Ex parte Peterson

• Decision Date: 21 October 1987
• Docket Number: No. 886-85,886-85
• Citation: 738 S.W.2d 688
• Parties: Ex parte Archie B. PETERSON.
• Court: Texas Court of Criminal Appeals

Page 688

738 S.W.2d 688

Ex parte Archie B. PETERSON.

No. 886-85.

Court of Criminal Appeals of Texas.

Oct. 21, 1987.

Wesley G. Hocker, Janet Seymour Morrow, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and J. Harvey Hudson and William Delmore, III, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., and Julie B. Pollock, Asst. State's Atty., Austin, for the State.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

This is a pretrial habeas proceeding in which appellant contends that a pending involuntary manslaughter prosecution must be dismissed because he has been convicted of driving while intoxicated arising out of the same automobile accident. The trial court denied relief. In an unpublished opinion, the First Court of Appeals noted that appellant's writ and appeal were proper under Ex Parte Robinson, 641 S.W.2d 552 (Tex.Cr.App.1982) but affirmed the trial court's denial of relief. We granted appellant's petition for discretionary review in which he contends the offense of driving while intoxicated is a lesser included offense of involuntary manslaughter and, therefore, double jeopardy principles bar his subsequent prosecution for involuntary manslaughter.

The Court of Appeals applied the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) and found that involuntary manslaughter under V.T.C.A. Penal Code, § 19.05(a)(2) requires the element of causing the death of an individual, while the offense of driving while intoxicated under V.A.C.S. Art. 6701l -1(b) does not; and that driving while intoxicated requires proof that the accused operated a motor vehicle "upon a public road or highway," while involuntary manslaughter does not. The appeals court concluded that each offense requires proof of an element which the other does not and thus, appellant's double jeopardy claim fails. We will reverse the judgment of the Court of Appeals below.

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." This constitutional guarantee is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

The constitutional prohibition of double jeopardy has been held to consist of three separate guarantees: (a) "it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense." Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Because appellant contends that his former conviction for driving while intoxicated bars his involuntary manslaughter prosecution, we focus upon the second of these three guarantees in the instant case. The question we must decide is whether the offense of driving while intoxicated is the "same offense" for double jeopardy purposes as the involuntary manslaughter charge brought against appellant.

In Brown v. Ohio, supra, the Supreme Court restated the principal test gleaned from Blockburger, supra, for determining whether two offenses are the same for purposes of barring successive prosecutions:

" '[T]he applicable rule is that when 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.' " 432 U.S. at 166, 97 S.Ct. at 2225.

The Brown court was mindful that the Blockburger test "is not the only standard for determining whether successive prosecutions impermissibly involve the same offense." Id. at 166, footnote 6, 97 S.Ct. at 2226, footnote 6. Even if comparison of the elements of proof reveals statutes sufficiently different to permit imposition of consecutive sentences, "successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first." Id. at 166-167, footnote 6, 97 S.Ct. at 2225-2226, footnote 6; citing for support Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) and In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889).

In both Ashe and Nielsen the Brown court noted that a narrow application of Blockburger would have permitted imposition of consecutive sentences but that additional protections after construing the particular statutes via Blockburger kept those defendants from having to "run the gauntlet a second time." Ashe, supra, 397 U.S. at 446, 90 S.Ct. at 1195, quoting from Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

In the present case, we are not faced with application of the additional protections of collateral estoppel, as in Ashe, supra; rather, the present case most resembles the situation in Vitale, supra, and is the inverse fact situation as that found in our own recent case of May v. State, 726 S.W.2d 573 (Tex.Cr.App.1987)

John Vitale, a juvenile, was the driver of a car which struck two children. One child died almost immediately; the other succumbed the following day. Vitale was issued a traffic citation for failure to reduce speed to avoid an accident, a violation of Illinois statutory law.

After pleading not guilty to the misdemeanor charge, Vitale was found guilty by the court and sentenced to pay a $15.00 fine. The next day Vitale was charged with two counts of involuntary manslaughter in a petition by the State for adjudication of wardship. The State's highest court ultimately held that "the lesser offense, failing to reduce speed, requires no proof beyond that which is necessary for conviction of the greater, involuntary manslaughter, ... for purposes of the double jeopardy clause, the greater offense is by definition the 'same' as the lesser included offense within it." In re Vitale, 71 Ill.2d 229, 16 Ill.Dec. 456, 375 N.E.2d 87 (1978). Thus, the court concluded that Vitale's manslaughter prosecution was barred by the Double Jeopardy Clause. The Supreme Court remanded the case for a determination by the Illinois Supreme Court whether "careless failure to slow" is always a necessary element of manslaughter or whether the State, in order to sustain its case, would find it necessary to prove a failure to slow or to rely on conduct necessarily involving such failure. In either case, the two offenses, though distinct, would be the "same offense" for purposes of double jeopardy.

Very recently, in May v. State, supra, we faced a situation inverse to the one at hand. There applicant May contended that a pending DWI charge was barred because of an involuntary manslaughter conviction arising out of the same automobile accident.

We initially determined that in comparing two separate statutes, simple prescription of an additional element in each statute per Blockburger, supra, did not automatically prevent a double jeopardy bar. Next, we compared the charging instruments in both causes and concluded that "[T]he record clearly shows that the State will...