Barry L. McFadin v. The State of Texas--Appeal from 272nd District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-96-128-CR

BARRY L. McFADIN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court # 43,560-272

O P I N I O N

Appellant Barry L. McFadin was arrested for driving while intoxicated on August 24, 1995. He submitted a specimen of his breath at the time of his arrest to be tested for alcohol concentration. The test revealed an alcohol concentration of at least 0.10. The Department of Public Safety suspended McFadin's driver's license for sixty days ("ALR suspension") following an administrative hearing on September 21, 1995. See Tex. Transp. Code Ann. 524.012(b), 524.022 (Vernon Supp. 1997). //

The State filed an information in the County Court at Law No. 1 of Brazos County charging McFadin with the offense driving while intoxicated. McFadin filed a pretrial Application for Writ of Habeas Corpus with the 272nd Judicial District Court of Brazos County claiming double jeopardy barred this prosecution. After a hearing on the merits, the court denied relief. McFadin brings a single point that the trial court erred in denying the writ. He claims his prosecution is violative of both the United States and the Texas Constitutions' double jeopardy provisions. We address these provisions separately. See McCambridge v. State, 712 S.W.2d 499, 501 n.9 (Tex. Crim. App. 1986). //

THE FIFTH AMENDMENT

In Tharp v. State, No. 168-96 (Tex. Crim. App. Nov. 25, 1996), the Court of Criminal Appeals held that an ALR suspension is not "punishment" for double jeopardy purposes under the Fifth Amendment. Tharp, slip op. at 5. For this reason, such a suspension will not bar a subsequent DWI prosecution under the federal double jeopardy provision. Id. Therefore, we overrule McFadin's point of error insofar as he claims a violation of the federal Double Jeopardy Clause.

Tex. Const. art. I, 14

In most cases, the federal and state double jeopardy provisions are conceptually identical. Stephens v. State, 806 S.W.2d 812, 814-15 (Tex. Crim. App. 1990). Both protect against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 440, 109 S. Ct. 1892, 1897, 104 L. Ed. 2d 487 (1989); Phillips v. State, 787 S.W.2d 391, 393 (Tex. Crim. App. 1990). McFadin's point of error implicates only the third of these protections.

McFadin urges us to give the Texas Double Jeopardy Clause a more expansive application than its federal counterpart on the basis of Bauder v. State, 921 S.W.2d 696 (Tex. Crim. App. 1996). In Bauder, the Court held that when a prosecutor either intentionally or recklessly engages in objectionable conduct which results in a mistrial, a retrial will be barred by Tex. Const. art. I, 14. Bauder, 921 S.W.2d at 699. // However, Bauder was a multiple prosecutions case rather than a multiple punishments case. Therefore, we decline to apply its reasoning to the facts of this case. We will apply article I, section 14 in the same manner as the federal Double Jeopardy Clause. //

Because McFadin's ALR suspension was not "punishment" for purposes of Tex. Const. art. I, 14, we hold that his DWI prosecution is not barred by double jeopardy.

CONCLUSION

An ALR suspension is not "punishment" under the federal or state double jeopardy provisions. Therefore, such a suspension will not serve as a bar to a subsequent prosecution for DWI. We affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis

Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed January 22, 1997

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