Ex parte Benson

• Decision Date: 15 April 2015
• Docket Number: 81,764–01
• Citation: 459 S.W.3d 67
• Parties: Ex parte Yusulf Shaheed Benson, Applicant
• Court: Texas Court of Criminal Appeals

459 S.W.3d 67

Ex parte Yusulf Shaheed Benson, Applicant

81,764–01

Court of Criminal Appeals of Texas.

Delivered: April 15, 2015

Rehearing Denied May 20, 2015

Crespin Michael Linton, for Yusulf Shaheed Benson.

Trey David Picard, for State of Texas.

Opinion

KELLER, P.J., delivered the opinion of the Court in which KEASLER, HERVEY, RICHARDSON, YEARY and NEWELL, JJ., joined.

The question in this case is whether intoxication assault and felony DWI (driving while intoxicated) are the same offense for double-jeopardy purposes when they arise out of the same transaction. We hold that they are not.

I. BACKGROUND

Applicant was convicted of both intoxication assault and felony DWI. These convictions arose from the same incident, a traffic accident on October 17, 2010 in which Charles Bundrant suffered serious bodily injury. The felony DWI count was based on the fact that applicant had two prior DWI convictions. Applicant filed a habeas application alleging, among other things, that conviction for both intoxication assault and felony DWI violated his double-jeopardy right to be free from multiple punishments. We filed and set the application on the double-jeopardy claim and ordered briefing.²

Relying heavily upon Bigon v. State,³ applicant argues that intoxication assault and felony DWI should be viewed as the same offense under a multi-factor analysis even though they may have different elements under the Blockburger⁴ same-elements test. Applicant points out that the two prior DWI convictions are the only elements of felony DWI that are not contained in the offense of intoxication assault. He contends that the two prior convictions should not be considered elements of felony DWI for double-jeopardy purposes but should, instead, be viewed as enhancing punishment. Applicant contends that his position is supported by the fact that the prior-convictions part of DWI is in a separate section from the conduct part of the offense.

Citing a variety of Texas cases, the State contends that the two prior DWI convictions are treated as elements of the offense of felony DWI for a number of purposes and that this treatment indicates that the two convictions ought to be treated as elements for double-jeopardy purposes.

II. ANALYSIS

A. Double–Jeopardy Principles

1. Multiple–Punishment Protection

The Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”⁵ This provision, codifying what is known as the protection against double jeopardy, has been made applicable to the States by the Fourteenth Amendment.⁶ The protection against double jeopardy includes the protection against multiple punishments.⁷ In the multiple-punishment context, the double-jeopardy clause prevents a court from prescribing greater punishment than the legislature intended.⁸

2. One Statute Versus Two Statutes

How legislative intent is ascertained depends in part on whether the offenses at issue are codified in a single statute or in two distinct statutory provisions.⁹ The codification of offenses in two distinct statutory provisions is, by itself, some indication of a legislative intent to impose multiple punishments.¹⁰ When two distinct statutory provisions are at issue, the offenses must be considered the same under both an “elements” analysis and a “units” analysis for a double-jeopardy violation to occur.¹¹ When only one statute is at issue, the “elements” analysis is necessarily resolved in the defendant's favor, and only a “units” analysis remains to be conducted.¹²

3. “Elements” Analysis

The elements analysis conducted in the two-statute context begins with the Blockburger same-elements test.¹³ That test asks “whether each provision requires proof of a fact which the other does not.”¹⁴ The application of the Blockburger same-elements test in Texas is governed by the cognate-pleadings approach, which entails comparing the elements of the greater offense as pleaded to the statutory elements of the lesser offense.¹⁵ If the two offenses, so compared, have the same elements, then “a judicial presumption arises that the offenses are the same for purposes of double jeopardy” and that the defendant may not be punished for both, but that presumption can be rebutted by a clearly expressed legislative intent to impose multiple punishments.¹⁶ Conversely, if the two offenses have different elements under the Blockburger test, the judicial presumption is that the offenses are different for double-jeopardy purposes and that cumulative punishment may be imposed.¹⁷ This presumption can be rebutted by a showing, through various factors, that the legislature “clearly intended only one” punishment.¹⁸

In Ex parte Ervin, we set forth a non-exclusive list of factors to consider in determining whether the legislature intended only one punishment for offenses that contain different elements under Blockburger: (1) whether offenses are in the same statutory section or chapter; (2) whether the offenses are phrased in the alternative; (3) whether the offenses are named similarly; (4) whether the offenses have common punishment ranges; (5) whether the offenses have a common focus or gravamen; (6) whether the common focus tends to indicate a single instance of conduct; (7) whether the elements that differ between the two offenses can be considered the same under an imputed theory of liability that would result in the offenses being considered the same under Blockburger (a liberalized Blockburger standard); and (8) whether there is legislative history containing an articulation of an intent to treat the offenses as the same or different for double-jeopardy purposes.¹⁹ In some later cases we have given more weight to the fifth and sixth factors, which, in combination, require that we examine the focus or gravamen of each offense and compare the resulting allowable units of prosecution.²⁰ Although determining the allowable unit of prosecution is part of a separate “units” analysis (conducted when only a single statute is involved or after offenses proscribed by two statutes are deemed the same under an “elements” analysis), consideration of the unit of prosecution can play a role even in an “elements” analysis by helping to ascertain the legislative intent.²¹

Whether a court is comparing elements pursuant to Blockburger or analyzing factors pursuant to Ervin, the offenses compared in an “elements” analysis are derived solely from the pleadings and the relevant statutory provisions.²² In an “elements” analysis, a court may not consider the evidence presented at trial.²³

4. “Units” Analysis

Even when the offenses in question are proscribed by a single statute or are otherwise the same under an “elements” analysis, the protection against double jeopardy is not violated if the offenses constitute separate allowable units of prosecution.²⁴ This latter inquiry involves determining such things as whether there were two murder victims, whether a victim who was assaulted on Monday was assaulted again on Tuesday, or whether multiple kinds of sex acts were committed against a victim.²⁵ A “units” analysis consists of two parts: (1) what the allowable unit of prosecution is,²⁶ and (2) how many units have been shown.²⁷ The first part of the analysis is purely a question of statutory construction²⁸ and generally requires ascertaining the focus or gravamen of the offense.²⁹ The second part requires an examination of the trial record, which can include the evidence presented at trial.³⁰

B. Different Elements

The offense of intoxication assault, defined in Texas Penal Code § 49.07, occurs if a person “by accident or mistake ... while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another.”³¹ The offense of felony DWI, defined in Texas Penal Code §§ 49.04 and 49.09, occurs “if the person is intoxicated while operating a motor vehicle in a public place” and “has previously been convicted ... two times of any other offense relating to the operation of a motor vehicle while intoxicated.”³²

Because the offenses at issue here are codified in different statutory sections, they must qualify as the same under an “elements” analysis before a double-jeopardy violation is shown.³³ We begin by comparing the elements of the offenses under the Blockburger same-elements test: Do each of these offenses require proof of a fact that the other does not? Intoxication assault clearly requires proof of at least one fact not required to prove felony DWI: causing serious bodily injury. So, the remaining question, under the Blockburger test, is whether felony DWI requires proof of a fact not required for intoxication assault. That depends on how we view the offense of felony DWI.

A statutorily prescribed aggravating fact plays one of three roles in enhancing an offense: (1) creating a new aggravated offense in which the aggravating fact is an element, (2) enhancing the level of the offense, or (3) enhancing the punishment for the offense.³⁴ If the two prior convictions that elevate DWI from a misdemeanor to a felony are elements of a resulting offense of felony DWI, then they are facts required to prove felony DWI that are not required to prove intoxication assault. But if the two prior convictions merely enhance the offense level or the punishment for DWI from that of a misdemeanor to that of a felony, then they are not facts required to prove the offense of DWI, and there really is no offense of “felony DWI” but an offense of DWI that is enhanced to or punished as a felony.

Applicant concedes that we have construed the required prior DWI convictions to be elements of the offense of felony DWI, and he is correct in that concession. In examining §§ 49.04 and 49.09 in Gibson v. State, we observed that the “prior intoxication-related offenses ... serve the purpose of establishing whether the instant offense qualifies as felony driving while intoxicated. The prior intoxication-related offenses are...