                                         In The

                                  Court of Appeals
                      Ninth District of Texas at Beaumont
                             ____________________
                                  NO. 09-12-00047-CR
                             ____________________

                 EX PARTE MERLE LESTER PRITZKAU
_______________________________________________________                 ______________

                   On Appeal from the 435th District Court
                        Montgomery County, Texas
                      Trial Cause No. 11-07-08075 CR
________________________________________________________                 _____________

                                       OPINION

       Merle Lester Pritzkau drove his vehicle into the side of another vehicle. The two

people in the other car died. The officer gave Pritzkau a ticket. Pritzkau pleaded no

contest to the offense of “Ran Stop Sign,” paid the fine, and completed the conditions of

deferred adjudication. The cause was dismissed.

       Six months later, the State filed an indictment charging Pritzkau with two counts

of criminally negligent homicide. He filed an application for pre-trial writ of habeas

corpus. The trial court denied the application. Pritzkau argues that he is being prosecuted

for the same offense twice, and that double jeopardy bars the second prosecution.

       Because under the cognate-pleadings test the traffic offense is not a lesser-

included offense of criminally negligent homicide as alleged, we hold that double

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jeopardy does not bar the prosecution. The elements and facts pleaded in the indictment

are not functionally equivalent to the elements of the traffic offense.

                                  STANDARD OF REVIEW

       The pretrial writ requested, habeas corpus, is an extraordinary writ. Ex parte

Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001). An appellate court reviews the facts

in the light most favorable to the trial court‟s ruling. See Kniatt v. State, 206 S.W.3d 657,

664 (Tex. Crim. App. 2006); see also Ex parte Desormeaux, 353 S.W.3d 897, 899 (Tex.

App.—Beaumont 2011, pet. ref‟d). The appellate court reviews issues of law de novo,

and also reviews de novo those mixed questions of law and fact that do not depend on

credibility and demeanor. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App.

2003), overruled in part on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex.

Crim. App. 2007); Ex parte Martin, 6 S.W.3d 524, 526 (Tex. Crim. App. 1999).

                                  THE TRAFFIC OFFENSE

       The complaint alleging the traffic offense (“Ran Stop Sign”) to which Pritzkau

pleaded no contest did not include a reference to any specific statute in the Transportation

Code. The complaint itself states that Pritzkau:

       did then and there, unlawfully operate a motor vehicle on a public roadway,
       to-wit: the 1998 Block of Lone Star and such location was controlled by a
       stop sign to regulate the intersection traffic and defendant did drive, propel
       and operate and did attempt to drive, propel and operate said vehicle into
       and across the said street intersection without stopping or coming to a
       complete stop at the said stop sign[.]




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Because the possibly applicable Transportation Code provisions all include the stop sign

element, we do not set out each statute here. See, e.g., Tex. Transp. Code Ann. §§

544.010, 545.151, 545.153 (West 2011).

                       CRIMINALLY NEGLIGENT HOMICIDE

       Section 19.05(a) of the Texas Penal Code sets out the elements for criminally

negligent homicide for which Pritzkau is indicted: “A person commits an offense if he

causes the death of an individual by criminal negligence.” Tex. Penal Code Ann. §

19.05(a) (West 2011). The Code of Criminal Procedure provides that whenever the State

charges that the accused acted with criminal negligence in the commission of an offense,

the indictment must include allegations of the act or acts relied on to constitute criminal

negligence. Tex. Code Crim. Proc. Ann. art. 21.15 (West 2009). The indictment here

states as follows:

       Defendant did . . . with criminal negligence, cause the death of an
       individual, . . . by failing to maintain a proper lookout for traffic and road
       conditions, operating his motor vehicle at an improper speed, and by taking
       improper evasive action thereby driving into a car occupied by [the
       individual.]
                                          ANALYSIS

       The Fifth Amendment‟s Double Jeopardy Clause protects against repeated

prosecutions for the same offense. Ex parte Chaddock, 369 S.W.3d 880, 882 (Tex. Crim.

App. 2012). Separate crimes need not be identical to be considered the same offense

under the constitutional prohibition. See Brown v. Ohio, 432 U.S. 161, 164, 169, 97 S.Ct.

2221, 53 L.Ed.2d 187 (1977).

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       Pritzkau contends the traffic offense is a lesser-included offense of criminally

negligent homicide. A lesser-included offense and a greater offense are considered the

same offense within the meaning of the Double Jeopardy Clause. Id., 432 U.S. at 168.

The Supreme Court explained in United States v. Dixon that the inquiry is “whether each

offense contains an element not contained in the other; if not, they are the „same offence‟

and double jeopardy bars additional punishment and successive prosecution.” United

States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (citing

Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)).1

       Texas has adopted the cognate-pleadings approach to determine whether an

offense is a lesser-included offense. See Rice v. State, 333 S.W.3d 140, 142, 144 (Tex.

Crim. App. 2011) (citing Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007)); Ex

parte Watson, 306 S.W.3d 259, 271 (Tex. Crim. App. 2009) (op. on reh‟g). This

approach considers article 37.09 of the Texas Code of Criminal Procedure. The statute

provides in part that a lesser-included offense is established by proof of the same or less

than all the facts required to establish the commission of the offense charged. Tex. Code

Crim. Proc. Ann. art. 37.09 (West 2006); Hall, 225 S.W.3d. at 526. In Ex parte Watson,

the Court of Criminal Appeals explained that under the cognate-pleadings approach, an

offense is a lesser-included offense if the indictment for the greater-inclusive offense “1)

       1
         The Texas Court of Criminal Appeals has stated that “the Blockburger test is a
rule of statutory construction and is not the exclusive test for determining if two offenses
are the same.” Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008); see also
McCrary v. State, 327 S.W.3d 165, 173 (Tex. App.—Texarkana 2010, no pet.).

                                             4
alleges all of the elements of the lesser-included offense, or 2) alleges elements plus facts

(including descriptive averments, such as non-statutory manner and means, that are

alleged for purposes of providing notice) from which all of the elements of the lesser-

included offense may be deduced.” Ex parte Watson, 306 S.W.3d at 273 (footnote

omitted).

       Essentially, for the purpose of this analysis, “the elements of the lesser offense do

not have to be pleaded if they can be deduced from facts alleged in the indictment.” Hall,

225 S.W.3d at 535. This component of the analysis is referred to as the functional-

equivalence test. McKithan v. State, 324 S.W.3d 582, 588 (Tex. Crim. App. 2010) (citing

Evans v. State, 299 S.W.3d 138, 143 (Tex. Crim. App. 2009)). A court examines the

elements of the lesser offense and decides „“whether they are functionally the same or

less than those required to prove the charged offense.‟” Rice, 333 S.W.3d at 144-45

(quoting McKithan, 324 S.W.3d at 588).

       Pritzkau relies on Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d

1054 (1977). Harris was tried and convicted of felony murder, and later tried and

convicted of robbery with firearms. The State conceded that in the murder case, “it was

necessary for all the ingredients of the underlying felony of Robbery with Firearms to be

proved. . . .” Harris, 433 U.S. at 683. The United States Supreme Court held that “[w]hen

. . . conviction of a greater crime, murder, cannot be had without conviction of the lesser

crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser


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offense[.]” See id. at 682. Pritzkau argues that Harris applies “where a „compound‟

offense (like felony-murder) incorporates the statutory elements of various underlying

offenses.” He submits that in this case, “like in Harris, proof of the greater offense

(criminally negligent homicide) cannot be had without proving the lesser (running a stop

sign).”

          The State notes that the Supreme Court subsequently rejected a same-conduct

approach in a double jeopardy analysis. See United States v. Dixon, 509 U.S. 688, 703-

12, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (overruling Grady v. Corbin, 495 U.S. 508,

110 S.Ct. 2084, 109 L.Ed.2d 548 (1990)). But the Court of Criminal Appeals has applied

a functional-equivalence test in determining that “the circumstance surrounding the

conduct” was the same under the lesser-included and greater offense. See Cavazos v.

State, No. PD-1675-10, 2012 WL 5348046, at *5 (Tex. Crim. App. Oct. 31, 2012). And

in Brown v. Ohio the United States Supreme Court emphasized that “[t]he Double

Jeopardy clause is not such a fragile guarantee that prosecutors can avoid its limitations

by the simple expedient of dividing a single crime into a series of temporal or spatial

units.” Brown, 432 U.S. at 169. Although the same-conduct test has been rejected, the

functional-equivalence part of the same-elements test, as applied by the Court of

Criminal Appeals, allows consideration of Pritzkau‟s argument.

          In applying double jeopardy principles, the consideration of what constitutes a

lesser-included offense requires a focus on applicable state law. Pritzkau suggests that


                                             6
before embarking on a lesser-included-offense analysis of law, however, a court must

first consider the evidence that the State will present at trial. He argues the State will

prove that, by running a stop sign, he failed to maintain a proper lookout for traffic and

road conditions, operated his vehicle at an improper speed, and took improper evasive

action. He contends that the allegation of running a stop sign in the traffic offense is

therefore functionally equivalent to the alleged criminally negligent acts, and running a

stop sign is a lesser-included offense of criminally negligent homicide. See Rice, 333

S.W.3d at 144-45.

       Pritzkau‟s argument asks that we assume that the evidence of criminal negligence

necessary at trial, and possibly the only evidence of negligence, will be the failure to stop

at a stop sign. The Court of Criminal Appeals rejects what is called a cognate-evidence

approach in determining whether an offense is a lesser-included offense, however. See

Hall, 225 S.W.3d at 526, 531, 535 (In applying the first step of lesser-included-offense

analysis, the reviewing court does not consider the evidence presented at trial.). The

Court has explained that the “relevant inquiry is not what the evidence may show but

what the State is required to prove to establish the charged offense.” McKithan, 324

S.W.3d at 593.

       Pritzkau argues that our consideration of the facts under the functional-

equivalence test must result in a double jeopardy bar. But the facts to be considered are

those alleged in the indictment. See Rice, 333 S.W.3d at 145. And even those alleged


                                             7
facts must allow all of the elements of the lesser-included offense to be deduced. See id.;

McKithan, 324 S.W.3d at 593. In Ex parte Watson, the Court applied the cognate-

pleadings approach and concluded that a prosecution for the traffic offense of “failing to

yield the right of way” did not bar the subsequent prosecution for intoxication assault,

even though the manner and means alleged in the indictment for the intoxication assault

was “failing to yield the right of way while turning left[.]” See Ex parte Watson, 306

S.W.3d at 270-71, 274. The traffic offense “had distinct elements that were not expressly

included in and could not be deduced from the indictment: that the other vehicle was

„approaching from the opposite direction.‟” Rice, 333 S.W.3d at 146 (following and

quoting Ex parte Watson, 306 S.W.3d at 273-74). The Court held that it could not be

reasonably deduced under the circumstances of that case “that the traffic offense is a

lesser-included offense of the intoxication assault.” See Ex parte Watson, 306 S.W.3d at

274.

       The State does not concede that the criminal negligence charge will or must rest

on proof of the failure to stop at a stop sign. It insists that the criminal negligence charge

need not rely on the “Ran Stop Sign” offense. Pritzkau argues to the contrary that the

State will ultimately rest its case at trial on that proof. But we cannot decide in this appeal

the effect of that predicted trial record, because of the cognate-pleadings test and because

the State told the trial judge it intentionally did not include “failure to stop at a stop sign”

as an act constituting criminal negligence. See Tex. Code Crim. Proc. Ann. art. 21.15


                                               8
(West 2009). Given these circumstances and the applicable test, we cannot reach the

question whether, after a trial, Pritzkau may yet have a “substantial claim” that double

jeopardy bars punishment. See, e.g., Illinois v. Vitale, 447 U.S. 410, 421, 100 S.Ct. 2260,

65 L.Ed.2d 228 (1980). But see Dixon, 509 U.S. at 707, 711; see also Ex parte Watson,

306 S.W.3d 259, 266-67 n.3 (Tex. Crim. App. 2009) (Cochran, J., concurring) (The

Supreme Court has “disavowed the dictum in Vitale.”).

       We apply the cognate-pleadings test to the challenge lodged against the second

prosecution. The indictment does not allege all of the elements of the traffic offense.

Each offense requires proof of at least one element the other does not. The traffic offense

does not require proof of “a gross deviation from the standard of care[.]” See Tex. Penal

Code Ann. § 6.03(d) (West 2011) (statutory description included in definition of culpable

mental state of criminal negligence). The traffic offense does not require proof that

Pritzkau caused a death. See Tex. Transp. Code Ann. §§ 544.010, 545.151, 545.153. And

the indictment for criminally negligent homicide, including the descriptive averments,

does not require proof that the intersection was controlled by a stop sign.

       Nor can we conclude that the descriptive averments in the criminally-negligent-

homicide indictment are the functional equivalent of the traffic offense elements. The

descriptive averments in the indictment are allegations of conduct, only some of which

may be “embraced by” the traffic offense, and none expressly so. See Ex parte Watson,

306 S.W.3d at 274. As in Ex parte Watson, the conduct alleged in the indictment “was


                                             9
not sufficiently detailed or complete that it can reasonably be deduced” that the traffic

offense is a lesser-included offense. See id.; compare Cavazos, 2012 WL 5348046, at

**4-6 (applying the functional-equivalence test). Following Ex parte Watson, we cannot

say the trial court erred in denying Pritzkau‟s application for pre-trial writ of habeas

corpus. The judgment of the trial court is therefore affirmed.

       AFFIRMED.



                                                 ________________________________
                                                         DAVID GAULTNEY
                                                               Justice

Submitted on September 27, 2012
Opinion Delivered December 5, 2012
Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.




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