# State v. Houth

> Court of Criminal Appeals of Texas · November 25, 1992 · 845 S.W.2d 853

URL: https://www.frixlaw.com/law-library/cases/9771275

## Case

- **Full name:** The STATE of Texas v. Yvette Gearde HOUTH, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** November 25, 1992
- **Citations:** 845 S.W.2d 853; 1992 Tex. Crim. App. LEXIS 217; 1992 WL 341956
- **Precedential status:** Published
- **Opinion:** Concurrence by Benavides
- **Judges:** Clinton, Benavides, McCormick, Campbell, White
- **Cited by:** 33 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9771275

## How later opinions describe it (automated extraction)

- explaining that “crimes of Theft and Unauthorized Use of a Motor Vehicle are different inasmuch as the former requires an appropriation of some property, not necessarily a vehicle, while the latter specifically requires operation of a 22 motor vehicle”

## Opinion text

BENAVIDES, Judge,
concurring.
I agree that, under Grady v. Corbin, 495 U.S. 508 , 110 S.Ct. 2084 , 109 L.Ed.2d 548 (1990), prosecution of Appellant for driving while intoxicated was not jeopardy barred on account of her earlier conviction for failing to drive in a single marked lane, even though both cases arose from the same incident and proof of the latter was relevant to establish the former. I do not, however, join the majority in “constru[ing] the Corbin test to require that whether evidence of conduct that constitutes an offense for which the defendant has already been prosecuted will bar a subsequent prosecution wherein the State represents that it again will prove that conduct, depends on whether the State claims there is other evidence of unprosecuted conduct that it will prove to show an essential element of the subsequently charged offense.” Slip Op. at 18 (internal quotation marks omitted). Accordingly, I concur in the judgment only.
I.
Corbin is difficult because it addresses a particularly difficult issue. Other jeopardy problems not involving substantial disputes about sameness, such as reprosecution after the declaration of a mistrial or the reversal of a conviction on appeal, are often theoretically unremarkable. But there are formidable obstacles to the development of a general sameness theory which is consistently capable of generating acceptable results in practice. It is helpful, therefore, to begin with some of the relevant fundamentals predating Corbin .
Among other things, the Double Jeopardy Clause serves in large part to ensure that crimes be defined and punishments prescribed by the legislative branch without interference from the judiciary. Albernaz v. United States, 450 U.S. 333, 344 , 101 S.Ct. 1137, 1145 , 67 L.Ed.2d 275 (1981); Whalen v. United States, 445 U.S. 684, 689 , 100 S.Ct. 1432, 1436 , 63 L.Ed.2d 715 (1980). To this end it prohibits courts from entertaining successive prosecutions for what the legislature has defined as a single offense, or for imposing more punishment than the legislature has prescribed for that offense. Brown v. Ohio, 432 U.S. 161, 165 , 97 S.Ct. 2221, 2225 , 53 L.Ed.2d 187 (1977). 1
Because legislative intent is often unclear, the United States Supreme Court, in *866 order to effectuate constitutional jeopardy prohibitions, indulges a number of presumptions about the purpose of legislation. For example, it presumes, absent proof of a contrary purpose, that legislatures always intend two statutes to proscribe but a single offense whenever the elements of one are analytically contained in the other. Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932); Illinois v. Vitale, 447 U.S. 410, 416 , 100 S.Ct. 2260, 2265 , 65 L.Ed.2d 228 (1980). 2 Of course, where it is known that a legislative body actually intended to proscribe more than one offense and to impose a separate punishment for each, the Double Jeopardy Clause usually, although not always, presents no bar to a full implementation of that purpose. See Missouri v. Hunter, 459 U.S. 359 , 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983).
In Texas, it is the public policy that, when two penal statutes stand in such relationship that one defines a lesser included offense of the other under article 37.09 of the Code of Criminal Procedure, an accused whose conduct simultaneously violates both statutes be convicted of and punished for but one offense. See Art. 37.08, V.A.C.C.P. In virtually all other eases, it is the policy of this State that offenders be liable to separate conviction and punishment under as many statutes as their conduct violates, either simultaneously or successively.
Moreover, our state law provides for prosecution “in a single criminal action for all offenses arising out of the same criminal episodef,]” V.T.C.A., Penal Code, § 3.02(a), but does not absolutely require such consolidation or entitle an accused to insist that all offenses arising from a single “criminal episode” be adjudicated in one proceeding. It is, therefore, also the policy of Texas to allow successive prosecution for the violation of different, nonincluded statutory offenses, whether or not those violations were committed by a single act, by a continuous series of acts, or by clearly distinct acts. The question raised by Cor-bin is whether this policy offends the Double Jeopardy Clause when the same evidence is offered in different proceedings to prove elements of more than one such offense.
II.
Corbin is the Supreme Court’s latest contribution to the persistently troubling question whether sameness should be divined for jeopardy purposes by analyzing the elements of penal statutes or by evaluating the probative effect of inculpatory evidence. Plausible intuitions inform both sides of the debate, making it the more likely that neither side is altogether wrong. 3
*867 Invariably, Blockburger begins the inquiry. There, the Supreme Court held that two penal statutes presumably define different offenses when “each provision requires proof of an additional fact which the other does not.” 284 U.S. at 304 , 52 S.Ct. at 182 . This formula has encouraged the belief that an abstract comparison of elements is sufficient to determine whether two statutes forbid the same conduct. And, because all on the Supreme Court evidently accept that the Blockburger formula operates independently of evidentiary facts in individual cases, the essential question has become whether the Double Jeopardy Clause ever requires any further analysis. Increasingly, the answer seems to be that it does.
At least since Vitale there has been growing recognition that a criminal offense is more than the sum of statutory elements proscribing it. Much of the recent impetus for this idea comes from a cryptic footnote in Brown , wherein the Supreme Court observed gratuitously that:
[t]he Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense. Even if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relit-igation of factual issues already resolved by the first.
432 U.S. at 166, n. 6 , 97 S.Ct. at 2225, n. 6 . What sort of factual issues these might be was not well elaborated by the Court, and the two examples it cited are not especially helpful. One involves application of a collateral estoppel rule, which bars relitigation in a second prosecution of factual issues previously resolved in favor of the accused, whether or not the two offenses are otherwise the same for jeopardy purposes. Ashe v. Swenson, 397 U.S. 436 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 (1970).. The other is an unclassifiable, early example of continuing offenses, which derives much of its rationale from the now dated social judgment that cohabitation is a functional equivalent of adultery. In re Nielsen, 131 U.S. 176 , 9 S.Ct. 672 , 33 L.Ed. 118 (1889). Whatever the special significance of these cases may be in the long run, it is by no means clear that either of them really represents an extension of Brown’s general rule that “the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.” 432 U.S. at 169 , 97 S.Ct. at 2227 . The more critical issue, to which Brown makes very little meaningful contribution, is how to tell when one is really a lesser included offense of the other.
That, of course, is why Vitale generated so much interest in the first place. Once convicted of “carelessly” failing to reduce speed, Vitale was later charged with involuntary manslaughter, causing death by “recklessly driving a motor vehicle.” Although both prosecutions arose from substantially the same or contemporaneous conduct, it was not clear from the manslaughter indictment that Vitale’s failure to reduce speed would actually constitute the operative act of recklessness in his homicide prosecution. Accordingly, the Supreme Court remanded the case to Illinois for reconsideration, suggesting that the manslaughter prosecution would be jeopardy barred if the state “relie[d] on and prove[d] a failure to slow to avoid an accident as the reckless act necessary to prove manslaughter.” Vitale, 447 U.S. at 421 , 100 S.Ct. at 2267 .
In Corbin , a case remarkably similar to Vitale on its facts, this suggestion was *868 made law. Constitutional jurisprudence now seems to hold that the Double Jeopardy Clause bars any successive prosecution where the government must necessarily prove conduct constituting a criminal offense for which the defendant has already been prosecuted in order to establish one or more essential elements of the charged offense, whether or not either such offense is analytically included in the other. See Ex parte Ramos, 806 S.W.2d 845, 847 (Tex.Crim.App.1991). As a result, it is fast becoming the popular wisdom that certain penal statutes might actually proscribe the same offense for jeopardy purposes even when neither is a lesser included offense of the other.
Of course, the Corbin phenomenon might instead be understood to expand the restrictively abstract notions of includedness given by Blockburger were it not that the Supreme Court has a tendency to think of one offense as included in another only when it has the same or fewer than all the same statutory elements. Cf. Harris v. Oklahoma, 433 U.S. 682 , 97 S.Ct. 2912 , 53 L.Ed.2d 1054 (1977). If a simple analysis of the elements fails to reveal the kind of relationship thought to be required by Blockburger , therefore, the Court is reluctant to find that one prosecution charges a lesser included or greater inclusive offense of the other. Yet the Court is equally unwilling altogether to exempt the factual context of each offense from the reach of constitutional jeopardy prohibitions. Accordingly, I understand the chief significance of Corbin to be that elemental in-cludedness no longer limits the circumstances under which distinct penal statutes will be held to proscribe the same criminal conduct within the meaning of the Double Jeopardy Clause.
III.
The State contends that Corbin does not create a same evidence test, as the Court of Appeals evidently believed, but instead fo-cusses on conduct of the accused amounting to violation of a penal statute. Certainly, this view is more consistent with the holding in Corbin than is appellants’ argument that production of evidence in one criminal trial effectively bars its production in another. See Corbin, 495 U.S. at 520 , 110 S.Ct. at 2093 . But the question is largely academic in Texas. Our own statutory definition of an analytically included offense uses language nearly identical to that adopted by the Supreme Court in Blockburger, 4 Local implementation of that formula, however, is somewhat different than the Supreme Court’s application of the Blockburger test. Indeed, the analysis suggested in Vitale and sanctioned in Cor-bin is generally consistent with this Court’s method for ascertaining the relationship between most lesser-included offenses and the offenses which include them, even though the Supreme Court evidently regards that analysis to be beyond the scope of Blockburger. See Day v. State, 532 S.W.2d 302, 304-306 (Tex.Crim.App.1975) (opinion on original submission). See also Ex parte Peterson, 738 S.W.2d 688 (Tex.Crim.App.1987); May v. State, 726 S.W.2d 573 (Tex.Crim.App.1987).
In Texas, elemental statutory comparison only begins the analysis. Often, some rather specific factual information about each alleged instance of criminal misconduct is necessary to complete it. See, e.g., Goodin v. State, 750 S.W.2d 789 (Tex.Crim.App.1988); Cunningham v. State, 726 S.W.2d 151 (Tex.Crim.App.1987); Broussard v. State, 642 S.W.2d 171, 173 (Tex.Crim.App.1982). For example, an examination of statutory elements yields the conclusion that murder is the same offense as murder, because their elements are identical. Consequently, murder is also a lesser included offense of itself, since all offenses *869 are lesser included offenses of themselves by definition. Yet, no one has ever thought that Texas policy or the Double Jeopardy Clause bars successive prosecution and multiple punishment for the murder of one person today and another tomorrow. 5 In such case, it is plainly not enough to know the statutory elements of murder. Both the lesser-included-offense analysis and, by implication, the jeopardy analysis cannot be completed without also knowing at least the identities of the victims. This information is fact-specific and variable from one instance of murder to another. Accordingly, I do not consider the murder of one person to be a lesser included offense of the murder of another, nor do I consider successive prosecution or multiple punishment for these offenses to be jeopardy barred, even though both have the same statutory elements.
Conversely, statutory offenses which seem different in the abstract may prove to be the same in light of the factual context in which they arise. For example, the crimes of Theft and Unauthorized Use of a Motor Vehicle are different inasmuch as the former requires an appropriation of some property, not necessarily a vehicle, while the latter specifically requires operation of a motor vehicle. If, however, in a particular case the property actually stolen was shown to be a motor vehicle and the manner of its appropriation actually included driving it, it is apparent that the specific instance of Unauthorized Use actually proven is indeed a lesser included offense of the Theft offense charged. Neely v. State, 571 S.W.2d 926 (Tex.Crim.App.1978). Accordingly, in this instance also, questions of includedness and, presumably, of jeopardy as well cannot be resolved without knowing a description of the property involved and the specific means by which it was taken. Ex parte Jefferson, 681 S.W.2d 33 (Tex.Crim.App.1984). See Brown v. Ohio, 432 U.S. 161 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977). As in the last example, both matters are fact-specific and variable from one instance of Theft or JoyRiding to the next.
Of course, I do not regard one offense as included within another merely because the same evidentiary facts might be proven in the prosecution of both offenses. It is widely accepted, for example, that the State may prove an unadjudicated extraneous offense to establish an element of the charged offense. Montgomery v. State, 810 S.W.2d 372, 387-388 (Tex.Crim.App.1990) (opinion on rehearing). No one thinks that this practice somehow transforms the extraneous offense into a lesser included offense of the charged offense, or that it prevents a subsequent prosecution for the extraneous offense. 6 If the State chooses, therefore, to prove in a Capital Murder prosecution that the killing of a policeman was done intentionally to avoid apprehension for escape from a penal institution, it is not likely that an instruction on Escape as a lesser included offense of Murder would be submitted for jury consideration, nor that a successive prosecution for the Escape itself would be regarded by anyone as jeopardy barred. 7
*870 From these examples alone it is clear that includedness under Texas statutory and decisional law, as well as sameness for purposes of jeopardy prohibitions in Texas, cannot depend only on an analysis of statutory abstractions defining a whole class of potential offenses, nor only on a factual description of the conduct and circumstances comprising a discrete instance of criminal behavior. 8 Some synthetic approach is clearly necessary to distinguish each criminal offense from every other, as it is not possible to implement statutory or constitutional prohibitions unless an offense is regarded as something unique for purposes both of article 37.08 and of the Double Jeopardy Clause. 9 One simply cannot tell whether two prosecutions are for the same offense or for greater and lesser included offenses without knowing whether the penal statutes allegedly violated are different as a matter of law and whether each purported violation of the same statute is different from every other as a matter of fact. 10 This is the minimum information necessary to specify a discrete instance of criminal misconduct, undoubtedly what both article 37.08 and the Double Jeopardy Clause mean by offense.
It follows that the word for offense, as it appears both in the Double Jeopardy Clause and in Texas statutes defining allowable increments of prosecution, cannot mean “penal statute.” Rather, it must necessarily mean “conduct which violates a penal statute.” What the Double Jeopardy Clause prohibits, at least in Texas, is not successive prosecutions or multiple punishments for repeated discrete violations of the same penal statute. Rather it prohibits successive prosecutions or multiple punish- *871 merits for conduct which necessarily violates a penal statute only once or, presumably, for conduct which necessarily violates more than one penal statute at a time. In both instances the principle difficulty of application is to discover the intent of those who enacted the statutes.
Because legislators are free to provide whether simultaneous violation of several statutes shall be regarded as one offense or several offenses, even though they may not be free to define the criteria according to which it is determined whether multiple violations constitute the same offense, the only real task of the courts under the Double Jeopardy Clause, as under the State’s general statutory scheme for defining offenses and prescribing punishment, is to ensure that these objectives are implemented in accordance with discernable legislative intent. 11 In Texas, our law provides that two different statutes applied to the facts of a particular case proscribe the same offense only if it would be impossible for a factfinder rationally to acquit under any one statute having found true both the conduct necessary to constitute a violation of the other and any shared nonconduct elements. 12
IV.
By this reckoning, the successive prosecution of Appellant for driving while intoxicated and failing to drive in a single marked lane does not amount to a double prosecution for the same offense. Clearly, Appellant might rationally be convicted of the weaving offense even by a jury that harbors reasonable doubts about whether she was intoxicated. Likewise, she might be convicted of DWI by jurors who nevertheless have doubts about whether she drove outside a single marked lane of traffic. It is never the case under Texas law that conduct violating one of these penal statutes automatically violates the other, and it was not the case here. Accordingly, it is of no consequence to me that, in the impending prosecution for DWI, Appellant’s weaving might actually be taken by the jury to indicate that she was intoxicated. If the State offers to prove her weaving behavior as circumstantial evidence of intoxication, the evidence may be received over objection only if it meets the test of relevancy prescribed by our Rules of Evidence for extraneous offenses. It may not be proved upon the ground that it shows a lesser included offense of the alleged DWI.
The notion that Corbin forbids prosecution whenever extraneous offenses are offered as circumstantial evidence of the charged offense or of one of its essential elements seems clearly wrong to me. Moreover, such a reading, although plausible on the surface of Corbin itself, has recently been repudiated by the Supreme Court in United States v. Felix, — U.S. -, at -, 112 S.Ct. 1377, at 1382 , 118 L.Ed.2d 25 (1992). Yet, the majority opinion in this case has articulated a rule which would effectively bar successive prosecu *872 tion of an extraneous offense offered merely as circumstantial support for an allegation of wholly different misconduct. I cannot accept that such a reading is a fair interpretation of Corbin or of the Double Jeopardy Clause.
In the instant cause, Appellant's prosecution for failing to drive in a single marked lane was not for a lesser included offense of driving while intoxicated, and did not constitute proof of conduct comprising one or more elements of driving while intoxicated. Even if the State intended to prove Appellant’s failure to drive in a single marked lane as circumstantial proof of intoxication in a subsequent prosecution for driving while intoxicated, I would not hold it to be jeopardy barred under Corbin . Consequently, I concur in the judgment only.
McCORMICK, P.J., and CAMPBELL and WHITE, JJ„ join.
. The Double Jeopardy protection against successive prosecution is waivable. Jeffers v. United States, 432 U.S. 137, 154 , 97 S.Ct. 2207, 2218 , 53 L.Ed.2d 168 (1977). Arguably, however, the protection against multiple punishments is not. Consequently, it is possible for a situation to arise in which the Constitution will not be offended by a second prosecution even though it necessarily will be offended if the accused receives .any additional punishment as a result of that prosecution. Id. at 157 , 97 S.Ct. at 2219.
. It is also presumed that statutes susceptible of continuous, uninterrupted violation over time were meant to be prosecuted as a single offense, Brown v. Ohio, 432 U.S. 161 , 169 n. 8, 97 S.Ct. 2221 , 2227 n. 8, 53 L.Ed.2d 187 (1977) (joyriding); In re Nielsen, 131 U.S. 176 , 9 S.Ct. 672 , 33 L.Ed. 118 (1889), and that every discrete instance of culpable conduct proscribed by statute is likewise only a single offense, even if there were multiple victims, items of property, or instrumentalities involved. Bell v. United States, 349 U.S. 81 , 75 S.Ct. 620 , 99 L.Ed. 905 (1955). Each of these presumptions may, of course, be overcome by evidence of a contrary legislative intent. The United States Supreme Court sometimes describes them as rules of lenity. In Texas, however, we do not invariably apply such rules to the interpretation of our own statutes. See Ex parte Rathmell, 111 S.W.2d 33, 35-36 (Tex.Crim.App.1986).
. The problem is exacerbated somewhat by a recurring suggestion in Supreme Court opinions, never quite made explicit, that the phrase "same offence” should be understood differently when a jeopardy challenge is to successive prosecutions than when it is to multiple punishments. The notion is, of course, a little perverse, as there is nothing in the Double Jeopardy Clause to give warning of it. No doubt it is inspired by a common intuition that legislatures may punish as often and as severely as they please, but may not pester criminals unnecessarily by forcing them to defend against several related charges in separate proceedings. See Green v. United States, 355 U.S. 184, 187 , 78 S.Ct. 221, 223 , 2 L.Ed.2d 199 (1957). Not surprisingly, the main barrier to an effective elaboration of this intuition has been the lack of a means to determine when offenses are closely enough related for mandatory joinder under the Double Jeopardy Clause. Justice Brennan’s view that joinder should be required whenever separately punishable offenses arise in the same transaction has been clearly rejected by a majority of the Court. And without some such measure, the argument for a different understanding of "same offence” in context of successive *867 prosecutions is left without a rationale. Thus, in Corbin , the Court allows as how the Double Jeopardy Clause would not bar a subsequent prosecution based on conduct contemporaneous with and indivisible from that for which an accused had already been prosecuted, even though it would subject him to the same "embarrassment, expense and ordeal” as a subsequent prosecution for conduct identical to that for which he had already been prosecuted, and under circumstances just as intuitively compelling. 495 U.S. at 522 , 110 S.Ct. at 2094 . Consequently, in spite of halting intimations to the contrary, it seems reasonably certain the Court will ultimately concede that “same of-fence” at least means the same thing for all purposes under the Double Jeopardy Clause.
. Blockburger provides that:
... where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.
284 U.S. at 304 , 52 S.Ct. at 182 .
Texas Code of Criminal Procedure article 37.-09(1) provides that:
An offense is a lesser included offense if ... it is established by proof of the same or less than all facts required to establish the commission of the offense charged!.]
. For this reason alone, the Supreme Court must have misspoken in Corbin, 495 U.S. at 515 , 110 S.Ct. at 2090 , when it said:
To determine whether a prosecution is barred by the Double Jeopardy Clause, a court must first apply the traditional Blockburger test. If application of that test reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred.
. In spite of its collateral estoppel issue, this was essentially the case presented in Dowling v. United States, 493 U.S. 342 , 110 S.Ct. 668 , 107 L.Ed.2d 708 (1990). See Corbin, 495 U.S. at 524-526 , 110 S.Ct. at 2095-2096 (O’Connor, J„ dissenting); 495 U.S. at 537 , 110 S.Ct. at 2102 (Scalia, J., dissenting).
.Surely, therefore, the Supreme Court did not really mean to be taken literally in Corbin, 495 U.S. at 520 , 110 S.Ct. at 2093 , when it said that:
... the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in the prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.
It is upon this point that the justices sense some difference between Corbin and Dowling , but can’t quite agree on what it is. Ultimately, the simplest, and perhaps most satisfactory, account may come from an understanding that every penal violation upon which proof is admissible at trial must either be the charged offense, an included offense, or an extraneous offense. Proof of an extraneous offense never has jeopar *870 dy implications, while proof of an included offense always does. Thus, because extraneous offenses are never included offenses, and included offenses are never extraneous offenses, jeopardy problems of the kind given by Corbin, Vitale, Brown, and Blockburger can always be solved by identifying the category into which questioned conduct falls.
. The inclination of Justice Scalia, and of those who join his dissent in Corbin , to understand the word "offence” in the Double Jeopardy Clause as referring just to statutory abstractions is, therefore, surely a mistake. By such reckoning, those once convicted or acquitted of murder can thereafter kill others with impunity their whole lives, since the only things distinguishing different instances of murder by the same criminal actor are the nonstatutory circumstances of different victims, different times, and different manners of execution. The statutory elements of murder remain identical from one case to the next.
Of course, the dissenters in Corbin might intend the word “offence” to mean "statute" only in context of a complaint about successive prosecutions under different statutes, not successive prosecutions under the same statute. They might, in fact, be willing to resolve the latter complaint, should it ever arise, by understanding the word "offence” to mean "conduct" rather than "statute." But it would produce a grotesquely inelegant construction of the Double Jeopardy Clause, and one which is intellectually at odds with the Corbin dissent anyway. More likely, Justice Scalia and his colleagues are just mistaken about this.
. Interestingly, on the same day in 1977, the Supreme Court described the Blockburger rule both as a "same evidence” test in Jeffers v. United States, 432 U.S. 137, 147 , 97 S.Ct. 2207, 2214 , 53 L.Ed.2d 168 (1977), and as "emphasiz[ing] the elements of the two crimes” in Brown v. Ohio, 432 U.S. 161, 166 , 97 S.Ct. 2221, 2225 , 53 L.Ed.2d 187 (1977). Given the Court’s evidently unanimous aversion to calling it a "same evidence” test in Corbin , and considering the great difficulty of the problem, some uniformity of terminology, at least, would be helpful.
.The first part of this specification focusses on the relationship between statutes. It assumes that legislatures occasionally, although not ordinarily, enact different statutes to proscribe the same offense. See Whalen, 445 U.S. at 692 , 100 S.Ct. at 1438 . For example, some offenses exist in both regular and aggravated versions. Typically, the aggravated version includes one or more elements not found in the regular version, but is otherwise identical to it in all respects. Also typical of this relationship is a greater potential penalty for the aggravated offense. In such cases, it is clear that the legislature might have accomplished much the same purpose by instead defining only a single offense and making the penalty for it vary with the presence or absence of additional, aggravating factors. Indeed, the legislature often does choose this alternative method of aggravating the punishment for an offense. And insofar as both methods effectively accomplish the imposition of greater punishment under exactly the circumstances intended, there is no particular reason for preferring one to the other. Nevertheless, there are grounds for taking some care in this regard when drafting legislation. For instance, it is apparent that jeopardy problems are best avoided by proscribing each intended offense with only one statute.
. Although not entirely without doubt, I believe that the circumstances surrounding Corbin are consistent with this proposition even though the State of New York expressly provided by statute that conviction for a traffic violation "shall not be a bar to a prosecution for an assault or for a homicide committed by any person in operating a motor vehicle.” Veh. & Traf. § 1800(d). See Corbin v. Hillery, 74 N.Y.2d 279 , 545 N.Y.S.2d 71 , 543 N.E.2d 714 (1989). I suspect that this clear expression of legislative intent, not discussed by the Supreme Court in Corbin, was nevertheless ineffective to avoid jeopardy prohibitions because it did not even purport to define traffic violations in such a way as to make them different from the offenses of assault and homicide under New York law. Rather, it attempted to authorize successive prosecution for that which it conceded by implication to be the same or a lesser included offense. Cf. Patterson v. New York, 432 U.S. 197 , 97 S.Ct. 2319 , 53 L.Ed.2d 281 (1977) and Mullaney v. Wilbur, 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975).
. What is meant by “conduct" under Texas law is “an act or omission and its accompanying mental state.” V.T.C.A., Penal Code, § 1.07(a)(8). Nonconduct elements include circumstances surrounding conduct and results of conduct. See V.T.C.A., Penal Code, §§ 6.03, 6.04. Clearly, under Texas law, the legislature may provide that two different offenses have been committed, even when the same criminal conduct is relied upon to prove both, by requiring in each case that there also be proof of a different result or of a different circumstance surrounding the criminal conduct. See Ladner v. Smith, 941 F.2d 356 (5th Cir.1991).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9771275. Public record. Not legal advice.