                              NUMBER 13-14-00161-CR

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


JULIANE MYRA MINOR,                                                                     Appellant,

                                                   v.

THE STATE OF TEXAS,                                                                     Appellee.


                       On appeal from the 105th District Court
                             of Kleberg County, Texas.


                              MEMORANDUM OPINION

                Before Justices Rodriguez, Garza, and Longoria
                 Memorandum Opinion by Justice Rodriguez
        Appellant Juliane Myra Minor appeals the trial court’s denial of her application for

writ of habeas corpus alleging a double jeopardy violation. 1                  By one issue, Minor



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        Pre-trial writs of habeas corpus are permitted in very limited circumstances. Ex parte Smith, 178
S.W.3d 797, 801 (Tex. Crim. App. 2005). Because Minor’s double jeopardy issue, if meritorious, would
contends that the double jeopardy prohibitions of the United States Constitution and the

Texas Constitution bar her prosecution for criminally negligent homicide following her

citation under the Texas Transportation Code for “allowing an unlicensed juvenile to drive

a motor vehicle.” See TEX. PENAL CODE ANN. § 19.05 (West, Westlaw through 2015

R.S.); TEX. TRANSP. CODE ANN. § 521.458 (West, Westlaw through 2015 R.S.). We

affirm.

                                         I.      BACKGROUND

          It is undisputed that on June 1, 2012, Minor allowed her unlicensed sixteen-year-

old son, whom we will refer to as B.C., to drive her Hummer H2. B.C. failed to control

his speed while rounding a curve, veered into the opposite lane of travel, and struck

Stephanie Butler’s oncoming vehicle. Butler was eight months pregnant at the time of

the collision, and her unborn child died as a result of accident-induced trauma.

          Both B.C. and Minor received traffic citations following the accident. Minor was

cited for permitting an unauthorized person to drive pursuant to the Texas Transportation

Code.       Minor paid a total of $120 dollars for a fine and associated court costs.

Subsequently, Minor was indicted for criminally negligent homicide.                      The indictment

alleged Minor caused the death of Butler’s unborn child by allowing an unlicensed juvenile

to drive a motor vehicle.

          Minor filed a writ of habeas corpus in the trial court alleging that the prosecution

for criminally negligent homicide constituted double jeopardy because she had previously

been cited for allowing an unlicensed juvenile to drive a motor vehicle and had paid a fine.


bar prosecution, we have jurisdiction over this appeal. See id. (recognizing that “the denial of relief on a
pretrial writ of habeas corpus may be appealed immediately”).
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The trial court denied Minor’s application and determined that a citation for permitting an

unauthorized person to drive was not a lesser-included offense of criminally negligent

homicide. This interlocutory appeal followed.

                                II.     DOUBLE JEOPARDY

       By her sole issue, Minor contends that the double jeopardy prohibitions in the

federal and state Constitutions prevent her prosecution for criminally negligent homicide.

A.     Applicable Law and Standard of Review

       The Double Jeopardy Clause of the Fifth Amendment, applicable to the states

through the Fourteenth Amendment, protects an accused against:               (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 prosecuted in

the same trial.   Brown v. Ohio, 432 U.S. 161, 165 (1977); Illinois v. Vitale, 447 U.S. 410;

415–16 (1977); Ex parte Amador, 326 S.W.3d 202, 205 (Tex. Crim. App. 2010); see Ervin

v. State, 991 S.W.2d 804, 806–07 (Tex. Crim. App. 1999) (distinguishing a “multiple

prosecution” double jeopardy claim, in which a defendant had previously received a

conviction for driving while intoxicated and was subsequently tried for involuntary

manslaughter, from a “multiple punishment” double jeopardy claim in which multiple

offenses were prosecuted in a single trial).

       We apply a de novo standard of review when the trial court's decision to deny relief

on a writ of habeas corpus involves a question of law. See State v. Nkwocha, 31 S.W.3d

817, 820 (Tex. App.—Dallas 2000, no pet.); see also Rice v. State, 333 S.W.3d 140, 144

(Tex. Crim. App. 2011). In analyzing a “multiple-prosecution” double jeopardy claim in


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which two distinct statutory provisions are at issue, as in this case, we initially determine

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

States v. Dixon, 509 U.S. 688, 697 (1993); Blockburger v. United States, 284 U.S. 299,

304 (1932) (applying a “same elements” test for purposes of double jeopardy). Under

Blockburger’s same-elements test, “lesser-included offenses are legally the same as a

greater offense, and are wholly subsumed by the elements of the greater offense, unless

the potential lesser-included offense requires proof of a fact not required to establish the

greater offense.” Ex parte Castillo, No. PD-0545-14, __S.W.3d__, 2015 WL 3486960, at

*2 (Tex. Crim. App. June 3, 2015) (citing Brown, 432 U.S. at 168); see also TEX. CODE

CRIM. PROC. ANN. art. 37.09(1) (West, Westlaw through 2015 R.S.) (providing the

statutory framework by which we make a lesser-included offense determination).

       We apply Texas law to determine if one offense is a lesser-included offense for

double jeopardy purposes. See generally Ex parte Watson, 306 S.W.3d 259, 265 (Tex.

Crim. App. 2009) (recognizing that Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App.

2007) applies when performing a double jeopardy analysis). If we determine that the

offense is legally a lesser-included offense, we then look at the evidence to determine if

a true double jeopardy violation occurred. See id.

B.     Discussion

       We begin our analysis under Blockburger and decide whether the two offenses are

the same for purposes of double jeopardy. See Blockburger, 286 U.S. at 304. We do

this by determining whether Minor’s traffic citation pursuant to the transportation code is

a lesser-included offense of criminally negligent homicide under the penal code. See


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Brown, 432 U.S. at 165; Blockburger, 286 U.S. at 304; Ex parte Watson, 306 S.W.3d at

265. Applying Hall in this double jeopardy context, we begin the lesser-included offense

analysis by looking only to the statutory elements of criminally negligent homicide as

modified by the allegations in the indictment. See 225 S.W.3d at 536. The indictment

must either allege all of the elements of section 521.458 of the transportation code, or

elements and facts from which all elements of a section 521.458 violation could be

deduced. See State v. Meru, 414 S.W.3d at 163 (Tex. Crim. App. 2013) (“The elements

of the lesser-included offense do not have to be pleaded in the indictment if they can be

deduced from facts alleged in the indictment.”).

          The indictment provides as follows: “Juliane Myra Minor, defendant, on or about

June 1, 2012, in Kleberg County, Texas, did then and there, by criminal negligence, cause

the death of an individual, namely the unborn child of Stephanie Butler, by allowing an

unlicensed juvenile to drive a motor vehicle.” See TEX. PENAL CODE ANN. § 19.05 (noting

that a person commits the offense of criminally negligent homicide “if he causes the death

of an individual by criminal negligence”). An offense under this section is a state jail

felony.

          Section 521.458 of the Texas Transportation Code provides the following:

          (a)   A person may not knowingly permit or cause the person’s child or
                ward who is under 18 years of age to operate a motor vehicle on a
                highway in violation of this chapter.

          (b)   A person may not authorize or knowingly permit a motor vehicle
                owned by or under the control of the person to be operated on a
                highway by any person in violation of this chapter.

TEX. TRANSP. CODE ANN. § 521.458.


                                             5
         Comparing the statutory elements of criminally negligent homicide, as modified by

Minor’s indictment, with the elements of section 521.458 of the Texas Transportation

Code, we ask: “Are the elements of the lesser offense established by proof of the same

or less than all the facts required to establish the commission of the offense charged?”

See Hall, 225 S.W.3d at 536 (citing TEX. CODE CRIM. PROC. ANN. art. 37.09(1)). The

answer is that they are not. The facts required to prove the lesser offense under the

transportation code include at least one fact that is not the same as, or less than, those

required to establish criminally negligent homicide: the requirement that the violation be

“knowingly” committed.            Compare TEX. PENAL CODE ANN. § 19.05 with TEX. TRANSP.

CODE ANN. § 521.458.

         Moreover, even were we to consider the indictment’s phrase “by allowing” to mean

“knowingly,” as used in the statute, the transportation code still requires proof of additional

elements—i.e., that Minor let her “child or ward” drive the vehicle under section

521.458(a) or that the vehicle in question was “owned by” or “subject to” Minor’s control

under section 521.458(b). See TEX. TRANSP. CODE ANN. § 521.458; Meru, 414 S.W.3d

163. Therefore, the transportation code requires proof of B.C.’s relation to Minor under

one section, and proof of Minor’s degree of ownership or control over the subject vehicle

under another.2 See TEX. TRANSP. CODE ANN. § 521.458(a–b). We could not therefore

deduce that if Minor is guilty as charged by the indictment, she is also guilty of the lesser-

offense described in the transportation code. See Meru, 414 S.W.3d at 162–63.

         Because a determination of Minor’s traffic citation requires proof of more elements


         2   The traffic citation did not specify the subsection of the statute under which Minor was initially
cited.
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than required by her indictment for criminally negligent homicide, it cannot be a lesser-

included offense pursuant to the Texas Code of Criminal Procedure or Texas case law.

See TEX. CODE CRIM. PROC. ANN. art 39.07; Meru, 414 S.W.3d at 162–63; Hall, 225

S.W.3d at 536.     Minor has not satisfied the Blockburger “same elements” test, and

Minor’s “multiple-prosecution” double jeopardy claim fails. See Vitale, 447 U.S. at 415–

16; Ex parte Watson, 306 S.W.3d at 262–63; Guzman, 182 S.W.3d at 191–92.

       We overrule Minor’s sole issue on appeal.

                                    III.   CONCLUSION

       We affirm the trial court’s denial of Minor’s application for writ of habeas corpus.


                                                                NELDA V. RODRIGUEZ
                                                                Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
25th day of June, 2015.




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