Grant v. State, No. 47643

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 505 S.W.2d 279
• Docket Number: No. 47643
• Decision Date: 06 February 1974
• Parties: Randall Ray GRANT, Appellant, v. The STATE of Texas, Appellee.

Page 279

505 S.W.2d 279 Randall Ray GRANT, Appellant,
v.
The STATE of Texas, Appellee. No. 47643. Court of Criminal Appeals of Texas. Feb. 6, 1974.
Rehearing Denied Feb. 27, 1974.

Allen D. Glenn, Abilene, for appellant.

Ed Paynter, Dist. Atty., and Bob Lindsey, Asst. Dist. Atty., Abilene, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

KEITH, Commissioner.

The offense is driving while intoxicated; the punishment, a fine of $150 and ten days in jail with the jail sentence probated for a period of six months.

Appellant was arrested by Department of Public Safety Officers Morgan and Pueschel after a high-speed chase of several miles. He was arrested and taken to the departmental headquarters in Abilene where a breathalyzer test was conducted. Both officers testified that appellant was intoxicated and Officer Morgan testified that this fact was confirmed by the results of the breathalyzer test. Appellant was then taken to the county jail and placed in the custody of the sheriff. The arrest took place on December 23, 1972, at a time when the courthouse was closed for the Christmas holidays. On December 27, Officer Morgan filed the complaint forming the basis of the information upon which appellant was convicted in this case.

On December 28, Officer Morgan filed a complaint in the Justice of the Peace Court of Precinct 3 of Taylor County wherein appellant was charged with the offense of driving and operating a motor vehicle on a public street or highway, on December 23, 1972, 'at the unreasonable, imprudent and unlawful speed of 100 miles per hour' in a 65 miles per hour speed zone. Officer Morgan testified that both offenses occurred

Page 281

at the same time; i.e., appellant was intoxicated while driving in excess of 100 miles per hour in a 65 miles per hour zone.

In March, 1973, after some prodding from Officer Morgan, appellant appeared before the Justice of the Peace, entered a plea of guilty to the speeding complaint, was found guilty, assessed a fine of $50 and court costs, and actually paid such fine. The DWI charge came on for hearing thereafter and appellant filed a lengthy plea of double jeopardy setting out such facts. The plea was supported by his affidavit and had attached thereto certified copies of the proceedings in the Justice of the Peace Court. The trial court overruled the plea and it now forms the basis of ground one.

Appellant relies upon the double jeopardy provision of the federal constitution, the fifth amendment made applicable to the states under the fourteenth amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). He also cites Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), as well as Benard v. State, 481 S.W.2d 427 (Tex.Cr.App.1972). Accepting the teachings of all of these authorities, we disagree with the contention advanced. Nor are the cases cited on the doctrine of carving in point under the fact structure of the case at bar.

Instead, we find that the well-written opinion of McMillan v. State, 468 S.W.2d 444, 445 (Tex.Cr.App.1971), to be dispositive of the contention of appellant. In McMillan, the defendant was seen driving on the wrong side of the street; and, when...