             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 149 TH DISTRICT COURT
                           BRAZORIA COUNTY

              M EYERS, J., filed a dissenting opinion in which J OHNSON and A LCALA,
JJ., join.

                           DISSENTING OPINION

       The majority holds that when a felony DWI and an intoxication assault offense arise

out of the same transaction, the two crimes are not the same offense for double-jeopardy

purposes. However, I disagree with the court’s analysis and conclusion.

       As the majority discusses, we have determined that prior intoxication-related

convictions are elements of felony DWI. Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim.

App. 1999). However, the prior convictions are only jurisdictional elements that, once pled

in the indictment, confer jurisdiction to the district court. Martin v. State, 200 S.W.3d 635,
                                                                         Benson dissent - Page 2

640 (Tex. Crim. App. 2006). Jurisdictional elements are not traditional elements and should

not be treated as such. For example, in felony DWI cases where defendants agree to stipulate

to their two prior convictions, the State is prohibited from presenting any further evidence

of the convictions during its case-in-chief in order to prevent unfair prejudice. Tamez v. State,

11 S.W.3d 198, 202 (Tex. Crim. App. 2000); Hernandez v. State, 109 S.W.3d 491, 495 (Tex.

Crim. App. 2003). This same procedure does not apply when a defendant admits to a

traditional element of the offense they are charged with and this clearly illustrates how

jurisdictional elements are distinguishable. While this difference does not mean the offenses

are the same under the Blockburger test, I do believe that it goes to rebutting the presumption

that the offenses are different for double-jeopardy purposes.

       Further rebutting that presumption is the fact that misdemeanor DWI and intoxication

assault would be presumed to be jeopardy barred under Blockburger because there are no

jurisdictional priors to act as differing elements. See T EX. P ENAL C ODE §§ 49.04, 49.07.

There exists no clearly expressed legislative intent to impose multiple punishments for a

misdemeanor DWI and intoxication assault that arise from the same transaction, and it does

not logically follow that such an intent suddenly appears when it is a felony DWI rather than

a misdemeanor.

       For the foregoing reasons, I believe that, although the offenses may have different

elements under the Blockburger test, prosecuting an individual for a felony DWI and an

intoxication assault that arose from the same transaction is unconstitutional and should be
                                                                   Benson dissent - Page 3

barred by double jeopardy. I would grant Appellant relief and, therefore, I respectfully

dissent.

                                                      Meyers, J.

Filed: April 15, 2015

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