Opinion
No. 05-02-01767-CR
Opinion issued October 30, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-74191-VQ. AFFIRMED
Before Chief Justice THOMAS AND Justices JAMES and FITZGERALD.
MEMORANDUM OPINION
Adrian Tuda appeals his conviction for aggravated assault. After finding appellant guilty, the jury assessed appellant's punishment at twenty years' imprisonment and a $10,000 fine. In his sole issue, appellant contends this conviction and punishment are barred by the prohibition against double jeopardy because this offense arose out of the same facts as his earlier driving-while — intoxicated conviction. Appellant never asserted his double jeopardy claim to the trial court. For a double jeopardy complaint to be considered in the court of appeals, the appellant must have preserved the issue in the trial court through an objection, unless the face of the record shows double a jeopardy violation. Gonzalez v. State, 8 S.W.3d 640, 642 (Tex.Crim.App. 2000); Nethery v. State, 29 S.W.3d 178, 186 (Tex.App.-Dallas 2000, pet. ref'd). A double jeopardy violation is not apparent on the face of the record when the charge permitted the jury to convict appellant on an alternative manner and means that would not violate the prohibition against double jeopardy. Gonzalez, 8 S.W.3d at 645. The facts show appellant drove his Lincoln Town Car into the complainant's parked Honda Accord at a high rate of speed, seriously injuring the complainant, who was seated in the Honda. Appellant had a blood-alcohol level of 0.186 and was intoxicated. Appellant was charged with driving while intoxicated and aggravated assault. Before the trial in this case, appellant was convicted of driving while intoxicated. The jury charge in this case provided three different manners and means by which the jury could find appellant caused the complaint's injuries:
[1] by driving or operating a motor vehicle, a deadly weapon, at a high rate of speed and in excess of the posted speed limit or at a speed greater than was reasonable and prudent under the circumstances then existing or
[2] by failing to take evasive action to avoid striking the motor vehicle occupied by the complainant or
[3] by operating a motor vehicle while under the influence of alcohol . . .The jury returned a general jury verdict of guilty. Because the jury could have found appellant committed the offense through a manner and means other than "operating a motor vehicle while under the influence of alcohol," the asserted double jeopardy violation is not apparent from the face of the record. Gonzalez, 8 S.W.3d at 645. Accordingly, appellant had to object in the trial court to preserve this issue for appellate review. Id. at 645-46. We overrule appellant's sole point of error. We affirm the trial court's judgment.