Affirmed as Modified; Opinion Filed July 20, 2018.




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-00824-CR

                                MARK KUTCH, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the County Criminal Court No. 8
                                  Tarrant County, Texas
                             Trial Court Cause No. 1346881

                             MEMORANDUM OPINION
                           Before Justices Lang, Myers, and Stoddart
                                  Opinion by Justice Stoddart
       Mark Kutch appeals his conviction for driving while intoxicated, enhanced to a Class A

misdemeanor by a prior DWI conviction. After the jury found him guilty, the trial court assessed

punishment at 120 days in jail and a $2,500 fine. Kutch argues in five issues that the trial court

erred by not submitting his special plea of former jeopardy to the jury, denying a motion for

mistrial regarding a comment on his post-arrest silence, overruling his motion to suppress and

objection to the results of blood alcohol testing because the warrant was not supported by probable

cause, and overruling his objection to testimony that he refused field sobriety tests. On our own

motion, we modify the judgment and affirm as modified.

                                           Background

       Officer Gary Jones was off-duty and riding with his wife and children in Johnson County

when Kutch’s truck approached on a cross street and nearly ran the stop sign. Jones’s wife swerved
their vehicle, and Jones noticed that Kutch had a blank stare on his face and appeared intoxicated.

The Joneses continued driving and stopped at a red light. Kutch’s truck hit their van in the back

right quarter panel causing damage to the vehicle. Mrs. Jones pulled into a nearby gas station, but

Kutch continued on to Interstate 35 without stopping to exchange insurance information.

Suspicious that Kutch was intoxicated, Jones called 911 while his wife followed Kutch’s truck,

which was heading towards Fort Worth. While following Kutch, Jones noticed that he had

difficulty maintaining a single lane and soon began straddling lanes. Kutch almost hit another

vehicle.   When Kutch exited Interstate 35, Mrs. Jones followed him into a Fort Worth

neighborhood, where Kutch stopped. Kutch exited his truck and staggered toward the Joneses’

van. Jones exited the van and met Kutch in the street. Kutch had a glossy, glazed look on his face

and smelled of alcohol. Kutch yelled at Jones, asking why they were following him. Jones

identified himself as an off-duty police officer and told Kutch he hit their van earlier. Jones then

told Kutch to sit on the curb, grabbed his shoulder, and pushed him down to the curb. Fort Worth

police officers arrived at the scene a few seconds later.

       Fort Worth Police Officer Victoria Robles observed Kutch had slurred speech, an unsteady

gait, and the odor of alcohol. Initially, Kutch agreed to participate in field sobriety tests and to

being transported to a nearby parking lot for the tests. However, once they arrived, Kutch refused

to submit to the tests. Kutch was then arrested for driving while intoxicated. At the jail, Kutch

received his statutory warnings and was asked if he would submit to a breath test. He refused.

Officer Robles then sought a search warrant for a blood specimen. She submitted an affidavit to

a magistrate who issued a warrant for sampling and testing of Kutch’s blood. The sample was

taken at a local hospital and later blood testing revealed an alcohol concentration of 0.21. The

legal limit for alcohol concentration is 0.08. TEX. PENAL CODE ANN. § 49.01(2)(B).




                                                –2–
                                                                  Analysis

I.         Plea of Former Jeopardy

           In his first issue, Kutch argues the trial court erred by refusing to charge the jury under

article 27.05 of the code of criminal procedure. Kutch filed a pretrial special plea of double

jeopardy under the Double Jeopardy Clause of the United States and Texas Constitutions. U.S.

CONST. amends. V, XIV; TEX. CONST. art. I, § 14. He argued his conviction in Johnson County

for failure to stop and provide information after an accident involving damage to a vehicle barred

his prosecution for DWI in Tarrant County arising out of the same transaction. See TEX. CODE

CRIM. PROC. ANN. art. 27.05. Kutch asserted that the facts necessary to prove the DWI case are

the same as the facts necessary to prove the failure to stop and provide information case in Johnson

County. He presented evidence at a hearing that he was convicted of the misdemeanor offense of

failure to stop and provide information arising out of the accident with Officer Jones’s vehicle in

Johnson County. The docket sheet from the Johnson County case was admitted in evidence. After

the hearing, the trial court denied the special plea. The trial court later overruled Kutch’s request

for a jury instruction on this issue.

           Article 27.05 provides, “A defendant’s only special plea is that he has already been

prosecuted for the same or a different offense arising out of the same criminal episode that was or

should have been consolidated into one trial, and that the former prosecution . . . resulted in

conviction.” TEX. CODE CRIM. PROC. ANN. art. 27.05(2). Article 27.05 is a procedural device for

raising a constitutional double jeopardy claim.1 The trial court must submit to the jury all issues

of fact presented by a special plea unless, assuming the facts alleged to be true, the court determines




      1
        A special plea under article 27.05 is the appropriate means of raising a multiple punishment claim. See Apolinar v. State, 820 S.W.2d 792,
794 (Tex. Crim. App. 1991) (holding that a special plea afforded no protection against “twice being put to trial”). Whereas, an application for a
pretrial writ of habeas corpus is the proper procedure for raising a successive prosecution double jeopardy claim. See Gonzalez v. State, 8 S.W.3d
640, 643 n.9 (Tex. Crim. App. 2000) (“We have decided that a pretrial writ of habeas corpus is usually the procedural vehicle by which a defendant
should raise a ‘successive prosecutions for the same offense’ double jeopardy claim.”).

                                                                      –3–
that the plea does not present a legally sufficient double jeopardy claim. See TEX. CODE CRIM.

PROC. ANN. art. 27.07; Arredondo v. State, 582 S.W.2d 457, 459 (Tex. Crim. App. 1979). That is,

“if conceding the facts averred in the special plea to be true, the plea in bar would not be good in

law, the trial court may overrule it and decline to submit it to the jury.” Arredondo, 582 S.W.2d

at 459; see also Kelson v. State, 167 S.W.3d 587, 593 (Tex. App.—Beaumont 2005, no pet.)

(discussing function of special plea).

        Kutch argues the trial court should have submitted the special plea to the jury because the

facts necessary to prove the DWI case are the same as the facts necessary to prove the failure to

stop and provide information case. He contends article 27.05 is a statutory “carving doctrine,” and

applies in this case even though the court of criminal appeals repudiated the carving doctrine in

1982.

        “Until 1982, Texas had a unique state-level double jeopardy test called ‘the carving

doctrine,’ which held that the State could ‘carve’ but one conviction out of a single criminal

‘transaction.’” Ex parte Watson, 306 S.W.3d 259, 266–69 (Tex. Crim. App. 2009) (Cochran, J.,

concurring) (quoting Ex parte McWilliams, 634 S.W.2d 815, 822 (Tex. Crim. App. 1982) (op. on

reh’g)).   “Neither the Federal nor State Constitutions nor Texas Statutes prohibit multiple

prosecution for two statutory offenses committed in the same transaction. The constitutional

provisions speak of double jeopardy in terms of the ‘same offense’ rather than ‘same transaction.’”

Ex parte McWilliams, 634 S.W.2d at 823 (overruling “carving doctrine”). The carving doctrine

proved unworkable, unsound, and lacked constitutional or statutory basis. Id. at 824.

        As explained above, article 27.05 set forth one procedure for raising a double jeopardy

claim. See Apolinar, 820 S.W.2d at 794. Kutch cites to no authority, and we have found none,

that article 27.05 provides greater protection than the double jeopardy clauses of the United States

and Texas Constitutions. See State v. Marshall, 814 S.W.2d 789, 792 (Tex. App.—Dallas 1991,

                                                –4–
pet. ref’d) (rejecting argument that article 27.05 preserved the carving doctrine after Ex parte

McWilliams). Rather, courts hold that if, assuming the allegations are true, the plea presents a

legally sufficient double jeopardy claim, the issues of fact presented in the special plea should be

submitted to the jury. See Arrendondo, 582 S.W.2d at 459; Kelson, 167 S.W.3d at 593; see also

Apolinar, 820 S.W.2d at 794 (plea “is a mechanism for avoidance of reconviction, not retrial”

(quoting Robinson v. Wade, 686 F.2d 298, 302 n.3 (5th Cir.1982)). Because the trial court denied

Kutch’s request to submit the plea to the jury, we review whether the special plea presented a

legally sufficient double jeopardy claim. We apply an abuse of discretion standard. McNeil v.

State, 398 S.W.3d 747, 757 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).

       The Double Jeopardy Clause of the United States Constitution, applicable to the states

through the Fourteenth Amendment, protects an accused from successive prosecutions for the

same offense after an acquittal or conviction and from multiple punishments for the same offense.

U.S. CONST. AMEND. V, cl. 2; see Ex Parte Castillo, 469 S.W.3d 165, 168 (Tex. Crim. App. 2015).

The Texas Constitution provides the same protections. See TEX. CONST. art. I, § 14 (“No person,

for the same offense, shall be twice put in jeopardy of life or liberty; nor shall a person be again

put upon trial for the same offense, after a verdict of not guilty in a court of competent

jurisdiction.”); see also State v. Blackshere, 344 S.W.3d 400, 405 n.8 (Tex. Crim. App. 2011); Ex

parte Beeman, 946 S.W.2d 616, 617 (Tex. App.—Fort Worth 1997, no writ).

       There are two relevant inquiries for whether offenses are the same: legal sameness, which

depends solely on the pleadings and statutory law, not the record, and factual sameness, which

considers the entire record. See Castillo, 469 S.W.3d at 172. When two distinct statutory

provisions are at issue, we ordinarily determine legal sameness by applying the same-elements test

to determine whether “each provision requires proof of a fact which the other does not.” Castillo,

469 S.W.3d at 168 (citing United States v. Dixon, 509 U.S. 688, 697 (1993); Blockburger v. United

                                                –5–
States, 284 U.S. 299, 304 (1932)). In applying the same-elements test, we use the cognate

pleadings approach to determine whether the offenses are the “same offense” for double jeopardy

purposes. See id. at 169. Under this test, we compare the elements of the greater offense as pled

to the statutory elements of the potential lesser included offense in the abstract. See id. If the

offenses are legally the same, we then look to see if they are factually the same by applying a units

of prosecution analysis. Id. To prevail, the claimant must prove the offenses are both legally and

factually the same. Id.

       Applying the same-elements test in this case, we conclude the offenses are not legally the

same. As alleged in the DWI information, on or about October 27, 2013, in Tarrant County, Kutch

operated a motor vehicle in a public place while intoxicated and at the time he had been finally

convicted of a prior misdemeanor DWI offense in Johnson County on December 4, 2012. See

TEX. PENAL CODE ANN. §§ 49.04, 49.09. The offense alleged as the basis for the plea of former

jeopardy, is failure to stop and provide information after an accident resulting in only damage to a

vehicle. See TEX. TRANSP. CODE ANN. §§ 550.022(a), (c), 550.023. That offense requires proof

of an accident resulting only in damage to a vehicle, failure to immediately stop, immediately

return to the scene, and remain at the scene to exchange required information. See id. DWI

requires proof of intoxication but failure to stop and provide information does not. Failure to stop

and provide information requires proof of an accident resulting in damage but DWI does not.

Because both offenses require proof of elements the other does not require, they are not the same

offense. See Castillo, 469 S.W.3d at 169. Therefore, the special plea was legally insufficient to

show the offenses were legally and factually the same. Id.

       We conclude that Appellant’s special plea did not present a legally sufficient former

jeopardy claim and hold that the trial court did not abuse its discretion in refusing to present the

special plea to the jury. See Arrendondo, 582 S.W.2d at 459. We overrule Kutch’s first issue.

                                                –6–
II.    Comment on Post-Arrest Silence

       In his second issue, Kutch argues the trial court erred by overruling his objection that the

State violated his right to remain silent when it elicited testimony that Kutch refused to answer

Officer Robles’s questions about the accident. The record reflects, however, that the trial court

sustained the objection and, at Kutch’s request, instructed the jury to disregard the question and

answer. The record also shows the trial court denied Kutch’s request for a mistrial. Therefore, the

issue raised in Kutch’s brief presents nothing for review. However, because the State has briefed

the matter, we address the issue of whether the trial court properly denied the motion for mistrial.

See Dancer v. State, 253 S.W.3d 368, 372 (Tex. App.—Fort Worth 2008, pet. ref’d) (per curiam)

(mem. op.) (“When the trial court sustains an objection and instructs the jury to disregard but

denies a defendant’s motion for a mistrial, the issue is whether the trial court abused its discretion

in denying the mistrial.”).

       We review the denial of a motion for mistrial for an abuse of discretion. See Ocon v. State,

284 S.W.3d 880, 884 (Tex. Crim. App. 2009). Under this standard, we view the evidence in the

light most favorable to the trial court’s ruling and uphold the ruling if it falls within the zone of

reasonable disagreement. Id. A mistrial is an appropriate remedy in extreme circumstances for a

narrow class of highly prejudicial and incurable errors. Id. It applies when the error is so

prejudicial that expenditure of further time and expense would be wasteful and futile. Id.

       In determining whether the trial court abused its discretion in denying the mistrial, we

consider the severity of the misconduct (prejudicial effect), any curative measures taken, and the

certainty of conviction absent the misconduct. Dancer, 253 S.W.3d at 372 (citing Hawkins v.

State, 15 S.W.3d 72, 77 (Tex. Crim. App. 2004)).

       The following exchange occurred during Officer Roble’s testimony:

               Q. And was it at that point that you made your arrest?


                                                 –7–
               A. It was.

               Q. Okay. Now, did you discuss with the Defendant anything to do with the
                     accident then?

               A. I tried. He refused.

               Q. He refused to speak with you at all or he —

               A. He spoke with me, just he refused to answer any questions.

               [DEFENSE]: Your Honor, I object. He’s clearly under custody at this point
                    and refusal is a direct comment, involves 38.08, and Article 1,
                    Section 9 and 10 of the Texas Constitution, and the 5th and 14th
                    Amendments to the United States Constitution.

               [PROSECUTOR]: Your Honor, I can clarify. I believe the statement was
                    made before he was under arrest. But I’ll clarify that with the
                    witness.

               THE COURT: All right. Ask her that question.

               [DEFENSE]: Well, may I ask her a couple of questions?

       The defense attorney asked several questions on voir dire to establish that Kutch was

detained at the time and had not been given the Miranda warnings. See Miranda v. Arizona, 384

U.S. 436, 479 (1966). The trial court asked the prosecutor to clarify whether the question pertained

to conversations with the defendant while he was detained in the police car. The prosecutor stated

he intended to ask about conversations before Kutch was placed under arrest and asked Officer

Robles:

               Q. Now, Officer Robles, before you detained the witness and put him in the
                  back of your police car, did you speak to him at all about the accident?

               A. I attempted to. However, due to his actions and his demeanor at the time,
                  I felt for my need of safety, and so I had to detain him and place him in
                  the back seat of my car to investigate further. He would not allow us to
                  keep in that situation we were in prior to.

               THE COURT: Sustained.

               MR. BURNS: Have an instruction to the jury to disregard those comments?

               THE COURT: Before the last question?

                                                –8–
               MR. BURNS: Yes, sir.

               THE COURT: Yeah. The jury will disregard Officer Robles’ comments and
                 the question before last.

               MR. BURNS: And we’d move for mistrial, Your Honor.

               THE COURT: Denied.

       A comment on a defendant’s post-arrest silence is improper. See Doyle v. Ohio, 426 U.S.

610, 618 (1976); Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995). Although Officer

Robles twice said that Kutch refused to discuss the accident, Kutch objected only to the second

question. The comments were brief and referred to the prior accident with Officer Jones’s vehicle,

not the DWI. The prosecutor indicated he thought the statements were made before Kutch was

detained, and it does not appear the questions were intended to violate Kutch’s constitutional

rights. Nothing in the record indicates the question and response were calculated to inflame the

minds of the jury. The comments were not so severe as to require a mistrial.

       Further, the trial court took prompt measures to cure any harm from the improper

comments. It sustained the objection and instructed the jury to disregard the question and response.

In general, a prompt instruction to disregard will cure any harm associated with an improper

question or comment. Dancer, 253 S.W.3d at 372–73. We presume the jury will follow the court’s

instruction to disregard. Glassey v. State, 117 S.W.3d 424, 431 (Tex. App.—Fort Worth 2003, no

pet.). Nothing in the record suggests this was an “extreme circumstance” where the prejudice, if

any, could not be cured or that the jury could not follow the instruction to disregard. The curative

measures taken by the trial court were timely and appropriate.

       Finally, considering the ample evidence that Kutch operated a motor vehicle in a public

place while he was intoxicated, the certainty of conviction absent the misconduct was great.

       Applying the appropriate factors, we conclude the trial court did not abuse its discretion by

denying Kutch’s motion for mistrial. We overrule Kutch’s second issue.

                                                –9–
III.   Admission of Blood Test Results

       In his third and fourth issues, Kutch contends the search of his blood was unreasonable

under the United States and Texas Constitutions because a search warrant must be based on

probable cause supported by oath or affirmation and there was no affidavit in this case.

       Officer Robles testified that after Kutch was arrested, he was taken to jail and given the

statutory warning regarding consent to a breath test. See TEX. TRANSP. CODE ANN. § 724.015.

Kutch refused to give a breath test, therefor Officer Robles began the process for obtaining a search

warrant for blood. Kutch objected “to any testimony regarding the warrant unless and until that

document is produced in court.” The State responded that the search warrant is not required to be

admitted into evidence, and stated the warrant had been “turned over” to the defense. Kutch

objected that the warrant had not been produced in court. The trial court overruled the objection.

       Officer Robles testified about the procedure for obtaining a search warrant for blood.

Kutch renewed his objection regarding the search warrant, which was denied. Kutch was granted

a continuing objection on this ground.

       Kutch argues on appeal that the search was invalid because there was no affidavit for the

warrant in the record. The record, however, contradicts this assertion. The forensic technician

identified the package she received for analysis, which included three blood vials, the search

warrant and affidavit, and related documents. The package was admitted as State Exhibits 10,

10A, 10B, and 10C. State Exhibit 10 includes the search warrant and supporting affidavit.

Therefore, there was an affidavit supporting the search warrant and the trial court properly

overruled Kutch’s objection to the absence of an affidavit. Kutch makes no argument that the

affidavit in the record is insufficient to establish probable cause for the warrant.

       We overrule Kutch’s third and fourth issues.




                                                –10–
IV.    Refusal to Submit to Field Sobriety Test

       In his fifth issue, Kutch argues that admission of evidence he refused to participate in field

sobriety tests violated his privilege against self-incrimination.

       Officer Robles testified that Kutch refused to perform the HGN, the walk-and turn, and the

one-leg standing field sobriety tests. Kutch objected to this testimony based on his privilege

against self-incrimination. The trial court overruled the objection.

       Article I, section 10 of the constitution provides the accused in a criminal prosecution “shall

not be compelled to give evidence against himself.” TEX. CONST. art. I, § 10. Kutch contends this

section provides greater protections than the Fifth Amendment of the United States Constitution,

but cites nothing other than the text of article I, section 10 of the Texas Constitution. He argues

this Court should address “whether the Texas Constitution exceeds the protections of the Fifth and

Fourteenth Amendments to the Constitution of the United States.”

       In Thomas v. State, 723 S.W.2d 696 (Tex. Crim. App. 1986), the court of criminal appeals

considered whether admission of Thomas’s refusal to submit to a breath test for intoxication

violated his state constitutional privilege against self-incrimination. Id. at 697. Recognizing that

the Fifth Amendment does not preclude such evidence, see South Dakota v. Neville, 459 U.S. 553,

563 (1983) (use of refusal against defendant at his trial does not violate Fifth Amendment privilege

against self-incrimination), Thomas argued the state constitution provides greater protection than

the Fifth Amendment. Thomas, 723 S.W.2d at 702. After a thorough examination of the history,

policy, and precedent surrounding the state constitutional provision, the court of criminal appeals

concluded that “both the state and federal privileges against self-incrimination are aimed at

preventing involuntary testimonial incrimination. Thus, we find that the meaning of compulsion

in the Article I, § 10, supra, is comparable in scope to the meaning of compulsion in the Fifth

Amendment.” Thomas, 723 S.W.2d at 704.


                                                –11–
       The “refusal to submit to a chemical breath test for intoxication is not a compelled

communication, and thus its admission does not violate the mandate of Article I, § 10 that an

accused not be ‘compelled to give evidence against himself.’” Bass v. State, 723 S.W.2d 687, 691

(Tex. Crim. App. 1986); see also Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim. App. 2008)

(recognizing defendant’s refusal to submit to breath test is relevant to show consciousness of guilt);

Thomas, 723 S.W.2d at 705 (holding appellant was not compelled to incriminate himself under

art. I, § 10 when he chose to refuse to provide breath sample). We see no difference between the

refusal to provide a breath sample and the refusal to submit to field sobriety tests, and Kutch offers

no argument or authority to support a difference between the two. See Barraza v. State, 733

S.W.2d 379, 381 (Tex. App.—Corpus Christi 1987) (holding there is no significant difference

between refusal to take field-sobriety test and refusal to perform breath test for evidentiary

purposes), aff’d, 790 S.W.2d 654 (Tex. Crim. App. 1990). We overrule Kutch’s fifth issue.

V.     Modification of Judgment

       The information in this case alleged one enhancement paragraph. Kutch stipulated to the

evidence regarding the prior DWI conviction alleged in the enhancement paragraph. The trial

court’s judgment, however, indicates “N/A” in the space for the plea and finding on the first

enhancement paragraph. This Court may modify the trial court’s judgment to make the record

speak the truth when it has the necessary data and information to do so. See Tex. R. App. P.

43.2(b); Bigley v. State, 865 S.W. 2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813

S.W. 2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d). Accordingly, on our own motion, we

modify the trial court’s judgment to reflect “True” as the plea and finding on the first enhancement

paragraph.




                                                –12–
                                          Conclusion

       We affirm the trial court’s judgment as modified.




                                                 /Craig Stoddart/
                                                 CRAIG STODDART
                                                 JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
170824F.U05




                                             –13–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 MARK KUTCH, Appellant                                 On Appeal from the County Criminal Court
                                                       No. 8, Tarrant County, Texas
 No. 05-17-00824-CR         V.                         Trial Court Cause No. 1346881.
                                                       Opinion delivered by Justice Stoddart.
 THE STATE OF TEXAS, Appellee                          Justices Lang and Myers participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

        Plea to 1st Enhancement Paragraph:                      True
        Findings on 1st Enhancement Paragraph:                  True

As REFORMED, the judgment is AFFIRMED.


Judgment entered this 20th day of July, 2018.




                                                –14–
