Parrish v. State, No. B14-90-00989-CR

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

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

Page 659

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...