 Appeal Affirmed and Opinion Filed February 26, 2013.




                                                  In The
                                     Qtourt of ppca(
                            jfiftIj 1trict of Ixa at Da((a

                                        No, 05-11-01714-CR

                          ALEXANI)ER GRANT HALL APPELLANT

                                                   V.

                             THE STATE OF TEXAS, APPELLEE

                        On Appeal from the County Court at Law No. 1
                                   Grayson County, Texas
                             Trial Court Cause No. 2011-1-104

                                MEMORANDUM OPINION
                           Before Justices Lang-Miers, Myers, and Lewis
                                     Opinion by Justice Lewis


        Alexander Grant Hall appeals his conviction for DWI. Appellant claims his Fifth

Amendment protection against Double Jeopardy was violated because of the multiple

punishments he received for the same offense. We affirm the trial court’s judgment. The

background of this case and the evidence adduced at the plea hearing are well known to the

parties, and therefore we limit recitation of the facts to those necessary to address appellant’s

complaints on appeal. We issue this memorandum opinion because the law to be applied in this

case is well settled. See TEx. R. APP. P. 47.4.
 Background

        On July 5, 2009, appellant was involved in a motor vehicle collision when the vehicle

 appellant was operating hit another vehicle and caused bodily injury to Nanci Kelly. Appellant

 was originally arrested for driving while intoxicated (“DWP’) and intoxication assault causing

 serious bodily injury. After further investigation, the case was submitted to a grand jury and

 appellant was subsequently charged with aggravated assault with a deadly weapon. On March

26, 2010, appellant pleaded guilty to aggravated assault with a deadly weapon and was sentenced

to eight years deferred adjudication. On January 28, 2011, the State charged appellant with

driving while intoxicated (“DWI”) stemming from the same July 2009 collision that resulted in

the aggravated assault charges. Appellant filed a pre-trial application for writ of habeas corpus

seeking relief from double jeopardy and a motion to dismiss the indictment which was denied.

On December 2, 2011, appellant pleaded guilty to the DWI and was sentenced to confinement

for 0 days.

Analysis

       Appellant contends that his convictions violate the constitutional guarantee against

double jeopardy. U.S. C0NsT. amends. V, XIV; TEx. C0NsT. art. I, § 14. In a single issue,

appellant argues that his convictions for both aggravated assault and DWI constitute double

jeopardy.

       The Fifth Amendment to the United States Constitution stipulates that no person shall “be

subject for the same offense to be twice put in jeopardy of life or limb.” U.S. C0NsT. amend. V.

This provision applies to the states as incorporated in the Due Process Clause of the Fourteenth

Amendment. Illinois v. Vitale, 447 U.S. 410, 415 (1980). The Double Jeopardy Clause protects

against a second prosecution for the same offense after acquittal, a second prosecution for the

same offense after conviction, and multiple punishments for the same offense. Bigon v. State,

                                             -3-
 252 S.W.3d 360, 369 (Tex. Crim. App. App. 2008). Appellant appears to invoke the second and

 third circumstances, both of which require             for doublejeopardy purposes            a determination of
 whether his two Convictions          WCC     for the same offense. When the same act or transaction

 constitutes a violation of two distinct statutory provisions, the test to be applied to determine

 whether there are two offenses or only one is whether each provision requires proof of a fact

 which the other does not. Biockburç’er v. US.. 284 U.S. 299. 304 (1932). To determine whether

 two crimes are the same for double jeopardy purposes, we focus on the elements alleged in the

 charging instrument. Bigon, 252 S.W.3d at 370.

          Appellant’s aggravated assault indictment, based on Texas Penal Code sections

 22.0 1(a)(1) and 22.02(a)(2), reads, in pertinent part. as follows:

                 Alexander Hall, hereinafter called “Defendant” did then and there
         recklessly cause bodily injury to Nanci Kelly by hitting a vehicle in which the
         said Nanci Kelly was situated with a vehicle operated by the defendant, by driving
         said vehicle after ingesting alcohol, by driving the vehicle while intoxicated, by
         failing to brake his vehicle, by driving his vehicle at a speed unsafe for the
         circumstances then existing, by failing to keep a proper lookout or by any
         combination of the firegoing, and the defendant did then and there use or exhibit
         a deadly weapon, to-wit: a motor vehicle, that in the manner of its use or intended
         use is capable of causing death or serious bodily injury, during the commission of
         said assault      (emphasis added)


         Appellant’s DWI complaint and information, based on Texas Penal Code section 49.04,

reads, in pertinent part as follows: “Alexander Hall did then and there operate a motor vehicle in

a public place while the said defendant was intoxicated.”

         We are unable to compare the factual aspects of the aggravated assault with the facts in

the DWI because the former was not included in the record before us.’ The indictment for

aggravated assault provided five different manners and means by which appellant caused Kelly’s


 Nothing in the record indicates appellant only pleaded guilty to aggravated assault and causing the injury by
driving the vehicle while intoxicated. The record is void of any factual evidence produced during the aggravated
assault proceedings.

                                                       -4-
 iniunes: I ) by driving the vehicle afler ingesting alcohol;       2)
                                                                         by driving the vehicle while

 intoxicated; 3 by failing to brake his vehicle; 4) by driving his vehicle at a speed unsafe for
                                                                                                 the
 circumstances then existing; and 5) by failing to keep a proper lookout, Appellant entered
                                                                                            a plea
 ol guilty to the indictment as a whole, not just driving while intoxicated. It is apparent that
                                                                                                 if we
 look to the DWI oflense, the State was         required to   prove appellant was intoxicated while

 operating a motor vehicle in a public place.   Thx.   P[Nf\I.. CODE ANN. § 49.04 (West Supp. 201 2).

 Appellant could have pleaded guilty to the aggravated assault based on causing the injury
                                                                                           by
 failing to brake his vehicle, driving at an unsafe speed, or failing to keep a proper lookou
                                                                                              t. If so,
 the DWI offense would require proof which would not necessarily be part of the proof in
                                                                                         the
 aggravated assault case. Sections 22.02(a) and 49.04 each require proof of a fact that
                                                                                        the other
does not. Tux. PENAL CODE ANN. §* 22.02(a) & 49.04 (West 2011 & Supp. 2012):
                                                                             see                  (1/SO

Dodson v. State, No. 05l000764CR, 2011 WL 5865733, *2 (Tex. App.—Dallas
                                                                        2011, no pet.)
(mem. op., not designated for publication) (finding a DWI conviction was not a double
                                                                                      jeopardy
violation       it was not apparent on the face of the record when a jury could have convic
                                                                                            ted
            -




appellant of aggravated assault on an alternative manner and means). Thus, the B/ockb
                                                                                      urçer test

is satisfied. See 284 U.S. at 304. We conclude there is no double jeopardy violation,
                                                                                      and we
overrule appellant’s single issue.

conclusion

       Because we conclude there is no double jeopardy violation, we affirm the trial court’s

judgment.


                                                                /

                                                   DAVID LEWIS
Do Not Publish                                      JUSTICE
Tex. R. App. P. 47.

11 1714F.U05

                                                -5-
                                   (!i.iitrl uf       i’a1
                        ..Fi[11! t1tLrict til       ixai at    DaL1a
                                        JUDGMENT

ALEXANDER GRANT HALL, Appellant                      On Appeal from the County Court at Law
                                                     No. I, Grayson County, Texas
No, 051 14)1714-CR         V.                        Trial Court Cause No. 2011-1104.
                                                     Opinion delivered by Justice Lewis.
THE STATE OF TEXAS, Appellee                         Justices Lang-Miers and Myers
                                                     participating.

       J3ased on the Court’s opinion of this date, the judgment of the trial court is AFFIR
                                                                                            MED.

Judgment entered this 26th day of February, 2013.




                                                          /   ...‘




                                                    DAVID LEWIS
                                                    JUSTICE
