                                                                                       pd-0997-15
                                                                     COURT OF CRIMINAL APPEALS
                                                                                     AUSTIN, TEXAS
                                                                   Transmitted 9/10/2015 11:17:40 PM
                                                                      Accepted 9/14/2015 3:29:13 PM
                                                                                      ABEL ACOSTA
                                   PD-0997-15                                                 CLERK


                     In the Court of Criminal Appeals of Texas


                               Juliane Myra Minor,
                                     Petitioner
                                        v.
September 14, 2015
                                The State of Texas,
                                   Respondent



                 On review from the Thirteenth Court of Appeals
                         Case number 13-14-00161-CR



                         Petition for Discretionary Review


                                                Franklin Bynum
                                                Texas Bar Number 24069451
                                                franklin@bynumlaw.net
                                                Bynum Law Office PLLC
                                                501 North Interstate 35
                                                Austin, Texas 78702
                                                (512) 887-3938
                                                Counsel for Petitioner
                       Identity of Parties and Counsel

Appellant                                Juliane Myra Minor
                                         328 W. Santa Gertrudis A
                                         Kingsville, Texas 78363

Defense Counsel at Trial                 Nathan Fugate
and at the Court of Appeals              201 E. Henrietta PO Box 1265
                                         Kindsville, Texas 78363

Prosecutor at Trial                      Kleburg County District Attorney
and at the Court of Appeals              700 E. Kleburg Avenue
                                         Kingsville, Texas 78363

Judge Presiding at Trial                 The Honorable Angelica Hernandez
                                         105th District Court
                                         700 E. Kleburg Avenue
                                         Kingsville, Texas 78363

Appellant’s Counsel                      Franklin Bynum
                                         Bynum Law Office PLLC
                                         2814 Hamilton Street
                                         Houston, Texas 77004




                                     2
                                            Table of Contents
Identity of Parties and Counsel ............................................................................ 2!

Table of Contents ............................................................................................... 3!

Index of Authorities ............................................................................................ 4!

Statement Regarding Oral Argument.................................................................... 5!

Statement of the Case......................................................................................... 5!

Statement of Procedural History .......................................................................... 5!

Questions Presented for Review ........................................................................... 5!

Argument .......................................................................................................... 6!

  Question One: Did the court of appeals commit error by performing an
  analysis of the elements of the offense of criminal negligence without
  considering the special pleading rules in cases alleging criminal negligence?
  ........................................................................................................ 7!

  Question Two: Was the court of appeals wrong to limit its analysis to only a
  Blockburger test?............................................................................... 9!

  Question Three: Does this case violate double jeopardy under the Texas
  Constitution? .................................................................................. 10!

Prayer ............................................................................................................. 10!

Certificate of Compliance .................................................................................. 11!

Certificate of Service ......................................................................................... 11!

Appendix A: The Opinion Below .........................................................................12!




                                                           3
                                           Index of Authorities

                                                         Cases!

Ervin v. State, 991 S.W.2d 804 (Tex. Crim. App. 1999).............................................9

Garfias v. State, 424 S.W.3d 54 (Tex. Crim. App. 2014)............................................9

Minor v. State, No. 13-14-00161-CR, 2015 WL 4523812, (Tex. App. June 25, 2015,
 no pet. h.). ................................................................................................. 5, 7, 8, 9

                                                        Statutes!

Tex. Code. Crim. Proc. Ann. art. 26.12 (West, WestlawNext through the end of the
  84th Legislature). ................................................................................................. 8

Tex. Penal Code Ann. § 6.03 (West, WestlawNext through the end of the 84th
  Legislature). ......................................................................................................... 8

                                                       Treatises!

41 George E. Dix and John M. Schmolesky, Criminal Practice and Procedure §
  19:19 (3d ed.) ......................................................................................................... 7

41 George E. Dix and John M. Schmolesky, Criminal Practice and Procedure §
  19:20 (3d ed.) ...................................................................................................... 10




                                                            4
                 Statement Regarding Oral Argument
        This is a complex issue that would benefit from a discussion
among the Court and the parties.
                             Statement of the Case
        This case presents important issues regarding the extent of dou-
ble jeopardy protection in Texas, under both the state and federal con-
stitutions. The court of appeals conducted the Blockburger test on the
elements of an offense in a way that does not properly address the pecu-
liarities of criminal negligence. In addition, it failed to apply the Ervin
factors, and failed to address the issue of whether double punishment in
this case violates the Texas Constitution.
                    Statement of Procedural History
        A Kleburg County grand jury indicted Juliane Minor for crimi-
nally negligent homicide on August 23, 2012.1 On January 9,2014, Ms.
Minor filed a pretrial writ of habeas corpus on January 9, 2014, alleging
multiple double jeopardy violations.2 The district court denied relief on
May 19, 2014.3 The court of appeals affirmed on June 25, 2015.4
                     Questions Presented for Review
                 Question One: Did the court of appeals
                 commit error by performing an analysis of the


1
  (C.R. at 4)
2
  (C.R. at 5)
3
  (C.R. at 48)
4
  Minor v. State, No. 13-14-00161-CR, 2015 WL 4523812, (Tex. App. June 25, 2015, no pet. h.).




                                               5
                  elements of the offense of criminal negligence
                  without considering the special pleading rules
                  in cases alleging criminal negligence?

                  Question Two: Was the court of appeals
                  wrong to limit its analysis to only a
                  Blockburger test?

                  Question Three: Does this case violate double
                  jeopardy under the Texas Constitution?

                                   Argument
            Juliana Myra Minor was charged and pleaded guilty to the misde-
meanor offense of knowingly allowing her child to drive her car.5
Months later, she was indicted for criminally negligent homicide by “al-
lowing an unlicensed juvenile to drive a motor vehicle.”
            Ms. Minor filed a pre-trial writ alleging a double jeopardy viola-
tion under the Fifth and Fourteenth Amendments, and also Article I,
§ 14 of the Texas Constitution. The district court denied relief.
            The court of appeals affirmed in an unpublished opinion that
raises three critical questions that cut to the heart of unresolved issues
regarding the extent of Due Process and double jeopardy protections.
            Professor Dix identifies the problem: “Modern penal codes typi-
cally contain a proliferation of statutes with highly fragmented offenses




5
    Id. at *2.




                                        6
that have the potential to trivialize the ancient double jeopardy protec-
tions in the United States and Texas constitutions.”6
         The petition should be granted because the court of appeals has
decided an important question of state and federal law that continues to
be addressed by the Court of Criminal Appeals, and because the case
conflicts with this Court’s rulings on double jeopardy.7
                  Question One: Did the court of appeals
                  commit error by performing an analysis of the
                  elements of the offense of criminal negligence
                  without considering the special pleading rules
                  in cases alleging criminal negligence?

         The court of appeals here began its analysis with the venerable
Blockburger test, which strictly compares elements of offenses and if the
lesser offense requires more or different proof then a proposed greater
offense. If the greater offense lacks an element required by the lesser
offense, then the greater–lesser relationship fails the test.8
         The court of appeals applied the Blockburger test in the wrong
way, without considering the special requirements for pleading offenses
alleging criminal negligence. Article 21.15 requires that an indictment
“allege, with reasonable certainty, the act or acts relied upon to consti-
tute…criminal negligence, and in no event shall it be sufficient to allege


6
  41 George E. Dix and John M. Schmolesky, Criminal Practice and Procedure § 19:19 (3d ed.)
7
  Tex. R. App. P. 66.3.
8
  Minor, WL 4523812 2015 at *2 (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)).




                                                7
merely that the accused, in committing the offense, acted…with crimi-
nal negligence.”9
        Criminal negligence is a more expansive concept than other men-
tal states, and has multiple—virtually infinite—possibilities in every ap-
plication. Notice, then, is critical in such cases, as evidenced by the
strict pleading requirements for bringing such cases.
        The court of appeals took fault with the lesser offense’s require-
ment that a person act “knowingly,” and said that criminally negligent
homicide need not include proof that a person act knowingly.10
        The problem is that criminal negligence absolutely requires
knowledge. Knowledge is so central to criminal negligence that con-
structive knowledge under a reasonable person standard is authorized:
criminal negligence occurs when a person “is aware or ought to be
aware of a substantial and unjustifiable risk that the circumstances exist
or the result will occur.”11
        The court of appeals addressed this counterargument simply by
saying that other elements are necessary as well: “that Minor let her
‘child or ward’ drive the vehicle…or that the vehicle in question was
“owned by” or “subject to” Minor’s control.”12



9
   Tex. Code. Crim. Proc. Ann. art. 21.15 (West, WestlawNext through the end of the 84th Legisla-
ture).
10
   Minor, WL 4523812 2015 at *3 (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)).
11
    Tex. Penal Code Ann. § 6.03 (West, WestlawNext through the end of the 84th Legislature).
12
   Minor, WL 4523812 2015 at *3.




                                                8
         However, those details also should have been analyzed in light of
the nature criminal-negligence allegations, because the facts would be
required to have been pleaded with specificity in the indictment.
         The court of appels failed to consider the particularity of criminal
negligence in its Blockburger analysis.
                  Question Two: Was the court of appeals
                  wrong to limit its analysis to only a
                  Blockburger test?

         Whether multiple punishments violate double jeopardy can be
evaluated one of two ways: the “elements” approach or the “unit of
prosecution” approach.13 The “elements” anlaysis “is appropriate
when the offenses in question come from different statutory sections.”14
The court of appeals employed the elements approach in this case.15
         “The starting point of an ‘elements’ analysis in the multiple-pun-
ishments context is the Blockburger test” but the analysis does not end
there:16 the court of appeals must also apply the factors from Ervin v.
State.17
         Applying the Ervin factors would have extended the analysis be-
yond the rigid Blockburger test to take a greater view of how the two laws




13
   Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014).
14
   Id.
15
   Minor, WL 4523812 2015 at *3.
16
   Garfias, 424 S.W.3d at 58.
17
   991 S.W.2d 804, 814 (Tex. Crim. App. 1999).




                                                9
at issue relate to each other. The court of appeals failure to perform this
analysis was error, and the case should be remanded with an opinion
that reaffirms that the Ervin factors apply in multiple-punishment dou-
ble jeopardy claims.
                    Question Three: Does this case violate double
                    jeopardy under the Texas Constitution?

           Ms. Minor raised the argument that the Texas Constitution offers
greater protection against double jeopardy at the trial court and the
court of appeals.18 But the opinion of the court of appeals does not ad-
dress the State constitutional argument. This court should address the
issue on the complete record before it.
           Professor Dix identifies the problems of the current federal
scheme and suggests that “Texas is free to adopt a rule that is more sen-
sitively attuned to considerations that should control these issues.”19
And it should.
                                             Prayer
           Juliane Myra Minor prays that this Honorable Court grant the pe-
tition and set this matter for briefing on the merits, or reverse the court
of appeals per curium with instructions to issue another opinion.




18
     (C.R. at 5)
19
     41 George E. Dix and John M. Schmolesky, Criminal Practice and Procedure § 19:20 (3d ed.)




                                                10
                   Certificate of Compliance
       The word-processing software used to write this brief reports its
length as 1541 words before subtracting for any of the contents that may
be excluded under Rule 9.4(i)(1).
                      Certificate of Service
       I provided this brief to the Kleberg County District Attorney by
First Class Mail on September 11, 2015. I provided a copy to the State
Prosecuting Attorney by electronic service simultaneously with elec-
tronic filing.

                                    Respectfully,

                                    /s/ Franklin Bynum
Bynum Law Office PLLC               Franklin Bynum
501 North Interstate 35             Texas Bar Number 24069451
Austin, Texas 78702                 franklin@bynumlaw.net
(512) 887-3938




                                    11
Appendix A: The Opinion Below
                              NUMBER 13-14-00161-CR

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


JULIANE MYRA MINOR,                                                                     Appellant,

                                                   v.

THE STATE OF TEXAS,                                                                     Appellee.


                       On appeal from the 105th District Court
                             of Kleberg County, Texas.


                              MEMORANDUM OPINION

                Before Justices Rodriguez, Garza, and Longoria
                 Memorandum Opinion by Justice Rodriguez
        Appellant Juliane Myra Minor appeals the trial court’s denial of her application for

writ of habeas corpus alleging a double jeopardy violation. 1                  By one issue, Minor



        Pre-trial writs of habeas corpus are permitted in very limited circumstances. Ex parte Smith, 178
        1

S.W.3d 797, 801 (Tex. Crim. App. 2005). Because Minor’s double jeopardy issue, if meritorious, would
contends that the double jeopardy prohibitions of the United States Constitution and the

Texas Constitution bar her prosecution for criminally negligent homicide following her

citation under the Texas Transportation Code for “allowing an unlicensed juvenile to drive

a motor vehicle.” See TEX. PENAL CODE ANN. § 19.05 (West, Westlaw through 2015

R.S.); TEX. TRANSP. CODE ANN. § 521.458 (West, Westlaw through 2015 R.S.). We

affirm.

                                         I.      BACKGROUND

          It is undisputed that on June 1, 2012, Minor allowed her unlicensed sixteen-year-

old son, whom we will refer to as B.C., to drive her Hummer H2. B.C. failed to control

his speed while rounding a curve, veered into the opposite lane of travel, and struck

Stephanie Butler’s oncoming vehicle. Butler was eight months pregnant at the time of

the collision, and her unborn child died as a result of accident-induced trauma.

          Both B.C. and Minor received traffic citations following the accident. Minor was

cited for permitting an unauthorized person to drive pursuant to the Texas Transportation

Code.       Minor paid a total of $120 dollars for a fine and associated court costs.

Subsequently, Minor was indicted for criminally negligent homicide.                      The indictment

alleged Minor caused the death of Butler’s unborn child by allowing an unlicensed juvenile

to drive a motor vehicle.

          Minor filed a writ of habeas corpus in the trial court alleging that the prosecution

for criminally negligent homicide constituted double jeopardy because she had previously

been cited for allowing an unlicensed juvenile to drive a motor vehicle and had paid a fine.


bar prosecution, we have jurisdiction over this appeal. See id. (recognizing that “the denial of relief on a
pretrial writ of habeas corpus may be appealed immediately”).
                                                     2
The trial court denied Minor’s application and determined that a citation for permitting an

unauthorized person to drive was not a lesser-included offense of criminally negligent

homicide. This interlocutory appeal followed.

                                II.     DOUBLE JEOPARDY

       By her sole issue, Minor contends that the double jeopardy prohibitions in the

federal and state Constitutions prevent her prosecution for criminally negligent homicide.

A.     Applicable Law and Standard of Review

       The Double Jeopardy Clause of the Fifth Amendment, applicable to the states

through the Fourteenth Amendment, protects an accused against:               (1) a second

prosecution for the same offense after acquittal; (2) a second prosecution for the same

offense after conviction; and (3) multiple punishments for the same offense prosecuted in

the same trial.   Brown v. Ohio, 432 U.S. 161, 165 (1977); Illinois v. Vitale, 447 U.S. 410;

415–16 (1977); Ex parte Amador, 326 S.W.3d 202, 205 (Tex. Crim. App. 2010); see Ervin

v. State, 991 S.W.2d 804, 806–07 (Tex. Crim. App. 1999) (distinguishing a “multiple

prosecution” double jeopardy claim, in which a defendant had previously received a

conviction for driving while intoxicated and was subsequently tried for involuntary

manslaughter, from a “multiple punishment” double jeopardy claim in which multiple

offenses were prosecuted in a single trial).

       We apply a de novo standard of review when the trial court's decision to deny relief

on a writ of habeas corpus involves a question of law. See State v. Nkwocha, 31 S.W.3d

817, 820 (Tex. App.—Dallas 2000, no pet.); see also Rice v. State, 333 S.W.3d 140, 144

(Tex. Crim. App. 2011). In analyzing a “multiple-prosecution” double jeopardy claim in


                                               3
which two distinct statutory provisions are at issue, as in this case, we initially determine

whether “each provision requires proof of a fact which the other does not.” See United

States v. Dixon, 509 U.S. 688, 697 (1993); Blockburger v. United States, 284 U.S. 299,

304 (1932) (applying a “same elements” test for purposes of double jeopardy). Under

Blockburger’s same-elements test, “lesser-included offenses are legally the same as a

greater offense, and are wholly subsumed by the elements of the greater offense, unless

the potential lesser-included offense requires proof of a fact not required to establish the

greater offense.” Ex parte Castillo, No. PD-0545-14, __S.W.3d__, 2015 WL 3486960, at

*2 (Tex. Crim. App. June 3, 2015) (citing Brown, 432 U.S. at 168); see also TEX. CODE

CRIM. PROC. ANN. art. 37.09(1) (West, Westlaw through 2015 R.S.) (providing the

statutory framework by which we make a lesser-included offense determination).

       We apply Texas law to determine if one offense is a lesser-included offense for

double jeopardy purposes. See generally Ex parte Watson, 306 S.W.3d 259, 265 (Tex.

Crim. App. 2009) (recognizing that Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App.

2007) applies when performing a double jeopardy analysis). If we determine that the

offense is legally a lesser-included offense, we then look at the evidence to determine if

a true double jeopardy violation occurred. See id.

B.     Discussion

       We begin our analysis under Blockburger and decide whether the two offenses are

the same for purposes of double jeopardy. See Blockburger, 286 U.S. at 304. We do

this by determining whether Minor’s traffic citation pursuant to the transportation code is

a lesser-included offense of criminally negligent homicide under the penal code. See


                                             4
Brown, 432 U.S. at 165; Blockburger, 286 U.S. at 304; Ex parte Watson, 306 S.W.3d at

265. Applying Hall in this double jeopardy context, we begin the lesser-included offense

analysis by looking only to the statutory elements of criminally negligent homicide as

modified by the allegations in the indictment. See 225 S.W.3d at 536. The indictment

must either allege all of the elements of section 521.458 of the transportation code, or

elements and facts from which all elements of a section 521.458 violation could be

deduced. See State v. Meru, 414 S.W.3d at 163 (Tex. Crim. App. 2013) (“The elements

of the lesser-included offense do not have to be pleaded in the indictment if they can be

deduced from facts alleged in the indictment.”).

          The indictment provides as follows: “Juliane Myra Minor, defendant, on or about

June 1, 2012, in Kleberg County, Texas, did then and there, by criminal negligence, cause

the death of an individual, namely the unborn child of Stephanie Butler, by allowing an

unlicensed juvenile to drive a motor vehicle.” See TEX. PENAL CODE ANN. § 19.05 (noting

that a person commits the offense of criminally negligent homicide “if he causes the death

of an individual by criminal negligence”). An offense under this section is a state jail

felony.

          Section 521.458 of the Texas Transportation Code provides the following:

          (a)   A person may not knowingly permit or cause the person’s child or
                ward who is under 18 years of age to operate a motor vehicle on a
                highway in violation of this chapter.

          (b)   A person may not authorize or knowingly permit a motor vehicle
                owned by or under the control of the person to be operated on a
                highway by any person in violation of this chapter.

TEX. TRANSP. CODE ANN. § 521.458.


                                             5
         Comparing the statutory elements of criminally negligent homicide, as modified by

Minor’s indictment, with the elements of section 521.458 of the Texas Transportation

Code, we ask: “Are the elements of the lesser offense established by proof of the same

or less than all the facts required to establish the commission of the offense charged?”

See Hall, 225 S.W.3d at 536 (citing TEX. CODE CRIM. PROC. ANN. art. 37.09(1)). The

answer is that they are not. The facts required to prove the lesser offense under the

transportation code include at least one fact that is not the same as, or less than, those

required to establish criminally negligent homicide: the requirement that the violation be

“knowingly” committed.            Compare TEX. PENAL CODE ANN. § 19.05 with TEX. TRANSP.

CODE ANN. § 521.458.

         Moreover, even were we to consider the indictment’s phrase “by allowing” to mean

“knowingly,” as used in the statute, the transportation code still requires proof of additional

elements—i.e., that Minor let her “child or ward” drive the vehicle under section

521.458(a) or that the vehicle in question was “owned by” or “subject to” Minor’s control

under section 521.458(b). See TEX. TRANSP. CODE ANN. § 521.458; Meru, 414 S.W.3d

163. Therefore, the transportation code requires proof of B.C.’s relation to Minor under

one section, and proof of Minor’s degree of ownership or control over the subject vehicle

under another.2 See TEX. TRANSP. CODE ANN. § 521.458(a–b). We could not therefore

deduce that if Minor is guilty as charged by the indictment, she is also guilty of the lesser-

offense described in the transportation code. See Meru, 414 S.W.3d at 162–63.

         Because a determination of Minor’s traffic citation requires proof of more elements


         2   The traffic citation did not specify the subsection of the statute under which Minor was initially
cited.
                                                        6
than required by her indictment for criminally negligent homicide, it cannot be a lesser-

included offense pursuant to the Texas Code of Criminal Procedure or Texas case law.

See TEX. CODE CRIM. PROC. ANN. art 39.07; Meru, 414 S.W.3d at 162–63; Hall, 225

S.W.3d at 536.     Minor has not satisfied the Blockburger “same elements” test, and

Minor’s “multiple-prosecution” double jeopardy claim fails. See Vitale, 447 U.S. at 415–

16; Ex parte Watson, 306 S.W.3d at 262–63; Guzman, 182 S.W.3d at 191–92.

       We overrule Minor’s sole issue on appeal.

                                    III.   CONCLUSION

       We affirm the trial court’s denial of Minor’s application for writ of habeas corpus.


                                                                NELDA V. RODRIGUEZ
                                                                Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
25th day of June, 2015.




                                             7
