Benard v. State

481 S.W.2d 427

• Court: Court of Criminal Appeals of Texas
• Decided: May 9, 1972
• Docket: 44828
• Status: Published

Opinions

OPINION

DAVIS, Commissioner.

This is an appeal from a conviction for the offense of “operating a motor vehicle while license suspended.” Punishment was assessed at three days in jail and a fine of $50.00.

The record reflects that the automobile appellant was operating was involved in an accident in Harris County, on November 6, 1969. Appellant failed to produce a valid operator’s license when the officer investigating the accident made a request to examine same. The officer issued the appellant a citation for “operating a motor vehicle without a valid operator’s license in his immediate possession,” Vernon’s Ann.Civ. St., Art. 6687b, Sec. 13, to which charge appellant entered a plea of guilty in the municipal court and was fined the sum of $15.00. The officer subsequently received information from the Texas Department of Public Safety showing that appellant’s license had been suspended because of his failure to comply with the Safety Responsibility Act. Appellant was then charged by information in the County Criminal Court at Law No. 1 of “operating a motor vehicle while his license was suspended.”

Appellant challenges his conviction for operating a motor vehicle while license suspended contending that he was placed in double jeopardy by virtue of his former conviction for operating a motor vehicle without a valid operator's license, such being a violation of the Fifth and Fourteenth Amendments to the Constitution of the United States.¹ Appellant also contends that the two offenses arose out of the same transaction and were proven by the same evidence, a result which he argues is incompatible with the decision of the Supreme Court in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1969). In Waller, the petitioner was one of a number of persons who removed a canvas mural from the City Hall of St. Pe-tersburg, Florida, and carried it through the streets. He was charged with violation of two ordinances of the City of St. Pe-tersburg, destruction of city property and disorderly breach of the peace. He was found guilty on both charges in the municipal court and sentenced to 180 days’ imprisonment. Shortly thereafter, a state court tried, convicted, and sentenced him to six years for grand larceny. The Supreme Court, in Waller v. Florida, supra, said:

“ * * * The opinion of the District Court of Appeal first explicitly acknowledged that the charge on which the state court action rested 'was based on the same acts of the appellant as were involved in the violation of the two city ordinances.’ * * (emphasis supplied)

“We act on the statement of the District Court of Appeal that the second trial on the felony charge by information ‘was based on the same acts of the appellant as were involved in the violation of the two city ordinances’ and on the assumption that the ordinance violations were included offenses of the felony charge.

“. . . We hold that on the basis of the facts upon which the Florida District Court of Appeal relied petitioner could not lawfully be tried both by the municipal government and by the State of Florida. In this context a ‘dual sovereignty’ theory is an anachronism, and the second trial constituted double jeopardy violative of the Fifth and Fourteenth Amendments to the United States Constitution.”

We find that the prosecution of appellant, in County Criminal Court at Law No. 1, was based on the same acts of appellant as were involved in the municipal court conviction. The second trial of appellant, under the holding of Waller v. Florida, supra, constituted double jeopardy violative of the Fifth and Fourteenth Amendments to the United States Constitution.

The judgment is reversed and the prosecution ordered dismissed.

Opinion approved by the Court.

1 . Hearing of appellant’s sworn motion was upon written stipulation of evidence.