State v. Houth

• Decision Date: 25 November 1992
• Docket Number: No. 788-91,788-91
• Citation: 845 S.W.2d 853
• Parties: The STATE of Texas v. Yvette Gearde HOUTH, Appellee.
• Court: Texas Court of Criminal Appeals

Page 853

845 S.W.2d 853

The STATE of Texas v. Yvette Gearde HOUTH, Appellee.

No. 788-91.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 25, 1992.

Rehearing Denied Jan. 27, 1993.

Walter A. Carr, South Houston, Scott Rothenberg, Houston, for appellee.

John B. Holmes, Jr., Dist. Atty. and J. Harvey Hudson, and Mark Font, Asst. Dist. Attys., Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S AND APPELLEE'S PETITIONS FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellee was charged by information with the offense of driving while intoxicated. Prior to trial she filed what was styled a "Motion to Dismiss with Prejudice Under Fifth Amendment and Special Plea Under Article 27.05 of the Texas Code of Criminal Procedure". The trial court treated this as a motion to dismiss and granted it as such. The State then prosecuted this appeal under Article 44.01(a)(4), V.A.C.C.P. ¹ The Houston Court of Appeals [1st] reversed the trial court's order and remanded the cause for trial. State v. Houth, 810 S.W.2d 852 (Tex.App.--Houston [1st] 1991). In her petition for discretionary review appellee contends the court of appeals' ruling conflicts with the holding of the United States Supreme Court in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). By cross-petition the State contends that, although its ruling was correct, the court of appeals nevertheless misconstrued the holding in Corbin. We granted both petitions under Tex.R.App.Pro., Rule 200(c)(3).

I.

The trial court held a hearing on appellee's motion to dismiss, but no testimony was presented. Therefore we presume the court of appeals gleaned its recitation of facts from an excerpt from the arresting officer's offense report, included in a memorandum supporting appellee's motion to dismiss that was introduced as part of an exhibit and admitted into evidence for purposes of the hearing. That excerpt reads:

"This officer [Easterling] was dispatched to the 7000 Block of Spencer Highway. I arrived on the scene and made contact with Sgt. Holoman, 8804 HCCO, Pct. 8. He related to me that he had stopped a 1984 Silver Chrysler, Texas License Plate 230HCY on Spencer Highway E/B. Sgt. Holoman told me that this vehicle had crossed from lane to lane failed to maintain a single lane. He had stopped the vehicle and found the driver to be very intoxicated. I then walked up to the vehicle where the driver was sitting--a W/F a Mrs. Houth. I had her exit the vehicle and when she did she stumbled out of the vehicle and staggered when she walked to the rear of her vehicle. I then asked her if she would submit to a sobriety test and she attempted the test but allmost [sic] fell down. Myself and Sgt. Holoman had to hold her up to keep from falling down and walking into the traffic. I arrested her for D.W.I. and transported her to the Clear Lake Office. When I offered her the intoxilyzer test she refused the test and refused to do anything on video tape. The defendant was very belligerent and kept trying to do bodily harm to herself by biting herself, scratching her wrist with her nails. She called the booking deputy, Friskie names and cussing at him calling him a Mother Fucker. She also threatened to sue both myself and Deputy Friskie (HCSO). She was booked for FDSML and D.W.I."

Information charging appellee with driving while intoxicated was filed on the day of the offense, May 25, 1990. At the hearing on appellee's motion she introduced what is styled an "Order Pursuant to Plea Bargain Agreement and Plea of Defendant to Misdemeanor of 5-25-90". Signed on June 14, 1990, apparently by a municipal court judge, this order recites that appellee was found guilty of the offense of failing to drive in a single marked lane, committed on May 25, 1990, and had satisfied all sanctions levied against her for that offense. Appellee argued to the trial court that further prosecution for the offense of driving while intoxicated was barred under the Fifth Amendment by her conviction for failing to drive in a single marked lane. She relied upon the holding in Grady v. Corbin, supra. After hearing argument about the import of Corbin, the trial court agreed that the driving while intoxicated prosecution was jeopardy barred. Judging from his pronouncements for the record, it appears the trial court reasoned that because it would be necessary for the State to prove appellee's conduct of weaving out of her lane, for which she had been prosecuted already, in order to establish probable cause for the arresting officer to stop her on suspicion of D.W.I., further prosecution was barred under Corbin--this, despite the State's argument that probable cause is not an element of the offense of driving while intoxicated. See Neaves v. State, 767 S.W.2d 784 (Tex.Cr.App.1989).

The First Court of Appeals reversed and remanded the cause for trial. Initially the court of appeals held that failure to maintain a single lane and driving while intoxicated are separate offenses under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Appellee concedes as much now. Furthermore, the court of appeals reasoned, because the excerpt from the offense report shows there was other evidence besides the failure to maintain a single lane upon which the State could show intoxication, and because the State did not represent to the trial court that "it would rely upon" the failure to maintain a single lane as going to establish the element of intoxication, the court of appeals concluded that the holding in Corbin had not been transgressed. State v. Houth, supra, at 855. In short, because "the State can prove appellee was intoxicated" without reference to her conduct in failing to stay within a marked lane, there is no jeopardy bar. Id.

In her petition for discretionary review appellee argues that the pertinent question under Corbin is not what the State "can prove" without reference to her conduct in failing to maintain a single lane of traffic, but rather, whether the State "will prove" such conduct in its effort to establish she was intoxicated in prosecuting her for D.W.I. Grady v. Corbin, 495 U.S. at 521, 110 S.Ct. at 2093, 109 L.Ed.2d at 564. Appellee contends that the State as much as conceded in its brief to the court of appeals that it intended to rely upon proof that appellant failed to maintain her lane in order to establish the element of intoxication. The State does acknowledge that appellee's weaving in and out of her lane is circumstantial evidence of intoxication.

However, the State argues that it is not enough to comprise a jeopardy bar under Corbin that conduct already prosecuted may also serve as some evidence of an element of the subsequent offense. As we understand the argument, the State construes Corbin to require that the conduct already prosecuted "must constitute" an element of the subsequent offense--that it must, in essence, be an element of the subsequent offense--before double jeopardy applies. Though prevailing in the court of appeals, the State has accordingly filed a cross-petition for discretionary review, claiming that the court of appeals conducted a "same evidence" test, a test that was expressly disclaimed in Corbin.

II.

The Double Jeopardy Clause of the Fifth Amendment protects against multiple punishments for the "same offense." Ex parte Herron, 790 S.W.2d 623 (Tex.Cr.App.1990). It also protects against successive prosecutions for the "same offense" following acquittal or conviction. E.g., May v. State, 726 S.W.2d 573 (Tex.Cr.App.1987). The constitutional meaning of "same offense" "may vary" depending upon which of these protections is at issue. Whalen v. United States, 445 U.S. 684, at 700, 100 S.Ct. 1432, at 1442, 63 L.Ed.2d 715, at 729 (1980) (Rehnquist, J., dissenting). In this cause we are concerned with the meaning of "same offense" in the successive prosecution context.

In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), the United States Supreme Court held that the test for discerning legislative intent in deciding whether two offenses are the "same offense" for purposes of multiple punishment would also be applicable to determine "same offense" for purposes of deciding whether successive prosecutions violate the Double Jeopardy Clause. Thus, the Court adopted the rule announced in Blockburger v. United States, 284 U.S. 299, at 304, 52 S.Ct. 180, at 182, 76 L.Ed. 306, at 309 (1932), viz:

"... that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." ² The Court in Brown observed that "[t]his test emphasizes the elements of the two offenses." 432 U.S. at 166, 97 S.Ct. at 2226, 53 L.Ed.2d at 194. But the Court took pains to note that in the context of successive prosecution, Blockburger did not provide the exclusive test for "same offense." 432 U.S. at 166, n. 6, 97 S.Ct. at 2226, n. 6, 53 L.Ed.2d at 195, n. 6. See May v. State, supra.

Accordingly, thirteen days after it handed down its opinion in Brown, the Supreme Court decided Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977). There, without reference to the Blockburger test, the Court held that successive prosecutions, first for robbery with a firearm and later for felony murder predicated upon that robbery, was barred under the Double Jeopardy Clause. The Court opined:

"When as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one." ³

433 U.S. at 682, 97 S.Ct. at 2913, 53 L.Ed.2d at 1056. In a footnote the Court observed that the State of Oklahoma had conceded that all the ingredients of the robbery offense would have to be proved...