Graves v. State

539 S.W.2d 890, 1976 Tex. Crim. App. LEXIS 913

• Court: Court of Criminal Appeals of Texas
• Decided: March 31, 1976
• Docket: 50419
• Status: Published

Opinions

OPINION

MORRISON, Judge.

The offense is involuntary manslaughter under V.T.C.A., Penal Code, Section 19.-05(a)(2); the punishment, four years.

The facts are undisputed and the sufficiency of the evidence is not challenged. The record shows a 13 year old girl was struck by a pickup truck driven by appellant, causing the injuries that resulted in her death.

Appellant’s sole argument on appeal is this conviction is barred by a prior conviction for driving while intoxicated arising out of the same transaction. Appellant has brought forward in the record the information, complaint and judgment of the driving while intoxicated conviction, together with the transcription of the court reporter’s notes of that trial. The record shows the DWI conviction was proven by the same facts and evidence which constitute the proof of operation of a motor vehicle while intoxicated in the instant case. Nonetheless the conviction for involuntary manslaughter is not barred by the prior conviction for driving while intoxicated.

Under our holding in Curtis v. State, 22 Tex.App. 227, 3 S.W. 86, the doctrines of carving and double jeopardy are not applicable to the case at bar. In Curtis the appellant was convicted of aggravated assault under an indictment alleging assault with intent to murder. This Court held the conviction did not bar a subsequent conviction for murder based on the same transaction because at the time of the assault conviction the injured party was alive, thus there was no offense of murder. The State could not at that time have elected to proceed on the more serious crime. The assault and the murder were held not to be “the same offense” within the meaning of the double jeopardy provision, Tex.Const. art. 1, sec. 14, since the murder offense did not exist at the time of the conviction for assault. The subsequent death of the injured party “is not merely a supervening aggravation, but it creates a new crime.” Curtis, supra, at page 88. See also Johnson v. State, 19 Tex.App. 453; Hill v. State, 141 Tex.Cr.R. 169, 149 S.W.2d 93; Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628, at footnote 7, (1974).

The transcript of the court reporter’s notes of the trial for driving while intoxicated shows the injured party was alive at the time of such trial. It would not have been possible for the State to have proceeded on the involuntary manslaughter charge since that crime was not complete until the injured party’s death. Appellant’s plea of former jeopardy is without merit.

The judgment is affirmed.