Ervin v. State, No. 73,137

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: KELLER
• Citation: 991 S.W.2d 804
• Parties: Ex Parte Patrick ERVIN, Appellant, v. The STATE of Texas
• Docket Number: No. 73,137
• Decision Date: 13 January 1999

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991 S.W.2d 804 Ex Parte Patrick ERVIN, Appellant,
v.
The STATE of Texas No. 73,137. Court of Criminal Appeals of Texas. Jan. 13, 1999.
Rehearing Denied March 17, 1999.

Page 805

Patrick Ervin, Huntsville, pro se.

Ronnie Earle, Dist. Atty., Matthew Paul, State's Atty., Austin, for the State.

OPINION

KELLER, J., delivered the opinion of the Court in which McCORMICK, P.J., and PRICE, HOLLAND, WOMACK, and KEASLER, JJ., joined.

Pursuant to a plea agreement, applicant was convicted of intoxication manslaughter (Count I) and manslaughter (Count II) arising out of a traffic accident involving a single victim occurring on July 12, 1995. The trial court sentenced him to 25 years for each offense and ordered the sentences

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to run concurrently. In a pro se application for writ of habeas corpus, applicant complains that permitting both convictions for this single instance of conduct violates the Fifth Amendment's protection against double jeopardy. ¹ We agree.

I. The problem

Applicant was convicted under two closely-related homicide statutes that are not the "same" offense under a strict application of the same elements test announced by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). In Blockburger, the Supreme Court stated:

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.

Id. at 304, 52 S.Ct. 180. A person commits manslaughter if he recklessly causes the death of an individual. Texas Penal Code § 19.04(a). ² A person commits intoxication manslaughter (to the extent relevant here) if he operates a motor vehicle in a public place, is intoxicated, and by reason of that intoxication causes the death of another by accident or mistake. § 49.08. Manslaughter requires "recklessness," which is not required for intoxication manslaughter. Intoxication manslaughter requires "intoxication" and "the operation of a motor vehicle in a public place," neither of which are required for manslaughter. If the Blockburger test is the sole test for double jeopardy, then the State may obtain convictions under both provisions even though there is only one transaction and one victim.

The question we confront today is whether these two offenses should nevertheless be considered the same for double jeopardy purposes. That inquiry requires us to determine whether the Blockburger test is in fact the only test for double jeopardy, and, if it is not the only test, whether the offenses in question are the "same" under applicable double jeopardy principles.

II. The trial court's conclusion

In the present habeas corpus proceeding, the trial court issued findings of fact and conclusions of law. Based upon our opinion in Ex Parte Peterson, 738 S.W.2d 688 (Tex.Crim.App.1987), the trial court concluded that convictions for both offenses constituted double jeopardy. The trial court's reliance upon Peterson, however, is misplaced. Peterson involved a multiple-prosecutions double jeopardy claim: the defendant had previously been convicted of driving while intoxicated (DWI) and faced a subsequent prosecution for involuntary manslaughter. Id. Relying upon Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), we held that the second prosecution violated the Double Jeopardy Clause because the prosecution would rely upon conduct involving the DWI conviction to show involuntary manslaughter. Peterson, 738 S.W.2d at 691. Peterson did not address the application of double jeopardy principles to multiple offenses prosecuted in the same trial. Moreover, the "same-conduct" rule was subsequently repudiated by the Supreme Court. United States v. Dixon, 509 U.S. 688, 704-708, 113 S.Ct. 2849, 125 L.Ed.2d 556 (Opinion of Scalia, J.); Id. at 713-714, 113 S.Ct. 2849 (Opinion of Rehnquist, C.J.). ³

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III. Supreme Court's view of multiple punishments

When multiple offenses are prosecuted at a single trial, the Double Jeopardy Clause "prevent[s] the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). A defendant suffers multiple punishments in violation of the Double Jeopardy Clause when he is convicted of more offenses than the legislature intended. Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985). In the multiple punishments context, the Blockburger test is simply a rule of statutory construction, which is useful in attempting to ascertain legislative intent. Hunter, 459 U.S. at 366-368, 103 S.Ct. 673. Hence, the Supreme Court has concluded that the Blockburger test cannot negate a clearly expressed legislative intent to impose multiple punishments. Id. at 368, 103 S.Ct. 673.

The Blockburger test's status as a "mere rule of statutory construction" raises an inverse conclusion as well: the Blockburger test cannot authorize two punishments where the legislature clearly intended only one. And, that status raises the possibility that there exist other rules of statutory construction that may be employed to help ascertain whether a legislature intended multiple punishments.

IV. Other jurisdictions

Whether homicide offenses that are distinct under Blockburger may nevertheless be considered the "same" for purposes of the "multiple punishments" aspect of the Double Jeopardy Clause is an issue of first impression in Texas. Because the issue is of federal constitutional dimension, other jurisdictions may have useful insights into the matter. Hence, we will examine the cases in other jurisdictions for assistance in resolving the issue before us.

A. Murder variations

The issue appears to arise most often in the context of murder prosecutions. The most common manifestation of this issue is in a prosecution for both felony murder and a murder offense that contains a culpable mental state, for example, the culpable mental state of "intentionally." ⁴ The offenses are distinct under Blockburger because felony murder requires proof of a felony, which intentional murder does not, and intentional murder requires proof of the culpable mental state of "intentionally," which felony murder does not. Murder variations can also include differing versions of capital murder or of felony murder. For example, a defendant might be prosecuted for murder of a person in the course of rape and also for murder of the same person in the course of robbery (both are ordinarily capital murders if the killing was intentional and felony murders if the killing was an accident). The rape and robbery elements differentiate the two capital murder (or felony murder) offenses under Blockburger. Typically, the murder variations involved are found in the same statutory section under different subsections.

1. The prevailing view

Despite the apparent divergence of elements under Blockburger, a decisive majority of jurisdictions that have addressed the issue have held that a trial court cannot impose multiple convictions and sentences for variations of murder when only one person was killed: Alaska, Gray v. State, 463 P.2d 897, 911 (Alaska 1970)(premeditated murder and felony murder); Arizona, State v. Arnett, 158 Ariz. 15, 760 P.2d 1064, 1068-1069 (Ariz.1988)(same); Colorado, People v. Lowe, 660 P.2d 1261, 1269-1271 (Colo.1983)(murder after deliberation and felony murder) and People v.

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Rodriguez, 914 P.2d 230, 284 (Colo.1996)(reaffirming Lowe ); Connecticut, State v. Chicano, 216 Conn. 699, 584 A.2d 425, 429-431 (1990), cert. denied, 501 U.S. 1254, 111 S.Ct. 2898, 115 L.Ed.2d 1062 (1991)(felony murder and first degree manslaughter as a lesser included offense of intentional murder) and State v. Lewis, 245 Conn. 779, 717 A.2d 1140, 1160-1161 (1998)(murder and felony murder; reaffirming Chicano); Florida, Gaskin v. State, 591 So.2d 917, 920 (Fla.1991), vacated on other grounds, 505 U.S. 1244, 113 S.Ct. 22, 120 L.Ed.2d 948 (1992) (premeditated murder and felony murder); Georgia, Pressley v. State, 235 Ga. 341, 219 S.E.2d 418 (1975)(malice murder and felony murder) and Hayes v. State, 265 Ga. 1, 453 S.E.2d 11, 13 (1995)(same); Indiana, Martinez Chavez v. State, 534 N.E.2d 731, 739 (Ind.1989)(murder and felony murder) and Kennedy v. State, 674 N.E.2d 966, 967 (Ind.1996)(reaffirming Martinez Chavez ); Illinois, People v. Pitsonbarger, 142 Ill.2d 353, 154 Ill.Dec. 562, 568 N.E.2d 783, 792-793 (1990), cert denied, 502 U.S. 871, 112 S.Ct. 204, 116 L.Ed.2d 163 (1991)(knowing murder and felony murder) and People v. Oaks, 169 Ill.2d 409, 215 Ill.Dec. 188, 662 N.E.2d 1328, 1356 , cert. denied, 519 U.S. 873, 117 S.Ct. 191, 136 L.Ed.2d 129 (1996)(reaffirming Pitsonbarger ); Iowa, State v. Gilroy, 199 N.W.2d 63, 68 (Iowa 1972)(premeditated murder and murder in perpetration of robbery); Kansas, State v. Sullivan, 224 Kan. 110, 578 P.2d 1108, 1111-1112 (1978)(premeditated murder and felony murder) and State v. Thompkins, 263 Kan. 602, 952 P.2d 1332, 1340 (1998)(reaffirming a previous case articulating the principle found in Sullivan ); Maine, State v. Dechaine, 572 A.2d 130, 136 (Me.1990)(intentional or knowing murder and depraved indifference murder) ⁵ and State v. Oeur, 711 A.2d 118, 119 n. 2 (Me.1998)(reaffirming Dechaine and extending it to multiple theories of aggravated assault); Maryland, Wooten-Bey v. State, 308 Md. 534, 520 A.2d 1090, 1092(Md.), cert. denied, 481 U.S. 1057, 107 S.Ct. 2199, 95 L.Ed.2d 853 (1987)(premeditated murder and felony murder) and Burroughs v. State, 88 Md.App. 229, 594 A.2d 625, 633 (1991)(same); Michigan, People v. Densmore, 87 Mich.App. 434, 274 N.W.2d 811, 814 (1978)(same) and People v. Bigelow, 225 Mich.App. 806, 571 N.W.2d 520, 520 (1997), affirmed, 229 Mich.App. 218, 581 N.W.2d 744 (1998)(reaffirming Densmore );...