Graves v. State

• Decision Date: 31 March 1976
• Docket Number: No. 50419,50419
• Citation: 539 S.W.2d 890
• Parties: Kenneth GRAVES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 890

539 S.W.2d 890

Kenneth GRAVES, Appellant, v. The STATE of Texas, Appellee.

No. 50419.

Court of Criminal Appeals of Texas.

March 31, 1976.

Bruce Hal Miner, Amarillo, for appellant.

Thomas A. Curtis, Dist. Atty., and Clarence R. Daffern, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is involuntary manslaughter under V.T.C.A., Penal Code, Section 19.05(a)(2); the punishment, four years.

The facts are undisputed and the sufficiency of the evidence is not challenged. The record shows a 13 year old girl was struck by a pickup truck driven by appellant, causing the injuries that resulted in her death.

Appellant's sole argument on appeal is this conviction is barred by a prior conviction for driving while intoxicated arising out of the same transaction. Appellant has brought forward in the record the information, complaint and judgment of the driving while intoxicated conviction, together with the transcription of the court reporter's notes of that trial. The record shows the DWI conviction was proven by the same facts and evidence which constitute the proof of operation of a motor vehicle while intoxicated in the instant case. Nonetheless the conviction for involuntary manslaughter is not barred by the prior conviction for driving while intoxicated.

Under our holding in Curtis v. State, 22 Tex.App. 227, 3 S.W. 86, the doctrines of carving and double jeopardy are not applicable to the case at bar. In Curtis the appellant was convicted of aggravated assault under an indictment alleging assault with intent to murder. This Court held the conviction did not bar a subsequent conviction for murder based on the same transaction because at the time of the assault conviction the injured party was alive, thus there was no offense of murder. The State could not at that time have elected to proceed on the more serious crime. The assault and the murder were held not to be 'the same offense' within the meaning of the double jeopardy provision, Tex.Const. art. 1, sec. 14, since the murder offense did not exist at the time of the conviction for assault. The subsequent death of the injured party 'is not merely a supervening aggravation, but it creates a new crime.' Curtis, supra, at page 88. See also Johnson v. State, 19 Tex.App. 453; Hill v. State, 141 Tex.Cr.R. 169, 149 S.W.2d 93; Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628, at footnote 7, (1974).

The transcript of the court reporter's notes of the trial for driving while intoxicated shows the injured party was alive at the time of such trial. It would not have been possible for the State to have proceeded on the voluntary manslaughter charge since that crime was not complete until the injured party's death. Appellant's plea of former jeopardy is without merit.

The judgment is affirmed.

ODOM, Judge (concurring).

I concur in the affirmance of this case, but instead of relying upon Curtis v. State, 22 Tex.App. 227, 3 S.W. 86, as does the majority opinion, I would dispose of the issue in the following manner.

Appellant was convicted of involuntary manslaughter under V.T.C.A. Penal Code, Sec. 19.05(a)(2); punishment was assessed at four years.

The evidence reflects that the deceased, a thirteen year old girl, was walking with a girl friend along Hastings Street in Amarillo at about 8:00 p.m. when a pickup truck driven by appellant struck the deceased and caused the injuries that resulted in her death. It was undisputed that appellant was intoxicated at the time.

Appellant in his only ground of error contends his plea of prior jeopardy, predicated upon a prior conviction for driving while intoxicated, should have been sustained. In support of the special plea, appellant brought forward in the record the information, complaint, and judgment from the driving while intoxicated conviction and the transcription of the court reporter's notes of that trial. Appellant's arguments in support of the plea appear to be (1) that driving while intoxicated is a lesser included offense of involuntary manslaughter by operation of a motor vehicle while intoxicated (Sec. 19.05(a) (2), supra); and (2) that the same facts used to support the instant conviction were used to support the prior driving while intoxicated conviction.

Lesser included offenses are now defined by statute in Article 37.09, V.A.C.C.P. See Day v. State, Tex.Cr.App., 532 S.W.2d 302.

Article 37.09(1), supra, provides that an offense is a lesser included offense if:

'it is established by proof of the same or less than all the facts Required to establish the commission of the offense charged.' (Emphasis added.)

The offense charged is involuntary manslaughter under Sec. 19.05(a)(2), supra. Operation Upon a public road or highway cannot be established by proof of the facts Required to establish involuntary manslaughter under Sec. 19.05(a) (2), yet that fact must be proven to establish driving while intoxicated. Therefore, driving while intoxicated may not be established by proof of the same or less than all the facts Required to establish an offense under Sec. 19.05(a)(2) and cannot be a lesser included offense under Art. 37.09(1)

Article 37.09(1) does not support the conclusion that driving while intoxicated is a lesser included offense of a Sec. 19.05(a)(2) involuntary manslaughter. In fact, Day v. State, supra, foresaw and warned against such an interpretation of that article as would be required to hold that driving while intoxicated is a lesser included offense to the offense here charge. In closing the opinion on rehearing, the Court stated:

'The careful reader will observe that each definition in Art. 37.09 is stated with reference to 'the offense charged,' and moreover, Each such definition specifically states the manner in which the lesser included offense differs fromt he offense charged. The enumerated variations in the statute do not enlarge upon the offense charged, but instead vary In a manner that either is restrictive ¹ Or reduces culpability as compared to the offense charged. In view of those restrictions, we hold Arts. 37.08 and 37.09, supra, are constitutional insofar as they authorize, as did the prior scheme of degrees of offenses, conviction upon an indictment charging one offense for a lesser included offense of the offense charged . . .' (Emphasis added.)

The restrictive effect of the word 'required' in Art. 37.09(1) cannot be ignored. In applying the test one does not...