State v. Houth

conduct, knowing (1990).3 double child intentional and Grady held that the via striking hitting an in- specifically and with protections any subsequent bar jeopardy instrument, strument, inserting an and in which the to establish bodily injury), we con- which caused serious an essential element of the offense which pros- appellant already clude that been subject prosecution, subsequent of that constituting an conduct of- ecuted this of- conduct that constitutes an will Keeping fense. in mind that the critical already fense for which the defendant has will inquiry is what conduct prosecuted. inquiry Id. The critical been use prove, the State will evidence prove, is what conduct the State will conduct, prove that we also conclude that use the evidence the State will be used to es- this “criminal conduct” will 521-22, Grady, that conduct. 495 U.S. at offense, tablish an essential element of the 110 S.Ct. at at 564. murder, subsequent charged i.e. an recently have articulated an We prosecution.4 alytical determining framework for wheth underlying conduct does Because the a subse er standards barred parts meet all three of the above-described Ramos, prosecution. quent parte Ex test, appeals did we hold that court (Tex. 1991). Cr.App. must We reversing not err the trial court’s deci- underlying question look at the conduct deny appellant’s sion double 1) determine whether: is conduct this Accordingly, claim. we overrule (hence, constituting an offense “criminal and ground State's for review affirm 2) conduct”); the defendant has judgment appeals. court of the con for “this criminal duct;” 3) and this “criminal conduct” P.J., MeCORMICK, concurs in result. used an to establish essential element BENAVIDES, J., participating. the offense if prosecution. Only Id. at 847. the con parts all

duct meets three test will

the latter be barred double

jeopardy. Id. shall such We now conduct

analysis in the instant cause. cause, STATE of Texas underlying

In the instant question allega conduct relates indictment, tions in the 1990 its two i.e. HOUTH, Appellee. Yvette Gearde by causing paragraphs alleging murder No. 788-91. in by striking hitting death and with an strument, object. inserting Texas, and an This Appeals Criminal Court of certainly constituting an of En Banc. fense, See, e.g., “criminal conduct.” i.e. 25, 1992. Nov. Code, Penal 22.04 and 19.02. V.T.C.A. §§ Rehearing Denied 1993. Jan. upon prior Based our and con discussion jeopardy did attach to the first clusion that allegations paragraph

trial’s indictment’s (which alleged injury count committing clearly dangerous specifically agrees to human court of an act The State regarding appeals’ conclusion double an life that causes the death of individual. The analysis per paragraph "criminal conduct” the first trial's L.Ed. 306 clearly 2 will be used establish one of count need There is therefore no discussion of the murder an essential element “Blockburger Test.” individual, causing namely death allegations in both of the 1990 reindict- point We out the elements of the murder specifically allege paragraphs murder ment's allegations regarding paragraph one— include: (i.e. striking-hitting- precise same acts knowingly causing intentionally death of inserting) caused death. individual; regarding paragraph two— an intending bodily injury, to cause serious Carr, Houston,

Walter A. South Scott Houston, Rothenberg, appellee. Holmes, Jr., John B. Atty. Dist. and J. Hudson, Font, Harvey and Mark Asst. Attys., Huttash, Dist. State’s Atty., Robert Austin, for the State.

OPINION ON STATE’S AND APPEL- LEE’S PETITIONS FOR DISCRE- TIONARY REVIEW CLINTON, Judge.

Appellee charged by was information with the offense of while intoxicat- ed. Prior to trial she styled filed what was a “Motion to Dismiss Prejudice Under Fifth Special Amendment and Plea Under Article 27.05 of the Texas Code of Criminal Procedure”. The trial court treated this as granted motion to dismiss and it as such. The appeal State then un- 44.01(a)(4), der Article V.A.C.C.P.1 appeals This Court has held that the courts of purported authority dismisses a jurisdiction do not appeals have 27.05, entertain supra, appeals of Article courts of can special plea brought from denial pursuant of a appeal entertain a State’s under Article 44.- 27.05, V.A.C.C.P., being Article such 01(a)(1) rate, (4), supra. party At neither interlocutory nature appeal. Apolinar of an appeals' jurisdiction contests the court of in this (Tex.Cr.App.1991). 820 S.W.2d 792 It cause, and we do not address it now. be, however, may well that when a trial court anything tape. on video The defendant Appeals reversed Houston Court [1st] belligerent kept very trying court’s order and remanded the trial Houth, by biting her- bodily do harm to herself cause for trial. 1991). (Tex.App. self, scratching her her nails. wrist with [1st] — Houston ap- discretionary booking review petition deputy, In her for called the Friskie She ruling appeals’ of pellee calling contends the court cussing names and at him him holding of conflicts with also to Mother Fucker. She threatened Corbin, Grady myself Deputy States sue and Friskie both (HCSO). U.S. was for FDSML She booked con By cross-petition the State and D.W.I.” correct, that, although ruling its was tends driving charging appellee with Information appeals of nevertheless miscon the court day filed of while intoxicated was on holding Corbin. granted strued the We hearing May At the Tex.R.App.Pro., under Rule petitions both appellee's on motion she introduced what 200(c)(3). Bargain styled Pursuant Plea an “Order to Mis- Agreement Plea of Defendant to and I. Signed demeanor of on June 5-25-90”. hearing appel- trial held a on The court municipal court apparently by a dismiss, testimony lee’s motion to but no judge, appellee recites that was order presented. presume Therefore was we guilty of to found gleaned appeals court of its recitation of lane, on single drive in a marked committed arresting excerpt facts from an from the 25, 1990, May and all sanc- had satisfied report, included in mem- officer’s offense against tions her for that offense. levied appellee’s to supporting orandum motion argued fur- Appellee to the trial court that part of an dismiss was introduced driving ther for the offense pur- into exhibit and admitted evidence for while intoxicated was barred poses hearing. excerpt reads: That fail- Fifth Amendment her conviction for [Easterling] dispatched “This officer was marked She single drive in a lane. I Spencer Highway. Block the 7000 Corbin, holding upon relied on the and made contact arrived scene supra. hearing argument about the After HCCO, Holoman, Sgt. Pet. 8. agreed import of the trial court me he stopped He related to had prosecu- driving while intoxicated that the Chrysler, Plate 1984 Silver Texas License from Judging tion barred. Sgt. Spencer Highway on E/B. 230HCY record, ap- pronouncements for the his me had Holoman told this vehicle pears court reasoned that because the trial from lane to lane failed to main- crossed for the State to would single stopped He tain lane. had weaving out prove appellee’s conduct very vehicle and found the driver lane, prosecut- had her which she up I walked intoxicated. then probable already, in order to establish sitting vehicle where driver was —a stop her arresting officer cause I a Mrs. Houth. had her exit W/F D.W.I., further suspicion when she vehicle and she did stumbled this, despite was barred under Corbin — staggered and when out of the vehicle argument probable cause is not State’s the rear of her vehicle. I she walked to the offense of while an element of her if submit to then asked she would State, See Neaves v. intoxicated. attempted the test sobriety test and she (Tex.Cr.App.1989). Myself and fell down. but allmost [sic] Appeals reversed and First keep up Sgt. Holoman had to hold her Initially the for trial. remanded the cause walking falling down and into main appeals held that failure to court of her for traffic. I arrested D.W.I. single driving while intoxi tain lane and transported her to the Clear Lake Office. under Block separate offenses intoxilyzer test cated are I offered her the When burger v. United do the test and refused she refused (1932). Appellee dy applies. Though prevailing 76 L.Ed. 306 court Furthermore, concedes as much now. appeals, accordingly the State has filed a reasoned, appeals the ex- court of because cross-petition review, discretionary cerpt report from the offense shows there claiming appeals that the court of conduct- was other evidence besides failure test, ed a “same evidence” a test that was upon maintain a lane which the State expressly disclaimed in Corbin. intoxication, could show because represent State did not to the trial court II. rely upon” that “it would the failure to The Double going to maintain a lane as establish protects against multiple Fifth Amendment intoxication, the element of the court of punishments for the “same offense.” Ex appeals holding concluded that the in Cor- Herron, parte (Tex.Cr.App. 790 623 transgressed. bin had not been v. State 1990). against protects It also successive Houth, short, supra, at 855. because prosecutions for the “same offense” follow prove appellee “the can was intoxicat- State E.g., May v. ing acquittal or conviction. ed” without reference to her conduct in (Tex.Cr.App.1987). 726 S.W.2d 573 lane, failing stay within a marked there meaning of “same of The constitutional is no Id. bar. upon “may vary” depending fense” petition discretionary In her for review is at issue. v. protections of these Whalen pertinent question appellee argues that the 684, 700, States, 100 at 445 U.S. not what the State “can Corbin is 1442, 715, 1432, at 729 at 63 L.Ed.2d S.Ct. in prove” without reference to her conduct J., (1980) dissenting). In this (Rehnquist, traffic, to maintain a lane of meaning cause are with the we concerned rather, prove” State “will prose in of “same offense” the successive in such conduct its effort to establish she cution context. prosecuting was intoxicated in her for 161, Ohio, 97 In Brown v. 432 U.S. S.Ct. 521, D.W.I. 495 U.S. at 2221, (1977), the United 2093, 53 L.Ed.2d 187 Ap at 109 L.Ed.2d at 564. S.Ct. the test for Supreme held that pellee contends that the State as much as States Court deciding appeals discerning legislative intent conceded its brief to the court of rely upon proof that are the “same of- intended whether two offenses punishment appellant multiple failed to maintain her lane purposes fense” for of intoxi applicable order to establish the element to determine would also be acknowledge deciding purposes cation. The State does “same offense” appellee’s weaving in her lane is prosecutions and out of violate the whether successive Thus, circumstantial evidence intoxication. the Court Jeopardy Double Clause. in Blockburger rule announced adopted the However, argues that it is not State 299, 304, at v. United enough comprise bar under 306, 180, 182, at 309 at 76 L.Ed. S.Ct. already prosecuted that conduct (1932), viz: may also serve as some evidence of an act or transac- . that where the same subsequent As we element of the offense. of two distinct tion constitutes a violation argument, con- understand ap- the test to be statutory provisions, require that the conduct strues Corbin are two plied whether there to determine prosecuted “must an constitute” one, each is whether offenses or offense—that element of which, proof of a fact must, essence, provision requires an element of the not.”2 jeopar- the other does subsequent offense—before double trial, necessarily they will be the Supreme justified transpo- In Brown the at a pros- multiple barring Blockburger purposes successive sition of the test from the same for prosecu- punishment the successive context to ecutions.” 2226, 166, tion context thus: L.Ed.2d at at 432 U.S. at 97 S.Ct. acknowledged in the Court itself 194. But offenses are the same under this test “If two in Mis- later nail down purposes barring what it would consecutive sentences Brown felony pred- in Brown observed and later for murder firearm The Court “[t]his upon robbery, was barred under two icated emphasizes the elements of the test Jeopardy Clause. The at the Double offenses.” S.Ct. opined: L.Ed.2d at 194. But the Court here, pains greater took to note that the context conviction of “When Blockburger cannot be had crime, murder, did prosecution, without successive crime, robbery for “same provide the exclusive test the lesser conviction of firearms, offense.” 432 U.S. at n. with n. n. 53 L.Ed.2d at 6. See Clause bars lesser State, supra. May greater conviction of the crime after one.”3 days after it hand- Accordingly, thirteen Brown, opinion its 433 U.S. at down Oklahoma, Court decided Harris v. In a footnote the Court observed the State of Oklahoma had conceded

(1977). There, ingredients robbery reference that all the of- without test, proved suc- fense the Court held that would have establish prosecutions, robbery felony cessive first for murder.4 359, 673, 520, 2092, Hunter, Corbin, supra, 74 U.S. at S.Ct. at souri v. 103 S.Ct. 495 110 (1983), 109 at 563. L.Ed.2d 535 viz: note, however, imposed at "Where consecutive sentences are It in at least is curious to trial, involving felony pred- the of the murder and a a criminal role constitu- one context felony, Supreme guarantee assuring Court has in fact is the icate the tional limited to Blockburger applied test to a legislative the find court does not exceed its authoriza- States, 684, bar. U.S. 100 Whalen v. United 445 by imposing multiple punishments tion for 1432, (1980), a S.Ct. question multiple punishment. L.Ed.2d 715 involved 63 the same offense.” Supreme of 165, 2225, U.S. at 97 at at S.Ct. 53 L.Ed.2d upon apply to a District of Court was called then, multiple punishment, 194. In context of codify to which it construed Columbia statute Blockburger merely operates rule rule the as a Blockburger rule decide Whalen construction, statutory divining of a means of punished separately rape and for could be for legislative intent where intent not other- rape. murder committed the course of that Hunter, supra. wise manifest. Missouri v. Inti- Blockburger rejected applying In the Court v. mations Garrett United U.S. rape argument that the and mur- Government’s (1985), S.Ct. 85 L.Ed.2d inasmuch der as, defined different offenses statutes side, however, Supreme Court has never could be established because the murder context, prosecution that in said the successive rape, each predicate offense other than some role of double limited to ensur- an element the other statute therefore contained legislative do exceed the will. courts not observed: did not. The Court contrary. Grady Indications are to the See v. proved to be does “Where the offense 518-520, at 110 S.Ct. at 2091- example, proof rape of a where include —for Thus, Blockburger, at 109 L.Ed.2d 562-63. killing perpetration a a in the of the offense is multiple punishment which in the context of robbery of different offense is course —the operates statutory no more than rule of rape, and the Government from the offense construction, appears operate in the context believing punish- that cumulative is correct in of successive as a limi- substantive rape felony murder and ments upon legislature. tation Blockburger. permitted In would be case, however, proof rape present of a emphasis supplied indi- 3. All unless otherwise felony proof of the mur- element cated. der, unpersuaded case are that this and we differently cases from other should treated Supreme has 4. At least since Brown the Court requires proof criminal offense which one another, Blockburger tech- entail “a construed test to every offense." element comparison of the two nical of the elements at at 63 L.Ed.2d 445 U.S. at 100 S.Ct. Corbin, supra, [statutory] Grady majority offenses." v. denied In footnote at applying allegation U.S. at at was Block- S.Ct. that it dissenter’s burger indictment, understood, alleged Block- application So of the facts alone, statutory al- ex- burger presumably test have alone would than the elements rather plaining Oklahoma, supra. "simply ... concluded that tered the result in v. that it had Harris rape a less- felony perpetrated Congress to be considered intended For murder could be of a kill- robbery within the offense felony with er offense included ing course of some firearm; other than Id., rape.” n. 6. It bears of a in the course robbery with a firearm need why conclude asking Court did earlier killing result in be actionable. later, Vitale, years requisite Three intent in Illinois order to establish auto 410, 100 65 L.Ed.2d 228 [161], theft.’ [432 U.S.] (1980), again Supreme Court indicated 2221[, 2226,] L.Ed.2d 187. But we elements-only analysis that a Blockburger prosecutor also noted that ‘the who determining may prove “same offense” necessarily established auto theft has es range insufficient to cover the Id., whole joyriding as well.’ tablished jeopardy protection. Vitale was 2221[, 2227,] 53 L.Ed.2d 187. speed with failure to reduce to avoid an “Both observations were essential to accident after an automobile he had driven holding. the Brown Had the State been struck and killed two children. After he theft, without also able auto was convicted of this offense the State of took, proving operat- that the defendant attempted charge Illinois him further ed, kept the consent auto without involuntary manslaughter in that he proof the auto theft owner—if recklessly had caused the deaths two necessarily proof joy- had not involved Supreme children. The Court of Illinois riding prosecutions successive —the ruled that the latter for the ‘same of- would not have been under the barred meaning fense’ within the of the Double the Fifth Amendment. The United Jeopardy Clause.” Supreme granted States certiorari. 2265-66, 447 U.S. at 100 S.Ct. at opinion its Vitale the Addressing L.Ed.2d at 236. the facts be- holding Court first reiterated the of Brown Vitale, fore it in then observed: applies v. Ohio that the test opinion enough “... It is clear from the and “that focuses on the neces- [it] manslaughter .by motor vehic- below sary elements of proved against le could Vitale be offense, each rather than on the actual showing recklessly his a death caused presented to at 447 evidence trial.” failing to slow his to vehicle avoid 416, 2265, at 100 U.S. S.Ct. at 65 L.Ed.2d at Proving collision with the victim. man- then The Court observed that slaughter way prove in this would also offense for which Brown had first been slow; nothing more careless failure to convicted, joyriding, was a lesser prove would be needed to the latter of- included offense he was fense, had an offense for which Vitale for, only later auto theft. already been convicted. statutorily pre- difference between the two State, however, does not “The concede prove scribed offenses was “that to auto charge manslaughter its prove theft one need in to addition [the failure proof must rest on of a reckless per- joyriding elements the intent of] slow; manslaughter by it insists that manently deprive posses- owner element need involve automobile 417, 2265, sion.” 447 U.S. at 100 S.Ct. at ” speed.... of failure to reduce 65 L.Ed.2d at 236. The con- Vitale Court 2266, at 100 S.Ct. at U.S. exegesis tinued its of Brown: on to L.Ed.2d The Court went at 236-37. “Holding the second agree that: barred, by was does Amendment, manslaughter by if automobile and the Fourteenth "... a failure to prosecutor always entail we observed that ‘the who slow, are not the only prove need offenses joyriding established then two accept analysis similarly, applying apparently content Oklahoma, Legisla- Court of Criminal that the Oklahoma statement of the Oklahoma Harris robbery Appeals of the State that ture had intended with a firearm to be and the concession felony underlying robbery proving with firearms treated as a lesser included offense of necessary might provide intent for In that event the Court have was needed to murder. conviction, making felony prosecutions, thus found a bar to successive murder Nielsen, Ohio, supra, In re Blockburger inquiry just incident” test of as it had in Brown v. but without "common to, Nielsen, e.g., appropriate than a resort In re 9 S.Ct. more may, legislative intent. L.Ed. 118 Be that as it into Id., at 100 S.Ct. at Blockburger test. The under the ‘same’ Because, alia, “the seek at 238. inter possibility mere that the State will rely necessari- on to rely ingredients all of the act or acts the State will reckless unknown,” to estab- ly manslaughter in the traffic offense still included [were] manslaughter case element of its judgment lish an vacated the Su- the Court the latter Illinois, sufficient to bar would and remanded preme Court prosecution.” proceedings. further cause for 2266-67, Id., at at U.S. extensively from quoted so Vi- We have But, regardless of at 237. lay groundwork for un tale in order to always to slow is a careless failure holding in derstanding Cor manslaughter, so as element of bin, supra. The Court in seems Vitale Blockburger test for bring it within the element of recklessness have viewed the offense,” the reasoned: “same manslaughter prosecution the vehicular may its man- “... it be that to sustain way there in the same the Court issue slaughter may case the underlying felony element viewed the find to slow or necessary to in Harris Just as the Court Harris. failure necessarily involv- rely on conduct robbery killing in the course of a “treated a failure; may concede as ing such separate statutory as itself a prior case, to trial. In that be- much species of lesser-includ robbery as a [with] convicted cause Vitale offense[,]” 447 U.S. at necessary element conduct that is a the Court L.Ed.2d at Vitale he the more serious crime considered death caused seems to have charged, had been his claim of double separate as “itself a a failure to slow down jeopardy would be substantial under in some other offense” from death caused and our later decision in Harris v. Brown manner, to slow with the failure reckless Oklahoma, [supra].” the accident “as a down so as to avoid offense.” And species of lesser-included Id., robbery constituted the statuto- just as the analyzed L.Ed.2d at 238. The Court then required prose- rily necessary “felony” way: Harris Harris, felony fail- cution of the murder felony-murder statute on “The Oklahoma to avoid an accident con- ure to slow down require proof its face of a did rob- statutorily necessary element stituted the murder; bery felony other to establish is, in assum- of recklessness Vitale—that felony underlie a murder felonies could that the ing prove to on remand it were prosecution, But [footnote omitted] in fact the conduct failure to slow was Clause, Jeopardy purposes of Double reckless- rely on to establish Illinois would generally we did not consider the crime ness. felony separate murder as a described as ele- offense distinct from its various understanding that we is with this It Rather, killing in ments. we treated a holding Grady in v. Corbin. approach the robbery sepa- the course of itself driving first for was Corbin robbery statutory offense, rate and the right keep intoxicated and while species as a lesser-included offense.” of New York in violation of the median “analogy,” Drawing from this Id. for a he was indicted Subsequently law. concluded: Court Vitale man- including reckless of offenses number criminally negligent homi- slaughter manslaughter prose- and pending “[I]f particulars a bill of The filed proves and a fail- cide. State cution Illinois relies on negligent acts reckless or identifying three an accident as the ure to slow to avoid the homi- proposed to establish by which it necessary man- reckless act the al- were The first two cide offenses. would have a substan- slaughter, Vitale driving while acts of ready-prosecuted of double tial claim median. The crossing the Amendments of the toxicated Fifth and Fourteenth an excessive operating a car at third was United States Constitution.” Id., 521-522, 2093, speed existing at at for the weather and rate 109 L.Ed.2d at 564-65. conditions. The Court ob- road presented that the facts demonstrat- served In the facts of applying its new rule to again test ed once noted that its task not protect sufficiently “does defendants determining the State would what conduct multiple by partic trials.” bill of proved “simplified from the burdens by 495 U.S. at at 110 S.Ct. at 109 L.Ed.2d ulars filed the State.” U.S. at 565. The 110 S.Ct. at 109 L.Ed.2d Accordingly the Court elevated at 564. particulars Court construed the bill holding “suggested” what it deemed representation the State that it “will by rule, to a viz: Vitale intoxi driving while prove” both Corbin’s Jeopardy Double Clause bars “[T]he crossing the median estab cated and his subsequent gov- prosecution which neces negligence or lish the recklessness ernment, an essential ele- to establish sary convict. v. Hil See re Corbin prose- ment an offense N.Y.S.2d N.Y.2d lery, 74 cution, consti- will conduct that (1989).5 71, 77, at 543 N.E.2d tutes an offense which the defendant appli specifically, More the Court deemed prosecuted.” has “straightforward” analysis cation of its immediately The Id. elaborated inquiry” that its “critical was resolved rule as this follows: particulars filed viz: the bill of “This not an ‘actual evidence’ or ‘same “By pleadings, own the State its test, entirety evidence’ prove the admitted that it will [footnote omitted] is what conduct the State was con- inquiry critical conduct for and fail- prove, will while intoxicated evidence victed— es- keep median—to right of the prove that As we have use to conduct. homicide tablish essential elements held, specific evi- presentation Therefore, and assault offenses. pre- trial not forever dence does succes- Clause bars introducing government vent proseeution[.]” sive pro- in a that same evidence ceeding. Dowling v. United S.Ct. added howev- at 565.6 The Court (1990).” er: relationships be- Transposed language under Illinois law and Har cerned with to the Vitale ris, manslaughter might and careless said that death caused the Court have tween crimes of is, cetera, by driving speed while intoxicated or fail et that whether either failure to reduce stay right "itself of the median is element” of the "always ure latter is separate from death caused in offense" not resort to Court did That the Corbin former. manner, negligent some other reckless whether those "species" notion means that crossing driving intoxicated and that while is included offenses” are “lesser matters species of lesser included of inquiry median are “a The dispositive is, Corbin rule. under the Indeed, the Court has since read Corbin fense.” prove” make will to the State “what conduct adopted suggestion "simply offense; made we to have element of out an essential Felix, dicta in Vitale." United States "always in that concern is not -, at -, law, but whether necessary U.S. L.Ed.2d under state element" In Corbin at 35-36 already been that has it is criminal conduct hold had the State indicat Court went on to that important com- prosecuted. is that acts Also it could have relied there was other conduct per requi- prising are not se conduct in Corbin "solely,” driving tried; such as an excessive on they are to of be site elements offenses conditions, existing speed for no previously prosecuted conduct again, presented; problem the Court would as evidence to required chose to use was driving might while intoxicated have said find those persuade to infer and the factfinder right keep the median are not of and failure to beyond doubt. a reasonable elements species offense" of "a of lesser-included driving speed course, causing provisions death at a of fense of for a bill Of we have no existing road weather and jurisdiction, excessive for the and the Houston particulars in this did But it not. cause that conditions. noted in the instant [1st] would trial court that it inform the State did not of Vitale with a restatement thus appellee in a rely to drive failure of on the significant latter was con- The modifications. Corbin, Therefore, argues holding

“This would not bar a subse- he quent prosecution on the homicide and “must bar charges particulars if assault the bill of convicting [appellee] State of Texas from would rely revealed that the on State single in failure to drive lane of proving the conduct for which Corbin traffic, using pros- that conduct to then ... (i.e., had if the convicted driving ecute her while intoxicated.” solely driving relied on too Corbin’s Id., at 5-6. reckless- heavy fast rain to establish rejoins part empha- For its the State negligence.” ness or sis, viz: Ibid. lights In those we turn to the instant “Obviously, appellee’s stay failure to cause. single in a lane shares some conduct driving while intoxicat- Ill common with his shown, ed; instances it must be both Appellee contends the State admit example, appellee driving. was appeals ted in the court of and here that * * * * [AJppellee guilty will not be rely stay will on her conduct driving because she was and DWI lane, single pointing within a marked failed stay traffic; in her lane nor will following statements: appellee guilty because DWI driving “At her trial for while intoxicat- stay was intoxicated and she undoubtedly tes- ed, will police officer failed in her lane tify jury While the appellee that he observed the weav- of traffic. probably hear some evidence that ing in and out of her lane of traffic. fact, this conduct some evi- constitutes appellee stay single in a failed dence intoxication ... lane, jury this is not to return will be authorized [but part driving an essential while intoxi- guilty only if it finds that verdict intoxicated, appellee driving cated].” while catego- simply and the former cannot be Appellee’s Response to Brief ‘component rized as a offense’ or ‘essen- Briefs, excerpting Appellate State’s at 18 latter, tial element’ of the omit- respectively (emphasis supplied [note ellipsis by appellee). of bracketed clause ted].” single implications. During hearing marked motion to lane establish ele- intoxicated; driving analyzed ment of while it further related its dismiss the State opined appellate that without such holdings disclosure an to the instant cause and submitted that anticipate court need not what evidence the while it "needs” the failure to drive in a marked did, however, cause,

State will use. It resort to the probable lane to show (as have) record we to find witnesses the State possible "it is to show that the defendant driving could call to elements of while relying upon was intoxicated without ever relying intoxicated without on conduct of fail- showing the indications was that Houth, to maintain a lane. State v. drive in a marked lane. she failed * * * * supra, at 855. testify par- Officer could in this opinion that he formed the ticular case problems posed by Alerted to similar Justice upon based observations she was intoxicated dissent, approved Scalia * * * * There- outside her facts[.] "procedural mechanism ensure that the test [to] ” fore, position State's that [defen- it is the today 'implementable,' set forth is in fact viz: " argument essential fails because the dant's] puts a defendant double '[W]hen W.I.are not essential elements elements D. showing issue with a non-frivolous that an They single lane. to drive in a marked charges him with an indictment offense for failure separate are two distinct and formerly offenses[.]” placed jeopardy, which he was in response manifests an under- S.F. 18-29. That government to the burden shifts establish attempt standing to conform of and reveals an separate were in fact two offenses.’ that there contemplated 1184, procedural mechanism in to the Ragins, v. F.2d United States 840 1192 Corbin; analysis here. (CA4 1988) cases).” it the basis of our (collecting forms however, prudent prosecutor Corbin, suggest, We that note U.S. at 110 S.Ct. at 495 join writing pretrial in to a would first issue at jeopardy pleading preclude "extrane- pertinent in order to oc- In the instant cause all events decision; protect event the record in ous evidence” and to curred to the Corbin id., J., Scalia, dissenting, 495 parties appeal. record reflects the were well aware of its of an

862 Brief, embraces) any Thus the term matter other we er Appellate

State’s at 19-20. cause,” although “probable which he asserted position understand its is than single evidentiary in a marked lane is “an issue ... an essential stay agree, not an element” and “conduct” it is “essential element of an offense.” We therefore, intoxicated; tes- sum- driving inquiry of while could and would end in appellee stay nothing her timony marily holding failed to in than nothing more applying lane is “evidence” Dou- other authoritative cases case. bars this ble driving intoxicated on that ac- while blush, appealing at neither While first count.7 argument will withstand closer examina- analysis. and tion further appellant prosecutor But the insists that jeopardy of the conduct is not a same inquiry” place, In the our “critical first merely when the State will offer it as bar prove into conduct the State will what To ad- “some evidence of intoxication.” driving of establish an essential element must theory dress that we extend our simplified by has been while intoxicated quiry. from the State. consistent declarations hearing prose trial below the While application Facial test announced prosecuted con cutor said it “needs” the if seem indicate that Corbin would stop appel probable cause to duct show prove appellee’s failure the State intends lant, prosecu appellate n. at ante single marked lane “to to drive within a now out that court observed points tor prosecut- element in establish” an essential (Tex.Cr. Neaves v. intoxicated, then driving her for while “ ‘probable is not an App.1989), that cause’ latter barred. proven prose DWI ultimate to be in a fact rely For, appellee’s if the should on State cution,” says proffer and marked failure to drive within in “weav testimony appellee of conduct lane, constituting an conduct prove it will ing in of her lane of traffic” as and out prosecuted offense as at least already Brief, intoxication,” at “some evidence “to establish” an essen- part of its evidence inquiry” we purposes 19. For of “critical intoxicated, driving element of while tial accept State “will conduct that the use of mental or bereft of normal viz: [appellee] that constitutes an offense which here question Thus physical faculties. prosecuted.” meaning of the intended seems to turn on Trickey, McIntyre v. “to establish.” See inquiry is whether rest (CA8 1991); see F.2d at 905-907 “to prove’’ conduct estab- State “will Clark, 928 compare v. States element” of while lish an essential (CA4 1991), at U.S. F.2d According declaration to the intoxicated. (CA2 Calderone, F.2d at 721 will not v. prosecutor, of the trial the State 1990).8 (whatev- “to establish” such 1990). Russo, (CA2 541-542, Be v. F.2d States presents cause cause like the instant 577-578. simpler aris prosecutions of offenses successive ing however, observe, "proba- proving that if 7. We rather course conduct" out “a barred, might still ble cause” is conspiracy pros “multilayered conduct” in than objection it is not relevant ruled out ecutions, deciding also because often 401 and 402. Rules Tex.R.Cr.Evid. among and as the several itself divided court State, supra. Neaves v. uneven, may look to we the results are courts understanding a common or more cases for Calderone, Clark, both su- U.S. v. and U.S. regard to aspects Corbin without certain pra, cases which are two of various federal application See United in those cases. their meaning sought courts to determine U.S. -, Felix, States test, apply and then in the Corbin terms used L.Ed.2d at 36. particular facts in that determination establish,” point Calderone "to On the in the cause complicated crimes involved more being pros- also, Smith, opinion means "to take the e.g., lead believes Ladner v. decided. See word,” Felix, speak, 1991); “because (CA5 at so ecution its viz: States F.2d United pleadings that it in its (CA10 1991); state had indicated United States v. 926 F.2d had 1990); rely Corbin (CA3 for which on conduct Pungitore, would F.2d 1084 may dence from which the factfinder draw begin with an We examination might one or inferences “establish” stating particulars what “the bill act; the other. is an evidence is Conduct Corbin. prove” in After prosecution will proof that which furnishes of conduct. describing particular conduct each say, introduce That is to the State will offenses, prosecution then three traffic prior evidence of the conduct because culpable conduct mental related that may well achieve the result believes tried, of the offenses to be state elements factfinder. In context of desires viz: part rule —“to establish this in the “By operating so his vehicle of an offense an essential element described, above manner the defendant government] conduct ... [the disregard- consciously was aware of and [already prose- that constitutes an offense unjustifiable ed a and risk of substantial construe “conduct to estab- cuted]” —we the likelihood of the result which oc- previously prosecuted lish” to mean that By perceive his curred.... failure deems relevant conduct which the State operating vehicle in a while risk expects probative and will be of an element criminally negligent man- and reckless charged, of the offense here a favorable ner, physical injury to he caused [named finding requisite culpable mental and the death of individual] [another state; mean that of such it does not named individual].” ultimately conduct “must and will estab- Id., at at lish” element.9 at 565. To noticed is that however, argues, The State that evidence culpable conduct and the mental described previously prosecuted conduct which is conduct, prior are not identical. The states merely probative and evi- relevant —some itself, congruous in and of is not with ele- of an “actual evidence” or dence —smacks bill; not alleged ments it would “same evidence” test. The Court did directly culpable either mental “establish” say “specific deed that use of evidence” state, only provide preclude circumstantial evi- one trial does already prosecuted[,]" there was no bill of in fact been and then On the other hand where F.2d, indicating particulars, only an indictment what focuses on that conduct. at 721. alia, as, an concurring opinion the Government would inter reads Corbin to bar a sec- act, question decided overt in Clark the to be prosecutor ond “if the seeks to es- airport drug pos- was "whether evidence of the tablish an ‘element’ of the second crime constitutes an offense for session—‘conduct that providing 'conduct constitutes and offense prosecut- already the defendant has been prose- for which the defendant has been ’’ an essential element’ of the 'established] cuted,’ id., ed’— at and then focuses on "ele- Id., (brackets original). charge.” conspiracy 723-725; Id., ment” as well as "conduct." applicable law related to Based on the Judge along way opines: Newman "evi- allegations, the court concluded that Grady may "What holds is that the State airport possession of cocaine dence of Clark’s driving use Corbin’s conduct in while intoxi- ‘establish an essential ele- and heroin did not driving or across center line to es- cated Id., conspiracy charge.” ment' of the § required tablish these elements of the subse- quent not bar the offenses. does introducing State from in the second trial represented in Corbin that it 9. When the State evidence that Corbin was intoxicated or drove rely driving prove” while "will and thus line, (or the center but these acts across crossing demon- the median to intoxicated conduct) cannot be used as elements of reck- negligence, it limited strate recklessness negligent underlying action the homi- less or understanding culpable itself to an charges." cide and assault susceptible being estab- mental states are

Id., agrees In note 1 he with Justice 723-724. which violates other statutori- lished previous- that Corbin bars such Scalia in dissent ly accused has al- defined offenses. Because ly although prosecuted conduct because driving ready intoxi- while constituting statutorily prescribed median, elements of prose- crossing the a second cated and offenses, satisfy the second “the State chose jeopardy protections. That cution will violate negligent might acquitted elements of reckless ultimately of the homi- he by proving previously prosecuted con- act not alter the assault offenses does cide and analysis. driving protects Jeopardy Clause duct of while intoxicated and The Double Id., just prosecutions, not succes- against Accord: across the center line.” at 723. successive Felix, supra, at 1528-1530. sive convictions. United States

864 conduct, prove” introducing depends that that on from same evidence “will no claims subsequent proceeding. This was doubt whether the State there other assuage it unprosecuted concerns of dissenters conduct that intended to evidence application prove strict of the test “an essential element” that Corbin will to show jeopardy create a bar whenever the offense. subsequently charged would pros previously prosecutor tenders evidence of a rely State alone on When Tex.R.Cr. ecuted extraneous offense under an es- other conduct to demonstrate such Evid., (O’Con 404(b). Corbin, offense, supra Rule subsequent sential element of nor, J., 525-526, dissenting, 495 at 110 prosecution U.S. is not barred. Scalia, 2095, 109 567; J., at L.Ed.2d S.Ct. at 110 at 495 U.S. at 538-539, 110 dissenting, 565-566; at S.Ct. at v. 109 L.Ed.2d at United States 575). Calderone, (Newman, J., concurring at But the Su supra, L.Ed.2d words, 1). expressly rejected a “same preme including n. In other at 723-724 Jeopardy prove test under the Double says evidence” the State will when Corbin Clause, Dowling conduct, to v. Unit and its allusion also will previously 110 S.Ct. trans- prove previous conduct the same (1990), explain prosecuted, L.Ed.2d is to that use of “to not been action has “specific presented subsequently at a former evidence” an establish” element help estab rely solely on an unrelated offense to it charged trial at trial must element of a reason- put beyond lish matters other than an latter to on the conduct subsequent in a trial is not offense of that element. able doubt the existence J., scope (Newman, con- Calderone, supra, within the intended See Felix, supra, at curring 723). See States v. bar. United at 1528; Clark, 1525-1526, United States understood, holding Corbin Thus 642; supra, cf. v. Calder United States in this appellee to relief does not entitle one, (Newman, J., concurring).10 at 724 need The first said it would cause. State stay in a Accordingly, appellee failure of we construe Cor- cause; probable lane require test evidence marked bin contemplated Cor- “specific constitutes an offense evidence” of “conduct that go essential pros in that not to an bin it does which defendant to be tried. Now element of the offense ecuted” will bar must, fact concedes, it that the represents again the State as wherein 404(b) Dowling linkage identification his To be under Rule Tex. admissible R.Cr.Evid., Id., implicated 401 & evidence of “other at Rules offense. another man 348-349, crimes, acts," previ- wrongs, not or whether or at 717. S.Ct. at L.Ed.2d adjudicated, logically ously must “to make serve “specific alluded to in evidence” probable” fact or an elemental an more evidentiary less merely prior conduct "related to that which inferentially leads an fact failed to violated Government Montgomery v. elemental fact. See Dowling, at criminal law.” (Opinion (Tex.Cr.App.1990) at 387 Although prior L.Ed.2d related at 719. motion). rehearing Court’s own on offense, "specif alleged an to constitute every to serve sense extraneous offense seems 404(b) does under Rule ic evidence” admissible an an essential element of “to establish charged" element ipso an essential not “establish facto subsequent prosecution. charged” a later an offense Nevertheless, Supreme Court held in completely dif arising from a another offense 404(b) Dowling in a context that because Rule (no Felix, supra, at 1528 ferent transaction. only "specific need be sufficient to evidence” Dowling, treat act or conduct at issue in same "reasonably jury conclude”—rather allow the conduct); ing separate separate crimes beyond of doubt—“that than to find reasonable Clark, ("["Dowling supra, evidence”] and that defendant the act occurred alone, ele standing prove any essential did actor,” beyond though might not believe even Calderone, supra, robbery”); ments bank committed doubt that defendant a reasonable J., (conduct (Newman, concurring) in com (robbery charged in the trial the crime first evi mitting robbery as A was introduced compo- individual), "collateral-estoppel an B, robbery committed dence that defendant did Clause" nent of B); robbery entirety element of an introducing in preclude the Government from — at -, Felix, supra (bank States subsequent trial on an unrelated offense at 34. robbery) its that evidence enhance unprosecuted conduct her marked other evidence appellee weaved out of that prove show an essential ele- that it will driving comprises some evidence of lane subsequently charged of- ment of Not has the State while intoxicated. (internal quotation Slip Op. at 18 fense.” rely manner that it will not indicated omitted). Accordingly, I concur marks single in a appellee’s failure to drive on only. judgment necessary element of prove lane to cause, from the intoxication in this I. prosecutor trial

declarations of the report, the fail- excerpted from the it addresses a Corbin is difficult because not even to drive in a marked lane is ure jeopardy issue. Other particularly difficult intoxi- compelling evidence of the most disputes involving substantial problems long as cation available to the State. So sameness, af- reprosecution such about solely relies on the latter the State of a mistrial or ter the declaration intoxication, appellee prove evidence appeal, are of- of a conviction reversal single in a lane is not suffi- failed to drive But there theoretically ten unremarkable. subsequent in and of itself to bar cient develop- are formidable obstacles driving while intoxicated.11 prosecution for general theory sameness which ment of a generating ac- consistently capable Accordingly, judgment we affirm the practice. helpful, It is ceptable results appeals. court of therefore, rele- begin with some of the Corbin. predating vant fundamentals BENAVIDES, Judge, concurring. Jeopar Among things, other the Double large part to ensure dy serves Corbin, that, agree I punishments defined and that crimes be 2084, 109 110 S.Ct. legislative prescribed by the branch with (1990), prosecution Appellant driving for Alber judiciary. from the out interference intoxicated was not barred while States, 450 U.S. 333, 344, naz v. United for on account of her earlier conviction 1137, 1145, (1981); L.Ed.2d 275 lane, in a marked drive States, 445 U.S. Whalen though from the even both cases arose 1432, 1436, 63 L.Ed.2d 715 100 S.Ct. same incident and of the latter was prohibits it courts from To this end not, relevant to establish the former. I do prosecutions for entertaining successive however, join majority “constru[ing] as a legislature has defined what the require test imposing punishment more or for an of- evidence of conduct that constitutes prescribed for that legislature than the the defendant has fense Ohio, 161, 165, offense. Brown v. been will bar (1977).1 2221, 2225, 53 L.Ed.2d 187 represents prosecution wherein the State conduct, un- legislative de- intent is often again Because Court, in clear, there is the United States pends on whether the State claims test here is in a application of the Corbin in other offenses at issue in cause 11. Unlike elements Vitale, Harris, cetera, generis. et the element of real sense sui operating being while or "intoxicated” readily public place is not vehicle in motor against Jeopardy protection suc- 1. The Double by proof consti- of conduct that establishable v. Unit- prosecution is waivable. cessive Jeffers for which the accused has al- tutes an offense 137, 154, example, ready prosecuted. of- For however, (1977). Arguably, 53 L.Ed.2d 168 statutorily public at least intoxication is fense of punishments against multiple is not. protection not to be a lesser included offense declared driving possible Consequently, it is situation Code, V.T.C.A.Penal while intoxicated. will not be of- in which the Constitution arise constituting 42.08(g). or While conduct § another traffic offense though even a second fended may symptomat- well be re- necessarily if the accused will be offended intoxication, quickly mind none comes to ic of punishment .any as a result of additional ceives to establish" the that the "will S.Ct. at 2219. prosecution. Id. at actually being intoxicated. essential element analysis of the facts of this Thus under our violates, simultaneously order effectuate constitutional duct either suc- cessively. indulges pre- prohibitions, a number of legislation. sumptions purpose about Moreover, provides our state law example, presumes, For of a absent single “in a criminal action for contrary purpose, legislatures always arising all out of crimi- offenses the same V.T.C.A., Code, episodef,]” nal Penal proscribe intend two statutes to a sin- but 3.02(a), require absolutely but does not § gle offense whenever the elements of one such consolidation or entitle an accused to in the analytically are contained other. single arising insist that all offenses from a States, Blockburger v. 284 U.S. United episode” adjudicated in “criminal be one 299, 180, (1932); 52 76 Illi- S.Ct. L.Ed. 306 is, therefore, proceeding. It the policy also 416, Vitale, 410, 447 U.S. 100 S.Ct. nois v. of Texas allow successive 2260, 2265, (1980).2 65 L.Ed.2d 228 Of different, for the violation of nonincluded course, legislative a where it is known offenses, not whether or those proscribe more body actually intended to act, single by were committed violations impose separate one and to than offense acts, by by clearly of a continuous series each, Jeopardy Double punishment for by question distinct acts. The raised Cor- always, usually, although pres- the Dou- policy is whether this offends bin implementation ents no bar to a full of that the same evi- Jeopardy ble Clause when Hunter, purpose. Missouri v. 459 U.S. See proceedings to dence is offered in different 359, 673, (1983). 103 74 L.Ed.2d 535 S.Ct. such of- prove elements of more than one fense. that, Texas, the public policy In it is rela- penal when two statutes stand such II. tionship a lesser included that one defines Supreme latest Court’s of the other under article 37.09 of troubling persistently to the contribution Procedure, an the Code Criminal accused be question should di- whether sameness simultaneously violates whose conduct both by analyzing purposes vined for punished statutes be convicted of by statutes or evalu- penal elements of 37.08, Art. but offense. See probative inculpatory ating the effect eases, virtually In other it is V.A.C.C.P. all intuitions inform both evidence. Plausible policy this State that offenders be debate, making it the more sides of and punish- altogether to separate

liable conviction side is likely neither many wrong.3 as con- ment under as statutes their differently be understood presumed susceptible of "same offence” should It is that statutes also pros- continuous, jeopardy challenge is to successive uninterrupted violation over time when offense, multiple punish- is to than ecutions when as a were meant to be is, course, 8, per- 161, a little Ohio, The ments. verse, notion n. 432 U.S. 97 S.Ct. Brown Jeopar- nothing 2221, 8, in the Double (1977) as there (joyrid- n. 53 L.Ed.2d 187 warning 672, give doubt it Nielsen, dy of it. No Clause to ing); In 131 U.S. 9 S.Ct. re legislatures by inspired intuition that common (1889), every L.Ed. and that discrete severely they as may punish and as as often culpable proscribed statute stance please, may pester unneces- criminals even if there is likewise against several victims, sarily by forcing to defend them property, or multiple items of were proceedings. charges separate related Bell United instrumentalities States, involved. 184, 187, 355 U.S. United Green v. 99 L.Ed. 905 S.Ct. (1957). Not sur- (1955). may, presumptions these Each of prisingly, effective elabo- course, the main barrier an contrary of a evidence overcome lack of a has been the of this intuition ration Supreme legislative The States intent. closely offenses are when means to determine leni- describes them rules of Court sometimes mandatory joinder under the however, enough related for Texas, invariably ty. In we do Brennan’s Clause. Justice interpretation our apply such rules joinder required whenever Rathmell, should view parte own statutes. See Ex same punishable separately offenses arise (Tex.Crim.App.1986). 35-36 major- clearly rejected by a has been transaction such mea- ity sure, And without some of the Court. problem somewhat is exacerbated understand- argument a different opin- recurring Supreme suggestion in of successive ions, ing in context phrase "same offence” quite explicit, that the made never

Invariably, Blockburger begins inqui- jeopardy purposes. wise the same for There, Swenson, ry. held that Ashe v. 90 S.Ct. penal (1970).. presumably two statutes define dif- 25 L.Ed.2d 469 The other is provision unclassifiable, ferent offenses when “each re- early example an of continu- quires proof of an additional offenses, fact which which derives much of its other does not.” 284 U.S. judg- rationale from the dated now social encouraged at 182. This formula has the ment that cohabitation is a functional comparison that an abstract of ele- belief Nielsen, equivalent adultery. re ments is sufficient to determine whether 33 L.Ed. 118 two statutes forbid same conduct. special significance Whatever the of these And, Supreme because all on the run, may long in cases it is no evidently accept that the for- Blockburger really rep- means clear that either of them operates independently evidentiary mula general an extension of resents Brown’s cases, in ques- facts individual the essential rule that “the Fifth Amendment forbids Jeop- tion has become whether the Double prosecution pun- successive and cumulative ardy requires any Clause ever further anal- greater ishment for and lesser included ysis. Increasingly, the answer seems to be offense.” 432 atU.S. 97 S.Ct. at 2227. that it does. issue, The more critical to which Brown contribution,

At very meaningful least since Vitale there has been makes little growing recognition that a criminal offense really is how to tell when one is a lesser is more than the sum of elements included of the other. offense proscribing impetus it. Much of the recent course, That, why generated Vitale cryptic idea comes from a footnote this in place. so much interest the first Once Brown, in Supreme wherein the Court ob- “carelessly” failing convicted of to reduce gratuitously served that: speed, later Vitale was with invol- test is not the [t]he untary manslaughter, causing death standard for determining whether suc- Al- “recklessly a motor vehicle.” prosecutions impermissibly cessive though prosecutions both arose from sub- volve the same offense. Even if two stantially contemporaneous the same sufficiently offenses are per- different to conduct, it was not clear from the man- imposition mit the sen- consecutive slaughter indictment that failure to Vitale’s tences, prosecutions successive will be speed actually reduce would constitute the in barred some circumstances where operative act of recklessness in his homi- prosecution requires second the relit- prosecution. Accordingly, cide the Su- igation already of factual issues resolved preme Court remanded the case to Illinois by the first. reconsideration, suggesting n. 97 S.Ct. at n. 6. manslaughter prosecution jeopar- would be might What sort of factual issues these dy if the barred state on “relie[d] Court, was not well elaborated and prove[d] a failure to slow to avoid an acci- examples especially it cited two are not dent as reckless act helpful. application One involves col- Vitale, manslaughter.” 447 U.S. at rule, estoppel relitigation lateral which bars in a second factual issues Corbin, accused, remarkably previously resolved favor of the a case similar to facts, or not suggestion the two offenses are other- Vitale on its this Thus, prosecutions already is left without a rationale. duct identical to that for which he had Corbin, Jeop- prosecuted, just the Court allows as how the Double been and under circumstances ardy prosecu- intuitively compelling. Clause would not bar a 495 U.S. at contemporaneous Consequently, spite halting tion based on conduct with and intima- contrary, reasonably indivisible from that for which an accused had tions to the it seems certain already prosecuted, though ultimately been even it would concede that “same of- Court will "embarrassment, subject expense thing pur- him to the same fence” at means the same for all least subsequent prosecution poses and ordeal” as for con- under the Double Clause. believed, Appeals evidently jurisprudence made Constitutional but instead fo- law. Jeopar now seems to hold the Double cusses conduct of accused amount- dy successive Clause bars penal of a violation statute. Certain- necessarily government where the must ly, view is more consistent with criminal of constituting holding argu- than is appellants’ fense for the defendant has production ment evidence in one prosecuted in order one or to establish effectively production criminal trial bars its charged of more essential elements of the in another. 495 U.S. at fense, whether or either such question 110 S.Ct. at 2093. But the analytically included the other. See Ex in Texas. largely academic own statu- Our (Tex. Ramos, parte 806 S.W.2d tory analytically definition of an included result, Crim.App.1991). As a it is fast be language nearly offense uses identical coming popular wisdom that certain adopted by Supreme might actually proscribe the penal statutes implementation Blockburger,4 Local jeopardy purposes even same offense for formula, however, is differ- somewhat lesser offense of when neither is a included application than the Court’s ent the other. Indeed, analysis test. course, phenomenon Of Corbin suggested in and sanctioned Cor- Vitale expand might be understood to instead this generally is consistent with bin restrictively abstract notions of included ascertaining rela- Court’s method for given by Blockburger ness were it tionship most of- between lesser-included to think Supreme tendency Court offenses include fenses only in another of one offense as included them, evi though even Court same or fewer than all the when has the beyond dently regards analysis to be Harris statutory same elements. v. Cf. scope Blockburger. Day v. See Oklahoma, 433 U.S. 53 State, (Tex.Crim. 532 304-306 S.W.2d (1977). simple analysis If 1054 submission). original on App.1975) (opinion kind fails to reveal the elements Peterson, thought required 738 relationship parte to be S.W.2d also Ex See therefore, State, is reluc Blockburger, (Tex. May v. 726 Crim.App.1987); 688 prosecution charges tant to find that one (Tex.Crim.App.1987). S.W.2d greater inclusive lesser included or offense Texas, statutory comparison elemental equally Yet the is other. Often, analysis. some only begins the unwilling exempt altogether the factual specific factual information about rather the reach of context of each offense from miscon alleged instance of criminal each jeopardy prohibitions. constitutional Ac See, complete e.g., is it. duct cordingly, signifi I understand the chief (Tex.Crim. State, v. 750 S.W.2d Goodin to be that elemental in- cance State, 726 App.1988); Cunningham v. longer limits the circum cludedness no (Tex.Crim.App.1987); Brous S.W.2d penal distinct statutes stances under which (Tex. State, 642 S.W.2d sard proscribe be the same criminal held example, an examina Crim.App.1982). For meaning of the Double within yields the con statutory tion elements Jeopardy Clause. as the same offense

clusion that murder is III. murder, are identi elements because their murder is also a lesser Consequently, cal. does contends that Corbin State itself, test, since all offenses as the Court of included offense of create a same evidence U.S. at S.Ct. at Blockburger provides that: 37.- Texas Code of Criminal Procedure article ... same act or transaction consti- where the 09(1) provides that: statutory pro- of two tutes a violation distinct if ... An a lesser included offense visions, offense is applied to be to determine the test proof less or is established the same two or one whether there are offenses com- required to than all facts establish provision requires of an each charged!.] not. mission which the other does of the additional fact State, (Tex.Crim.App.1978). S.W.2d 926 themselves offenses of lesser included are also, questions Yet, Accordingly, this instance one has ever no by definition. and, jeopar- presumably, of policy the Double of includedness Texas or thought cannot be resolved without prosecu dy as well bars successive Jeopardy Clause description property knowing mur punishment for the multiple tion by which it today specific and the means and another tomorr volved person der of case, enough parte Jefferson, taken. Ex plainly it is In such ow.5 (Tex.Crim.App.1984). elements of murder. to know the Ohio, 161, 97 analysis Brown v. the lesser-included-offense Both in the last exam- and, implication, analysis 53 L.Ed.2d 187 As knowing ple, fact-specific matters are and vari- completed without also both cannot be Joy- one instance of Theft or least the identities of the victims. This able from Riding next. fact-specific information and variable one instance of murder to another. course, regard Of I do not one offense I murder Accordingly, do not consider the merely another included within because person to be a lesser included of of one might proven in evidentiary same facts be another, I fense of the murder of nor do It of both offenses. prosecution multiple consider successive example, widely accepted, for jeopar punishment for these offenses to may prove unadjudicated an extrane barred, though same dy even both have the an element of the ous offense to establish statutory elements. Montgomery offense. (Tex.Crim.App. 387-388 Conversely, statutory offenses which 810 S.W.2d 1990) may prove (opinion rehearing). No one seem different the abstract practice somehow trans light the same in of the factual context thinks that a they example, in the forms the extraneous offense into lesser which arise. For offense, charged or crimes of Theft and Unauthorized Use of a included offense subsequent prosecution prevents are inasmuch as that it Motor Vehicle different If requires appropriation an of for the extraneous offense.6 the State the former vehicle, chooses, therefore, Capital in necessarily property, some not killing the of a specifically requires opera- prosecution Murder while the latter If, however, policeman intentionally in done to avoid tion of a motor vehicle. was apprehension escape penal from a insti particular property actually case the stolen for tution, likely that an instruction on a motor vehicle and the it is not was shown be of Mur appropriation actually Escape includ- as a lesser included offense manner of its it, jury specific der for consider apparent it is that the would be submitted ation, prosecution for actually of Unauthorized Use nor that successive instance regarded Escape a lesser included offense itself would be proven is indeed charged. anyone as barred.7 Neely the Theft offense of therefore, alone, 7.Surely, Supreme Court did not 5. For this reason 515, Corbin, Corbin, misspoken really literally in U.S. at taken in must have mean 2090, when it said: that: 110 S.Ct. at U.S. at 110 S.Ct. at when it said whether a is barred Jeopardy To determine by Clause bars sub- ... the Double Clause, Jeopardy a court must the Double government, sequent prosecution which the apply test. If the traditional first an an essential element of to establish application of that test reveals that of- charged prosecution, con- statutory have identical elements or fenses that one is a lesser included an offense for which the duct that constitutes offense of the prosecuted. defendant has cease, other, inquiry must and then justices upon point sense some It is this is barred. Dowling, and difference between Corbin Ultimately, quite agree on what it is. can’t issue, estoppel spite of its collateral satisfactory, perhaps simplest, most account and presented Dowling essentially the case every understanding may from an come States, United 493 U.S. 110 S.Ct. upon proof admissible Corbin, penal is violation (1990). 495 U.S. L.Ed.2d 708 offense, J„ an be the 524-526, (O’Connor, at trial must either 110 S.Ct. at 2095-2096 offense, offense. or an extraneous dissenting); included 110 S.Ct. at 2102 495 U.S. jeopar- J., never has (Scalia, dissenting). extraneous offense Proof of an and it is different as a matter of law whether examples these alone clear From Texas purported includedness under of the same stat- each violation law, as for and decisional as well sameness every from other a mat- ute different as Texas, purposes jeopardy prohibitions in This is minimum ter of fact.10 informa- depend only analysis on an of statu- cannot in- specify tion a discrete defining tory class of abstractions whole misconduct, undoubtedly stance of criminal offenses, potential only on a factual nor and the what both article 37.08 Double and circum- description Jeopardy by offense. Clause mean comprising a discrete instance stances for as it It follows that word ap- synthetic Some criminal behavior.8 appears Jeopardy both the Double clearly necessary distinguish proach is defining al- in Texas Clause and statutes other, every as each criminal offense prosecution, cannot lowable increments of possible implement statutory or it Rather, “penal must nec- mean statute.” prohibitions an of- constitutional unless essarily violates a mean “conduct which unique regarded something fense is as Jeopardy penal What the Double statute.” purposes both of article 37.08 and of the Texas, prohibits, at least Jeopardy simply One can- Clause.9 multiple punish- prosecutions or successive prosecutions tell whether are for two repeated ments discrete violations greater and lesser same offense or penal prohibits same Rather knowing statute. included offenses without multiple prosecutions punish- allegedly violated are successive penal statutes 137, 147, dy implications, included while an of- Thus, (1977), always "empha extraneous and fense does. because L.Ed.2d 168 offenses, and siz[ing] are never included offenses the two crimes” in the elements of offenses, Ohio, cluded offenses are never extraneous Brown v. Corbin, problems given the kind Given Court’s Vitale, Brown, always Blockburger can and calling evidently it a unanimous aversion category identifying into which solved Corbin, considering test "same evidence” questioned conduct falls. great difficulty problem, some unifor least, mity terminology, helpful. would be Scalia, 8. The inclination of Justice those join his to understand who dissent part specification the word "offence” in the Double 10.The first of this focusses referring just abstractions relationship Clause as the statutes. It assumes between is, therefore, surely By although legislatures occasionally, a mistake. such reckon- not ordi- ing, acquitted once or of mur- narily, proscribe those convicted the enact different statutes impunity Whalen, others der can thereafter kill with U.S. same offense. lives, only things the distin- their whole guishing since example, some exist S.Ct. 1438. For offenses by of murder the different instances Typi- regular aggravated in both versions. nonstatutory are the cir- same criminal actor cally, aggravated or version includes one the victims, times, different cumstances different version, regular more elements not found in the of execution. The statu- and different manners respects. to it in all otherwise identical tory remain identical from elements murder greater relationship is typical this a Also case to the next. one aggravated potential penalty In for the offense. course, might the in- Of dissenters Corbin cases, legislature might such clear it is that the only to mean "statute" tend the word “offence” by accomplished purpose have the same much pros- complaint a about context of successive only defining single mak- instead offense and statutes, under not successive ecutions different presence ing penalty vary the for it the They prosecutions same under statute. additional, aggravating factors. In- absence of deed, fact, willing might, the latter resolve legislature does choose this alter- often arise, by complaint, understand- should it ever aggravating punishment native method word "offence” to mean "conduct" rather And as methods for an offense. insofar both gro- produce But it would than "statute." imposition greater effectively accomplish inelegant tesquely construction of the punishment tended, exactly under the circumstances Clause, intellectually Jeopardy and one which is particular prefer- no reason for there is anyway. More with the Corbin dissent odds Nevertheless, ring there are to the other. just colleagues likely, and his are Justice Scalia regard grounds taking care in this some about this. mistaken instance, legislation. drafting it is when For apparent jeopardy problems are best avoid- day Interestingly, on the same proscribing intended offense with rule each Supreme Court described only one statute. evidence” test in "same both Jeffers Appellant might rationally necessarily conduct which vio- be convicted merits for or, weaving jury only presum- offense even penal lates a statute once necessarily violates harbors reasonable doubts about whether ably, for conduct which Likewise, might In penal statute at a time. she was intoxicated. she more than one difficulty by jurors principle instances the of be convicted of DWI who never- both application is to discover the intent of those theless have doubts about whether she lane of traf- who enacted the statutes. drove outside a marked fic. It is the case under Texas law never legislators provide are free Because violating penal that conduct one of these whether simultaneous of several violation other, automatically statutes violates the regarded statutes shall be as one offense Accordingly, and it was not the case here. offenses, though they may or several even that, consequence it is of no to me according not be free to define the criteria DWI, impending prosecution Appel- multiple it is determined whether weaving might actually lant’s be taken the same violations constitute jury to indicate that she was intoxicat- only Dou- real task of courts under the If ed. the State offers to her weav- Clause, as under the ble State’s ing behavior as circumstantial evidence of general statutory defining scheme for of- intoxication, may the evidence be received prescribing punishment, fenses and is to objection only if over it meets the test objectives implement- ensure that these are prescribed by relevancy our Rules of Evi- legisla- ed in accordance with discernable may dence for extraneous offenses. It Texas, provides tive intent.11 our law proved upon ground that it shows a applied that two different statutes alleged lesser included offense of the DWI. particular proscribe facts of a case impossible same offense if it would be prosecu The notion that Corbin forbids rationally acquit for a factfinder tion whenever extraneous offenses are of any having one statute found true both fered as circumstantial evidence to constitute a violation charged or of one of its essential of the other and shared nonconduct clearly wrong to me. elements seems elements.12 Moreover, reading, although plausi such itself, on the surface of ble IV. recently repudiated by —Felix,

By reckoning, prose- the successive Court in United States -, at -, Appellant cution of while intoxi- (1992). Yet, majority opin

cated to drive L.Ed.2d 25 marked lane does amount to a double ion in this case has articulated a rule which Clearly, prosecu- for the same effectively offense. would bar successive York, doubt, Although entirely not without I be- offense. Patterson v. New Cf. surrounding (1977) lieve that circumstances Corbin 53 L.Ed.2d 281 proposition though are consistent with this even Wilbur, Mullaney v. expressly by provided the State of New York L.Ed.2d 508 statute that conviction for a traffic violation "shall not be a bar to a for an law 12. What is meant “conduct" Texas by any assault or for homicide committed accompanying is “an act or omission and its person operating a motor vehicle.” Veh. & Code, V.T.C.A., Penal mental state.” 1800(d). Hillery, Corbin v. § Traf. 1.07(a)(8). Nonconduct elements include cir- § N.Y.2d (1989). 545 N.Y.S.2d 543 N.E.2d 714 surrounding cumstances conduct and results of suspect expression I that this clear V.T.C.A., Code, 6.03, conduct. See Penal §§ intent, legislative not discussed law, legislature Clearly, under Texas 6.04. Corbin, was nevertheless ineffective to Court in may provide two different offenses have jeopardy prohibitions avoid because it did not committed, the same criminal even when purport in such even to define traffic violations both, by requir- upon conduct is relied way to make them different from the of- proof in each case that there also be homicide under New York fenses of assault and circumstance Rather, different result or of a different attempted law. to authorize succes- surrounding Ladner the criminal conduct. See prosecution for that which it conceded sive implication Smith, (5th Cir.1991). 941 F.2d 356 to be the same or a lesser included extraneous offered mere- tion of an allega- for an

ly support as circumstantial wholly I can- different misconduct.

tion reading accept that such a fair

interpretation of or of the Double

Jeopardy Clause. cause, prosecu- Appellant's instant in a

tion for drive marked not for lesser included offense

lane was intoxicated, did driving while comprising

constitute of driving more elements while intoxicat- if the intended to

ed. Even

Appellant’s failure drive in a proof of in-

marked lane as circumstantial in a

toxication intoxicated,

driving while I would hold barred under Corbin. to be

Consequently, judgment I concur

only.

McCORMICK, P.J., and CAMPBELL and JJ„

WHITE, join. Houston, for appel- M. Androphy,

Joel lant. Atty. Holmes, Jr., J. B. Dist. &

John Baen, Asst. LEMAN, Appellant, Harvey Hudson & Catherine John Huttash, Houston, Attys., Dist. Robert Austin, Atty., for the State. State’s The STATE of Texas. No. 479-91. Texas, Appeals of of Criminal AND ON APPELLANT’S OPINION En Banc. PETITIONS FOR DIS- STATE’S Nov. REVIEW CRETIONARY 27, 1993.

Rehearing Denied Jan. PER CURIAM. pretrial habeas

This cause arises county criminal in a corpus proceeding prosecutions court at law bar (DWI) unlawfully car- while intoxicated previously weapon; having rying speed to prosecuted for failure to control for failure wear avoid an accident and episode, ap- criminal belt same seat invoked pellant argument by stipulated On a record

Case Details

Case Name: State v. Houth

Court Name: Court of Criminal Appeals of Texas

Date Published: Nov 25, 1992

Citation: 845 S.W.2d 853

Docket Number: 788-91

Court Abbreviation: Tex. Crim. App.