                  IN THE COURT OF CRIMINAL APPEALS
                              OF TEXAS
                                         NO. WR-81,764-01


                    EX PARTE YUSULF SHAHEED BENSON, Applicant


                   ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                   CAUSE NO. 65676-A IN THE 149TH DISTRICT COURT
                              FROM BRAZORIA COUNTY


        Per curiam.

                                              ORDER

        Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of felony driving

while intoxicated and intoxication assault, the offenses having been charged in a single indictment,

and he was sentenced to concurrent terms of seven and five years’ imprisonment, respectively. The

convictions arise from the same criminal episode in which Applicant struck a motorcyclist with his

vehicle and caused the motorcyclist injury. Applicant contends, inter alia, that his convictions for

both DWI and intoxication assault violate the prohibition against double jeopardy. As discussed

below, this Court orders that the double jeopardy issue be filed and set for submission with briefing

by the parties.
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        The Double Jeopardy Clause protects an accused against multiple punishments for the same

offense. U.S. CONST . amend. V; Ex parte Denton, 399 S.W.3d 540 (Tex. Crim. App. 2013). “The

applicable rule is that, where 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.” Blockburger v. United

States, 284 U.S. 299, 304 (1932). The elements of DWI are satisfied with proof showing that “the

person is intoxicated while operating a motor vehicle in a public place,” TEX . PENAL CODE §

49.04(a), and Applicant’s two prior DWI convictions elevated the DWI offense to a felony, TEX .

PENAL CODE 49.09(b). A person commits intoxication assault if that person “by accident or mistake,

. . . while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication

causes serious bodily injury to another.” TEX . PENAL CODE § 49.07(a)(1).

        Applicant argues that double jeopardy bars a conviction for both offenses because the same

elements must be proven for each offense, except that intoxication assault requires only the

additional element of bodily injury to another. See Blockburger v. United States, supra; Ex parte

Denton, supra. The prosecution counters that there is no double jeopardy concern. It asserts that each

offense has elements not found in the other because intoxication assault requires injury, while felony

DWI does not, and felony DWI requires two prior DWI convictions, while intoxication assault does

not. The prosecution cites to a 2001 opinion from the Fourteenth Court of Appeals, which denied

a similar double jeopardy challenge, holding, “Because felony DWI includes the jurisdictional

prerequisites of two prior DWI convictions, and intoxication manslaughter does not, felony DWI is

not a lesser included offense of intoxication manslaughter.” McLeod v. State, 56 S.W.3d 704, 708

(Tex. App.—Houston [14th Dist.] 2001); see also Perez v. State, No. 04-01-00552-CR (Tex.

App.—San Antonio Jan 29, 2003) (denying a similar double jeopardy claim, holding, “[F]elony DWI
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requires proof of two prior DWI convictions and intoxication manslaughter requires proof the

defendant caused the victim’s death”).

        This Court has held that prior intoxication-related offenses are elements of felony DWI,

Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999), and the prosecution must plead two

jurisdictional prior DWI convictions in a felony DWI indictment because it is the indictment that

confers jurisdiction in the district court, Martin v. State, 200 S.W.3d 635 (Tex. Crim. App. 2006).

This Court has also recognized, however, that these prior-DWI elements are jurisdictional in nature,

see id., and the jurisdictional priors are not included as elements in the DWI statute itself but are pled

as an enhancement, TEX . PENAL CODE §§ 49.04 and 49.09(b).

        Given this background, this application is filed and set for submission, and the parties shall

brief the following issue:

        Whether the prior-DWI jurisdictional enhancements alleged in a felony DWI
        indictment may be considered as elements of the DWI offense when determining
        whether conviction for that DWI and a conviction for intoxicated assault arising from
        the same criminal episode, as occurred in Applicant’s prosecution, are barred by
        double jeopardy.

        It does not appear that Applicant is represented by counsel. If he is unrepresented, the trial

court shall determine whether Applicant is indigent. If Applicant is indigent and desires to be

represented by counsel, the trial court shall appoint an attorney to represent him. TEX . CODE CRIM .

PROC. art 26.04. The trial court shall send to this Court, within 30 days of the date of this order, a

supplemental transcript containing: a confirmation that Applicant is represented by counsel; the order

appointing counsel; or a statement that Applicant is not indigent. All briefs shall be filed with this

Court on or before November 24, 2014.

Filed: September 24, 2014
Do not publish
