McMillan v. State
| Decision Date | 29 June 1971 |
| Docket Number | No. 43933,43933 |
| Citation | 468 S.W.2d 444 |
| Parties | Larry Dean McMILLAN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Gibbons & Spivey, Austin, for appellant.
Thomas J. Purdom, County Atty., Lubbock, and Jim D. Vollers, State's Atty., Austin, for the State.
This is an appeal from a conviction for the offense of driving while intoxicated. Appellant pleaded guilty before the court on November 2, 1970, and his punishment was assessed at ten days in the Lubbock County Jail and a fine of $125.00.
In accordance with the Texas Misdemeanor Probation Law (Article 42.13 Vernon's Ann.C.C.P.) he was placed on probation for a period of one year.
The record reflects that on December 29, 1969, appellant was observed by police officers driving on the wrong side of the street; he was stopped and found to be intoxicated. Subsequently, he was charged with the offense of driving on the wrong side of the street, to which charge he pleaded guilty in the Lubbock Municipal Court, and was assessed a fine.
Appellant challenges his conviction for driving while intoxicated by one ground of error, contending that he was placed in double jeopardy by virtue of his former conviction for driving on the wrong side of the street, such being a violation of the 5th and 14th Amendments to the Constitution of the United States, and incompatible with the decision of the Supreme Court in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435.
In view of appellant's contention, we are squarely confronted with the question of whether or not he was placed in double jeopardy by virtue of his two convictions and, secondly, whether Waller v. Florida, supra, applies to the circumstances of this case.
The Supreme Court in Waller v. Florida, supra, stated:
'* * * The opinion of the District Court of Appeal first explictly acknowledged that the charge on which the state court action rested 'was based on the same acts of the appellant as were involved in the violation of the two city ordinances.' * * *.
'We act on the statement of the District Court of Appeal that the second trial on the felony charge by information 'was based on the same acts of the appellant as were involved in the violation of the two city ordinances' and on the assumption that the ordinance violations were included offenses of the felony charge. Whether in fact and law petition committed separate offenses which could support separate charges was not decided by the Florida courts, nor do we reach that question. What is...
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...v. Amaral, 109 R.I. 379, 382-83, 285 A.2d 783 (1972); Usary v. State, 172 Tenn. 305, Syl. p 10, 112 S.W.2d 7 (1938); McMillan v. State, 468 S.W.2d 444, 445 (Tex.Crim.1971); Hundley v. Commonwealth, 193 Va. 449, 451, 69 S.E.2d 336 (1952); State ex rel. Foley v. Yuse, 191 Wash. 1, 5, 70 P.2d ......
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...from the offense of possession of a narcotic drug, the doctrines of carving and double jeopardy are inapplicable. See, McMillan v. State, Tex.Cr.App., 468 S.W.2d 444. By his third ground of error, appellant contends that two prior convictions were improperly admitted at the punishment stage......
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...and are not based on the same acts of appellant. See Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435; McMillan v. State, Tex.Cr.App., 468 S.W.2d 444. The victims of the two offenses in the instant case were not the same. An examination of the transcription of the court report......
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