Affirmed and Memorandum Opinion filed May 12, 2015.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00387-CR

                    DYLAN JEZREEL GARCIA, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 300th District Court
                           Brazoria County, Texas
                         Trial Court Cause No. 68303

                 MEMORANDUM                      OPINION


      Appellant Dylan Jezreel Garcia was convicted by a jury of intoxication
manslaughter and felony driving while intoxicated. In several issues, appellant
contends that (1) the evidence is insufficient to support appellant’s conviction for
felony driving while intoxicated; (2) the evidence is insufficient to support
appellant’s conviction for intoxication manslaughter; (3) the trial court erred in
denying appellant’s motion to suppress the warrantless blood draw; and (4)
appellant’s conviction for intoxication manslaughter and felony driving while
intoxicated violates the Double Jeopardy Clause. We affirm.

                                  BACKGROUND

        On June 3, 2012, at approximately 10:20 p.m., appellant was involved in a
one-car accident on County Road 690 in Brazoria County. Appellant and the
complainant, Calvin Shiflet, Jr., were leaving a bar and following friends in
another vehicle to a party. Appellant began speeding, but lost control of his silver
Cadillac SUV. The SUV flipped at least twice and landed almost 700 feet from the
road.

        Lieutenant Richard Hempel was the first responder to arrive at the scene.
When Lieutenant Hempel arrived, the SUV was right-side up at the bottom of a
hill. Lieutenant Hempel asked the appellant what happened and appellant stated
that he was driving too fast and crashed. The complainant was unconscious and
slouched over in the passenger seat of the SUV. One witness testified that she
observed appellant climb out of the window of the vehicle and say “Oh, gosh, I’m
dead.” When appellant began complaining of back pain, EMS placed appellant on
a backboard in the ambulance and put a C-collar on his neck. A Life Flight
helicopter was summoned to the scene so that complainant could be transported to
a nearby hospital.

        Department of Public Safety Trooper David Wyman arrived at the scene at
11:10 p.m. When Trooper Wyman arrived, there were already several police
departments and emergency responders present and the complainant was being
loaded into the Life Flight helicopter. Trooper Wyman spoke to appellant in the
back of the ambulance and smelled a strong odor of alcohol. Trooper Wyman
asked appellant how much he had to drink and appellant looked down, shook his
head from side to side, and said “I had a little bit.” The ambulance then transported
                                         2
appellant to a nearby hospital. Trooper Wyman stayed at the scene to investigate
the accident and wait for another trooper to relieve him. Trooper Wyman left the
scene at 11:47 p.m. and arrived at the hospital at 12:00 a.m.

       When Trooper Wyman arrived at the hospital, appellant was receiving x-
rays. While waiting on appellant to return to his hospital room, Trooper Wyman
was informed that the complainant died prior to landing at the hospital. 1 Trooper
Wyman spoke to appellant in the hospital room and smelled a strong odor of
alcohol and noticed that he had red, glassy eyes. Trooper Wyman also observed a
nystagmus coming from appellant’s eyes. Appellant refused to perform the
requested sobriety tests.

       Pursuant to the mandatory blood draw provision of the Texas Transportation
Code, Trooper Wyman obtained a specimen of appellant’s blood. See Tex. Transp.
Code § 724.012(b)(1)(A). Trooper Wyman read appellant the statutory DWI
warning contained in the DIC−24 form2 and requested a specimen of appellant’s
blood. Appellant refused consent to the blood draw and a nurse drew appellant’s
blood at 1:15 a.m. Laura Cook, a chemist with the Brazoria County Sheriff’s
Department Crime Laboratory, tested appellant’s blood sample. The test revealed
that appellant’s blood alcohol concentration was .239 grams per hundred milliliters
at 1:15 a.m. Cook also testified that on average a person eliminates alcohol at a rate
of .015 grams to .020 grams per hour.

       On April 23, 2014, a jury convicted appellant of intoxication manslaughter

       1
           Later that morning, Trooper Wyman was informed that the complainant had been
revived. The complainant eventually died several days later. At trial, the medical examiner
testified that complainant’s cause of death was blunt force injuries.
       2
         The DIC−24 form is a standard form commonly used by the DPS to request blood
specimens from suspected intoxicated drivers. See Martin v. Dep’t of Pub. Safety, 964 S.W.2d
772, 773 (Tex. App.—Austin 1998, no pet.). The form sets forth the required warnings from
section 724.015 of the Texas Transportation Code. See Tex. Transp. Code § 724.015.

                                             3
and felony driving while intoxicated. The jury assessed punishment at 12 and 10
years in prison, respectively, which the trial court ordered to be served
concurrently. Appellant filed a motion for new trial, which was denied by
operation of law.

                               ISSUES AND ANALYSIS

      In four issues, appellant contends that (1) the evidence is insufficient to
support appellant’s conviction for felony DWI because the State failed to show
appellant was intoxicated; (2) the evidence is insufficient to support appellant’s
conviction for intoxication manslaughter because the State failed to show
appellant’s intoxication caused the complainant’s death; (3) the trial court erred in
denying appellant’s motion to suppress the warrantless blood draw because the
State failed to show an exception to the warrant requirement existed; and (4)
appellant’s convictions for intoxication manslaughter and felony DWI violate the
Double Jeopardy Clause.

      I.     Sufficiency of the Evidence
      In his first and second issues, appellant challenges the sufficiency of the
evidence to support his convictions.

      In conducting a sufficiency review, we view all of the evidence in the light
most favorable to the verdict to determine whether any rational factfinder could
have found the essential elements of the crime beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319 (1979); Montgomery v. State, 369 S.W.3d 188, 192
(Tex. Crim. App. 2012). The jury is the sole judge of the credibility of the
witnesses and the weight to be given to their testimonies. Montgomery, 369
S.W.3d at 192. We defer to the jury’s responsibility to resolve conflicts in the
evidence fairly and we draw all reasonable inferences from the evidence in favor of
the verdict. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). An
                                         4
appellate court may not reevaluate the weight and credibility of the evidence
produced at trial because doing so improperly substitutes the court’s judgment for
that of the factfinder. See Montgomery, 369 S.W.3d at 192.

       A.     The Evidence is Sufficient to Support Appellant’s Conviction for
              Felony DWI
       Appellant contends that the evidence is insufficient to support his conviction
for felony DWI because the State did not prove that appellant drove his vehicle
while intoxicated.

       A person commits the offense of driving while intoxicated if the person is
intoxicated while operating a motor vehicle in a public place. Tex. Penal Code
§ 49.04(a). Driving while intoxicated is a Class B misdemeanor, unless the State
shows that the defendant has previously been convicted two times of any other
offense relating to the operating of a motor vehicle while intoxicated. 3 Id.
§ 49.09(b)(2). The previous convictions may be used to enhance the charged
offense from a misdemeanor to a felony. Id. Intoxicated is defined as “not having
the normal use of mental or physical faculties by reason of the introduction of
alcohol” or “having an alcohol concentration of 0.08 or more.” Id. § 49.01(2).

       Appellant argues that the evidence that he was not intoxicated
overwhelmingly outweighs the evidence showing he was intoxicated. Specifically,
appellant points to the following facts: (1) one witness did not smell alcohol on
appellant’s breath; (2) one witness saw appellant consume only three alcoholic
beverages at the bar; (3) an expert testified that appellant’s blood test results were
not consistent with his behavior; and (4) a bartender testified that he did not
believe appellant was intoxicated.

       3
         Appellant does not raise any error regarding his two prior DWI convictions; appellant
only challenges the element of intoxication.

                                              5
      At least five people testified at trial that they smelled alcohol on appellant’s
breath. Trooper Wyman observed a nystagmus coming from appellant’s eyes and
noticed that his eyes were red and glassy. Trooper Wyman testified that he
believed appellant was intoxicated. See Annis v. State, 578 S.W.2d 406, 407 (Tex.
Crim. App. [Panel Op.] 1979) (holding that trooper’s testimony that defendant was
intoxicated, when considered in the light most favorable to the verdict, was
sufficient to establish the element of intoxication); Henderson v. State, 29 S.W.3d
616, 622 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (“The testimony of a
police officer that an individual is intoxicated is probative evidence of
intoxication.”). Further, a chemist testified at trial that appellant’s blood alcohol
level was .239, which is three times the legal limit. See Henderson, 29 S.W.3d at
622 (“[A] blood alcohol level beyond the legal limit . . . is probative evidence of a
person’s loss of his or her faculties.”); see also Tex. Penal Code § 49.01(2)(B).

      When viewing the evidence in the light most favorable to the verdict, we
conclude that a rational factfinder could have found the essential elements of
felony DWI beyond a reasonable doubt. We overrule appellant’s first issue.

      B.     The Evidence is Sufficient to Support Appellant’s Conviction for
             Intoxication Manslaughter
      Appellant also asserts that the evidence is insufficient to support his
conviction for intoxication manslaughter because the State did not prove
appellant’s intoxication caused the complainant’s death.

      A person commits the offense of intoxication manslaughter if he (1) operates
a motor vehicle in a public place; (2) while intoxicated; and (3) by reason of that
intoxication, causes the death of another person by accident or mistake. Tex. Penal
Code § 49.08(a); Wooten v. State, 267 S.W.3d 289, 294−95 (Tex. App.—Houston
[14th Dist.] 2008, pet. ref’d). It is not enough that operation of a motor vehicle,

                                          6
even when operated by an intoxicated person, causes the death; rather, the State
must prove that a defendant’s intoxication caused the fatal result. Wooten, 267
S.W.3d at 295. Whether such a causal connection exists is a question for the jury’s
determination. Hardie v. State, 588 S.W.2d 936, 939 (Tex. Crim. App. [Panel Op.]
1979). The jury may use circumstantial evidence to establish a causal connection.
Garcia v. State, 112 S.W.3d 839, 852 (Tex. App.—Houston [14th Dist.] 2003, no
pet.).

         “But for” causation must be established between an accused’s conduct and
the resulting harm. See Tex. Penal Code § 6.04(a); Robbins v. State, 717 S.W.2d
348, 351 (Tex. Crim. App. 1986). When concurrent causes are present, the “but
for” requirement is satisfied when either (1) the accused’s conduct is sufficient by
itself to have caused the harm; or (2) the accused’s conduct coupled with another
cause is sufficient to have caused the harm. Robbins, 717 S.W.2d at 351. If an
additional cause, other than the accused’s conduct, is clearly sufficient by itself to
produce the result and the accused’s conduct by itself is clearly insufficient, then
the accused cannot be convicted. Id.

         Appellant contends that the unlit dangerous road, not his intoxication, was
the primary cause of the accident. Appellant points to the fact that (1) the road was
not well lit; (2) the accident happened at “Dead Man’s Curve;” and (3) he used his
brakes. The factors upon which appellant relies, at best, could have contributed to
the accident. See Martinez v. State, 66 S.W.3d 467, 469−70 (Tex. App.—Houston
[1st Dist.] 2001, pet. ref’d). When concurrent causes are present, the “but for”
requirement is satisfied when the accused’s conduct coupled with another cause is
sufficient to have caused the harm. See Robbins, 717 S.W.2d at 351.

         As established above, the evidence is sufficient to show appellant was
intoxicated at the time of the accident. Appellant was involved in a one-vehicle

                                          7
accident. Appellant admitted to several officers that he crashed his SUV because
he was driving too fast and lost control of his SUV. Officer Jonathan Cox testified
at trial that the black box of appellant’s SUV showed that he was traveling at 77
miles per hour before the accident occurred. The posted speed limit on the road
was 50 miles per hour. Trooper Wyman testified that appellant’s speeding,
intoxication, and overcorrection of the steering wheel caused the crash.

      We conclude that a rational factfinder could have found that “but for”
appellant’s intoxication, the complainant’s death would not have occurred. See
Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010) (“Being
intoxicated at the scene of a traffic accident in which the actor was a driver is some
circumstantial evidence that the actor’s intoxication caused the accident, and the
inference of causation is even stronger when the accident is a one-car collision
with an inanimate object.”); see also Martinez, 66 S.W.3d at 468−69 (holding that
evidence showing defendant was speeding, intoxicated, and had lost control of his
vehicle was sufficient to support his conviction). When viewing the evidence in the
light most favorable to the verdict, a rational factfinder could have found the
essential elements of intoxication manslaughter beyond a reasonable doubt.
Wooten, 267 S.W.3d at 296−97. Thus, the evidence is sufficient to support
appellant’s conviction. We overrule appellant’s second issue.

      II.    Motion to Suppress

      In his third issue, appellant argues that the trial court erred in denying his
motion to suppress the warrantless blood draw because his blood was taken
without a warrant and no exception to the warrant requirement applies. In
response, the State contends that exigent circumstances existed to justify the
warrantless search.



                                          8
      A.     Appellant was Under Arrest During the Blood Draw

      Appellant first argues that the mandatory blood draw statute does not apply
because Trooper Wyman never placed him under arrest. See Tex. Transp. Code
§ 724.012.

      A person is arrested when he has been actually placed under restraint or
taken into custody by an officer. Tex. Code Crim. Proc. art. 15.22. An arrest is
complete when a person’s liberty of movement is successfully restricted or
restrained, whether this is achieved by an officer’s physical force or the suspect’s
submission to the officer’s authority. Medford v. State, 13 S.W.3d 769, 773 (Tex.
Crim. App. 2000). An arrest is complete if a reasonable person in the suspect’s
position would have understood the situation to constitute a restraint on freedom of
movement of the degree that the law associates with formal arrest. Id.

      At the suppression hearing, Trooper Wyman stated that he placed appellant
under arrest before taking a specimen of his blood. He stated that he did not
handcuff appellant because appellant was in pain from the accident and the doctors
were still examining the x-rays. Trooper Wyman read appellant the DIC−24 form
and requested a blood specimen. The first sentence of the form states “[y]ou are
under arrest for an offense arising out of acts alleged to have been committed while
you were operating a motor vehicle in a public place while intoxicated.” Thus,
Trooper Wyman told appellant he was under arrest.

      Upon consulting with the district attorney’s investigator and his supervisor,
Trooper Wyman decided to release appellant from his custody and allowed his
wife to take him home from the hospital. Trooper Wyman testified that appellant
was released because of the injuries he suffered and because the Brazoria County
Jail had a limitation on what type of injuries people could come in with. Trooper
Wyman stated that it was not the first time he arrested a suspect for a DWI,
                                         9
released him from custody, and obtained an arrest warrant at a later date.

      The record from the suppression hearing reflects that pursuant to the
mandatory blood draw statute, Trooper Wyman placed appellant under arrest prior
to taking a specimen of his blood. See Tex. Transp. Code § 724.012(b)(1)(A).
Trooper Wyman placed appellant under arrest while he was being treated for
injuries in the hospital. Appellant’s head was immobilized because he was wearing
a C-collar. Because of appellant’s injuries sustained in the crash, Trooper Wyman
could not have further restrained appellant without risking additional injury to him.
Trooper Wyman appears to have had no better way of conveying to appellant that
he was under arrest other than by simply telling him.

      We conclude that appellant was under arrest when the DIC−24 form was
read to him because “a reasonable person in the suspect’s position would have
understood the situation to constitute a restraint on freedom of movement of the
degree which the law associates with formal arrest.” Medford, 13 S.W.3d at 773
(quoting United States v. Corral-Franco, 848 F.2d 536, 540 (5th Cir. 1988)); see
also Bell v. State, 881 S.W.2d 794, 799 (Tex. App.—Houston [14th Dist.] 1994,
pet. ref’d) (“A reasonable person, injured and lying on a hospital stretcher, hearing
from a police officer the words ‘you are under arrest’ and ‘placed under arrest,’
could conclude that he was not free to leave.”). Further, the fact that Trooper
Wyman eventually released appellant from his custody does not affect the
conclusion that appellant was under arrest at the time his blood specimen was
taken. See Gattis v. State, No. 14-03-00045-CR, 2004 WL 2358455, at *3 (Tex.
App.—Houston [14th Dist.] Oct. 21, 2004, no pet.) (not designated for
publication).

      B.        The Trial Court Did Not Err in Denying the Motion to Suppress
      Appellant asserts that the trial court erred in denying his motion to suppress

                                         10
the warrantless blood draw.

      We review a trial court’s denial of a motion to suppress under a bifurcated
standard. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We
review the trial court’s factual findings for an abuse of discretion. Id. At the
suppression hearing, the trial court is the sole factfinder and is free to believe or
disbelieve any or all of the testimony presented. See Wiede v. State, 214 S.W.3d
17, 24−25 (Tex. Crim. App. 2007).

      If the trial judge makes express findings of fact, we view the evidence in the
light most favorable to his ruling and determine whether the evidence supports the
factual findings. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).
When the trial judge does not make explicit findings of fact, we assume the trial
judge made implicit findings of fact supported by the record, Ford v. State, 158
S.W.3d 488, 493 (Tex. Crim. App. 2005), and we view the evidence in the light
most favorable to the trial court’s ruling. Ex parte Moore, 395 S.W.3d 152, 158
(Tex. Crim. App. 2013).

      Second, we review de novo the trial court’s application of the law to the
facts. Valtierra, 310 S.W.3d at 447. We will sustain the trial court’s ruling if it is
reasonably supported by the record and is correct on any theory of law applicable
to the case. Id. at 447–48.

      A trial judge’s findings on a motion to suppress may be written or oral. State
v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006). Here, although neither
party moved for written findings of fact and conclusions of law, and none were
filed, it is apparent from the record that the trial court intended its findings and
conclusions to be expressed via its oral pronouncements.4 Oral findings of fact can

      4
          Among the Court’s oral findings:

                                             11
be considered as findings of fact on the record and given due deference. See, e.g.,
id. (stating that the trial court’s findings and conclusions from the suppression
hearing need to be recorded in some way, whether written out and filed by the trial
court or stated on the record at the hearing); Flores v. State, 177 S.W.3d 8, 13
(Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (reviewing trial court’s oral
findings of fact on a motion to suppress).

      The Fourth Amendment to the United States Constitution provides “[t]he
right of the people to be secure in their persons . . . against unreasonable searches
and seizures shall not be violated, and no Warrants shall issue” unless certain
requirements are met. U.S. Const. amend. IV. “Although the text of the Fourth
Amendment does not specify when a search warrant must be obtained, [the
Supreme Court of the United States] has inferred that a warrant must generally be
secured.” Kentucky v. King, 131 S. Ct. 1849, 1856 (2011). The warrant
requirement is subject to certain reasonable exceptions. Id. These exceptions
include voluntary consent to search, search under exigent circumstances, and
search incident to arrest. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App.
2003).

      When a defendant alleges that a search or seizure violates the Fourth
Amendment, he must produce some evidence that rebuts the presumption of proper
police conduct. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). To
satisfy this burden, the defendant must establish that the search or seizure occurred
without a warrant. Id. Because appellant’s blood was drawn without a warrant, the
burden shifts to the State to prove that the warrantless seizure was reasonable. Id.

      THE COURT: I will find that there existed, based on the totality of the
      circumstances then present, exigent circumstances sufficient to all the taking of
      blood.


                                             12
      The State argues that the warrantless seizure of appellant’s blood was
reasonable because the exigent circumstances exception to the warrant requirement
applies. Exigent circumstances generally fall within one or more of three
categories: (1) providing aid or assistance to persons whom law enforcement
reasonably believes are in need of assistance; (2) protecting police officers from
persons whom they reasonably believe to be present, armed, and dangerous; and
(3) preventing the destruction of evidence or contraband. Gutierrez v. State, 221
S.W.3d 680, 685 (Tex. Crim. App. 2007). To determine whether exigent
circumstances existed to justify a warrantless seizure in a DWI investigation, we
consider the totality of the circumstances and analyze the facts on a case-by-case
basis. Missouri v. McNeely, 133 S. Ct. 1552, 1563 (2013).

      The State asserts that its need to collect and preserve evidence justified the
warrantless search. In support of its contention, the State points to the following
facts: (1) appellant could not perform field sobriety tests at the scene because he
was receiving medical treatment; (2) Trooper Wyman had to take time to
investigate the traffic fatality at the scene; (3) appellant’s transfer to the hospital
was delayed because of Life Flight; (4) Trooper Wyman did not develop probable
cause until he spoke to appellant at the hospital; (5) alcohol from appellant’s blood
stream was dissipating; (6) there was no on-call judge to issue a warrant at the
time; and (7) appellant was receiving emergency medical treatment, including the
possible use of pain medications.

      At the suppression hearing, Trooper Wyman testified that the crash occurred
at 10:20 p.m. and he arrived at the scene at 11:10 p.m. Trooper Wyman
interviewed the appellant at the scene in the back of the ambulance, but was unable
to conduct field sobriety tests due to appellant’s condition at the time. When
Trooper Wyman spoke to appellant, appellant was lying on a stretcher, wearing a

                                          13
C-collar in the ambulance. Trooper Wyman could not accompany appellant to the
hospital because he had to remain at the scene to further investigate the accident
and also wait for another trooper to relieve him. Appellant’s transportation to the
hospital was delayed because Life Flight prevented all incoming and outgoing
traffic from the scene.

      Trooper Wyman arrived at the hospital at 12:00 a.m. and waited for about 20
minutes while appellant received x-rays. While speaking to appellant in the
hospital room, Trooper Wyman smelled a strong odor of alcohol, noticed his eyes
were red and glassy, and saw a nystagmus in his eye. Trooper Wyman read the
DIC−24 form to appellant at 12:55 a.m. Appellant’s blood was taken at 1:15 a.m.,
almost three hours after the accident occurred. At the conclusion of the suppression
hearing, the trial court found “that there existed, based upon the totality of the
circumstances then present, exigent circumstances sufficient to allow the taking of
blood.”

      Appellant asserts that exigent circumstances did not exist which made
obtaining a warrant impractical. Specifically, appellant argues that Trooper
Wyman could have asked another officer to obtain a warrant, Trooper Wyman had
time to obtain a warrant within the two-hour window between his arrival at the
scene and the blood draw, and Trooper Wyman testified that he had a judge meet
him in the hospital to sign a warrant in the past. Appellant cites to this court’s
decision in Douds v. State, in which we stated that “[t]he relevant inquiry is
whether, given the facts and circumstances known to police at the time, it would be
objectively reasonable for an officer to conclude that taking the time necessary to
obtain a warrant before drawing a blood sample would significantly undermine the
efficacy of a blood alcohol test.” 434 S.W.3d 842, 854 (Tex. App.—Houston [14th
Dist.] 2014, pet. granted) (en banc, op. on reh’g).

                                          14
      In Douds, several people were injured in a car accident when a driver
suspected of being under the influence of alcohol struck another vehicle. Id. at 845.
The driver’s blood was taken without a warrant approximately two hours after the
accident. Id. The State argued that because there was an accident involving injury
or death, exigent circumstances justified the warrantless seizure. See id. at 851−52.
This court rejected the State’s argument and held that “[t]he focus of exigent
circumstances analysis in this context is not on the delay attendant to an
investigation . . . but on the delay necessary to obtain a warrant.” Id. at 853. The
court held that the State failed to prove exigent circumstances existed because the
trial court’s findings did “not support an objectively reasonable conclusion that
taking the time to obtain a warrant before drawing appellant’s blood would have
significantly undermined the efficacy of a blood alcohol test.” Id. at 855. The court
emphasized the fact that the evidence in the case did not mention a warrant at all,
nor what the arresting officer knew about the time needed to obtain a warrant. Id.
Because the record below reflects Trooper Wyman’s knowledge of the
requirements for obtaining a warrant, we conclude that Douds is distinguishable.

      Here, Trooper Wyman testified that he did not develop the requisite
probable cause for a warrant until he spoke to the appellant at the hospital. Trooper
Wyman stated that he was familiar with the procedure for obtaining a warrant and
that it was a complicated and lengthy process. He stated that to secure a warrant, he
would have had to type up a search warrant, meet with a judge to sign it, and take
the warrant back to the hospital. Trooper Wyman stated that there was not an on-
call judge available at that time in Brazoria County. The trial court was entitled to
credit Trooper Wyman’s testimony. See Wiede, 214 S.W.3d at 24−25; State v.
Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). By the time Trooper Wyman
developed probable cause to obtain a warrant, almost three hours had passed since


                                         15
the accident occurred. To obtain a warrant, Trooper Wyman would have had to
type up a warrant, locate a judge to sign it, and return to the hospital.

      When considering the totality of the circumstances and viewing the evidence
in the light most favorable to the ruling, we conclude that the trial court did not err
in finding exigent circumstances existed that made obtaining a warrant impractical.
See McNeely, 133 S. Ct. at 1561 (“We do not doubt that some circumstances will
make obtaining a warrant impractical such that the dissipation of alcohol from the
bloodstream will support an exigency justifying a properly conducted warrantless
blood test.”); see also Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003)
(providing that the court will “sustain the trial court’s ruling admitting the evidence
if the ruling is reasonably supported by the record and correct on any theory of law
applicable to the case”). Thus, the evidence resulting from the blood draw was
properly admitted on this basis. We overrule appellant’s third issue.

      III.   Double Jeopardy Clause

      In his final issue, appellant contends that his convictions for felony DWI and
intoxication manslaughter violate the prohibition against double jeopardy because
felony DWI is a lesser included offense of intoxication manslaughter.

      The Fifth Amendment to the United States Constitution provides that no
person shall “be subject for the same offence to be twice put in jeopardy of life or
limb.” U.S. Const. amend. V. This constitutional provision has been made
applicable to the States through the Due Process Clause of the Fourteenth
Amendment. Illinois v. Vitale, 447 U.S. 410, 415 (1980). The Double Jeopardy
Clause prevents the court from prescribing a greater punishment than the
legislature intended. Missouri v. Hunter, 459 U.S. 359, 366 (1983). It protects
against a second prosecution for the same offense following a conviction, a second
prosecution for the same offense following an acquittal, and multiple punishments
                                           16
for the same offense. Cervantes v. State, 815 S.W.2d 569, 572 (Tex. Crim. App.
1991). When a defendant is convicted of two or more crimes in a single trial, only
the multiple punishment guarantee is implicated. Ex parte Herron, 790 S.W.2d
623, 624 (Tex. Crim. App. 1990).

      The United States Supreme Court has established a test to determine whether
or not the same act constitutes a violation of two distinct statutory provisions for
double jeopardy purposes. See Blockburger v. United States, 284 U.S. 299, 304
(1932). Under Blockburger, if each provision requires proof of a unique element
which the other does not, double jeopardy is not implicated. Id. Additionally, even
when two penal statutes have unique elements, and are not the same under
Blockburger, we are required to consider other factors to determine whether the
legislature intended to permit multiple punishments when the same conduct
violates both statutes. Ervin v. State, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999).

      Under Ervin, we must consider (1) whether the offenses’ provisions are
contained within 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 (i.e., whether the “gravamen” of the offense is the same) and
whether that common focus tends to indicate a single instance of conduct; (6)
whether the elements that differ between the offenses can be considered the
“same” under an imputed theory of liability which would result in the offenses
being considered the same under Blockburger; and (7) whether there is a
legislative history containing an articulation of an intent to treat the offenses as the
same or different for double jeopardy purposes. Id.

      Appellant argues that felony DWI is a lesser included offense of intoxication
manslaughter because the prior DWI enhancements alleged in a felony DWI

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indictment should not be considered as elements for double jeopardy purposes.
Appellant asserts that the two prior convictions should only be viewed as
enhancing punishment. The Court of Criminal Appeals recently rejected
appellant’s argument in Ex parte Benson, —— S.W.3d ——, No. WR-81,764-01,
2015 WL 1743459, at *16 (Tex. Crim. App. Apr. 15, 2015).

      In Ex parte Benson, the court considered whether intoxication assault and
felony DWI are the same offense for double jeopardy purposes when they arise out
of the same transaction. Id. at *1. The court began its analysis by determining
whether felony DWI requires proof of a fact not required for intoxication assault.
Id. at *4. The court held that it was “abundantly clear that the offenses of felony
DWI and intoxication assault are different under the Blockburger same-elements
test.” Id. at *5. Because this gave rise to a presumption that the offenses are
presumed to be different for double jeopardy purposes, the court then determined
whether the presumption was rebutted by the Ervin factors. Id.; see also Price v.
State, 434 S.W.3d 601, 609−10 (Tex. Crim. App. 2014) (“If two separately defined
offenses have the ‘same elements’ under Blockburger, then a judicial presumption
arises that the offenses are the same for purposes of double jeopardy . . . .”).

      The court determined that because the offenses are in the same chapter, are
similarly named, and have the same punishment ranges, those factors weighed in
the defendant’s favor. Ex parte Benson, —— S.W.3d ——, 2015 WL 1743459, at
*15. However, the court found that the factors weighing against the defendant’s
position were more substantial. Id. at *16. After weighing the Ervin factors, the
court held that the defendant failed to rebut the presumption established by the
offenses having different elements under Blockburger. Id.

      Following the reasoning of Ex parte Benson, we conclude that appellant’s
convictions for felony DWI and intoxication manslaughter do not violate the

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Double Jeopardy Clause because each offense requires proof of a fact the other
does not. See Tex. Penal Code § 49.09(b)(2) (requiring proof of two prior DWI
convictions); Tex. Penal Code § 49.08(a)(2) (requiring proof the defendant caused
the victim’s death); see also Ex parte Benson, —— S.W.3d ——, 2015 WL
1743459, at *5. Further, the Ervin factors weigh against appellant’s position. See
Benson, —— S.W.3d ——, 2015 WL 1743459, at *16. Therefore, charging
appellant with both offenses did not violate the Double Jeopardy Clause.

                                  CONCLUSION

      We overrule appellant’s issues and affirm the jury’s verdict.




                                      /s/      Ken Wise
                                               Justice



Panel consists of Justices Christopher, Brown, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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