Heyduck v. State, 01-90-00995-CR
| Decision Date | 11 July 1991 |
| Docket Number | No. 01-90-00995-CR,01-90-00995-CR |
| Parties | Richard Allen HEYDUCK, Appellant, v. The STATE of Texas, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Thomas B. Preston, Houston, for appellant.
John B. Holmes, Jr., Harris County Dist. Atty., J. Harvey Hudson, Asst. Harris County Dist. Atty., for appellee.
Before SAM BASS, WILSON and O'CONNOR, JJ.
This Court is asked to decide whether a conviction for driving while intoxicated, after an earlier conviction based on speeding, violates double jeopardy. We hold it does not and we affirm.
On July 14, 1990, two troopers of the Department of Public Safety saw Richard Allen Heyduck, the appellant, speeding, stopped him, and issued him a citation for speeding. After questioning the appellant, the troopers decided he was drunk and arrested him for driving while intoxicated (DWI).
On October 8, 1990, the appellant was found guilty of speeding. On October 11, 1990, before trial on the DWI charge, the appellant presented his special plea of double jeopardy. The trial judge denied the plea and, at the conclusion of the bench trial, found the appellant guilty of the offense of driving while intoxicated and assessed punishment of 180 days, probated for one year, and a $100.00 fine.
In his sole point of error, the appellant alleges the trial court erred in not granting his special plea of double jeopardy. The appellant asserts that the DWI conviction violates double jeopardy because the State was required to prove conduct already established in trial for the speeding conviction. The appellant cites us to Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 2094, 109 L.Ed.2d 548 (1990), where the Supreme Court held that the charges of driving while intoxicated and failing to keep to the right of the median precluded a trial for reckless manslaughter and assault stemming from the same conduct.
The Grady case says there are two tests to determine if a prosecution is barred by double jeopardy. 110 S.Ct. at 2090. First, we apply the test announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Id. If, under the Blockburger test, the prosecution is barred by double jeopardy, we stop there. Id. If, however, under the Blockburger test, the prosecution is not barred by double jeopardy, we must then apply the second test discussed in the Grady case before we can decide if double jeopardy bars the prosecution. Id.
The appellant challenges the prosecution under both the State and federal double jeopardy provisions. U.S. CONST. amend. V.; TEX. CONST. art. I, § 14. Conceptually, the State and federal provisions are identical. Phillips v. State, 787 S.W.2d 391, 393 n. 2 (Tex.Crim.App.1990). The double jeopardy clause embodies three protections: It protects against another prosecution for the same offense after acquittal; it protects against another prosecution for the same offense after conviction; and it protects against multiple punishments for the same offense. Grady, 110 S.Ct. at 2090. Here, we ask if the prosecution for DWI was barred by the conviction for speeding. Grady, 110 S.Ct. at 2090; Phillips, 787 S.W.2d at 393.
The Blockburger test requires us to determine whether the offenses of speeding and DWI require proof of an element that the other does not. Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. If the test reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, Blockburger bars the later prosecution. Grady, 110 S.Ct. at 2090.
The offenses of speeding and DWI are contained in TEX.REV.CIV.STAT.ANN. art. 6701d § 166(a) (Vernon 1977) and TEX.REV.CIV.STAT.ANN. art. 6701l -1(b) (Vernon Supp.1991). The courts abstracted the elements for the offense of speeding in Leman v. State, 807 S.W.2d 408, 410 (Tex.App.--Houston [14th Dist.] 1991, no pet.), and for DWI in Solis v. State, 787 S.W.2d 388, 390 (Tex.Crim.App.1990). The elements of the offense of speeding and DWI are set out below.
Speeding: Driving while intoxicated
(1) a person (1) a person
(2) drives (2) drives or operates
(3) a vehicle (3) a motor vehicle
(4) on a public highway (4) in a public place
(5) at a speed greater than is reasonable and (5) while intoxicated
prudent under the circumstances
Article 6701d § 166(a). Article 6701l "1(b)
Applying Blockburger, each offense requires proof of an element that the other does not. Speeding requires proof of the element of speed that is greater than reasonable or prudent. Driving while intoxicated requires proof of the element of intoxication. Thus, under the first part of the Blockburger test, these offenses are not barred by double jeopardy.
The second part of the Blockburger test is whether one offense is a lesser included offense of the other. Article 37.09 of the Texas Code of Criminal Procedure defines a lesser included offense as one that:
(1) is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(2) differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) consists of an attempt to commit the offense charged or an otherwise included offense.
Tex.Code Crim.P.Ann. art. 37.09 (Vernon 1981). Johnson v. State, 773 S.W.2d 721, 724 (Tex.App.--Houston [1st Dist.] 1990, pet. ref'd). By definition under article 37.09, speeding is not lesser included offense of DWI.
Thus, under Blockburger, double jeopardy does not bar prosecution for...
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