Spradling v. State

773 S.W.2d 553, 1989 Tex. Crim. App. LEXIS 137, 1989 WL 65805

• Court: Court of Criminal Appeals of Texas
• Decided: June 21, 1989
• Docket: 1031-83
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

Appellant was convicted of the offense of failure to stop and render aid pursuant to Article 6701d, Sections 38 and 40, V.A.C.S. In four intertwined grounds for review, appellant argues that the conviction violated his right to be protected against multiple prosecutions and multiple punishments for the same offense. We disagree and affirm.

On September 4, 1980, appellant, while driving his automobile, struck and killed two women walking on the shoulder of an access road. Two indictments were presented against appellant: one charging him with failure to stop and render aid to Bobbie Folks Rash and the other charging him with failure to stop and render aid to Vicki Rash Norvell. Appellant was tried and convicted under the Rash indictment. Spradling v. State, 628 S.W.2d 123 (Tex. App. — Beaumont 1981, pet. ref’d). The State then began prosecution under the Norvell indictment, and appellant filed a plea in bar of double jeopardy. The trial court denied appellant’s plea in bar but granted a continuance of the cause pending final resolution of the question presented by appellant’s plea in bar. Appellant’s application for Writ of Prohibition was denied by this Court in a per curiam order handed down on June 16, 1981, and appellant was subsequently tried and convicted for failing to stop and render aid to the second pedestrian, Norvell. Affirming the conviction, the Court of Appeals below held that under Article 6701d, Sections 38 and 40, supra, the number of victims in a failure to stop and render aid situation can dictate the number of allowable trials, convictions and punishments against a defendant without violation of double jeopardy concerns. We granted appellant’s petition to review four grounds: whether the decision of the Court of Appeals is in conflict with the United States Supreme Court’s pronouncements on the issue of double jeopardy; whether the appeals court incorrectly applied the Block-burger test to this case; whether the appeals court incorrectly concluded that the number of victims can dictate the number of allowable trials, convictions and punishment; and whether that court erred in presuming the intent of the Legislature in enacting Article 6701d, Sections 38 and 40, supra. In light of the fact that appellant’s grounds of review were argued together and may easily be consolidated for purposes of review, we will discuss these grounds together.

Article 6701d, Sections 38 and 40, V.A. C.S., reads as follows:

“Sec. 38. (a) The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of Section 40. Every such stop shall be made without obstructing traffic more than is necessary.

(b) Any person failing to stop or to comply with said requirements under such circumstances shall upon conviction be punished by imprisonment in the penitentiary not to exceed five (5) years or in jail not exceeding one (1) year or by fine not exceeding Five Thousand ($5,000.00) Dollars, or by both such fine and imprisonment.

“Sec. 40. The driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle which is driven or attended by any person shall give his name, address, and the registration number of the vehicle he is driving and the name of his motor vehicle liability insurer, and shall upon request and if available exhibit his operator’s, commercial operator’s, or chauffeur’s license to the person struck or the driver or occupant of or person attending any vehicle colliding with and shall render to any person injured in such accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if such carrying is requested by the injured person.”

A person is defined in V.T.C.A., Penal Code, Section 1.07(a)(27), as follows:

“ ‘Person’ means an individual, corporation, or association.”

An individual is defined in Section 1.07(a)(17):

“‘Individual’ means a human being who has been born and is alive.”

Appellant argues that his striking and failing to render aid to the two women was but a single act or occurrence, and that his first trial and conviction for the offense barred subsequent prosecution under the rationale of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Appellant specifically claims that the Court of Appeals improperly applied Blockburger and that the cases better suited to this issue are Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955); Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958), and United States v. Deaton, 468 F.2d 541 (5th Cir.1972), cert, denied, 410 U.S. 934, 93 S.Ct. 1386, 35 L.Ed.2d 597 (1973).

We agree that the Blockburger doctrine is not precisely applicable to the case at bar. But, as the cases relied upon by appellant were not based upon the jeopardy clause of the United States Constitution, they are of small assistance. In any event, this Court is not bound by the federal pronouncements of the legislative intent as to federal statutes since appellant was convicted under a state statute.

Blockburger, however, is instructive on the matter of restrictions to application of the double jeopardy doctrine. As the Supreme Court noted in its decision, the double jeopardy clause of the Fifth Amendment does not restrict a legislature from carving out as many offenses as it chooses from one transaction so long as each offense requires “proof of a fact which the other does not.” Blockburger, supra. The prohibition against double jeopardy applies only where “any person be subject for the same offense to be twice put in jeopardy....” United States Constitution, Amendment V. In Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982), we adopted the Blockburger standard and noted the one act or transaction versus one offense distinction:

“... The constitutional provisions speak of double jeopardy in terms of the ‘same offense’ rather than ‘same transaction’ ...” 634 S.W.2d 823.

This Court has recognized that the protection against double jeopardy is inapplicable where separate and distinct offenses occur during the same transaction. Jones v. State, 514 S.W.2d 255 (Tex.Cr.App.1974); Ward v. State, 185 S.W.2d 577 (Tex.Cr.App.1945).

Prior cases have also held, where there are two victims, a separate victim for each offense, the acts, though occurring at the same time and place, constitute separate offenses involving separate issues of law, and separate prosecutions are not barred by former jeopardy. See generally 21 Tex. Jur.3d, Criminal Law, Section 1654, and cases cited therein. We have approached the issue of whether particular conduct constitutes separate and distinct offenses by examining the applicable statutory language. Jones v. State, supra.

In a recent case, this Court addressed the issue at bar: when a defendant may be twice tried and convicted for twice violating the same statute. The majority in Ex parte Rathmell, 717 S.W.2d 33 (Tex.Cr.App.1986), was concerned with a second prosecution for involuntary manslaughter under V.T.C.A., Penal Code, Section 19.-05(a)(2), the prior proceeding having resulted in conviction of the defendant for the death of a different victim. Directing its attention to the question of legislative intent in enacting that statute, the Court noted:

“It is clear from the language of (these statutes) that the Legislature has determined and intends that the offense of involuntary manslaughter [as defined in Section 19.05(a)(2) ] is completed with the death of a single individual. Whether the other death in question occurred pri- or to, contemporaneously with, or subsequent to the death for which the appellant was first tried is of no consequence. Each individual death constitutes a complete and distinct offense ... and as such each death constituted a separate ‘allowable unit of prosecution.’ ” Rathmell, supra, citing Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978).

The Legislature has the power to establish and define crimes. “Few, if any, limitations are imposed by the Double Jeopardy Clause on the legislative power to define offenses.” Sanabria v. United States, supra, citing Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). It is universally accepted that when a defendant, by a single physical act, assaults or kills two or more persons, the Double Jeopardy Clause does not bar separate prosecutions for each victim assaulted or killed. See generally ANNOT. Single Act Affecting Multiple Victims as Constituting Multiple Assaults or Homicides, 8 A.L.R. 4th 960, 964 (1981). This is the current rule in Texas. Ex parte Rathmell, supra; Hester v. State, 544 S.W.2d 129 (Tex.Cr.App.1976); Alsup v. State, 120 Tex.Crim. 310, 49 S.W.2d 749 (1932); Berwick v. State, 120 Tex.Crim. 322, 47 S.W.2d 322 (1932). Therefore, if the Legislature desired to establish separate and distinct crimes for the failure to render aid to each individual in need of such aid, neither the Federal nor State Constitution would prevent the State from prosecuting for each offense. That is, “once the Legislature has defined a statutory offense by the ‘allowable unit of prosecution,’ that proscription determines the scope of protection afforded by a prior conviction or acquittal.” Sanab-ria, 437 U.S. at 70-71, 98 S.Ct. at 2182-83 (citations omitted).

In short, whether appellant’s particular course of conduct involved one or more distinct “offenses” under Article 6701d, Section 40, V.A.C.S., depends entirely on legislative intent and not on principles of double jeopardy. As such, the only issue before this Court is whether the Legislature intended that when a hit-and-run driver fails to render aid to each victim involved in an accident, prosecution can be had for each unaided victim.

The wording of Section 40 is unambiguous. It requires that a person involved in an accident “render to any person injured in such accident reasonable assistance.” (Emphasis added.) Thus, one must render assistance to all injured persons at the scene. One who renders aid to only a proportion of the injured persons is still exposed to liability under the section.

We agree with the Wisconsin Appeals Court when, addressing the same issue, it determined that multiple prosecutions under that State’s hit-and-run statute were proper. The court wrote:

“[W]e note that the [hit-and-run] statute requires one to render assistance to ‘any person injured.’ This phrase has been interpreted to mean that one must render assistance to all injured persons at the scene. Therefore, a person who renders aid to three out of four injured persons is still exposed to liability under the statute....

“The penalty statute refers to the injuries or death of ‘a person’ or ‘the person.’ Multiple victim accidents are not so rare that we can say the legislature did not take them into consideration when drafting the statute. Had the legislature intended that only one penalty could be imposed per accident, it could have more clearly done so.” State v. Hartnek, 146 Wis.2d 188, 430 N.W.2d 361, 363 (App.1988).

The gravamen of the offense and the intent of the Legislature is not that a person stop and play the “good Samaritan.” The language of the statute is that “the driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle which is driven or attended by any person ... shall render to any person injured in such accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon, or hospital for medical or surgical treatment.” The purpose of the statute is obvious — those who are victims of an accident and who need assistance should be aided by those who are the most capable of doing so and this is regardless of the altruistic motives of those who must give the aid. The Wisconsin court put it this way:

“[The defendant] contends that Edith and Ellen Mattiazzi are not both ‘victims’ of his conduct in leaving the scene of the accident. [Citation omitted.] We disagree. Here, the perceived harm to the Mataizzis is the delay in receiving medical assistance — a delay which was in effect ‘caused’ by [the defendant] leaving the scene of the accident. It is this receipt of medical attention with the least possible delay which has been characterized as the ‘obvious’ intent of the legislature.” Hartnek, 430 N.W.2d at 364.

The Double Jeopardy Clause has no application to a multiple victim offense when, as here, it is the legislative intent to aid all victims in a hit-and-run offense and, accordingly, to enforce this intent through the appropriate punishment for each individual not so aided. For these reasons, appellant’s grounds for review are overruled and the judgments of the trial court and Court of Appeals are affirmed.

CAMPBELL and DUNCAN, JJ., concur in the result.