in a appellant appeared a or constitutes same act transaction allegation of contest to pleaded no provi- of two distinct violation turn- right-of-way while yield to failure sions, to applied test to be determin- deferred-adju- left, ing placed and was or two offenses ing whether there are probation. dication one, re- provision each is whether a other of fact quires proof later, years grand jury a two About does not.3 of appellant an indictment presented say It is answer to the State alleged It that he com- no court. district or could have acts “accident of intoxication assault the offense mitted it very than the one that mistake” other operate “did then there he already prosecuted (failing yield to had place intox- public while motor vehicle left). right turning while It did intox- by ... and did reason of such icated act, subsequent allege prosecu- and its bodily to an- injury cause serious ication allegation placed appellant tion on that mistake, or to-wit: other ... accident jeopardy again for the same offense. while failing to then left, and the defendant did enti- I hold that the is would weapon a deadly use exhibit and there habeas-corpus to relief from the sec- tled ” motor vehicle.... to-wit: a prosecution. ond chose By pleading, State to APPELLANT’S MOTION OPINION ON allege already prosecut the offense it had FOR REHEARING right way while failing ed— PER CURIAM. turning left—as an element of the offense he Following it thus mak a traffic accident in which subsequently prosecuting, motorcyclist pickup with ing lesser-included See Hall struck a his it a offense. 524, truck, no to a appellant pled 535 contest (Tex.Cr.App. 2007) (the charge determining sole wheth misdemeanor test right way attempting while turn left er a offense is available in lesser-included he looking allega charged is at an intersection.1 Later prosecution felony with charging instrument in that tions of interposed assault.2 He a dou- prosecution). intoxication intoxicated, by left at an intersection or into an “To turn reason intoxication operator alley private driveway, an road or bodily injury causes Pe- serious another.” to a vehicle that shall 49.07(a). § nal Code approaching direction and proximity in the intersection or that is such States, 3. Blockburger v. United U.S. as to be an immediate the intersection (1932). 52 S.Ct. L.Ed. Transp. § hazard.” Code 545.152. § 1. Tex. Trans. Code 545.152. person, person if the “A commits (1) operat- ... accident mistake: while public 2. Tex. 49.07. place vehicle in a a motor Pen.Code
271 Hall, objection pretrial appli- via a In ble-jeopardy recognized we the “cog corpus, cation for writ of habeas but the pleadings” nate approach to determining relief, trial court denied and the court of offenses, lesser-included to the exclusion of judgment affirmed the trial court’s approaches other such as the “strict statu unpublished opinion.3 granted in an tory” “cognate and approaches. evidence” petition discretionary cognate Under pleadings approach, review.4 “the elements and the alleged facts charging are instrument used to find less cause, original
On
submission in this
this
offenses;
therefore,
er-included
the ele
held that the prosecution
appel-
Court
ments of the lesser offense do not have to
lant for intoxication assault did not violate
pleaded
be
the indictment charging
[in
descriptive
double
because the
greater
inclusive
they
if
can
offense]
in the
averment
intoxication-assault indict-
deduced from the
alleged in [that]
ment, viz., “failing
right way
facts
indictment.”6 In the strict statutory ap
left,”
did not constitute an
proach, which we rejected, “all of the stat
element of the
but
a manner
utory elements of the lesser offense [must
and means
which the
ac-
offense was
contained
be]
within the
ele
Because
complished.
descriptive
greater
ments of the
offense.”7 And in
averment did not amount to an element of
cognate
evidence approach, which we
the greater inclusive offense of intoxication
rejected,
assault,
also
“the court includes the facts
we held that the lesser offense of
adduced at trial in
failure
its lesser-included of
right way,
contained
Code,
Hall,
analysis.”8
in the
in-
fense
Prior to
Transportation
was not
our case
law was
conflicting,
cluded within the intoxication-assault of-
somewhat
sometimes
purposes
seeming
apply
fense for
of Hall v.
the strict statutory ap
State.5 And
proach,
if the offense of failure
other
cognate
times the
evidence
Hall,
approach.9
included within intoxication as-
But in
definitively
indictment,
alleged
sault as
in the
we con-
laid the conflict to rest when we construed
37.09(1)
cluded, there is no jeopardy bar to succes- Article
of the
Code
Criminal
sively prosecuting the
for both
cognate plead
Procedure to embrace the
ings approach,10
offenses.
abandoning
ap-
all other
Watson,
(Tex
("The
parte
persist-
3. Ex
Hall’s case, in this original submission opinion that the elements of argues he cifically, embracing close to precariously we veered way right of failure offense statutory when con- approach the strict alleged from facts can be “deduced” analy- ducting our lesser-included-offense (as op- assault for intoxication observed: sis.15 elements from deducing those posed to merely descrip- [language that is While ).13 be offered at trial might evidence might helpful an be element] tive of that, Hall’s argues, he In view of and later in appellant notice to providing failure to approach, the cognate pleadings jury appellant to how proving to the be considered right of should bodily supposed to have caused as- offense of intoxication a lesser-included law, question, it does not increase injury double a matter of state sault as 0.08, State, (Tex. by and did reason concentration 892 S.W.2d Jacob bodily inju- cause serious Crim.App.1995). such intoxication mistake, by ry ... accident or to- to another (“We [cog- that the 11. at 535 now hold Id. right way yield the while wit: pleadings approach is the sole test for nate] turning lefi[.] determining step party in the first whether descriptive argues The entitled to a lesser-included offense averment, "failing yield the availability of a lesser-in- instruction. left,” all of the ele- while includes given in a case still offense instruction cluded Transporta- ments of Section 545.052 of depend step, whether on the second would § Code. See Tex. 545.152 tion Transp. Code evidence adduced at trial to there is some ("To left at an intersection or into an turn instruction.”) Because the support such an driveway, operator alley private road or or availability not involve the instant case does a vehicle that is shall instruction, but of a lesser-included offense approaching direction and from subsequent only with an issue of whether proximity or in such that is the intersection jeopardy, prosecution we need violates double intersection as to be an immediate to the step of the lesser- address the second not hazard.”). by statutory Failure to abide analysis in this case. See included offense requirement a misdemeanor of- constitutes 10, post. note 542.301. fense. Transp. Tex. Code at 12. Id. Littrell v. 271 S.W.3d 14. See (when conducting (Tex.Crim.App.2008) a dou- assault indictment 13. The intoxication analysis, question of whether ble-jeopardy appellant: one is a are the "same” because two offenses place public operate[d] a motor vehicle ques- offense of the other is lesser-included having the normal intoxicated law, according to state to be resolved tion of physical or faculties rea- tise of mental cognate pleadings approach). Hall's alcohol, a con- son of the introduction of substance, drug, dangerous or a trolled Hall, supra, having drug body, an alcohol into the change only essentially the number strict ap- — beyond greater proach. yet, that defined And we adopted Hall * * * Thus, the cognate pleadings the statute itself. approach exclusively injury in which particular expressly rejected manner all other ap- proaches caused is not “element” of the lesser-included deter- minations, intoxication-assault and we including the strict statutory *14 de- any approach. therefore do not consider such Our opinion original on submis- scriptive in the language dangerously indictment sion in this case came close to (e.g., type latter, the of pertaining resurrecting expressly “accident this aban- involved, or mistake” as in the present approach. doned This was not our intent. case), at in the our step least first of We now reaffirm the principle analysis.”).16 lesser-included-offense we, that at least implicitly, recognized in opinion original our on submission Hall: An offense is a lesser-included of the al- suggested that elements as offense, fense of another under Article in the for the leged greater- indictment 37.09(1) the of Code of Criminal Proced compared inclusive offense should ure,18 if for the greater- indictment the elements of the lesser offense in decid- 1) alleges inclusive offense either: all of vdiether the latter is included in the offense, the elements of the lesser-included that, We suggested former. likewise when 2)or elements alleges plus facts (including in statutory Hall alluded to the elements averments, descriptive such as non-statu greater the indictment for the means, tory manner and that are alleged by particular allegations “modified in notice) purposes providing of from indictment,” simply we meant those which all of the of the elements lesser- elements, among from alternative statuto- may included offense be deduced.19 Both elements, ry that the State plead chose to any statutory elements and descriptive mean, in the indictment. did not our alleged averments in the indictment for on opinion original suggested, submission greater-inclusive offense should be phrase, particu- “modified compared to the statutory elements of the indictment,” allegations lar should If descriptive lesser offense. averment averments, is, also include descriptive in greater the indictment for the offense is descrip- additional that is language merely to an identical element of the lesser of of tive elements. fense, if an element of the lesser offense this interpretation may But of Hall cannot be descriptive be deduced from a aver practical purposes, correct. For all greater- such ment in indictment for the offense, interpretation crabbed what we meant inclusive this should be factored phrase, Hall “modified into the analysis lesser-included-offense indictment,” particular allegations all asking whether of the elements of the in a of- results test for lesser-included lesser offense are within the contained al that compares statutory legations greater fenses offense. Watson, parte WL approach
16. Ex at *4. lesser-included offenses. This "in- adduced cludes facts at trial in its lesser- Hall, supra, at Hall, analysis.” supra, included offense at However, rejected approach we 18. Tex 37.09(1) art. Code Crim. Proc. opinion even before our Hall. See Littrell 278; State, supra, Ortega 19. We v. emphatically reiterate that this is not a “cognate determining approach (Tex.Crim.App.2005). evidence” 898-99 standard, Because the braced Section 545.151. proper reiterated Having conclude, however, that the intoxication-assault also conduct must for intoxication as- sufficiently detailed indictment was not all of the elements not include reasonably sault does complete it can be deduced yield right the lesser offense failed to of the Trans- Section 545.152 under circumstances that would under say, is to the in- That portation Code.20 Section specifically make him liable greater offense does dictment for Code, it can- Transportation 545.151 of all the elements expressly allege said, cognate pleadings not be under Hall’s missing nor ele- lesser is a less- approach, that traffic offense reasonably ments be deduced er-included offense of the intoxication as- Judge descriptive Presiding averment. As sault. opinion concurring Keller noted her *15 reason, judgment For this we affirm the submission, the aver- original descriptive appeals. court ment in intoxication-assault of the elements of lacked one P.J., HOLCOMB, J., KELLER, prose- offense for which he was lesser in the result. concurred cuted, “ap- namely, that the vehicle direction.”21 proaching
Moreover, it be deduced from the cannot appel-
descriptive averment whether the yield right way to such
lant failed to vehicle to the exclusion a oncoming
an di-
vehicle from some other approaching
rection, circumstances, or under other GARDNER, Appellant, constitute the commission John might Steven statutorily different defined Judge also Un-
Presiding Keller noted.22 The STATE of Texas. circumstances, with agree der these descriptive court of that the aver- AP-75,582. No. ment the intoxication-assault indictment Appeals Court of Criminal of Texas. reasonably rise to a give does not deduc- committed all of the tion Oct. 2009. constituent elements of lesser offense Rehearing Denied Jan. 2010. Transpor- in Section 545.151 of the defined “It simply allegation an tation Code.
conduct[,]”23 only of which is em- some street; by failing yield unpaved 20. See from to to Transp. an Tex. Code 545.152. approaching traffic 'from the intersection Watson, parte Ex 2009 WL *5 right'; failing operator's yield to traffic P.J., (Keller, original concurring opinion on through turning on a street while from a submission). intersection; 'T' street that terminates in a failing while [to] out, Presiding Judge pointed Id. As Keller road, building, turning alley, private from statutorily species one commit a distinct driveway approaching vehicle of failure to (footnotes omitted). highway.” Id. sign, "by failing stop turning at a left yield sign, light; or a traffic Id. paved traffic on a street when