Opinion
No. 05-02-01516-CR.
Opinion filed May 11, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-80864-01. Affirmed.
Before Justices JAMES, FITZGERALD and LANG-MIERS.
OPINION
Buddy Wayne Rowe appeals his convictions for intoxication assault, aggravated assault and felony DWI. He claims that his Fifth Amendment protections against Double Jeopardy were violated because of the multiple punishments he contends that he received for the same offense. He also claims that there is insufficient evidence to sustain the convictions for intoxication assault and aggravated assault because the state failed to prove an element of the offenses, "serious bodily injury," beyond a reasonable doubt. We affirm the trial court's judgment.
In the same trial he also faced two counts of failure to stop and render aid, alleged in a separate indictment. The trial court found appellant guilty of count I of the indictment and not guilty of Count II. After finding the enhancement paragraphs true, the trial court assessed punishment at thirty years confinement in the penitentiary with a finding of use of a deadly weapon. The appeal of that part of the case is pending as 05-02-01515-CR.
BACKGROUND
Appellant drove his automobile while he was intoxicated, ran a red light and struck a pick up truck, injuring its occupant Daniel Chestnut. He then turned the corner and continued driving down the road to the next intersection where he ran a stop sign and struck another vehicle. He waived his right to a jury trial and proceeded to trial before the court. He did not raise the claim of a double jeopardy violation in the trial court. After hearing the evidence, the court found appellant guilty and assessed punishment at incarceration for thirty years each for intoxication assault and aggravated assault and ten years and a $500.00 fine for felony DWI, the terms of imprisonment to run concurrently.DOUBLE JEOPARDY
Appellant contends that his convictions violate the constitutional guarantee against double jeopardy. U.S. Const. amends. V, XIV; Tex. Const. art. I, § 14. In his first issue appellant argues that his convictions for both aggravated assault and intoxication assault constitute double jeopardy. In his second issue he asserts that his convictions for intoxication assault and felony DWI also constitute double jeopardy. Preserving Error Generally, double jeopardy claims must be raised in the trial court to preserve the claimed error for appellate review. Ex parte Murphy, 669 S.W.2d 320, 322 (Tex.Crim.App. 1983); DeMoss v. State, 12 S.W.3d 553, 559 n. 2 (Tex.App.-San Antonio 1999, pet. ref'd). A double jeopardy claim is forfeited if it is raised for the first time on appeal unless the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App. 2000). If multiple offenses are charged and the verdict could have been based upon an offense that would not involve Double Jeopardy protections, the error is waived if not preserved in the trial court. Id. at 641, 645. Double Jeopardy Standards 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. Const. amend. V. This provision is incorporated in the Due Process Clause of the Fourteenth Amendment and applies to the states. Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980). The Double Jeopardy Clause prevents the sentencing court from prescribing greater punishment than the legislature intended. Missouri v. Hunter, 459 U.S. 359, 365 (1983); Ex parte Kopecky, 821 S.W.2d 957, 959 (Tex.Crim.App. 1992). It protects against a second prosecution for the same offense following a conviction, a second prosecution for the same offense following an acquittal, and multiple punishments for the same offense. Cervantes v. State, 815 S.W.2d 569, 572 (Tex.Crim. App. 1991). When, as here, a defendant is convicted of two or more crimes in a single trial, only the multiple punishment guarantee is implicated. See Ex parte Herron, 790 S.W.2d 623, 624 (Tex.Crim.App. 1990). The U.S. Supreme Court established a test to determine whether or not the same act constitutes a violation of two distinct statutory provisions for double jeopardy purposes in Blockburger v. U.S., 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Under Blockburger, if each provision requires proof of a unique element which the other does not, double jeopardy is not implicated. Id. However, in Ervin v. State, 991 S.W.2d 804, 814 (Tex.Crim.App. 1999) the Court of Criminal Appeals held that even when two penal statutes have unique elements, and are therefore not the same under Blockburger, we must also consider other factors to determine whether the legislature intended to permit multiple punishments when the same conduct violates both statutes. According to Ervin, we must consider (1) whether the offenses' provisions are contained within the same statutory section, (2) whether the offenses are phrased in the alternative, (3) whether the offenses are named similarly, (4) whether the offenses have common punishment ranges, (5) whether the offenses have a common focus (whether the "gravamen" of the offense is the same) and whether that common focus tends to indicate a single instance of conduct, (6) whether the elements that differ between the offenses can be considered the "same" under an imputed theory of liability which would result in the offenses being considered the same under Blockburger, and (7) whether there is legislative history containing an articulation of an intent to treat the offenses as the same or different for double jeopardy purposes. Id. Aggravated Assault and Intoxication Assault In his first issue, appellant argues that his convictions for both aggravated assault and intoxication assault constitute a violation of double jeopardy protections, relying upon Ervin and Burke v. State, 6 S.W.3d 312 (Tex. App.-Fort Worth 1999) overruled on other grounds, 28 S.W.3d 545 (Tex.Crim.App. 2000). The State argues that there is no double jeopardy violation but, if there is a possibility that some of the offenses for which appellant was prosecuted and convicted may have been the same, any claimed error was forfeited under Gonzalez because appellant was also convicted of offenses that are not the same. To decide whether Gonzalez applies we must review the indictment and the court's findings of guilt. Count I of appellant's indictment charged intoxication assault, charging that appellant operated a motor vehicle in a public place while intoxicated, and that by reason of such intoxication, caused serious bodily injury to the victim and that a deadly weapon was used in the commission of the offense. See Tex. Pen. Code Ann. § 49.07 (Vernon Supp. 2003). Count II of appellant's indictment charged aggravated assault in six paragraphs alleging alternative means of committing this offense. See Tex. Pen. Code Ann. § 22.02 (Vernon Supp. 2003). Three paragraphs alleged appellant caused serious bodily injury, one by striking a motor vehicle occupied by the victim, one by operating a motor vehicle while intoxicated and the third, by failing to stop at a red light. The three remaining paragraphs were identical to the first three, but alleged bodily injury rather than serious bodily injury. Each of the paragraphs alleged use of a deadly weapon, namely a motor vehicle. Appellant waived jury trial and the trial court convicted appellant of both offenses, stating the following:I find you guilty of the intoxication assault. And in doing so, Mr. Baxter, to give you a record, I do find serious bodily injury was created by the Defendant's conduct. With regard to [the victim's] condition, I do then also find, Mr. Rowe, you are guilty of aggravated assault involving use of that motor vehicle. Again we have a serious bodily injury finding, which I resolve against you, and find beyond a reasonable doubt that serious bodily injury was caused, if it should not be, certainly bodily injury was caused, because I also do find the manner and use of that vehicle that you were driving, under our definition of what constitutes a deadly weapon, makes that a deadly weapon. I make an affirmative finding a deadly weapon was used to commit those of where it is alleged. Now, we have . . . intoxication assault, DWI third. I find beyond a reasonable doubt you're guilty of that as charged. The State proved intoxication to my satisfaction, not only by the medical record, but by the testimony of the witnesses. Also the prior convictions have been stipulated, and therefore proved beyond a reasonable doubt that you are guilty of that offense. So I also make a finding of aggravated assault, failure to stop, intoxication assault, DWI third and aggravated assault.
It does not appear that the "failure to stop" finding related to the "failure to stop at a red light" allegation in Count II, as opposed to the "failure to stop and render aid" counts alleged in a separate indictment and referenced in footnote 1.
SUFFICIENCY OF THE EVIDENCE
In his third and fourth issues, appellant complains that there is neither legally nor factually sufficient evidence to support his convictions for aggravated assault and intoxication assault because the state failed to prove that the victim suffered serious bodily injury. The standard for reviewing a legal challenge is whether, viewing the evidence in the light most favorable to the judgment, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2787-88, 61 L.Ed.2d 560 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995). In conducting a factual sufficiency review, we must view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 Tex.Crim. App. LEXIS 668, at * 20 (Tex.Crim.App. April 21, 2004). Serious Bodily Injury "Serious bodily injury" means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. (emphasis added) Tex. Pen. Code Ann. § 1.07(a)(46) (Vernon Supp. 2003). "Protracted" means "continuing, dragged out, drawn out, elongated, extended, lengthened, lengthy, lingering, long, long-continued, long-drawn, never-ending, ongoing, prolix, prolonged, or unending." Moore v. State, 739 S.W.2d 347, 352 (Tex.Crim.App. 1987). "Impair" is defined as "to make worse" or "to diminish in strength." Webster's Third New Int'l Dictionary 1131 (3d ed. 1981). At trial, Chestnut testified that after appellant collided with his pick-up, the upper half of his body was still facing the windshield, while the lower half was facing the driver's side of his truck. He immediately noticed numbness in his left leg and a severe headache. He was taken to the hospital in an ambulance. Chestnut started having difficulty breathing which was caused by the seat belt bruising his chest. It was also discovered that he had a cracked pelvic bone. He was in the emergency room for two hours, and was physically unable to walk out of the hospital. As a consequence of the injuries sustained in the accident, Chestnut consulted with an orthopedic surgeon and received nine months of physical therapy. At the time of trial, seventeen months after the collision, he was still suffering from pain and discomfort. Chestnut testified he might have to undergo surgery, but he hoped it would not be necessary. Chestnut stated that he was a jail supervisor for the City of Plano. Due to his injuries, he was unable to take defensive tactics training and could only be involved with the jail's Specialist Response Team in an advisory capacity. On a more personal level, he was no longer able to coach his daughter's softball team. He was physically incapable of showing the girls how to bat, run the bases, or stop ground balls. Chestnut admitted that six years prior to the accident, he had back surgery for a herniated disk at L-5. He testified, however, that he did not have any further back problems until appellant collided with his pick-up. Diane Chestnut, the complainant's wife, corroborated her husband's statement that he fully recovered from his previous back problems before the collision, and that he still suffers from problems as a result of this collision. Jeff Ward, a police officer with the City of Wylie, testified that he was first on the scene of the collision and he called for medical assistance after Chestnut complained of lower back pain and pain and lack of sensation to his leg. The trial court admitted into evidence an Attending Physician's Evaluation signed by Chestnut's doctor stating the following:I observed and treated the above-named patient at the time and place mentioned. If I were compelled to testify regarding whether the injuries sustained constituted "serious bodily injury" as that term has been explained to me, I would indicate the following, based on reasonable medical possibility: The injury to . . . Daniel Chestnut caused, or will cause, protracted loss of(sic) impairment of the function of a bodily member or organ, specifically, L-3-4 disk protrusion, L4-5 disk herniation causing back pain and difficulty walking.The report indicated that Chestnut's doctor treated him two days after the accident. Appellant argues that nothing in the record supports a finding that the injury sustained by Chestnut created a substantial risk of death or serious permanent disfigurement. We agree with this conclusion. However, we do not agree with appellant's contention that the physician's evaluation was speculative and inconclusive and contradicted Chestnut's testimony as to the nature of his injury. Nor do we agree that Chestnut suffers from pain and discomfort more in line with "bodily injury," rather than "serious bodily injury." Complainant's doctor indicated that his patient had suffered a back injury that caused pain and impairment to his ability to walk. Complainant testified that his broken pelvis caused pain, discomfort, and impairment to his ability to participate in several strenuous physical activities. Both Chestnut and his wife testified that Chestnut was still experiencing pain and impairment from the injury seventeen months after the collision. There is no evidence in the record to the contrary. Further, the trial court had the benefit of observing Chestnut in the courtroom and as he walked to the witness stand, which was also evidence of complainant's impairment, as well as the protracted nature of that impairment. The evidence is both legally and factually sufficient to support a finding that Chestnut suffered serious bodily injury by the protracted impairment, as those terms are defined, of the function of his leg due to the car accident. We overrule appellant's issues three and four. We affirm the judgment of the trial court.