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Ex Parte Anthony6/28/1996
(1) a person, (2) drives or operates, (3) a motor vehicle, (4) in a public place, (5) while intoxicated. Tex. Penal Code Ann. Section(s) 49.04(a) (Vernon Supp. 1996).
b. Application of Law to Facts
Under the Blockburger test, we must determine whether DWI and license suspension are the "same offense" for double jeopardy purposes. Here, we will assume, without deciding, that license suspension is an "offense."
Appellant's license was suspended after proof established that (1) probable cause existed to believe he was driving, (2) in a public place, (3) while intoxicated, and (4) he was requested, but refused, to provide a breath sample. Unlike the offense of DWI, the license suspension statute did not require the State prove that the defendant was intoxicated before suspending his driver's license. Cf. Neaves v. State, 767 S.W.2d 784, 787 & n.3 (Tex. Crim. App. 1989) (holding that actual finding of intoxication is different ultimate fact than officer initially determining that he had probable cause to believe that defendant was driving while intoxicated). Likewise, the DWI statute does not require the State to prove that the defendant refused to give a specimen (an element of subsection 2(f)) to prove that the defendant is guilty of DWI. See Neaves, 767 S.W.2d at 785-87; Walton v. State, 831 S.W.2d 488, 490-91 (Tex. App.--Houston [14th Dist.] 1992, no pet.).
Because the two statutes each required proof of a fact that the other did not, the offenses here at issue are not the same offenses for double jeopardy purposes. Thus, the trial court properly rejected appellant's argument based on the Fifth Amendment. We overrule appellant's first point of error.
2. Texas ConstitutionIn his second point of error, appellant contends article one, section fourteen of the Texas Constitution bars his DWI prosecution as multiple punishment for the same offense. Appellant argues the Texas Double Jeopardy Clause is broader in its protections than its federal counterpart, citing Bauder v. State, No. 1058-94 (Tex. Crim. App. May 8, 1996). He urges this Court to resurrect the now-defunct "same conduct" test outlined in Grady v. Corbin, 495 U.S. 508 (1990).
Appellant relies on Bauder to support his argument that "any doubts" that the Texas Double Jeopardy Clause is broader than the federal constitution are foreclosed. We disagree.
Before Bauder, the court of criminal appeals interpreted the federal and state double jeopardy clauses to be conceptually identical. See Phillips v. State, 787 S.W.2d 391, 392 n.2 (Tex. Crim. App. 1990). The Bauder court held that the Texas Constitution's double jeopardy protections were "slightly more expansive" than the federal constitution's double jeopardy protections when prosecutorial misconduct prompted a defendant to seek a mistrial. See Bauder v. State, slip op. at 5-6 (Tex. Crim. App. May 8, 1996). The Bauder court did not even suggest that: (1) the Texas Constitution provides greater protections to defendants urging double jeopardy for multiple punishments of the same offense or (2) it intended to invalidate previous case law deciding jeopardy in multiple punishments.
Appellant also argues that we should reinstate the same-elements test of Grady. Even if Bauder had expanded the Texas Constitution's jeopardy protection to include all jeopardy issues, we would decline to reinstate Grady. The United States Supreme Court rejected the sameelements test as confusing, "unworkable," "badly reasoned," "wrong in principle," and "unstable in application." See Dixon, 113 S. Ct. at 2863-64. Instead, the Court revived the 1932 Blockburger test as the sole test for determining whether a prosecution violates th
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