           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS

                         No. PD-0884-11; No. PD-0885-11

                  GERALD CHRISTOPHER ZULIANI, Appellant

                                            v.

                               THE STATE OF TEXAS



            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE THIRD COURT OF APPEALS
                         WILLIAMSON COUNTY

       Per curiam. Keller, P.J., and Hervey, J., not participating.

                                      OPINION

       Appellant was convicted of reckless driving and deadly conduct. The jury assessed

punishment at 30 days’ confinement and a $100 fine for the reckless driving conviction and

one year’s confinement and a $3,000 fine for the deadly conduct conviction. The court of

appeals concluded that Appellant’s two convictions represented multiple punishments for the

same offense in violation of the prohibition against double jeopardy and reversed the

conviction for reckless driving. Zuliani v. State, 338 S.W.3d 213 (Tex. App.–Austin 2011).
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The State has filed a petition for discretionary review asserting that the court of appeals erred

in failing to consider legislative intent in its double jeopardy analysis. We agree.

       In considering Appellant’s double jeopardy claim, the court of appeals correctly

concluded that, when the same conduct violates two different statutory provisions, the two

offenses are the same for double jeopardy purposes if one offense contains all of the elements

of the other. In Texas, courts focus on the elements alleged in the charging instruments, so

two offenses with different statutory elements may be the same for double jeopardy purposes

if, as charged, they require proof of the same facts. Bigon v. State, 252 S.W.3d 360, 370

(Tex. Crim. App. 2008). The court of appeals compared the elements of the two offenses,

as charged, and concluded that they were the same for double jeopardy purposes in this case.

This analysis was correct, but incomplete. Impermissible multiple punishment occurs when

the same criminal act is punished twice under two distinct statutory provisions and the

Legislature intended the conduct be punished only once. Id.; Ex parte Ervin, 991 S.W.2d

804, 814 (Tex. Crim. App. 1999). The court of appeals did not consider whether the

Legislature intended the conduct to be punished only once.

       We will not conduct an analysis of legislative intent for the first time in a petition for

discretionary review. See, e.g., Benavidez v. State, 323 S.W.3d 179, 183 & n.20 (Tex. Crim.

App. 2010) (in its discretionary review capacity, this Court reviews “decisions” of the courts

of appeals, and an issue that lower court did not pass upon is not ordinarily ripe for our

review). Instead, we grant Ground one of the State’s Petition for Discretionary Review,
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vacate the judgment of the court of appeals, and remand the cause to that court for further

consideration.




Delivered: November 2, 2011

Publish.
