Parrish v. State

• Decision Date: 10 February 1993
• Docket Number: No. 490-91,490-91
• Parties: Brenda Fay PARRISH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 224

872 S.W.2d 224

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

No. 490-91.

Court of Criminal Appeals of Texas,

En Banc.

Feb. 10, 1993.

Rehearing Denied March 17, 1993.

Wesley H. Hocker, Houston, for appellant.

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

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MEYERS, Judge.

On March 31, 1990, Appellant was involved in a traffic accident. At the scene, police cited her for failure to control speed and then arrested her for driving while intoxicated. Several months later, appellant entered a plea of nolo contendere to the former charge, was convicted and assessed a fine. Later, formally charged by complaint and information with driving while intoxicated (DWI), appellant initially filed a pretrial motion in conjunction with a writ of habeas corpus, alleging the DWI prosecution was barred because of her earlier conviction for speeding. The trial court denied relief, and the court of appeals affirmed. Parrish v. State, 807 S.W.2d 411 (Tex.App.--Houston [14th Dist.] 1991). We granted Appellant's petition for discretionary review to consider whether the lower court erred in holding that a successive prosecution for DWI is not jeopardy barred in this case because the State intimated prior to trial that it might not prove, as a part of its DWI prosecution, that Appellant was speeding.

In Grady v. Corbin, 495 U.S. 508, 510, 110 S.Ct. 2084, 2087, 109 L.Ed.2d 548 (1990), the United States Supreme Court held "that the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Whether the government "will prove" conduct is not merely a question of elemental includedness, as in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). We are no longer concerned only with whether the government must necessarily prove the same conduct, but also with whether it will prove such conduct in fact. Thus, it is often impossible to resolve jeopardy problems by an examination of the accusatory pleadings alone.

In Corbin, the State of New York was committed to the facts through the filing of a formal bill of particulars to prove conduct for which Corbin had already been prosecuted. But the reach of Corbin is not limited to cases in which the State's pleading actually discloses or formally requires that conduct for which the accused was earlier prosecuted will again be in issue. Rather, once the defendant has made a good-faith threshold showing that the accusatory pleading charges him with a crime for which he was formerly placed in jeopardy, it becomes the prosecution's burden to establish that the two offenses are not the same in fact. 495 U.S. at 522 n. 14, 110 S.Ct. at 2094 n. 14. As we understand Corbin, the State must demonstrate, in order to meet this burden, that it will not actually prove an offense for which the accused was formerly prosecuted during the prosecution of a different statutory offense arising from the same act or transaction. See Houth v. State, 845 S.W.2d 853 (Tex.Crim.App.1992).

Clearly, in cases where the State regards evidence of conduct for which the defendant was previously prosecuted as helpful but not indispensable to its prosecution of a pending case arising from the same transaction, the existence of a jeopardy bar to the second prosecution is optional. If the State is willing to forego proof of conduct for which the defendant was earlier prosecuted, the second trial may proceed. Otherwise, it is barred.

Because the State's willingness to relinquish a part of its evidence is a matter peculiarly within the discretion and control of prosecuting authorities, it is apparent that a presumptive jeopardy bar can only be overcome if the State's legal representative in court actually makes a firm commitment not to offer at trial evidence of conduct for which the defendant has already been prosecuted. We think a firm commitment in writing is required, rather than a mere prediction or honest expression of intent, because the defendant is entitled to a binding decision on his jeopardy claim prior to trial. See Ex parte Robinson, 641 S.W.2d 552, 555 (Tex.Crim.App.1982). See also Houth, 845 S.W.2d at 860 n. 6.

In the instant cause, it is apparent from the...