Alex Lake Webber v. The State of Texas--Appeal from 82nd District Court of Robertson County

IN THE

TENTH COURT OF APPEALS

No. 10-91-028-CR

ALEX LAKE WEBBER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 82nd District Court

Robertson County, Texas

Trial Court # 13,547-B

O P I N I O N

Appellant was convicted in municipal court of disorderly conduct stemming from a fight that occurred July 8, 1990, and assessed a $150 fine. See Tex. Penal Code Ann. 42.01 (Vernon Supp. 1992). He "worked out" the fine with a city work crew. Subsequently, he was indicted for aggravated assault i.e., "intentionally or knowingly cause[ing] serious bodily injury to James Arthur Owens by stabbing him with a knife" based on the July 8 incident. See id. at 22.02(a)(1). He complains by a writ of habeas corpus that his previous conviction for disorderly conduct is a bar to his subsequent prosecution for aggravated assault. See U.S. Const. amend. V. We will affirm.

The State contends that double jeopardy does not attach because the municipal court judgement was void. However, if the defendant has suffered the full punishment imposed on him by the first court for the same crime or a lesser-included offense of the one he is now being prosecuted for, he may not be punished again regardless of the validity of the first judgement. Corbett v. State, 63 Tex. Crim. 478, 140 S.W. 342, 343 (1911). Because Appellant "worked off" the full $150 fine imposed by the municipal court, a subsequent prosecution for the same offense would be barred by double jeopardy even if the judgment were void.

The fifth amendment guarantees that "[n]o person shall be subject for the same offense to be twice put in jeopardy of life or liberty." See U.S. Const. amend. V. A defendant has the burden of producing evidence to support his allegation of former jeopardy. Shaffer v. State, 477 S.W.2d 873, 875 (Tex. Crim. App. 1971). If he shows by a preponderance of the evidence that an indictment charges him with an offense for which he was formerly placed in jeopardy, the burden then shifts to the state to establish that there were two separate offenses. Grady v. Corbin, -- U.S. --, 110 S. Ct. 2084, 2094, 109 L. Ed. 2d 548 (1990); Tex. Code Crim. Proc. Ann. art. 27.05 (Vernon 1989).

To determine whether a subsequent prosecution is barred by double jeopardy, we must first decide whether each offense requires proof of an additional fact that the other does not. See Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932). If the two offenses have identical statutory requirements or one is simply a lesser-included offense of the first, then the second prosecution is barred. Grady, 110 S. Ct. at 2090. If, however, the second prosecution survives the Blockburger test, we must decide if "the government . . . will prove conduct that constitutes an offense for which the defendant has already been prosecuted." See id. at 2093. Thus, "the critical inquiry is what conduct the state will prove, not the evidence the state will use to prove that conduct." Id. If the same conduct will be used to prove both offenses, the Double Jeopardy Clause bars the second prosecution. Id. In Grady, the Court held that a subsequent prosecution for driving while intoxicated was barred by double jeopardy because the state admitted that it would prove the entirety of the conduct for which the defendant had been convicted in the first prosecution to establish an essential element of the second prosecution. Id. at 2094.

The Court of Criminal Appeals has interpreted Grady as requiring a three-part inquiry: (1) whether the underlying conduct constitutes an offense; (2) whether the defendant has been prosecuted for this offense; and (3) whether this criminal conduct will be used to establish an essential element of the subsequent offense. Ex parte Ramos, 806 S.W.2d 845, 847 (Tex. Crim. App. 1991). Only if all three of these inquiries are answered affirmatively is the latter prosecution barred. Id. However, nothing precludes the prosecution of multiple criminal offenses arising from the same transaction. See, e.g., State v. Houth, 810 S.W.2d 852, 855 (Tex. App. Houston [1st Dist.] 1991, pet. granted) (holding that a prosecution for failing to drive in a single, marked lane did not bar a subsequent prosecution for driving while intoxicated which arose from the same set of facts); State v. Garcia, 810 S.W.2d 240, 241 (Tex. App. El Paso 1991, no pet.) (holding that a conviction for running a red light did not bar a subsequent prosecution for driving while intoxicated; although driving was an element of both offenses, driving in and of itself was not "conduct that constitutes an offense for which the defendant has already been prosecuted"); Kvetinskas v. State, 809 S.W.2d 914, 915 (Tex. App. Houston [14th Dist.] 1991, no pet.) (holding that a prior prosecution for speeding does not bar a subsequent prosecution for driving while intoxicated). In all of these cases, each of the first offenses could be committed without committing the second, and each of the second offenses could be committed without the first.

Appellant was charged with disorderly conduct and then aggravated assault. Thus, he had to prove by a preponderance of the evidence that (1) the two offenses have identical statutory requirements; (2) one offense is a lesser-included offense of the other; or (3) the State will prove conduct that constitutes an offense for which he had already been prosecuted. See Grady, 110 S. Ct. 2090-93.

Disorderly conduct means a person intentionally or knowingly fights with another in a public place. Tex. Penal Code Ann. 42.01(a)(6) (Vernon Supp. 1992). Aggravated assault requires that the actor intentionally, knowingly, or recklessly cause serious bodily injury to another. Id. at 22.01(a)(1), 22.02(a)(1) (Vernon 1989 and Vernon Supp. 1992). The two offenses do not have identical statutory requirements. Furthermore, disorderly conduct is not a lesser-included offense of aggravated assault because each offense "requires proof of additional facts which the other does not." See Blockburger, 52 S. Ct. at 182.

Therefore, we must consider what conduct the State will use to prove the underlying offenses. See Grady, 110 S. Ct. at 2093. The State does not necessarily have to prove Appellant fought in a public place to establish the aggravated assault. Unlike Grady, the State never admitted it would use the fighting to prove aggravated assault. Id. at 2094. Thus, Appellant never discharged his burden by a preponderance of the evidence.

We overrule point one and affirm the judgment.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed January 15, 1992

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