Helber v. State, 01-95-00926-CR

• Citation: 915 S.W.2d 955
• Decision Date: 01 February 1996
• Docket Number: No. 01-95-00926-CR,01-95-00926-CR
• Parties: Brynn Andrew HELBER, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Court of Appeals of Texas

Page 955

915 S.W.2d 955

Brynn Andrew HELBER, Appellant, v. The STATE of Texas, Appellee.

No. 01-95-00926-CR.

Court of Appeals of Texas Houston (1st Dist.).

Feb. 1, 1996.

James D. Farmer, Houston, for Appellant.

John B. Holmes, Jr., Houston, Alan Curry, Houston, Jeff Vaden, Houston, for Appellee.

Before HUTSON-DUNN, O'CONNOR and ANDELL, JJ.

OPINION

HUTSON-DUNN, Justice.

This is an appeal from a writ of habeas corpus proceeding. Appellant, Brynn Andrew Helber, argues in a single point of error that the trial court erred in denying his writ of habeas corpus. The issue before this Court is whether, when the two proceedings stem from the same set of events, an administrative suspension of appellant's driver's license bars a later prosecution for driving while intoxicated. Because we find that appellant has not been twice punished for the same offense, we affirm the trial court's denial of the writ of habeas corpus and overrule appellant's sole point of error.

Summary of Facts

Appellant was stopped and arrested by a Houston Police officer on suspicion of driving while intoxicated. At the time of the arrest, the officer requested that appellant submit a breath specimen for an analysis of alcohol concentration; appellant complied. The specimen contained a concentration of not less than 0.10. Appellant was served immediately with notice of license suspension. Approximately one and one-half months later, an administrative hearing was held at which the Texas Department of Public Safety suspended appellant's license for 60 days because he "provided a specimen of ... breath and an analysis of the specimen showed an alcohol concentration of a level specified in Section 49.01, Texas Penal Code, following an arrest for an offense prohibiting the operation of a motor vehicle while intoxicated as provided in Article 6687b-1, V.T.C.S."

The State's case against appellant for DWI is still pending.

Appellant's Pleadings

Appellant raises one point of error. He argues that the trial court erred in denying his writ of habeas corpus. He contends that he will be twice punished for the same offense if the State is allowed to proceed with its DWI prosecution following the administrative suspension of his license. Appellant argues that the doctrine of double jeopardy bars the DWI prosecution in this instance.

The State answers by arguing that the Texas legislature has expressed a clear legislative intent not to bar a subsequent criminal prosecution based upon the suspension of appellant's driver's license. The State also contends that the DWI statute and the administrative license suspension statute are not the "same offense" for purposes of double jeopardy.

Analysis

The Double Jeopardy Clause protects against three types of abuses: (1) a second prosecution for the same offense after an acquittal; (2) a second prosecution for the same offense after a conviction; and (3) multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989). Appellant argues he is being denied the third of these protections, and therefore the doctrine of double jeopardy bars the DWI prosecution.

It is well-settled that when a defendant claims that a subsequent prosecution for the same conduct would result in double jeopardy, we look to the test set out in Blockburger v. United States, 284 U.S. 299, 303-04, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). "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." Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. This is known as the "same-elements" test. This rule protects a defendant from being punished twice for the same offense. Halper, 490 U.S. at 440, 109 S.Ct. at 1897. "A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not," the offenses are not the same under the Blockburger test, and double jeopardy is not implicated. Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. The same-elements test examines whether each offense contains an element not contained in the other; if not, they are the same offense, and double jeopardy bars successive prosecution. United States v. Dixon, 509 U.S. 688, ----, 113 S.Ct. 2849, 2856, 125 L.Ed.2d 556 (1993).

A person's license is suspended by the Department of Public Safety upon an administrative determination that he was: (1) driving or operating a motor vehicle (2) in a public place (3) while having an alcohol concentration of 0.10 ¹ or more. TEX.REV.CIV.STAT.ANN. art. 6687b-1 § 5(a) (Vernon Supp.1996). A person will be found guilty of a DWI offense upon a finding that he was: (1) driving or operating a motor vehicle (2) in a public place (3) while intoxicated. TEX.PENAL CODE ANN. § 49.04 (Vernon 1994). For DWI purposes, however, a person is "intoxicated" if he either: (1) had an alcohol concentration of 0.10 or more; or (2) did not have the normal use of his mental or physical faculties due to the introduction of a substance or substances into his body. TEX.PENAL CODE ANN. § 49.01(2) (Vernon 1994). The State argues that because intoxication in the DWI statute can be proven by showing defendant did not have the normal use of mental or physical faculties by reason of the introduction of alcohol into the body, it contains an element that the license suspension does not, and therefore they are not the same offense. We are not persuaded by this argument.

While the DWI statute provides two different means of proving "intoxication," the alternate means of proof are not in and of themselves elements. The focus here is on the act or transaction that constitutes the crime--driving while legally intoxicated. The act or transaction subject to the sanction of the driver's license suspension is the same act or transaction subject to criminal penalty under the DWI statute. If a person is found with a concentration of alcohol of .10% or more in his blood and urine, the Penal Code defines this as "intoxicated." TEX.PENAL CODE ANN. § 49.01(2) (Vernon 1994). And, although the suspension statute only requires a showing that a person has a blood alcohol level of .10% or more, this is the equivalent of proving "intoxication." If in the DWI case, the State proves the loss of normal faculties instead of .10% alcohol concentration, it is also proving "intoxication." Therefore, we construe the elements to be shown under the DWI statute: that the defendant is (1) intoxicated, (2) while driving or operating a motor vehicle, (3) in a public place, § 49.04(a); to be the same as the elements to be shown for suspension of the driver's license: (1) person has an alcohol concentration of .10%, (2) while driving or operating a motor vehicle, (3) in a public place, article 6687b-1, § 5(a).

The analysis does not end here. When the two offenses for which a defendant is punished or tried cannot survive the Blockburger test, double jeopardy is implicated. Dixon, 509 U.S. at 688, 113 S.Ct. at 2856-57. However, merely showing that the two offenses for which the defendant is punished or tried contain the same elements does not mean the double jeopardy bar always applies. Dixon, at ---- - ----, 113 S.Ct. at 2856-57 (1993). The Supreme Court in Dixon held that if the two offenses contain the same elements, and a defendant is prosecuted under one, double jeopardy bars additional punishment and successive prosecution under the other. Id. Double jeopardy is not implicated if the second proceeding does not constitute "additional punishment." We now must determine whether the sanctions for DWI and the administrative license suspension would result in a double punishment of appellant.

Appellant argues that, under Halper, a sanction rises to the level of punishment when it is not solely remedial, but serves the goals of punishment--retribution and deterrence. We believe appellant reads Halper too broadly. Not only is the language of the opinion narrow and limited, but the Justices' later references in the opinion emphasize that the decision is narrow. Consequently, we find no justification for applying appellant's broad-sweeping interpretation.

The Halper decision is saturated with limiting language. Halper provides that the determination of whether a given civil sanction constitutes punishment for double jeopardy purposes "requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve." Halper, 490 U.S. at 448, 109 S.Ct. at 1901 (emphasis added). Both civil and criminal sanctions constitute punishment when the sanctions "as applied in the individual case [serve] the goals of punishment." Halper, 490 U.S. at 448, 109 S.Ct. at 1901-02 (emphasis added). Sanctions that "cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes [are] punishment." Halper, 490 U.S. at 448, 109 S.Ct. at 1902 (emphasis added).

Moreover, the narrow ruling in Halper is merely that a defendant "may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution." Halper, 490 U.S. at 449, 109 S.Ct. at 1902 (emphasis added). The Court stated:

What we announce now is a rule for the rare case, the case such as the one before us, where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused. The rule is one of reason: Where a defendant previously has sustained a criminal penalty and the civil penalty sought in the subsequent proceedings bears no rational relation to the goal of compensating the Government for its loss, but rather appears...