                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS

                                              §              No. 08-15-00189-CR

                                              §                  Appeal from
 EX PARTE:
                                              §          County Criminal Court No. 2
 VICTOR MANUEL MAGUREGUI,
                                              §            of El Paso County, Texas

                                              §              (TC # 20140C11398)

                                        OPINION

       In this appeal from a habeas proceeding, the Applicant, Victor Manuel Maguregui,

contends that double jeopardy bars his prosecution for driving while intoxicated because he was

previously convicted for possession of marijuana. The marijuana was found on Maguregui’s

person at the same time he was stopped for DWI. We disagree and affirm the trial court’s denial

of his application.

                                  FACTUAL SUMMARY

       While operating a car on December 3, 2012, Maguregui ran into a metal pole. An

investigating police officer suspected that he was intoxicated. Maguregui purportedly failed a

field sobriety test and a later obtained blood sample allegedly showed an alcohol concentration

level of 0.15 or more. Out of these events, two charges were eventually filed. Maguregui was

first charged with possession of two ounces or less of marihuana which was apparently found on

his person at the time of the accident. He pled guilty to that charge on March 18, 2013. After
the possession charge was resolved, the State filed an information charging Maguregui with DWI

as follows:

       On or about the 3rd day of December, 2012 . . . [Applicant] . . . [did] then and
       there operate a motor vehicle in a public place while [Applicant] was intoxicated,
       And it is further presented that at the time of performing an analysis of a
       specimen of [Applicant’s] blood or breath or urine, the analysis showed an
       alcohol concentration level of 0.15 or more[.]
       During the pendency of the DWI case, which has not yet been adjudicated, Maguregui

filed an application for habeas corpus. The application contends that the “DWI case naturally

subsumes the possession of marijuana case; and is, therefore, barred by double jeopardy.” The

gist of his argument at the habeas hearing was that the State is not required to allege in the

indictment whether the intoxication is the result of alcohol alone, or some other drug, or even a

combination of several intoxicants. According to Maguregui, the possession of marijuana might

support an inference for its use. Consequently, the State could ask for a “synergy” charge which

would allow the jury to consider the effects of the marijuana. And because Appellant has

already been punished for the possession of marijuana, he cannot be punished again.

       The State’s reply directed the trial court to the “same elements test” from Blockburger v.

U.S., 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Under that test, when a

defendant is charged with a violation of two statutes for conduct that arises out the same

transaction or occurrence, a trial court must ask whether each charge requires proof of a fact that

the other does not. Id. Because both driving while intoxicated and possession of marijuana

require proof of elements which are not found in the other crime, the State contended the

fundamental premise for the double jeopardy claims fails. The trial court denied the application

and this appeal follows.




                                                2
                                        DOUBLE JEOPARDY

        In his sole issue, Maguregui contends that the Double Jeopardy Clause to the Fifth

Amendment to the United States Constitution prohibits a trial of the DWI case because he has

already been convicted and punished on the possession case. The Double Jeopardy Clause

provides that no person shall “be subject for the same offence to be twice put in jeopardy of life

or limb.” U.S. Const. art. V. “There are three distinct types of double jeopardy claims: (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.” Langs v. State, 183

S.W.3d 680, 685 (Tex.Crim.App. 2006); see also North Carolina v. Pearce, 395 U.S. 711, 717,

89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Although the parties do not distinctly address

which of these are raised here, their arguments implicate the multiple punishment scenario,

which arises in one of two ways: (1) the lesser-included offense context, wherein the same

conduct is punished twice; once for the basic conduct, and then again for that same conduct plus

more; or (2) punishing the same criminal act twice under two distinct statutes when the

Legislature intended the conduct to be punished only once. Langs, 183 S.W3d at 685.1

        Whichever type of multiple punishment claim is at issue, we are first required to

determine the “legal sameness” of the two statutory provisions. See Ex parte Castillo, 469

S.W.3d 165, 168 (Tex.Crim.App. 2015). We do so by applying the “same-elements” test to

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

United States v. Dixon, 509 U.S. 688, 697, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993);

Blockburger, 284 U.S. at 304, 52 S.Ct. at 182; Castillo, 469 S.W.3d at 168. In doing so, we

apply the cognate-pleadings approach, which entails comparing the elements of the greater

offense as pleaded to the statutory elements of the other offense in the abstract. Castillo, 469


1
   And even if we view this case only as a successive prosecution double jeopardy claim, the Blockburger same
elements test still controls the outcome. Ex parte Castillo, 469 S.W.3d 165, 168 n. 6 (Tex.Crim.App. 2015).
                                                     3
S.W.3d at 168, citing Hall v. State, 225 S.W.3d 524, 536 (Tex.Crim.App. 2007). This analysis

involves a legal question and does not depend on the evidence offered at trial. Castillo, 469

S.W.3d at 168, citing Hall, 225 S.W.3d at 535; Ex parte Benson, 459 S.W.3d 67, 71-74

(Tex.Crim.App. 2015).

         If one of the offenses completely overlaps the other, then a rebuttable presumption arises

that the offenses are the same for purposes of double jeopardy. Benson, 459 S.W.3d at 72.

Conversely, if the two offenses have different elements under the same-elements test, the judicial

presumption is that the offenses are different for double-jeopardy purposes and that cumulative

punishment may be imposed. Id., citing Missouri v. Hunter, 459 U.S. 359, 367, 103 S.Ct. 673,

678, 74 L.Ed.2d 535 (1983). The defendant can rebut this presumption by showing that the

Legislature clearly intended only one punishment.2

                                        ADEQUACY OF THE BRIEFING

         Before addressing the merits, however, we turn to the State’s waiver position. The State

contends that Maguregui’s argument on appeal has morphed from that made at the trial court.

The State correctly points out that a litigant’s complaint on appeal should mirror that made

below. See Clark v. State, 365 S.W.3d 333, 339 (Tex.Crim.App. 2012), citing Thomas v. State,

723 S.W.2d 696, 700 (Tex.Crim.App. 1986). In determining whether a complaint on appeal

comports with a complaint made at trial, we look to the context of the objection and the shared

understanding of the parties at the time. Lankston v. State, 827 S.W.2d 907, 911 (Tex.Crim.App.

1992).



2
  The factors that bear on that legislative intent include: (1) whether offenses are in the same statutory section or
chapter; (2) whether the offenses are phrased in the alternative; (3) whether the offenses are named similarly; (4)
whether the offenses have common punishment ranges; (5) whether the offenses have a common focus or gravamen;
(6) whether the common focus tends to indicate a single instance of conduct; (7) whether the elements that differ
between the two offenses can be considered the same under an imputed theory of liability that would result in the
offenses being considered the same under Blockburger (a liberalized Blockburger standard); and (8) whether there is
legislative history containing an articulation of an intent to treat the offenses as the same or different for double-
jeopardy purposes. Ex parte Ervin, 991 S.W.2d 804, 807 (Tex.Crim.App. 1999).
                                                          4
       Maguregui’s primary argument below, which he in fact carries forward on appeal, was

that evidence showing marijuana possession might be used by the State to claim that he had

actually used marijuana at the time, and under a “synergy charge,” could constitute some proof

of intoxication. The State contends that his argument on appeal focuses on whether one offense

is a lesser-included offense of the other. Maguregui’s brief does cite several general propositions

germane to whether one offense is included within another, or is a lesser-included offense. For

instance, he contends in his brief that the “Double Jeopardy Clause bars prosecution of any

offense which, according to Texas law, includes or is included within an offense for which the

defendant has already been prosecuted.” But we find the central thrust of his argument has not

changed--he still focuses on the potential that the facts underlying the possession charge could be

used to prove the DWI. And while we do not find an express discussion of lesser included

offenses in Maguregui’s argument below, his petition claims that the “DWI case naturally

subsumes the possession of marijuana case.” At the hearing, the State clearly brought to the trial

court’s attention the same-element test from Blockburger which we conclude controls the

outcome here, and at the hearing below, Maguregui attempted to respond to the Blockburger

analysis as best he could. In the context of the arguments presented below, we find no dramatic

distinction with those urged on appeal.     Accordingly, we reject the State’s contention that

Maguregui has forfeited his argument. But as we explain below, we find it unavailing.

                                 DID JEOPARDY ATTACH?

       The same-elements test from Blockburger proves what at first blush appears to be the

obvious--DWI and possession of marijuana both contain elements unique to both offenses. The

relevant statutory elements for DWI as alleged in the indictment are that Maguregui:

       (1) operated;

       (2) a motor vehicle;

       (3) in a public place;
                                                5
       (4) while intoxicated;

       (5) with an alcohol concentration of 0.15 or more.

TEX.PENAL CODE ANN. § 49.04(a), (d)(West Supp. 2016).

       The statutory elements of possession of marijuana in the amount of two ounces or less are

that a person:

       (1) knowingly or intentionally;

       (2) possesses;

       (3) a usable quantity of marihuana;

       (4) in the amount of two ounces or less.

See TEX.HEALTH&SAFETY CODE ANN. § 481.121 (West 2010). Even a cursory examination of

these elements show no overlap, other than the actor under both charges would be Maguregui.

One charge requires proof of doing something--operating a motor vehicle on a public road (while

intoxicated). The other requires proof of possessing something. This argument fails the same

elements test of the Blockburger as two distinct crimes were charged.

       Maguregui seeks to overcome this straightforward application of Blockburger by

claiming that the intoxication charge could be proved (in part) by the some of the same facts

underlying the possession charge. We are unpersuaded by that claim for several reasons. First,

in applying the same elements test, we are precluded from considering the evidence at trial.

Castillo, 469 S.W.3d at 168, citing Hall, 225 S.W.3d at 535; Benson, 459 S.W.3d at 71.

Maguregui’s argument about how a prosecutor might bootstrap the possession into a claim of

actual use (and thus intoxication) ignores that principle.    Applicant’s argument essentially

mimics the “same-conduct” test briefly utilized by the Supreme Court in Grady v. Corbin, 495

U.S. 508, 510, 110 S.Ct. 2084, 2086, 109 L.Ed.2d 548 (1990). The court in Grady had found

that two charges were different under Blockburger’s same element test. The Court nonetheless

found a double jeopardy violation because to make its case, the government was required to
                                                  6
prove conduct that constituted an offense for which the defendant had already been prosecuted.

Id. at 508, 110 S.Ct. at 2086. By the same token, Maguregui argues here that to prove the

essential element of intoxication, the State might attempt to prove conduct (possession of

marijuana) for which he has already been punished. The “might” would distinguish Grady in

any event, but Grady’s same-conduct test was expressly abandoned as unworkable three terms

later in Dixon. Dixon, 509 U.S. at 704, 113 S.Ct. 2849; see Ortega v. State, 171 S.W.3d 895,

898 (Tex.Crim.App. 2005)(recognizing overturning of Grady, and reversing court of appeals

which had relied on its logic to find double jeopardy violation).

        Moreover, under the cognate pleading paradigm, we consider the statutory elements of

the offense in conjunction with the indictment.             Hall, 225 S.W.3d at 536.          Whether the

indictment needed to or not, it did in fact allege that Maguregui was intoxicated with a specific

level of alcohol and not some other intoxicant. And whether the prosecutor ever asks for a

synergy charge or not, the State still needs to prove the charge by proving alcohol intoxication.3

        Even at that, Maguregui’s entire argument makes the rather brash assumption that

because he was in mere possession of a drug, the State could assert that he was also under the

influence of the drug. We find that claim something of a stretch, particularly in light of the

State’s disclaimer of any present intent to make such an argument. Maguregui supports his claim

with two authorities. The first, Chamberlain v. State, 294 S.W.2d 719, 720 (Tex.Crim.App.

1956), merely holds that a trial court does not abuse its discretion in admitting evidence of an

open whiskey bottle for the prosecution of a DWI case because it was “a circumstance to be

considered by the jury along with the other proof on the issue of intoxication.” We don’t read

Chamberlain as supporting the inference that simple possession of marijuana, without anything

3
   The synergy charge allows the jury to consider whether the defendant made himself more susceptible to the
influence of alcohol than he otherwise would have been by ingesting some other substance, and by that reason,
becomes intoxicated from use of alcohol. Gray v. State, 152 S.W.3d 125, 131 (Tex.Crim.App. 2004). If alcohol
intoxication is alleged in the information, the State still must ultimately prove alcohol intoxication. Id.

                                                     7
more, is evidence of marijuana use at any particular time. The second authority is the dissenting

opinion in Murray v. State, 457 S.W.3d 446, 450 (Tex.Crim.App. 2015)(Meyers, J. dissenting),

cert. denied, ___ U.S. ___, 136 S.Ct. 198, 193 L.Ed.2d 127 (2015). Judge Meyers argued that

the majority opinion’s reasoning would be analogous to “convicting an individual for possession

of marijuana based solely on an officer's observation that the individual was high and smelled of

marijuana.” Id. at 450. The statement at best reasons that intoxication might infer possession,

and not the opposite, that possession infers intoxication.

       The Blockburger same elements test is essentially a search for the Legislature’s intent.

Ex parte Ervin, 991 S.W.2d 804, 807 (Tex.Crim.App. 1999)(“the Blockburger test is simply a

rule of statutory construction, which is useful in attempting to ascertain legislative intent”).

Cognizant of following that intent, we find no indication that the Legislature intended for a

person guilty of possession of marijuana and DWI to be subject to only a single punishment. In

fact, “[t]he codification of offenses in two distinct statutory provisions is, by itself, some

indication of a legislative intent to impose multiple punishments.” Ex parte Benson, 459 S.W.3d

at 71. Maguregui directs us to no other indicia of legislative intent to the contrary. We are

satisfied that neither a strict application of the same elements test, nor analysis of legislative

intent supports his claim. In short, Maguregui carries the burden to prove entitlement to habeas

relief. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex.Crim.App. 2002). He has not made that

showing here. We overrule Issue One and affirm the judgment of the trial court.



October 31, 2016
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)



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