Parrish v. State

• Decision Date: 26 January 1994
• Docket Number: No. 490-91,490-91
• Citation: 869 S.W.2d 352
• Parties: Brenda Fay PARRISH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 352

869 S.W.2d 352

Brenda Fay PARRISH, Appellant, v. The STATE of Texas, Appellee.

No. 490-91.

Court of Criminal Appeals of Texas En Banc.

Jan. 26, 1994.

Wesley H. Hocker, Robert A. Morrow, Janet Morrow, Houston, Tx., for appellant.

John B. Holmes, Jr., Dist. Atty., and J. Harvey Hudson, and Jim Mount, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON REMAND FROM UNITED STATES SUPREME COURT

MEYERS, Judge.

On original submission, 872 S.W.2d 224, we remanded this cause to the trial court with instructions that the complaint and information charging appellant with driving while intoxicated (DWI) be dismissed. Applying Grady v. Corbin, 495 U.S. 508, 510, 110 S.Ct. 2084, 2087, 109 L.Ed.2d 548 (1990), as understood by this Court in State v. Houth, 845 S.W.2d 853 (Tex.Crim.App.1992), we held that appellant's prior conviction for speeding was a jeopardy bar to her subsequent prosecution for DWI. The United States Supreme Court granted certiorari to review this holding. It then overruled Grady in an unrelated case, United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556, 53 Cr.L. 2291 (1993), summarily vacated our judgment in this cause without reaching the merits, and remanded to us for reconsideration in light of Dixon. 510 U.S. 801, 114 S.Ct. 41, 126 L.Ed.2d 11 (1993). It is to that task which we now turn.

The offense for which appellant has already been convicted (speeding) and that with which she is now charged (DWI) were committed simultaneously. Thus, the evidence, viewed favorably to the State's allegations, tends to show that appellant was speeding while intoxicated.

The principal elements of speeding are given by the statute which proscribes it.

No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.

Tex.Rev.Civ.Stat.Ann. art. 6701d, § 166(b) (West 1977). Likewise, the elements of DWI are specified by statute.

A person commits an offense if the person is intoxicated while driving or operating a motor vehicle in a public place.

Tex.Rev.Civ.Stat.Ann. art. 6701l -1(b) (West Supp.1990).

Because Dixon reestablished Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), as the sole criteria for analyzing sameness under the Double Jeopardy Clause of the United States Constitution, it follows that any two penal statutes presumably define different offenses when "each provision requires proof of an additional fact which the other does not." 284 U.S. at 304, 52 S.Ct. at 182. See also Rice v. State, 861 S.W.2d 925 (Tex.Crim.App.1993); State v. Holguin, 861 S.W.2d 919 (Tex.Crim.App.1993). That seems to be exactly the case here.

Appellant, however, argues that the lead opinion in Dixon "did not look only to the statutory, or generic elements of the offenses ... [but] focused on the facts needed to show violations of the specific court orders in question, as those orders were particularly spelled out regarding each defendant." Appellant's Brief on Remand at 7. She contends that "this Court is free to (or must) refer to its own definition and view of lesser included offenses and proceed from that understanding to a determination when one of its own criminal charges constitutes a species of lesser included offense so as to preclude conviction for another." Id. at 9. The point is well-taken.

Although Dixon did garner sufficient votes to overrule Grady, the essential rule for determining whether different statutes proscribe the same offense so as to bar successive prosecution remains uncertain. Indeed, the core meaning of Blockburger is now evidently more in dispute than ever before. The only proposition upon which everyone seems to agree is that greater inclusive and lesser included offenses are the same for jeopardy purposes. Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977). But, determining whether two offenses stand in such a relationship is still a controversial undertaking. Where the so-called "same evidence" test once vied with the "same elements" formulation of Blockburger, the essential difficulty after Dixon now seems to be the meaning of "same elements."

In Texas, an offense is considered to be included within another if, among other things, "it is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]" Tex.Code Crim.Proc.Ann. art. 37.09(1) (West 1981). Our statute law thus describes includedness in much the same way Blockburger describes sameness. Yet we have long considered more than merely statutory elements to be relevant in this connection. See, e.g., Goodin v. State, 750 S.W.2d 789 (Tex.Crim.App.1988); Cunningham v. State, 726 S.W.2d 151 (Tex.Crim.App.1987); Broussard v. State, 642 S.W.2d 171, 173 (Tex.Crim.App.1982); Day v. State, 532 S.W.2d 302 (Tex.Crim.App.1976). We acknowledge, for example, that other critical elements of an accusatory pleading, such as time, place, identity, manner and means, although not statutory, are germane to whether one offense includes another under Texas law and to whether several offenses are the same for jeopardy purposes. See Ex parte Jefferson, 681 S.W.2d 33 (Tex.Crim.App.1984); Neely v. State, 571 S.W.2d 926 (Tex.Crim.App.1978). We likewise think it reasonably clear from the various opinions in Dixon that the essential elements relevant to a jeopardy inquiry are those of the charging instrument, not of the penal statute itself. Statutory elements will, of course, always make up a part of the accusatory pleading, but additional nonstatutory allegations are necessary in every case to specify the unique offense with which the defendant is charged.

Concerning the instant cause, it is not apparent from a superficial reading of the relevant penal statutes that speeding and DWI necessarily have any elements in common. "Drive" and "operate" do not always mean the same thing. "Public place" and "highway" are not synonymous. But it is usually, perhaps always, in fact the case that DWI and speeding share the element "driv(ing) a vehicle" because the typical manner of operating a vehicle is by driving it. It is also commonly true in DWI prosecutions that the "public place" in which the vehicle is alleged to have been "driv[en] or operat[ed]" is a "highway," even though one need not drive on a highway to be guilty of DWI.

Because the instrument charging appellant with DWI in this case actually alleges that she did "drive" while drunk, and because the record makes it clear that she was on a "highway" within the meaning of state traffic regulations, we are willing to accept that the manner in which appellant is alleged to have operated her motor vehicle in a public place for purposes of the DWI prosecution now pending against her is the same conduct as that for which she was earlier prosecuted. In other words, to establish that appellan...