Ephraim v. State

• Decision Date: 24 October 2007
• Docket Number: No. 06-07-00030-CR.,06-07-00030-CR.
• Citation: 237 S.W.3d 438
• Parties: Donald EPHRAIM, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

237 S.W.3d 438

Donald EPHRAIM, Appellant v. The STATE of Texas, Appellee.

No. 06-07-00030-CR.

Court of Appeals of Texas, Texarkana.

Submitted October 22, 2007.

Decided October 24, 2007.

Clement Dunn, Longview, for appellant.

W. Ty. Wilson, Asst. Dist. Atty., Longview, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice MOSELEY.

This is an appeal by Donald Ephraim of his conviction of intoxication assault¹ after a plea of guilty and the assessment of a penalty of confinement for four years. The sole point of error raised by Ephraim is a claim of double jeopardy.

On April 17, 2005, Ephraim was the driver of an automobile involved in a one-vehicle accident wherein the vehicle left the roadway, struck a culvert, and overturned. There were two passengers in the automobile with Ephraim at the time of the accident, both of whom were injured. In addition to the intoxication assault charge, Ephraim was also charged with operating the vehicle at an unsafe speed.² Prior to trial on the intoxication assault charge, Ephraim entered a guilty plea to the unsafe speed violation, was found guilty, and was assessed a fine for the violation. Ephraim has asserted that a prosecution of the intoxication assault charge after his having been convicted of driving at an unsafe speed constitutes subjecting him to double jeopardy.

Both Amendment V to the United States Constitution and Article I, Section 14 of the Texas Constitution provide protection against being "twice put in jeopardy" for "the same offense" (spelled "offence" in the United States Constitution). U.S. CONST. amend. V; TEX. CONST. art. I, § 14. Ephraim cites only the proscription against double jeopardy as contained in the United States Constitution, correctly pointing out that this constitutional protection applies to actions by the various states. Benton v. Maryland, 395 U.S. 784, 795-96, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

Ephraim maintains that the unsafe speed charge implicates no conduct not alleged within the indictment for intoxication assault, specifically making the observation that the investigating officer's accident report mentions only "unsafe speed" and "intoxication" as being factors in the conditions contributing to the accident.

The test of whether two offenses constitute the same crime was announced by the United States Supreme Court some seventy-five years ago in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), in stating, "The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." This is commonly called the "same elements" test.

For a time, the United States Supreme Court diverged from that test and announced that:

[A] subsequent prosecution must do more than merely survive the Blockburger test. . . . [T]he Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of the offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted. This is not an "actual evidence" or "same evidence" test. The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct.

Grady v. Corbin, 495 U.S. 508, 521, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) (footnotes omitted) (emphasis added).

However, after this newer standard posed great confusion and consternation, the Supreme Court overruled Corbin and reinstated the simpler and more straightforward "same elements" test set out in Blockburger. United States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). For the purpose of determining whether double jeopardy applies, two offenses are considered the same if one of the offenses contains all the elements of the other; they are not the same if each offense has a unique element. See Wilson v. State, No. 01-06-00673-CR, ___ S.W.3d ___, 2007 WL 2214886, 2007 Tex. App. LEXIS 6184 (Tex.App.-Houston [1st Dist.] Aug. 2, 2007, pet. filed); see also Ortega v. State, 171 S.W.3d 895, 899 (Tex. Crim.App.2005). The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional...