Wilson v. State
| Decision Date | 07 June 1989 |
| Docket Number | No. 926-87,926-87 |
| Citation | 772 S.W.2d 118 |
| Parties | Douglas Scott WILSON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Richard Alley, Fort Worth, for appellant.
Tim Curry, Dist. Atty., and C. Chris Marshall and Betty Stanton, Asst. Dist. Attys., Forth Worth, Robert Huttash, State's Atty., Austin, for the State.
Before the Court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
The appellant was convicted of driving while intoxicated (hereinafter referred to as "DWI") resulting in serious bodily injury to another as proscribed by Art. 6701l -1(b), (f) V.A.C.S. 1 The appellant waived a jury trial and pursuant to a plea agreement entered a plea of nolo contendere to the charge. 2 The information charged appellant with DWI and included an "enhancement paragraph" alleging another person suffered serious bodily injury as a result of the offense. The court sentenced the appellant to sixty-three days confinement in the Tarrant County Jail and a fine of $600.00.
The appellant's conviction was affirmed in an unpublished opinion by the 2nd Court of Appeals. Wilson v. State, (Tex.App.--Fort Worth, No. 2-86-227-CR, delivered June 11, 1987) In affirming his conviction the Court of Appeals rejected the appellant's argument and held that DWI is not a lesser included offense of DWI resulting in serious bodily injury to another. Therefore, according to the Court of Appeals, an allegation that serious bodily injury was suffered by a person as a consequence of the offense of DWI is in the nature of an enhancement of punishment allegation statutorily authorized by Art. 6701l -1(f), V.A.C.S. We granted the appellant's first ground of review to examine the court of appeals' decision. We also granted a related ground of review to consider the court of appeals' conclusion that the trial court did not err when it denied the appellant's motion to quash. We will affirm the judgment of the court of appeals.
When the appellant entered his plea, the following transpired:
The Court: Can we at least enter a plea on the case?
[Defense attorney]: Yes, Judge, I believe I entered a plea previously on behalf of my client.
The Court: Can we get him to plead?
[Defense attorney]: Sure.
The Court: Mr. Wilson, do you know what you're charged with in this offense?
The Defendant: Yes, Sir.
The Court: What are you charged with?
The Defendant: DWI.
The Court: Serious bodily injury?
The Defendant: Yes, Sir.
The Court: And how do you plead to it?
The Defendant: Guilty, Sir.
[Defense attorney]: That's correct. It would be a no contest plea, Judge, for the record.
The Court: Well, it's already in the record, so let's proceed. Let's proceed, please.
Thereafter, the prosecutor completed the plea by questioning the appellant, who had previously been placed under oath. The colloquy which took place between appellant and the State's attorney dealt solely with the offense of DWI. No questions were propounded in regard to any serious bodily injury which may have been the direct consequence of the DWI offense. Immediately afterwards, however, the state presented evidence that another had suffered serious bodily injury as a result of this accident that occurred while the appellant was driving while intoxicated. The trial court then found the defendant guilty and, consistent with the plea agreement, assessed the appellant's punishment as previously noted.
Basically, the appellant claims that DWI and DWI resulting in serious bodily injury are two distinct offenses. Under the appellant's reasoning, since he plead nolo contendere to only the DWI charge, and the court accepted his plea, he was found guilty of and convicted of DWI and not DWI resulting in serious bodily injury. Accordingly, under the appellant's view, he was necessarily acquitted of the greater offense--DWI resulting in serious bodily injury. Therefore, the argument proceeds, that to punish him for the offense of DWI resulting in serious bodily injury violates the double jeopardy provisions of the State and Federal Constitutions. 3
In response, the State obviously argues that DWI and DWI resulting in serious bodily injury are not separate offenses. According to the State, an allegation of serious bodily injury is merely an issue that enlarges the available range of punishment.
The appellant draws authority for his position from the language in Rivera v. State, 716 S.W.2d 68, 71 (Tex.App.--Dallas 1986 pdr ref'd ). In Rivera the Fifth Court of Appeals indicated that causing serious bodily injury while driving while intoxicated is the greater offense and DWI is the lesser offense. To the contrary, the State asserts that this Court should adopt the opposite position taken by second court of appeals in Bucek v. State, 724 S.W.2d 129 (Tex.App.--Fort Worth 1987 no writ ) and Scharbrough v. State, 732 S.W.2d 445 (Tex.App.--Fort Worth 1987 pet. ref'd ). In both of these cases the court of appeals held that DWI and DWI resulting in serious bodily injury are not separate offenses. For the reasons to be stated, we agree with the State and consequently conclude that DWI is not a lesser included offense of DWI resulting in serious bodily injury. Thus, the court of appeals was correct in its conclusion that the allegation of serious bodily injury is an enhancement provision and proof of it is to be reserved for the punishment phase of a DWI trial in the event of conviction. 4
Art. 37.09, V.A.C.C.P. reads as follows:
An offense is a lesser included offense if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.
Assuming all of these statutory conditions are met and the evidence was in such a state to comply with the Royster/Aguilar test requiring the submission of a charge on lesser included offenses there would still be one inherent condition precedent which would prevent DWI from being a lesser included offense: 5 causing serious bodily injury as a direct result of committing the offense of DWI would have to be an offense in and of itself, and we find that it is not.
After Art. 6701l -1(a) states the relevant definitions of the terminology applicable to the offense of driving while intoxicated, section (b) defines the substantive offense of DWI as follows:
A person commits an offense if the person is intoxicated while driving or operating a motor vehicle in a public place....
Section (f) dealing with one suffering serious bodily injury as a direct result of a defendant committing the offense of DWI in pertinent part reads:
If it is shown on the trial of a person punished for an offense under Subsection (c), (d), or (e) of this article that the person committed the offense and as a direct result of the offense another person suffered serious bodily injury, the minimum term of confinement for the offense is increased by 60 days and the minimum and maximum fines for the offense are increased by $500. [emphasis added]
The court of appeals, in rejecting appellant's contention, relied on its opinion in Bucek v. State, supra. In Bucek, the identical assertion was made as in the case at bar. Justice Keltner, writing for the court in that case, after making a comparison of the statutory language in the DWI statute to pertinent language found in the penal code, observed:
The language used to define each offense enumerated in the Penal Code begins with a statement, 'a person commits an offense if....' Likewise, the language prescribing extraordinary punishment for an offense because of aggravating factors consistently begins with the phrase, 'if it be shown on the trial....' As a result, the conclusion is inescapable that subsection (b) defines the offense of driving while intoxicated. Subsection (c) prescribes the ordinary punishment for that offense and subsections (d), (e) and (f) prescribe extraordinary punishment which is available in the event of certain aggravating factors. [footnote omitted]
Based on that reasoning, the court in Bucek concluded:
[T]he provisions of TEX.REV.CIV.STAT.ANN. art. 6701l -1(f) (Vernon Supp.1987) provides an enhancement of punishment prescribed for the offense of driving while intoxicated and does not define, of and in itself, a separate offense. As a result, article 6701l -1(b) cannot be a lesser included offense of article 6701l-1(f).
We find the analysis and reasoning by the court of appeals in Bucek to be both persuasive and sound. In Bucek the court of appeals was actually alluding to the legislative scheme of classifying offenses. The elements of each offense specified in the penal code are prefaced with the phrase "a person commits an offense." Aggravated offenses acquire their status as a greater offense partially because the legislature required the commission of the basic offense For example, the elements of the basic kidnapping offense (V.T.C.A. Penal Code, § 20.03) are prefaced by "(a) A person commits an offense if he intentionally or knowingly abducts another person." [emphasis added] The succeeding statute (V.T.C.A. Penal Code, § 20.04)--aggravated kidnapping--is prefaced with identical introductory language and follows by specifically identifying the aggravating elements necessary to establish the commission of the greater offense. The final paragraphs in both the kidnapping offense and the aggravated kidnapping offense simply attaches the authorized penalty by...
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