Opinion filed October 25, 2012




                                            In The


   Eleventh Court of Appeals
                                         __________

                                    No. 11-10-00344-CR
                                        __________

                      MIGUEL JOSE HERNANDEZ, Appellant

                                               V.

                                 STATE OF TEXAS, Appellee


                          On Appeal from the 385th District Court
                                 Midland County, Texas
                             Trial Court Cause No. CR36999



                           MEMORANDUM OPINION
       Miguel Jose Hernandez appeals his convictions for the offenses of murder, intoxication
manslaughter, aggravated assault causing serious bodily injury, and unauthorized use of a motor
vehicle. The jury convicted Hernandez following his plea of not guilty to the offense of murder
and his pleas of guilty to the offenses of intoxication manslaughter, aggravated assault causing
serious bodily injury, and unauthorized use of a motor vehicle. These convictions all arose from
an automobile collision that Hernandez had with a vehicle in which Robert Libenson was a
passenger, a collision causing Libenson’s death. Hernandez contends in three points of error that
(1) he cannot be convicted of multiple offenses arising from the same transaction and receive
multiple punishments for each, (2) he cannot be convicted of all counts submitted to the jury
because that is violative of the constitutional provisions against double jeopardy, and (3) he
received ineffective assistance of counsel. We vacate the judgment relating to Hernandez’s
conviction for the offense of intoxication manslaughter and affirm the other three judgments.
       Hernandez urges in Point One that the trial court erred by entering judgments consisting
of multiple offenses and sentences, all arising from the same transaction. Multiple punishment
claims can arise in two contexts:
       1. The lesser-included offense context, in which the same conduct is punished
          twice; once for the basic conduct, and a second time for that same conduct
          plus more . . . ; and

       2. Punishing the same criminal act twice under two distinct statutes when the
          legislature intended the conduct to be punished only once.
Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008).
       We must first determine if intoxication manslaughter and felony murder constitute the
same offense. Id. When multiple punishments arise out of one trial, the Blockburger test is the
starting point in analyzing the two offenses. Id.; see Blockburger v. United States, 284 U.S. 299
(1932). Under that test, two offenses are not the same if one requires proof of an element that
the other does not. 252 S.W.3d at 370. In Texas, when resolving whether two offenses are the
same for double jeoapardy purposes, we focus on the elements alleged in the charging
instrument. Id.
       In the first count of the indictment, the State charged Hernandez with felony murder. The
indictment contained the following elements: (1) Hernandez committed or attempted to commit
the felony offense of evading detention or arrest in a motor vehicle; (2) committed or attempted
to commit several acts clearly dangerous to human life, including running a red light, operating
his motor vehicle at an excessive rate of speed, failing to keep a proper lookout, and failing to
yield the right-of-way to a motor vehicle at a highway intersection; (3) collided with a vehicle
occupied by Libenson; and (4) caused Libenson’s death.
       The State charged Hernandez in the second count of the indictment with intoxication
manslaughter, alleging that (1) Hernandez was intoxicated, (2) while operating a motor vehicle
in a public place, and that (3) his intoxication while driving caused the death of Libenson, (4) by
accident or mistake. Because each offense alleged contains elements the other does not, they are
not the same offense under the Blockburger test. However, the Blockburger test is a rule of


                                                2
statutory construction that is not the exclusive test for determining if two offenses are the same.
Bigon, 252 S.W.3d at 370.
       A nonexclusive list of factors that we are to consider when examining if two offenses are
the same in the context of multiple punishments include: (1) whether the offenses are in the same
statutory section; (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; (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 two offenses being considered
the same under Blockburger; 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. Id. at 371. The question ultimately is whether the legislature intended to allow the
same conduct to be punished under both of the offenses. Id.
       In Bigon, the court noted that murder and intoxication manslaughter used to be in the
same statutory section, but are not now. Id. The court declined to find that, by moving the
statute, the legislature intended to create a completely separate offense for double jeopardy
purposes. Id. Noting that murder and manslaughter are both considered homicides, the court
concluded that the two offenses are similarly named. Id. The court also discussed the fact that in
both offenses the focus is the death of an individual. Id. In the context of the focus of the two
offenses, the court said that the fact that an allowable unit of prosecution for an assaultive
offense, as defined by the legislature, is one unit per victim is evidence that the legislature did
not intend for a person to be prosecuted for several homicides when there is only one victim. Id.
at 372. As did the court in Bigon, we conclude that, under the facts of this case, felony murder is
the same as intoxication manslaughter for double jeopardy purposes. Consequently, only one of
the convictions, as between felony murder and intoxication manslaughter, can be upheld. Id. In
its brief, the State cites Bigon and concludes that Hernandez “could not be convicted in both
counts.”
       When a defendant is subjected to multiple punishments for the same conduct, the remedy
is to affirm the conviction for the most serious offense and vacate the other convictions. Id.
Where the punishment for the offenses differs, the most serious offense is the offense in which
the greatest sentence was assessed. Id. at 373. In this case, the jury assessed Hernandez’s

                                                 3
punishment for murder at twenty-eight years in the Texas Department of Criminal Justice,
Institutional Division, and a fine in the amount of $10,000; it assessed his punishment for
intoxication manslaughter at twenty years in the Texas Department of Criminal Justice,
Institutional Division, and a fine in the amount of $5,000. Consequently, we conclude that the
offense of murder is the most serious offense. The State does not question this outcome.
       Hernandez’s brief could be read to suggest that his conviction for murder constitutes a
violation of his constitutional protection to be free of double jeopardy because, relying on
Brinson v. State, 570 S.W.2d 937, 938 (Tex. Crim. App. 1978), he states that, once a “guilty”
plea is entered before a jury, a “conviction” results that is conclusive of a defendant’s guilt.
Brinson held that a plea of guilty before a jury admits all of the elements of the offense and is
conclusive as to the defendant’s guilt. 570 S.W.2d at 938. The court did not hold that the mere
entry of a plea of guilty to an offense before a jury constitutes a conviction of that offense at the
time the plea is entered.
       It is unclear whether Hernandez asserts that his convictions and punishments with respect
to the charge of aggravated assault causing serious bodily injury, which involved the same
automobile collision but a different victim, or with respect to the charge of unauthorized use of a
motor vehicle, also with a different victim, constituted multiple punishments for double jeopardy
purposes. In any event, using the analysis we have previously discussed, we conclude that those
charges do not constitute multiple punishments for double jeopardy purposes.             Hernandez
presents no authority or discussion specifically suggesting that they do. We sustain Point One in
part and overrule Point One in part.
         Hernandez contends in Point Two that the fact that he pleaded guilty to three of the
counts in the indictment while he was found guilty on all counts was violative of his
constitutional protection against double jeopardy. While he has no discussion under this point,
he relies upon the Fifth and Fourteenth Amendments to the United States Constitution and the
cases of Crocker v. State, 573 S.W.2d 190, 197 (Tex. Crim. App. 1978), and McKinney v. State,
615 S.W.2d 223 (Tex. Crim. App. 1981). We find that none of this authority supports his
position. We hold that any error with respect to a claim of double jeopardy will be cured by this
court vacating Hernandez’s conviction of intoxication manslaughter. We overrule Point Two.
       Hernandez asserts in Point Three that he did not receive effective assistance of counsel.
He contends that it is undisputed that his attorney failed to advise him there was a possibility that

                                                 4
he could be convicted of both the greater offenses as well as lesser included offenses should he
persist in his guilty pleas to the lesser included offenses charged in separate counts in the
indictment.   In order to determine whether Hernandez’s trial counsel rendered ineffective
assistance, we must first determine whether Hernandez has shown that counsel’s representation
fell below an objective standard of reasonableness and, if so, then determine whether there is a
reasonable probability that the result would have been different but for counsel’s errors.
Wiggins v. Smith, 539 U.S. 510 (2003); Strickland v. Washington, 466 U.S. 668 (1984);
Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808
(Tex. Crim. App. 1999). We must indulge a strong presumption that counsel’s conduct fell
within the wide range of reasonable professional assistance, and Hernandez must overcome the
presumption that, under the circumstances, the challenged action might be considered sound trial
strategy. Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App.
2000). Counsel is strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at
690. An allegation of ineffective assistance must be firmly founded in the record, and the record
must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814.
       At trial, during a discussion of the court’s charge, Hernandez’s attorney urged the court to
instruct the jury that it was not to consider the second count of intoxication manslaughter if it
found him guilty of murder beyond a reasonable doubt. In a statement counsel made for the
record in the event the trial court declined to give such an instruction, he stated:
              And just to make the record clear for purposes of appellate counsel on
       appeal, and a possible ineffective assistance claim, I want to make sure that the
       record is clear that I did not advise my client as to the possible ramifications of
       being found guilty of both murder and intoxication manslaughter, of the same
       individual, your Honor.

       As we noted in Point One, under the facts of this case, Hernandez could not properly
have been convicted of both murder and intoxication manslaughter. Consequently, it was not
error for his trial counsel to fail to advise him that he could be convicted of both. We also note
that, after the trial court had chosen not to give the instruction requested, Hernandez, after further
consultation with his counsel, elected not to withdraw his plea of guilty to intoxication
manslaughter. Given these facts, even if counsel were in error in initially failing to advise
Hernandez that he could be convicted of both murder and intoxication manslaughter, we

                                                  5
conclude that there is not a reasonable probability that the result of the proceedings would have
been different but for such an error.
         Hernandez suggests that, had he been advised of the possibility he could be convicted and
sentenced to each count of the indictment, it cannot be said that such advice would not have
affected and impacted his decision to enter his plea of guilty to “certain of the counts in the
indictment.” However, there is no suggestion either by Hernandez or the record that, after the
judge declared that both counts were being presented to the jury without a conditioning
instruction, his counsel failed to advise him that the jury could not convict him of both murder
and intoxication manslaughter. We again note that, after the judge had announced his decision to
submit both counts to the jury without any conditioning instruction, Hernandez continued to
assert his plea of guilty to the offense of intoxication manslaughter. We overrule Point Three.
         We vacate the judgment convicting Hernandez of the offense of intoxication
manslaughter, and we affirm the judgments convicting Hernandez of murder, aggravated assault
causing serious bodily injury, and unauthorized use of a motor vehicle.


                                                                                  PER CURIAM


October 25, 2012
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel1 consists of: Wright, C.J.,
McCall, J., and Hill.2




         1
           Eric Kalenak, Justice, resigned effective September 3, 2012. The justice position is vacant pending appointment of a
successor by the governor or until the next general election.
         2
             John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

                                                                  6
