Ex Parte Rathmell

CLINTON, Judge,

dissenting.

That the Supreme Court of Tennessee recently decided to reject principle in favor of expediency is no reason to change the law of jeopardy in Texas. To resolve the issue presented here the majority need only to look to and apply principles of jeopardy laid down in our own Constitution, statutes and decisions. It will find that the result oriented decision in Tennessee is contrary to those principles. 1

Recasting earlier proscriptions against double jeopardy, the Constitution of 1876 provides guarantees unknown at common law and broader than pleas of autrefois acquit and autrefois convict, viz:

“No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put to trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.”

Article I, § 14, Constitution of the State of Texas. 2

The constitutional prohibition is also a legislative bar in Article 1.10, V.A.C.C.P. Additional procedural protections include a special plea of jeopardy, Article 27.05, and the mandate in Article 28.13: “A former judgment of acquittal or conviction in a court of competent jurisdiction shall be a bar to any further prosecution for the same offense ...”

The key to all those provisions is, of course, the meaning of “the same offense.” The majority argues that one act and its accompanying mental state constituting an element of an offense may twice violate the statute prescribing that offense.

First, reading V.T.C.A. Penal Code, § 19.05(a)(2), along with the statutory definition of “individual,” the majority quickly finds:

“It is clear from the language of these statutes that the Legislature has determined and intends that the offense of involuntary manslaughter (as defined in *53 Section 19.05(a)(2), supra) is completed with the death of a single individual.”

So far so good. Such is exactly the result statutorily contemplated and required to constitute the offense of involuntary manslaughter by accident and mistake on the part of one operating a motor vehicle while intoxicated.

Then, finding the timing of another death is inconsequential, the majority makes a quantum leap to its ultimate conclusion, viz:

“Each individual death constitutes a complete and distinct offense (albeit under the terms of the one statute) and as such each death constituted a separate ‘allowable unit of prosecution.’ Sanabria v. United States ... ” 3

In Texas the rule is that forbidden conduct and culpability prescribed in one statute do not constitute two offenses on the happenstance that two individuals are victims. In homicide cases for more than a hundred years the guiding principle has been that approved by the former Court of Appeals and consistently followed by the Court, viz:

“If it be true, as we suppose it is, that the killing of two or more persons by the same act constitutes but one crime, then it follows that the State cannot indict the guilty party for killing one of the persons, and after conviction or acquittal indict him for the killing of the other; for the State cannot divide that which constitutes but one crime, and make the different parts of it the bases of separate prosecutions.”

Rucker v. The State, 7 Tex.App. 549 , 553 (Ct.App.1880), and Spannell v. State, 83 Tex.Cr.R. 418 , 203 S.W. 357, 359 (1918), both quoting Clem v. The State, 42 Ind. 420 .

“The true criterion in pleas of this character is, if the act for which defendant is being prosecuted is the same violence or act relied upon in the case wherein he was previously convicted ... this prosecution could not stand ... [citations omitted].”

Keaton v. State, 41 Tex.Cr.R. 621 , 57 S.W. 1125, 1128-1129 (1900). Accord: Cook v. State, 43 Tex.Cr.R. 182 , 63 S.W. 872 (1901); see also host of authorities cited and discussed in Spannell v. State, supra; cf. Alsup v. State, 120 Tex.Cr.R. 310 , 49 S.W.2d 749 (1932), Augustine v. State, 41 Tex.Cr.R. 59 , 52 S.W. 77 (1899), and Ashton v. State, 31 Tex.Cr.R. 482 , 21 S.W. 48 (1893). 4

*54 The question, therefore, recurs: In defining the statutory offense of involuntary manslaughter as it did here what “allowable unit of prosecution” did the Legislature prescribe to provide “the scope of protection afforded by a prior conviction or acquittal?” The question was neither posed nor answered by the Supreme Court of Tennessee in Irvin, so its “reasoning” is inapposite. Thus the majority here provides an “answer” sans reasoning.

In the kind of involuntary manslaughter denounced by § 19.05(a)(2) the forbidden act of operating a motor vehicle while intoxicated is accompanied by a mental state of “recklessness per se,” Practice Commentary, 2 V.T.C.A. Penal Code 149-150, the offense being complete when such conduct causes the death of an individual. Parr v. State, 575 S.W.2d 522, 526-526 (Tex.Cr.App.1978) and Hardie v. State, 588 S.W.2d 936, 938 (Tex.Cr.App.1979). 5 There is thus commonality in every element of the offense when more than one victim dies. Where is there any evidence that the legislative choice was to divide that particular course of conduct into more than one distinct offense under the statute?

In 1941 the Legislature chose to make conduct that caused death the gravamen of the former offense. Acts 1941, 47th Leg., Ch. 507, p. 819, § 3, article 802c, 1925 Penal Code, as amended, provided in pertinent part:

“Any person who drives or operates a motor vehicle ... while [he] is intoxicated or under the influence of intoxicating liquor, and [while doing so] shall through accident or mistake do another act which if voluntarily done would be a felony shall receive the punishment affixed to the felony actually committed.”

Thus intoxication was the essential element of the offense, along with there being a causal connection between intoxication and death of another. Long v. State, 152 Tex. Cr.R. 356, 214 S.W.2d 303, 304 (1948) and McWhirter v. State, 147 Tex.Cr.R. 268 , 180 S.W.2d 364, 365 (1944). Intoxication and causal connection were emphasized in a pattern charge to the jury. See Branch’s Annotated Penal Code (2nd Ed.) 512, § 1505.1. Though multiple victims, there was yet only one offense; some scriveners named them all in one indictment. See, e.g., Laurel v. State, 170 Tex.Cr.R. 374 , 341 S.W.2d 181 (1960), and Castaneda v. State, 170 Tex.Cr.R. 323 , 340 S.W.2d 489 (1960).

Similarly, in prescribing elements of negligent homicide under former law, articles 1230-1243, emphasis was on “negligence and carelessness causpng] the death of another,” article 1231, and the Legislature provided “there must be an apparent danger of causing the death of the person killed or some other,” article 1232. The gist of the offense was negligence in performing some act. Menefee v. State, 129 Tex.Cr.R. 375 , 87 S.W.2d 478, 479-480 (1935); see Pehl v. State, 153 Tex.Cr.R. 553 , 223 S.W.2d 238 (1949).

Like its predecessor statute, operating a motor vehicle while intoxicated is still the essential conduct element forbidden by § 19.05(a)(2). Certainly, it does not expressly “divid[e] a single crime into ... ‘discrete bases of liability.’ ” Sanabria, supra. Given the consistent development of Texas law to effectuate jeopardy principles, one is hard pressed to find that, having so carefully defined offenses and crafted culpable acts in the “new” Penal Code, the Legislature would blithely disregard all *55 that in this particular instance, and authorize successive prosecutions, convictions and punishments for the same criminal conduct. 6

I would hold that a second trial in these circumstances is prohibited by jeopardy principles in Texas law long adhered to by the Court. See Ex parte Crosby & Erwin, 703 S.W.2d 683 (Tex.Cr.App.1986).

. The majority says it adopts "the reasoning of the Supreme Court of Tennessee,” but that which it excerpts smacks more of opinion than reasoning. That a result "seems illogical to us" is of little moment. Legislative intent controls judicial construction. Seay v. Hull, 677 S.W.2d 19, 25 (Tex.1984). While there may be more than one “homicide” when two persons are killed by same conduct of an accused, still the Legislature may have intended to prescribe only one offense under a given statute.

. Much like the Double Jeopardy Clause in the Fifth Amendment, the Constitution of the Republic of Texas provided: "No person, for the same offence, shall be twice put in jeopardy of life and limbs.” (All emphasis is mine throughout unless otherwise indicated.) Ninth Declaration of Rights, 3 Vernon’s Texas Constitution 536. Article I, § 12, Constitution of 1845, added "nor shall a person be again put upon trial for the same offense after a verdict of not guilty.” Id., at 545. Also similar were Article I, § 12, Constitution of 1861, id., at 575; Article I, § 12, Constitution of 1866, id., at 603; Article I, § 12, Constitution of 1869, mercifully omitting "limbs," however, id., at 641. See generally Interpretive Commentary following § 14.

. Let it be as clearly understood that except the term was reused by the Supreme Court in San-abria, its decision does not support the conclusion just reached by the majority. In context what the Supreme Court said is actually more supportive of present Texas law, viz:

“But once Congress has defined a statutory offense by its prescription of the 'allowable unit of prosecution,’ [citations and notes omitted throughout] that prescription determines the scope of protection afforded by a prior conviction or acquittal. Whether a particular course of conduct involves one or more distinct offenses under that statute depends on this congressional choice.

The allowable unit of prosecution under § 1955 is defined as participation in a single ‘illegal gambling business.’ Congress did not ... define discrete acts of gambling as independent federal offenses_ It is participation in the gambling business that is a federal offense, and it is only that the gambling business must violate state law. And ... participation in a single gambling business is but a single offense, 'no matter how many state statutes the enterprise violated.’” 437 U.S. at 70-71, 98 S.Ct. at 2181-2182. Accordingly, the Supreme Court rejected the theory "that there was a single gambling business, which engaged in both horse betting and numbers betting,” so that an acquittal for the former would not bar prosecution on the latter, because:

‘“The Double Jeopardy Clause is not such a fragile guarantee that its limitations [can be avoided] by the simple expedient of dividing a single crime into a series of temporal or spatial units,’ [citation omitted] or, as we hold today, into ‘discrete bases of liability’ not defined as such by the legislature."

Id., at 72, 98 S.Ct. at 2183.

. Since the cases deal with former jeopardy, they cannot be lightly dismissed by alluding to “abolition of the carving doctrine.” Carving basically applied only after a conviction for any one of two or more offenses arising out of a single “transaction," whereas jeopardy is concerned with successive prosecutions, convictions and punishments for "the same offense."

And in that connection, the majority fails to notice that in State v. Irvin, 603 S.W.2d 121 *54 (Tenn.1980), all charges were consolidated for a single trial and separate sentences imposed were to run concurrently. Id., at 122 . As to that latter feature, right after the material quoted by the majority the Supreme Court of Tennessee • pointed out: "This is not to suggest that there need be successive punishments in every case involving multiple victims.” That determination was left to sentencing authorities.

. While the Court has said that "involuntary manslaughter can be established without proof of a culpable mental state [and] proof that the accused caused the death of a person by reason of operating a motor vehicle while intoxicated is sufficient,” Ex parte Ross, 522 S.W.2d 214, 218 (Tex.Cr.App.1975), it is clear that the Legislature provided the latter conduct is by definition “reckless.”

. In his brief for the State the district attorney asserts that this Court requires jeopardy questions be decided under the "strict construction test for jeopardy questions [provided] in Block-burger ... and adopted by the McWilliams decision." It is becoming clearer all the time that the Court erred in adopting the “Blockburger test" to resolve jeopardy problems. The simplest reason is that socalled test is purely a rule of statutory construction "when the same act or transaction constitutes a violation of TWO distinct statutory provisions." See Garrett v. U.S., 471 U.S.-, 105 S.Ct. 2407, 2411 , 85 L.Ed.2d 764 (1985): Blockburger rule is not controlling when legislative intent is clear, and to contend otherwise would convert “what is essentially a factual inquiry as to legislative intent into a conclusive presumption of law,” id., 105 S.Ct. at 2412 . Of course, that is precisely what McWilliams did. There is no reason to attempt an analysis under Blockburger to resolve a problem of two victims of criminal conduct denounced by a SINGLE statute. McWilliams-Blockburger has absolutely no bearing whatsoever on our problem.