Opinion filed July 28, 2016




                                          In The


           Eleventh Court of Appeals
                                      __________

                                 No. 11-15-00158-CR
                                     __________

                     THE STATE OF TEXAS, Appellant
                                             V.
                              ADRIAN BARA, Appellee


                      On Appeal from the 106th District Court
                              Dawson County, Texas
                          Trial Court Cause No. 15-7508


                       MEMORANDUM OPINION
       Adrian Bara moved to quash the indictment against him in Cause No. 15-
7508, in which Bara was indicted for the state jail felony offense of driving while
intoxicated with a child passenger.1 Bara argued that the double jeopardy clauses of
the United States Constitution and the Texas Constitution precluded his prosecution


       1
        TEX. PENAL CODE ANN. § 49.045 (West 2011).
in Cause No. 15-7508 because he had already been convicted for the same offense
in Cause No. 15-7507. The trial court granted Bara’s motion to quash the indictment.
The State appeals. We affirm.
                                    I. Background
      The grand jury indicted Bara for two offenses of DWI with a child passenger:
one in Cause No. 15-7507 and the second in Cause No. 15-7508. Both indictments
arose out of the same incident of driving, but each indictment identified a different
child passenger under the age of fifteen. The State does not dispute that there was
only one incident of driving. Bara pleaded guilty to DWI with a child passenger in
Cause No. 15-7507. Subsequently, Bara filed a motion to quash the indictment in
Cause No. 15-7508.      Bara argued in his motion that double jeopardy barred
prosecution of the allegation in Cause No. 15-7508 because he had already been
found guilty of DWI with a child passenger and sentenced for the same incident in
Cause No. 15-7507. The trial court granted Bara’s motion to quash.
                                     II. Analysis
      In one issue, the State argues that “multiple charges are appropriate and not
barred by double jeopardy when a person drives while intoxicated with more than
one child passenger under the age of fifteen.” Bara asserts that he cannot be tried
twice for the same offense. As we explain below, we agree with Bara’s argument
that the trial court did not err when it granted the motion to quash on double jeopardy
grounds.
      A. Double Jeopardy
      Both the United States Constitution and the Texas Constitution protect
individuals from multiple punishments for the same offense. See Phillips v. State,
787 S.W.2d 391, 393 (Tex. Crim. App. 1990). The double jeopardy clause prevents
(1) a second prosecution for the “same offense” after acquittal, (2) a second


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prosecution for the “same offense” after conviction, and (3) multiple punishments
for the “same offense.” Bigon v. State, 252 S.W.3d 360, 369 (Tex. Crim. App.
2008); Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006) (citing
Cervantes v. State, 815 S.W.2d 569, 572 (Tex. Crim. App. 1991)). Bara asserts that
the second and third categories for double jeopardy—multiple prosecutions and
punishments for the same offense—are implicated in this case.
        B. Unit of Prosecution
        The State charged Bara with two violations of the same statute. If each alleged
violation of the statute was a separate “allowable unit of prosecution,” there is no
double jeopardy clause violation.2 See Ex parte Hawkins, 6 S.W.3d at 556–57; Ex
parte Rathmell, 717 S.W.2d 33, 35 (Tex. Crim. App. 1986). Whether an offense is
a separate “allowable unit of prosecution” depends on legislative intent:
        The legislature defines whether offenses are the same. It does so by
        prescribing the “allowable unit of prosecution,” which is “a
        distinguishable discrete act that is a separate violation of the statute.”
        And the discovery of the allowable unit of prosecution is a task of
        statutory construction.
Ex parte Hawkins, 6 S.W.3d at 556–57 (quoting Sanabria v. United States, 437 U.S.
54, 69–70 & n.24 (1978)). Therefore, we examine legislative intent to determine the
double jeopardy issue. Id.; see also Harris v. State, 359 S.W.3d 625, 629 (Tex.
Crim. App. 2011).



        2
          In cases involving multiple alleged violations of the same statute, the rule of statutory construction
established by the Supreme Court in Blockburger v. United States does not apply. 284 U.S. 299, 304 (1932);
see Ex parte Hawkins, 6 S.W.3d 554, 555–56 (Tex. Crim. App. 1999). Blockburger established the “same
elements” test for the purposes of double jeopardy analysis. Ex parte Benson, 459 S.W.3d 67, 72 (Tex.
Crim. App. 2015). The Blockburger test applies in cases involving alleged violations of two distinct
statutory provisions. Ex parte Hawkins, 6 S.W.3d at 555, n.4; see also Ex parte Benson, 459 S.W.3d at 71
(felony DWI and intoxication assault are two different offenses, under the Blockburger test, for double
jeopardy purposes).



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             1. Legislative Intent
      To determine legislative intent, we should first consult the plain and literal
language of the statute in question. Harris, 359 S.W.3d at 629. Absent an explicit
statement from the legislature to indicate the allowable unit of prosecution, “the best
indicator of legislative intent regarding the unit of prosecution is the gravamen or
focus of the offense.” Id. at 630 (citing Jones v. State, 323 S.W.3d 885, 889 (Tex.
Crim. App. 2010); Huffman v. State, 267 S.W.3d 902, 907 (Tex. Crim. App. 2008)).
The relevant statute provides that a person is guilty of the offense of DWI with a
child passenger if “(1) the person is intoxicated while operating a motor vehicle in a
public place; and (2) the vehicle being operated by the person is occupied by a
passenger who is younger than 15 years of age.” PENAL § 49.045(a). We note that
there is no explicit statement from the legislature to set out the allowable unit of
prosecution. Therefore, we will look to the gravamen or focus of the offense to
identify the allowable unit of prosecution. See Harris, 359 S.W.3d at 629–30.
             2. Gravamen or Focus of Offense
      The Court of Criminal Appeals has “recognized that the gravamen of an
offense can be (1) the result of the conduct, (2) the nature of the conduct, or (3) the
circumstances surrounding the conduct.” Loving v. State, 401 S.W.3d 642, 647
(Tex. Crim. App. 2013) (citing PENAL § 6.03). Several tools can be utilized to
determine the gravamen of a statutory provision: one method utilizes a grammar and
syntax analysis, while a second method looks at when the offense is a completed act.
Id. (citing Jones, 323 S.W.3d at 888); Huffman, 267 S.W.3d at 906). We also
consider whether the statute protects a victim from a different type of harm and
whether the legislature intended for each commission of a prohibited act to be
punished separately. Id.; Haight v. State, 137 S.W.3d 48, 50–51 (Tex. Crim. App.
2004).


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      A grammatical or syntactical analysis can be an aid in statutory construction.
Loving, 401 S.W.3d at 647; Jones, 323 S.W.3d at 888; Huffman, 267 S.W.3d at 906.
Section 49.045 provides, “A person commits an offense if: (1) the person is
intoxicated while operating a motor vehicle in a public place; and (2) the vehicle
being operated by the person is occupied by a passenger who is younger than 15
years of age.” PENAL § 49.045(a). The statute is not as clear as it could be because
of the use of the passive voice; nevertheless, the phrase “by a passenger who is
younger than 15 years of age” is a descriptive adverbial phrase. The operation of a
motor vehicle by an intoxicated person is the completed act, and “the offense
element that requires a completed act” often identifies the gravamen or focus of the
offense. Harris, 359 S.W.3d at 630 (quoting Jones, 323 S.W.3d at 890).
      In Harris, the Court of Criminal Appeals held that multiple convictions of
indecent exposure, when there was only one act of exposure but three children
present, violated double jeopardy. Id. at 632. The defendant in Harris was convicted
of three counts of indecency with a child by exposure. Id. at 627. Each conviction
stemmed from the same incident of indecent exposure, but each related to one of
three different children subjected to the indecent exposure. Id. The court noted that
“the offense of indecency with a child by exposure is complete once the defendant
unlawfully exposes himself in the required circumstances.” Id. at 631. Furthermore,
the “child need only be ‘present’ for the offense to be effectuated; the child does not
even have to be aware of the exposure.” Id.
      In Bara’s case, he was twice charged with DWI with a child passenger—each
charge pertained to a different child passenger under the age of fifteen that was in
the vehicle during a single incident of driving. Driving or operating the vehicle is
the offense element that requires a completed act for the offense of DWI with a child
passenger. Once the act of driving is completed, as indicated above, the offense is


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complete so long as the State proves the existence of another circumstance: the
presence of a child. See PENAL § 49.045. Like Harris, the presence of a child in the
vehicle does not constitute an “act”; rather, the presence of a child in the vehicle is
a circumstance that accompanies the “act” of driving or operating. The child need
only be present in the car for the offense to be effectuated; the child does not have
to be aware that the driver is intoxicated, and there need not be any actual injury to
the child. Cf. Harris, 359 S.W.3d at 631 (applying such factors to offense of
indecency with a child by exposure). Therefore, the allowable unit of prosecution is
each incident of driving, not each child present in the vehicle.
             3. Conduct-Oriented Offense v. Result-Oriented Offense
      The State argues that, when the legislature enacted the DWI child-passenger
statute, it formed an offense out of two offenses and that the resulting offense is both
a conduct-oriented and result-oriented offense. The State asserts that the legislature
intended to combine the offense of DWI, under Section 49.04 of the Texas Penal
Code, and the offense of endangering a child, under Section 22.041, as a new offense
to avoid the problem of a prosecutor that would charge the latter, a state jail felony,
and drop the DWI charge, a misdemeanor. The State points out that DWI is a
conduct-oriented offense and that endangering a child is a result-oriented offense.
See Ex parte Benson, 459 S.W.3d at 81 (DWI); Millslagle v. State, 81 S.W.3d 895,
897 (Tex. App.—Austin 2002, pet. ref’d) (endangering a child). The State asserts
that, because multiple children were placed in danger, multiple prosecutions and
convictions may result. See, e.g., Mayberry v. State, 351 S.W.3d 507, 510–11 (Tex.
App.—San Antonio 2011, pet. ref’d).
      We decline to adopt the State’s reasoning. In Texas, the allowable unit of
prosecution for an assaultive offense is one unit per victim. Bigon, 252 S.W.3d at
372. Under Section 22.041, a person commits an offense if he intentionally,


                                           6
knowingly, recklessly, or with criminal negligence, by act or omission, engages in
conduct that places a child younger than fifteen years old in imminent danger of
death, bodily injury, or physical or mental impairment. PENAL § 22.041. This
section is in Chapter 22, “Assaultive Offenses,” which allows for multiple
prosecutions of conduct that endangers or injures multiple victims.3 Id.; Bigon, 252
S.W.3d at 372; see also Shelby v. State, 448 S.W.3d 431, 439 (Tex. Crim. App.
2014).
        In contrast, Section 49.045 is part of the chapter titled, “Intoxication and
Alcoholic Beverage Offenses.” PENAL § 49.045. The offense of driving while
intoxicated is a strict liability crime, meaning that it does not require a specific
mental state (e.g., intentionally, knowingly, or recklessly intending to operate a
motor vehicle while intoxicated); it requires only a person on a public roadway
voluntarily operating a motor vehicle while intoxicated. Farmer v. State, 411
S.W.3d 901, 905 (Tex. Crim. App. 2013). The elements necessary to prove that a
person committed the offense of driving while intoxicated are the following: (1) a
person; (2) is intoxicated; (3) at the time of; (4) operating; (5) a motor vehicle; (6)
in a public place. White v. State, 412 S.W.3d 125, 128 (Tex. App.—Eastland 2013,
no pet.); Hernandez v. State, No. 11-02-00292-CR, 2004 WL 67634, at *1 (Tex.
App.—Eastland Jan. 15, 2004, no pet.) (not designated for publication). The offense
of driving while intoxicated with a child passenger, unlike the offense of
endangering a child, does not require proof that the defendant placed a child “in




        3
         We note that the Court of Criminal Appeals has recently held that intoxication assault and felony
DWI are separate offenses that allow for multiple prosecutions. See Ex parte Benson, 459 S.W.3d at 71.
The court reasoned, under the Blockburger analysis, that the injury to the victim and the operation of the
vehicle were two separate acts that could be prosecuted under separate statutes. Id. at 78–80. But we do
not have two separate statutes in this case, only one statute with one act but two alleged offenses.


                                                    7
imminent danger of death, bodily injury, or physical or mental impairment.”
Compare PENAL § 22.041(c), with PENAL § 49.045.
         We conclude in this case that Section 49.045 has, as the allowable unit of
prosecution, one offense for each incident of driving or operating a vehicle. See
Harris, 359 S.W.3d at 632 (holding that the gravamen of, and the allowable unit of
prosecution for, the offense of indecency with a child by exposure is the act of
exposure and, therefore, that the defendant committed only one offense when he
exposed himself to three children at the same time). We overrule the State’s sole
issue.
                                 III. This Court’s Ruling
         We affirm the order of the trial court.




                                                   MIKE WILLSON
                                                   JUSTICE


July 28, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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