Ex Parte Benson
No. WR-81, 764-01
Case Summary written by Laura Parton, Staff Member.
JUDGE KELLER delivered the opinion of the Court, in which JUDGE KEASLER, JUDGE HERVEY, JUDGE RICHARDSON, JUDGE YEARLY, and JUDGE NEWELL joined.
The Applicant’s convictions for intoxication assault and felony DWI arose from the same motor–vehicle accident that occurred on October 17, 2012. This accident, which resulted in the applicant’s third DWI conviction, caused serious bodily injury to an individual, Charles Bundrant. The applicant filed a habeas and argued that his right under the Fifth Amendment to be protected against multiple punishments had been violated. The applicant alleged that intoxication assault and felony DWI are the same offense under the Blockburger same-elements test. Although the “two-prior convictions element” of felony DWI is not required for intoxication assault, the applicant contended that it should be viewed merely as an enhancement of punishment and thus not an “element” for double–jeopardy purposes. The court denied relief.
ISSUE: Are felony DWI and intoxicated assault the same offense for double–jeopardy purposes?
HELD: No, under the Blockburger same-elements test, the “two-prior convictions” requirement of felony DWI is not merely an enhancement of punishment but is an element that differentiates felony DWI from intoxication assault. Further the Erwin factors that weighed in the applicant’s favor were not enough to rebut this presumption that they are different offenses. Therefore, felony DWI and intoxicated assault are not the same offense for double–jeopardy purposes.
ANALYSIS: The double jeopardy provision of the “Fifth Amendment provides that no person shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’” The right to be free from double jeopardy extends to providing protection against being punished for the same offense, or multiple punishments.
The court first considered whether or not the two offenses were codified in same statute. If both offenses were contained in different statutes, then for a violation of double jeopardy rights to occur the offenses must be the same under an “elements” and a “units” analysis. If the offenses are both contained in one statute, then only the “units” analysis must be conducted. Intoxication assault is codified in Texas Penal Code § 49.07 and felony DWI is codified in Texas Penal Code §§ 49.04 and 49.09. The offenses, being present in different statutes, require both an “elements” and “units” analyses to establish a double–jeopardy violation.
The Blockburger same-elements test states that “[i]f the two offenses, so compared, have the same elements, then ‘a judicial presumption arises that the offenses are the same for purposes of double jeopardy.’” Both offenses contain elements that the other does not. Felony DWI does not require serious bodily injury, and intoxication assault does not require two prior convictions. The court offered multiple reasons why the “two-prior convictions element” is not, as applicant contended, merely an enhancement. Firstly, it is admitted into evidence at the guilty-innocence stage of trial rather than the punishment stage. Secondly, the “two-prior convictions element” is a jurisdictional element, and as such is required for a conviction of felony DWI. Lastly, “felony DWI is not a lesser-included offense of intoxication assault.” Thus, a presumption exists that intoxication assault and felony DWI are not the same, subject to a rebuttal of this presumption.
The court analyzed the several Ervin factors to determine whether the presumption that the two offenses are not the same had been rebutted. A few factors favored the applicant: that the offenses are codified in the same chapter, are similarly named, and have the same punishment ranges. The court, however, found the factors that weighed against the applicant to be more convincing. The two offenses do not have the same focus or unit of prosecution. Intoxication assault, unlike felony DWI, requires a result—bodily injury. History also does not weigh in favor of the applicant, “[t]he legislature could easily have crafted ‘serious bodily injury’ and ‘prior convictions’ as statutory alternatives but did not.” The Ervin factors failed to present a “clear” rebuttal of the presumption established by the Blockburger same-elements test.
Having already established that the offenses are not the same under the “elements” analysis, the applicant’s relief was already denied because both the “elements” and the “units” analyses are required to establish a double–jeopardy violation. The “units” analysis mirrors the “focus or unit of persecution” factors of Ervin. Even if the offenses are the same under Blockburger, double jeopardy is not violated where there are “separate allowable units of prosecution.” For instance, an individual who murdered two victims may be charged with murder twice. Intoxication assault and felony DWI have different units of prosecution, in fact, the court determined that they have different focuses entirely. One is aimed at “those who repeatedly engage in drunk driving,” while one is aimed at individuals who “cause bodily injury while engaging in drunk driving.” In the instant case, the “units” analysis did not affect the determination of the “elements” analysis.
It is for these reasons that the court denied the applicant’s relief and held that intoxicated assault and felony DWI are not the same offense for double–jeopardy purposes.
JUDGE MEYERS filed a dissenting opinion in which JUDGE JOHNSON and JUDGE ALCALA joined.
The dissent argued that the “two-prior convictions element” should not be considered “a true element” because it is a jurisdictional element. A jurisdictional element, “once pled in the indictment,” is prohibited from being presented by the state “during its case-in-chief in order to prevent unfair prejudice.” Further, because intoxication assault and misdemeanor DWI would be barred under the Blockburger same-elements test (since there is no jurisdictional priors requirment), legislative intent to impose multiple punishments for felony DWI cannot be assumed to “suddenly appear.” The dissent argued that even if the offenses have different elements, because they arose out of the same transaction and the element in question is merely a jurisdictional element, they should be barred by double jeopardy.