Ex Parte: Clementino Lopez--Appeal from 409th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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) No. 08-04-00308-CR

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) Appeal from the

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EX PARTE: CLEMENTINO LOPEZ ) 409th District Court

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) of El Paso County, Texas

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) (TC# 20040D03026)

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O P I N I O N

Appellant Clementino Lopez appeals the trial court=s denial of his application for writ of habeas corpus. On September 3, 2004, Appellant filed the application for writ of habeas corpus, in which he claimed that the indictment in this case for evading arrest violates his guarantee against double jeopardy under the United States and Texas constitutions because he had pleaded guilty to driving while intoxicated in cause number 20040C06804, which arose out of the same incident. In his sole issue, Appellant argues that the trial court erred in denying relief because double jeopardy precludes the instant prosecution. We affirm.

At the habeas corpus hearing, Appellant testified that on February 19, 2004, he was arrested for evading arrest and for driving while intoxicated. Appellant pleaded guilty to the driving while intoxicated charge and was sentenced to 15 months probation. Appellant argued that the charges for both offenses arose out of the same incident, and for double jeopardy purposes, the driving while intoxicated offense was within the same unit of prosecution as the evading arrest offense. The trial court denied Appellant=s application. Appellant now brings this appeal and presents argument similar to that which was argued at the hearing.

Standard of Review

We generally review a trial court=s decision to grant or deny relief on a writ of habeas corpus under an abuse of discretion standard. Jaime v. State, 81 S.W.3d 920, 924 (Tex.App.--El Paso 2002, pet. ref=d). Under this standard, the reviewing court accords great deference to the trial court=s findings and conclusions and views the evidence in a light most favorable to the ruling. Id., citing Ex parte Pipkin, 935 S.W.2d 213, 215 (Tex.App.--Amarillo 1996, pet. ref=d). This same standard applies with respect to a trial court=s ruling on a habeas corpus application based upon a double jeopardy claim. Ex parte Peralta, 87 S.W.3d 642, 645 (Tex.App.--San Antonio 2002, no pet.).

Double Jeopardy Claim

On appeal, Appellant argues that the offenses of evading arrest and driving while intoxicated in this case are sufficiently similar units of prosecution that his plea of guilty to the driving while intoxicated offense precludes prosecution for the evading arrest charge. Therefore, he asserts that his constitutional double jeopardy protection bars the instant subsequent prosecution for evading arrest.

The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no person shall Abe subject for the same offense to be twice put in jeopardy of life or limb.@ See U.S. Const. amend. V. This constitutional provision is applicable to the states through the Fourteenth Amendment. See, e.g., Brown v. Ohio, 432 U.S. 161, 164, 97 S. Ct. 2221, 2225, 53 L. Ed. 2d 187 (1977). In Blockburger v. United States, the Supreme Court held that where the same conduct violates two distinct penal provisions, the test to determine whether the two offenses are the same is whether each provision requires proof of a fact that the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932).

Applying the Blockburger test, we conclude that the state jail felony offense of evading arrest, with which Appellant is charged in this case, and the offense of driving while intoxicated, of which Appellant has been convicted, each require a proof of fact that the other does not. The statutory elements of driving while intoxicated are that the defendant was intoxicated while operating a motor vehicle in a public place. See Tex.Pen.Code Ann. ' 49.04(a)(Vernon 2003). The statutory elements of evading arrest are that the defendant intentionally fled from a person he knows is a peace officer attempting lawfully to arrest or detain him. See Tex.Pen.Code Ann. ' 38.04(a)(Vernon 2003). Evading arrest is a state jail felony offense if the actor uses a vehicle while the actor is in flight. See id. at ' 38.04(b)(1). Each of the offenses require proof of facts that the other does not, and thus, they are not the same offense under Blockburger. Consequently, there is no double jeopardy bar to Appellant=s prosecution for evading arrest as a result of his previous conviction for driving while intoxicated arising out of the same incident. See Ex parte Carden, 711 S.W.2d 673, 675 (Tex.App.--Amarillo 1986, no pet.)(driving while intoxicated and evading arrest are two distinct offenses, such that there was no double jeopardy bar to appellant=s prosecution for driving while intoxicated by reason of his previous prosecution for evading arrest). We conclude the trial court did not abuse its discretion in denying habeas corpus relief. Appellant=s sole issue is overruled

We affirm the trial court=s order.

July 7, 2005

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

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