Parrish v. State

• Decision Date: 08 December 1994
• Docket Number: No. B14-90-00989-CR,B14-90-00989-CR
• Citation: 889 S.W.2d 658
• Parties: Brenda Fay PARRISH, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 658

889 S.W.2d 658

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

No. B14-90-00989-CR.

Court of Appeals of Texas Houston (14th Dist.).

Dec. 8, 1994.

Discretionary Review Refused

Feb. 15, 1995.

Wesley H. Hocker, Janet Seymour Morrow, Houston, for appellant.

Marshall A. Shelsy, J. Harvey Hudson, Houston, for appellee.

OPINION ON REMAND

BARRON, Justice.

Appellant appeals from the denial of a writ of habeas corpus. The issue is whether the double jeopardy clause found in the Texas Constitution bars a later prosecution for driving while intoxicated (DWI) where there has been a prior conviction for speeding. Because we conclude that article I, section 14 of the Texas Constitution affords no greater protection than the Double Jeopardy Clause contained in the Fifth Amendment to the United States Constitution, we affirm.

On March 31, 1990, Brenda Fay Parrish was involved in a traffic accident. She was arrested for DWI and was issued a citation for failure to control speed. Parrish entered a plea of nolo contendere to the speeding charge, was convicted, and was assessed a fine.

Parrish was later charged with DWI. Parrish filed a pretrial application for writ of habeas corpus and special plea in bar, claiming that because the prior speeding conviction arose from the same traffic accident, the later DWI prosecution was barred under double jeopardy. The trial court denied relief and she appealed.

On appeal to this court, Parrish urged that the DWI prosecution was barred by the double jeopardy clauses of both the Fifth Amendment to the United States Constitution and article I, section 14 of the Texas Constitution. Relying solely on cases interpreting the federal constitution, we affirmed the denial of the writ. Parrish v. State, 807 S.W.2d 411, 412 (Tex.App.--Houston [14th Dist.] 1991), rev'd 872 S.W.2d 224 (Tex.Crim.App.1993).

The Court of Criminal Appeals reversed our judgment and remanded to the trial court for dismissal on the ground that the prior speeding conviction was a jeopardy bar to the subsequent DWI prosecution. Parrish v. State, 872 S.W.2d 224, 227 (Tex.Crim.App.1993). In reversing our judgment, the court relied on the "same conduct" test set forth in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). On certiorari to the United States Supreme Court, the case was remanded to the Court of Criminal Appeals in light of United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), which overruled Grady v. Corbin. Texas v. Parrish, 510 U.S. 801, 114 S.Ct. 41, 126 L.Ed.2d 11 (1993).

On remand, in light of Dixon, the Court of Criminal Appeals held that the double jeopardy clause of the United States Constitution did not bar the DWI prosecution. Parrish v. State, 869 S.W.2d 352, 355 (Tex.Crim.App.1994). The Court remanded to us the issue of whether article I, section 14 of the Texas Constitution provides greater protection than the double jeopardy clause of the federal constitution.

In response to the Court of Criminal Appeals' directive, Parrish argues that the Texas Constitutional jeopardy provision provides independent authority for barring her DWI trial as a successive prosecution for the same offense.

We summarize Parrish's argument: (1) in her prosecution for DWI, the State will prove conduct for which she has already been convicted, i.e., imprudent speed; (2) the State considers the proof of that "additional nonstatutory allegation" necessary to prove the "unique offense" with which she is charged; (3) she ordinarily would be entitled to a jury charge on the lesser included offense of speeding if raised by the evidence; and (4) she should be entitled to allege and prove before trial that a particular offense for which she has already been convicted will be raised by the evidence and is thus a "species of lesser included offense" that should be barred by jeopardy principles.

Parrish's argument depends on our looking beyond the offense elements of the charging instrument to the proof of conduct needed to secure her conviction. According to Parrish, if to secure a subsequent conviction the State must prove conduct for which she has already been convicted, then the subsequent prosecution should be barred. With respect to federal double jeopardy, this is precisely the reasoning rejected by the Supreme Court when it overruled Grady v. Corbin. Dixon, --- U.S. at ----; 113 S.Ct. at 2859-64. In Dixon, the Court stated:

[W]e think it time to acknowledge what is now, three years after Grady, compellingly clear: the case was a mistake. We do not lightly reconsider a precedent, but, because Grady contradicted an "unbroken line of decisions," contained "less than accurate" historical analysis, and has produced "confusion," we do so here. [Citation omitted.] ... We would mock stare decisis and only add chaos to our double jeopardy jurisprudence by pretending that Grady survives when it does not. We therefore accept the Government's invitation to overrule Grady.

--- U.S. at ----; 113 S.Ct. at 2864.

Though Grady v. Corbin has been expunged from Fifth Amendment jurisprudence, Parrish urges us to adopt its "same conduct" test for Texas double jeopardy analysis.

Parrish contends that the Texas "carving doctrine" provides the historical underpinning for a Texas "same conduct" test. In 1876 the Supreme Court of Texas held in Wilson v. State, 45 Tex. 76 (1876): "The State cannot split up one crime and prosecute it in parts. A prosecution for any part of a single crime bars any further prosecution based upon the whole or part of the same crime." Ex parte McWilliams, 634 S.W.2d 815, 828 (Tex.Crim.App.1982) (opinion on reh'g), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602 (1982), quoting Wilson, supra at 83. When the transaction is the same it is but one offense against the State, and the accused cannot be convicted on separate indictments charging different parts of one transaction as a distinct offense. A conviction on one of the indictments bars a prosecution on the other. Id.

As we understand Parrish's contention, on the night of her arrest, the totality of her allegedly criminal "conduct" consisted of driving a car while intoxicated and failing to control her speed, resulting in an accident. Under the carving doctrine, she argues, the State could prosecute her with DWI or failing to control speed, but not both. Similarly, under Grady 's "same conduct" test, the State could not convict her of failure to control speed resulting in an accident and then use that same conduct to convict her of DWI. The State would have, in effect, prosecuted her twice for the same conduct.

The problem with Parrish's reliance on the carving doctrine is that it has been abrogated by the Court of Criminal Appeals. McWilliams, 634 S.W.2d at 824. Indeed, the Court of Criminal Appeals saw in the carving doctrine many of the same difficulties the Supreme Court recognized in overruling Grady 's short-lived "same conduct" test. See Dixon, --- U.S. at ----; 113 S.Ct. at 2859-64. We are unable to distinguish Grady 's "same conduct" test from Texas' "carving doctrine," both of which have been abandoned. Prior to Grady v. Corbin, Texas courts relied on the Blockburger test to ascertain whether a prosecution was barred by the double jeopardy provisions of our State constitution. Humphreys v. State, 565 S.W.2d 59, 62 (Tex.Crim.App.1978). Parrish has failed to present us with clear and articulable reasons as to why, under the particular case at issue, a more expansive protection of individual rights is appropriate.

To determine whether the Texas Constitution provides greater protection than its federal counterpart, the Court of Criminal Appeals has found the following factors helpful: (A) a textual examination of the constitutional provision; (B) the Framer's intent; (C) history and application of the constitutional provision; (D) comparable jurisprudence from other states; and (E) the practical policy considerations behind the constitutional provision. Autran v. State, 887 S.W.2d 31 (Tex.Crim.App.1994). We now consider those factors.

A. Textual Examination

The Fifth Amendment provides in pertinent part:

[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.

Article I, section 14 provides:

No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.

An examination of these provisions reveals clear textual similarities between the Fifth Amendment and article I, section 14.

B. Framer's Intent and History of the Provision

The concept of double jeopardy has been described as a part of all advanced systems of law and as one of those universal principles of reason, justice, and conscience, of which Cicero said: "Nor is it one thing at Rome and another at Athens, one now and another in the future, but among all nations it is the same." Bartkus v. Illinois, 359 U.S. 121, 154, 79 S.Ct. 676, 697, 3 L.Ed.2d 684 (1959) (J. Black, dissenting). As far back as 355 B.C., Demosthenes observed, "the laws forbid the same man to be tried twice on the same issue, be it a civil action, a scrutiny, a contested claim, or anything else of the sort." United States v. Jenkins, 490 F.2d 868, 870 (2nd Cir.1973).

In the thirteenth century ... the bar against multiple prosecutions assumed a rather grim urgency. Since many criminal offenses were tried by battle between the wronged party and the alleged offender, it was evident that a series of prosecutions would ultimately produce a "conviction" against all but the hardiest combatants, if enough "appealors" were...