State v. Houth

845 S.W.2d 853, 1992 Tex. Crim. App. LEXIS 217, 1992 WL 341956

• Court: Court of Criminal Appeals of Texas
• Decided: November 25, 1992
• Docket: 788-91
• Status: Published

Opinions

OPINION ON STATE’S AND APPEL-LEE’S PETITIONS FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellee was charged by information with the offense of driving while intoxicated. Prior to trial she filed what was styled a “Motion to Dismiss with Prejudice Under Fifth Amendment and Special Plea Under Article 27.05 of the Texas Code of Criminal Procedure”. The trial court treated this as a motion to dismiss and granted it as such. The State then prosecuted this appeal under Article 44.01(a)(4), V.A.C.C.P.¹ The Houston Court of Appeals [1st] reversed the trial court’s order and remanded the cause for trial. State v. Houth, 810 S.W.2d 852 (Tex.App.—Houston [1st] 1991). In her petition for discretionary review ap-pellee contends the court of appeals’ ruling conflicts with the holding of the United States Supreme Court in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). By cross-petition the State contends that, although its ruling was correct, the court of appeals nevertheless misconstrued the holding in Corbin. We granted both petitions under Tex.R.App.Pro., Rule 200(c)(3).

I.

The trial court held a hearing on appel-lee’s motion to dismiss, but no testimony was presented. Therefore we presume the court of appeals gleaned its recitation of facts from an excerpt from the arresting officer’s offense report, included in a memorandum supporting appellee’s motion to dismiss that was introduced as part of an exhibit and admitted into evidence for purposes of the hearing. That excerpt reads:

“This officer [Easterling] was dispatched to the 7000 Block of Spencer Highway. I arrived on the scene and made contact with Sgt. Holoman, 8804 HCCO, Pet. 8. He related to me that he had stopped a 1984 Silver Chrysler, Texas License Plate 230HCY on Spencer Highway E/B. Sgt. Holoman told me that this vehicle had crossed from lane to lane failed to maintain a single lane. He had stopped the vehicle and found the driver to be very intoxicated. I then walked up to the vehicle where the driver was sitting — a W/F a Mrs. Houth. I had her exit the vehicle and when she did she stumbled out of the vehicle and staggered when she walked to the rear of her vehicle. I then asked her if she would submit to a sobriety test and she attempted the test but allmost [sic] fell down. Myself and Sgt. Holoman had to hold her up to keep from falling down and walking into the traffic. I arrested her for D.W.I. and transported her to the Clear Lake Office. When I offered her the intoxilyzer test she refused the test and refused to do anything on video tape. The defendant was very belligerent and kept trying to do bodily harm to herself by biting herself, scratching her wrist with her nails. She called the booking deputy, Friskie names and cussing at him calling him a Mother Fucker. She also threatened to sue both myself and Deputy Friskie (HCSO). She was booked for FDSML and D.W.I.”

Information charging appellee with driving while intoxicated was filed on the day of the offense, May 25, 1990. At the hearing on appellee's motion she introduced what is styled an “Order Pursuant to Plea Bargain Agreement and Plea of Defendant to Misdemeanor of 5-25-90”. Signed on June 14, 1990, apparently by a municipal court judge, this order recites that appellee was found guilty of the offense of failing to drive in a single marked lane, committed on May 25, 1990, and had satisfied all sanctions levied against her for that offense. Appellee argued to the trial court that further prosecution for the offense of driving while intoxicated was barred under the Fifth Amendment by her conviction for failing to drive in a single marked lane. She relied upon the holding in Grady v. Corbin, supra. After hearing argument about the import of Corbin, the trial court agreed that the driving while intoxicated prosecution was jeopardy barred. Judging from his pronouncements for the record, it appears the trial court reasoned that because it would be necessary for the State to prove appellee’s conduct of weaving out of her lane, for which she had been prosecuted already, in order to establish probable cause for the arresting officer to stop her on suspicion of D.W.I., further prosecution was barred under Corbin — this, despite the State’s argument that probable cause is not an element of the offense of driving while intoxicated. See Neaves v. State, 767 S.W.2d 784 (Tex.Cr.App.1989).

The First Court of Appeals reversed and remanded the cause for trial. Initially the court of appeals held that failure to maintain a single lane and driving while intoxicated are separate offenses under Blockburger v. United States, 284 U.S. 299, 52 , 76 L.Ed. 306 (1932). Appellee concedes as much now. Furthermore, the court of appeals reasoned, because the excerpt from the offense report shows there was other evidence besides the failure to maintain a single lane upon which the State could show intoxication, and because the State did not represent to the trial court that “it would rely upon” the failure to maintain a single lane as going to establish the element of intoxication, the court of appeals concluded that the holding in Cor-bin had not been transgressed. State v. Houth, supra, at 855. In short, because “the State can prove appellee was intoxicated” without reference to her conduct in failing to stay within a marked lane, there is no jeopardy bar. Id.

In her petition for discretionary review appellee argues that the pertinent question under Corbin is not what the State “can prove” without reference to her conduct in failing to maintain a single lane of traffic, but rather, whether the State “will prove” such conduct in its effort to establish she was intoxicated in prosecuting her for D.W.I. Grady v. Corbin, 495 U.S. at 521, 110 S.Ct. at 2093, 109 L.Ed.2d at 564. Appellee contends that the State as much as conceded in its brief to the court of appeals that it intended to rely upon proof that appellant failed to maintain her lane in order to establish the element of intoxication. The State does acknowledge that appellee’s weaving in and out of her lane is circumstantial evidence of intoxication.

However, the State argues that it is not enough to comprise a jeopardy bar under Corbin that conduct already prosecuted may also serve as some evidence of an element of the subsequent offense. As we understand the argument, the State construes Corbin to require that the conduct already prosecuted “must constitute” an element of the subsequent offense — that it must, in essence, be an element of the subsequent offense — before double jeopardy applies. Though prevailing in the court of appeals, the State has accordingly filed a cross-petition for discretionary review, claiming that the court of appeals conducted a “same evidence” test, a test that was expressly disclaimed in Corbin.

II.

The Double Jeopardy Clause of the Fifth Amendment protects against multiple punishments for the “same offense.” Ex parte Herron, 790 S.W.2d 623 (Tex.Cr.App.1990). It also protects against successive prosecutions for the “same offense” following acquittal or conviction. E.g., May v. State, 726 S.W.2d 573 (Tex.Cr.App.1987). The constitutional meaning of “same offense” “may vary” depending upon which of these protections is at issue. Whalen v. United States, 445 U.S. 684, at 700, 100 S.Ct. 1432, at 1442, 63 L.Ed.2d 715, at 729 (1980) (Rehnquist, J., dissenting). In this cause we are concerned with the meaning of “same offense” in the successive prosecution context.

In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), the United States Supreme Court held that the test for discerning legislative intent in deciding whether two offenses are the “same offense” for purposes of multiple punishment would also be applicable to determine “same offense” for purposes of deciding whether successive prosecutions violate the Double Jeopardy Clause. Thus, the Court adopted the rule announced in Blockburger v. United States, 284 U.S. 299, at 304, 52 S.Ct. 180, at 182, 76 L.Ed. 306, at 309 (1932), viz:

. that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which, the other does not.”²

The Court in Brown observed that “[t]his test emphasizes the elements of the two offenses.” 432 U.S. at 166, 97 S.Ct. at 2226, 53 L.Ed.2d at 194. But the Court took pains to note that in the context of successive prosecution, Blockburger did not provide the exclusive test for “same offense.” 432 U.S. at 166, n. 6, 97 S.Ct. at 2226, n. 6, 53 L.Ed.2d at 195, n. 6. See May v. State, supra.

Accordingly, thirteen days after it handed down its opinion in Brown, the Supreme Court decided Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977). There, without reference to the Blockburger test, the Court held that successive prosecutions, first for robbery with a firearm and later for felony murder predicated upon that robbery, was barred under the Double Jeopardy Clause. The Court opined:

“When as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one.”³

433 U.S. at 682, 97 S.Ct. at 2913, 53 L.Ed.2d at 1056. In a footnote the Court observed that the State of Oklahoma had conceded that all the ingredients of the robbery offense would have to be proved to establish the felony murder.⁴

Three years later, in Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), the Supreme Court again indicated that a Blockburger elements-only analysis for determining “same offense” may prove insufficient to cover the whole range of jeopardy protection. Vitale was charged with failure to reduce speed to avoid an accident after an automobile he had driven struck and killed two children. After he was convicted of this offense the State of Illinois attempted to charge him further with involuntary manslaughter in that he had recklessly caused the deaths of the two children. The Supreme Court of Illinois ruled that the latter prosecution was barred under the Double Jeopardy Clause of the Fifth Amendment. The United States Supreme Court granted certiorari.

In its opinion in Vitale the Supreme Court first reiterated the holding of Brown v. Ohio that the Blockburger test applies and “that [it] focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial.” 447 U.S. at 416, 100 S.Ct. at 2265, 65 L.Ed.2d at 235. The Court then observed that the offense for which Brown had first been convicted, joyriding, was a statutory lesser included offense of the offense he was later prosecuted for, auto theft. The only difference between the two statutorily prescribed offenses was “that to prove auto theft one need prove in addition to [the elements of] joyriding only the intent permanently to deprive the owner of possession.” 447 U.S. at 417, 100 S.Ct. at 2265, 65 L.Ed.2d at 236. The Vitale Court continued its exegesis of Brown:

“Holding that the second prosecution was barred, by the Double Jeopardy Clause and the Fourteenth Amendment, we observed that ‘the prosecutor who established joyriding need only prove the requisite intent in order to establish auto theft.’ [432 U.S.] [161], at 167, 97 S.Ct. 2221[, at 2226,] 53 L.Ed.2d 187. But we also noted that ‘the prosecutor who has established auto theft necessarily has established joyriding as well.’ Id., at 168, 97 S.Ct. 2221[, at 2227,] 53 L.Ed.2d 187.

“Both observations were essential to the Brown holding. Had the State been able to prove auto theft, without also proving that the defendant took, operated, or kept the auto without the consent of the owner — if proof of the auto theft had not necessarily involved proof of joyriding — the successive prosecutions would not have been for the ‘same offense’ within the meaning of the Double Jeopardy Clause.”

447 U.S. at 417, 100 S.Ct. at 2265-66, 65 L.Ed.2d at 236. Addressing the facts before it in Vitale, the Court then observed:

“... It is clear enough from the opinion below that manslaughter .by motor vehicle could be proved against Vitale by showing a death caused by his recklessly failing to slow his vehicle to avoid a collision with the victim. Proving manslaughter in this way would also prove careless failure to slow; nothing more would be needed to prove the latter offense, an offense for which Vitale had already been convicted.

“The State, however, does not concede that its manslaughter charge will or must rest on proof of a reckless failure to slow; it insists that manslaughter by automobile need not involve any element of failure to reduce speed.... ”

447 U.S. at 418, 100 S.Ct. at 2266, 65 L.Ed.2d at 236-37. The Court went on to agree that:

"... if manslaughter by automobile does not always entail proof of a failure to slow, then the two offenses are not the ‘same’ under the Blockburger test. The mere possibility that the State will seek to rely on all of the ingredients necessarily included in the traffic offense to establish an element of its manslaughter case would not be sufficient to bar the latter prosecution.”

Id., 447 U.S. at 419, 100 S.Ct. at 2266-67, 65 L.Ed.2d at 237. But, regardless of whether a careless failure to slow is always a necessary element of manslaughter, so as to bring it within the Blockburger test for “same offense,” the Court reasoned:

“... it may be that to sustain its manslaughter case the State may find it necessary to prove a failure to slow or to rely on conduct necessarily involving such failure; it may concede as much prior to trial. In that case, because Vitale has already been convicted for conduct that is a necessary element of the more serious crime for which he had been charged, his claim of double jeopardy would be substantial under Brown and our later decision in Harris v. Oklahoma, [supra].”

Id., 447 U.S. at 420, 100 S.Ct. at 2267, 65 L.Ed.2d at 238. The Court then analyzed Harris in this way:

“The Oklahoma felony-murder statute on its face did not require proof of a robbery to establish felony murder; other felonies could underlie a felony murder prosecution, [footnote omitted] But for purposes of the Double Jeopardy Clause, we did not consider the crime generally described as felony murder as a separate offense distinct from its various elements. Rather, we treated a killing in the course of a robbery as itself a separate statutory offense, and the robbery as a species of lesser-included offense.”

Id. Drawing from this “analogy,” the Court in Vitale concluded:

“[I]f in the pending manslaughter prosecution Illinois relies on and proves a failure to slow to avoid an accident as the reckless act necessary to prove manslaughter, Vitale would have a substantial claim of double jeopardy under the Fifth and Fourteenth Amendments of the United States Constitution.”

Id., 447 U.S. at 421, 100 S.Ct. at 2267, 65 L.Ed.2d at 238. Because, inter alia, “the reckless act or acts the State will rely on to prove manslaughter [were] still unknown,” the Court vacated the judgment of the Supreme Court of Illinois, and remanded the cause for further proceedings.

We have quoted so extensively from Vi-tale in order to lay a groundwork for understanding the holding in Grady v. Corbin, supra. The Court in Vitale seems to have viewed the element of recklessness in the vehicular manslaughter prosecution at issue there in the same way the Court viewed the underlying felony element in Harris. Just as the Court in Harris “treated a killing in the course of a robbery as itself a separate statutory offense, [with] robbery as a species of lesser-included offense[,]” 447 U.S. at 420, 100 S.Ct. at 2267, 65 L.Ed.2d at 238, in Vitale the Court seems to have considered death caused by a failure to slow down as “itself a separate offense” from death caused in some other reckless manner, with the failure to slow down so as to avoid the accident “as a species of lesser-included offense.” And just as the robbery constituted the statutorily necessary “felony” required for prosecution of the felony murder in Harris, failure to slow down to avoid an accident constituted the statutorily necessary element of recklessness in Vitale — that is, assuming it were to prove on remand that the failure to slow was in fact the conduct that Illinois would rely on to establish recklessness.

It is with this understanding that we approach the holding in Grady v. Corbin. Corbin was prosecuted first for driving while intoxicated and failing to keep right of the median in violation of New York law. Subsequently he was indicted for a number of offenses including reckless manslaughter and criminally negligent homicide. The State filed a bill of particulars identifying three reckless or negligent acts by which it proposed to establish the homicide offenses. The first two were the already-prosecuted acts of driving while intoxicated and crossing the median. The third was operating a car at an excessive rate of speed for the existing weather and road conditions. The Supreme Court observed that the facts presented demonstrated once again that the Blockburger test “does not protect defendants sufficiently from the burdens of multiple trials.” 495 U.S. at 520, 110 S.Ct. at 2093, 109 L.Ed.2d at 564. Accordingly the Court elevated what it deemed the “suggested” holding of Vitale to a rule, viz:

“[T]he Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.”

Id. The Court immediately elaborated on this rule as follows:

“This is not an ‘actual evidence’ or ‘same evidence’ test, [footnote omitted] The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct. As we have held, the presentation of specific evidence in one trial does not forever prevent the government from introducing that same evidence in a subsequent proceeding. See Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990).”

Id., 495 U.S. at 521-522, 110 S.Ct. at 2093, 109 L.Ed.2d at 564-65.

In applying its new rule to the facts of Corbin, the Court noted that its task in determining what conduct the State would proved was “simplified by the bill of particulars filed by the State.” 495 U.S. at 522, 110 S.Ct. at 2094, 109 L.Ed.2d at 565. The Court construed the bill of particulars to be a representation by the State that it “will prove” both Corbin’s driving while intoxicated and his crossing the median to establish the recklessness or negligence necessary to convict. See In re Corbin v. Hillery, 74 N.Y.2d 279, at 290, 545 N.Y.S.2d 71, 77, at 543 N.E.2d 714, at 720 (1989).⁵ More specifically, the Court deemed application of its analysis “straightforward” in that its “critical inquiry” was resolved by the bill of particulars filed by the State, viz:

“By its own pleadings, the State has admitted that it will prove the entirety of the conduct for which Corbin was convicted — driving while intoxicated and failing to keep right of the median — to establish essential elements of the homicide and assault offenses. Therefore, the Double Jeopardy Clause bars this successive proseeution[.]”

495 U.S. at 523, 110 S.Ct. at 2094, 109 L.Ed.2d at 565.⁶ The Court added however:

“This holding would not bar a subsequent prosecution on the homicide and assault charges if the bill of particulars revealed that the State would not rely on proving the conduct for which Corbin had already been convicted (i.e., if the State relied solely on Corbin’s driving too fast in heavy rain to establish recklessness or negligence.”

Ibid. In those lights we turn to the instant cause.

Ill

Appellee contends the State admitted in the court of appeals and here that it will rely on her conduct in failing to stay within a single marked lane, pointing to the following statements:

“At her trial for driving while intoxicated, a police officer will undoubtedly testify that he observed the appellee weaving in and out of her lane of traffic. In fact, this conduct constitutes some evidence of intoxication ... [but this is not an essential part of driving while intoxicated].”

Appellee’s Response to Brief by State, at 5, excerpting State’s Appellate Briefs, at 18 and 19, respectively (emphasis supplied and ellipsis of bracketed clause by appellee). Therefore, he argues from Corbin, the Double Jeopardy Clause “must bar the State of Texas from convicting [appellee] for failure to drive in a single lane of traffic, then using that conduct ... to prosecute her for driving while intoxicated.” Id., at 5-6.

For its part the State rejoins with emphasis, viz:

“Obviously, the appellee’s failure to stay in a single lane shares some conduct in common with his driving while intoxicated; in both instances it must be shown, for example, that appellee was driving. * * * * [AJppellee will not be guilty of DWI because she was driving and failed to stay in her lane of traffic; nor will the appellee be guilty of DWI because she was intoxicated and failed to stay in her lane of traffic. While the jury will probably hear some evidence that the appellee failed to stay in a single lane, the jury will be authorized to return a guilty verdict only if it finds that the appellee was driving while intoxicated, and the former simply cannot be categorized as a ‘component offense’ or ‘essential element’ of the latter, [note omitted].”

State’s Appellate Brief, at 19-20. Thus we understand its position is that although failing to stay in a single marked lane is “conduct” it is not an “essential element” of driving while intoxicated; therefore, testimony that appellee failed to stay in her lane is nothing more than “evidence” in the case.

While appealing at first blush, neither argument will withstand closer examination and further analysis.

In the first place, our “critical inquiry” into what conduct the State will prove to establish an essential element of driving while intoxicated has not been simplified by consistent declarations from the State. While in the hearing below the trial prosecutor said it “needs” the prosecuted conduct to show probable cause to stop appellant, n. 6, ante at 12, the appellate prosecutor now points out that this court observed in Neaves v. State, 767 S.W.2d 784 (Tex.Cr.App.1989), that “ ‘probable cause’ is not an ultimate fact to be proven in a DWI prosecution,” and says the State will proffer testimony of conduct of appellee in “weaving in and out of her lane of traffic” as “some evidence of intoxication,” Brief, at 19. For purposes of “critical inquiry” we accept that the State “will prove conduct that constitutes an offense which [appellee] has already been prosecuted.”

The rest of the inquiry is whether the State “will prove’’ that conduct “to establish an essential element” of driving while intoxicated. According to the declaration of the trial prosecutor, the State will not prove such conduct “to establish” (whatever the term embraces) any matter other than “probable cause,” which he asserted is “an evidentiary issue ... not an essential element of an offense.” We agree, and could and would end the inquiry by summarily holding that nothing in Corbin or other authoritative cases applying the Double Jeopardy Clause bars this prosecution for driving while intoxicated on that account.⁷

But the appellant prosecutor insists that proof of the same conduct is not a jeopardy bar when the State will offer it as merely “some evidence of intoxication.” To address that theory we must extend our inquiry.

Facial application of the test announced in Corbin would seem to indicate that if the State intends to prove appellee’s failure to drive within a single marked lane “to establish” an essential element in prosecuting her for driving while intoxicated, then the latter prosecution is jeopardy barred. For, if the State should rely on appellee’s failure to drive within a single marked lane, it will prove conduct constituting an already prosecuted offense as at least a part of its evidence “to establish” an essential element of driving while intoxicated, viz: bereft of normal use of mental or physical faculties. Thus the question here seems to turn on the intended meaning of “to establish.” See McIntyre v. Trickey, 938 F.2d 899, at 905-907 (CA8 1991); see and compare United States v. Clark, 928 F.2d 639, at 641, 642 (CA4 1991), with U.S. v. Calderone, 917 F.2d 717, at 721 (CA2 1990).⁸

We begin with an examination of the bill of particulars stating what “the prosecution will prove” in Corbin. After describing the particular conduct in each of three traffic offenses, the prosecution then related that conduct to culpable mental state elements of the offenses to be tried, viz:

“By so operating his vehicle in the manner above described, the defendant was aware of and consciously disregarded a substantial and unjustifiable risk of the likelihood of the result which occurred.... By his failure to perceive this risk while operating a vehicle in a criminally negligent and reckless manner, he caused physical injury to [named individual] and the death of [another named individual].”

Id., 495 U.S. at 523, 110 S.Ct. at 2094, 109 L.Ed.2d at 565. To be noticed is that the conduct described and the culpable mental states are not identical. The prior conduct, in and of itself, is not congruous with elements alleged in the bill; it would not directly “establish” either culpable mental state, but only provide circumstantial evidence from which the factfinder may draw inferences that might “establish” one or the other. Conduct is an act; evidence is that which furnishes proof of conduct. That is to say, the State will introduce evidence of the prior conduct because it believes that may well achieve the result it desires from the factfinder. In context of this part of the Corbin rule — “to establish an essential element of an offense charged ... [the government] will prove conduct that constitutes an offense [already prosecuted]” — we construe “conduct to establish” to mean that previously prosecuted conduct which the State deems relevant to and expects will be probative of an element of the offense charged, here a favorable finding of the requisite culpable mental state; it does not mean that proof of such conduct ultimately “must and will establish” the element.⁹

The State argues, however, that evidence of previously prosecuted conduct which is merely relevant and probative — some evidence — smacks of an “actual evidence” or “same evidence” test. The Court did indeed say that use of “specific evidence” in one trial does not preclude the prosecution from introducing that same evidence in a subsequent proceeding. This was no doubt intended to assuage concerns of dissenters that strict application of the Corbin test would create a jeopardy bar whenever the State tenders evidence of a previously prosecuted extraneous offense under Tex.R.Cr. Evid., Rule 404(b). Corbin, supra (O’Connor, J., dissenting, 495 U.S. at 525-526, 110 S.Ct. at 2095, 109 L.Ed.2d at 567; Scalia, J., dissenting, 495 U.S. at 538-539, 110 S.Ct. at 2102, 109 L.Ed.2d at 575). But the Supreme Court expressly rejected a “same evidence” test under the Double Jeopardy Clause, and its allusion to Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990), is to explain that use of “specific evidence” presented at a former trial on an unrelated offense to help establish matters other than an element of a charged offense in a subsequent trial is not within the intended scope of the jeopardy bar. See United States v. Felix, supra, at 1525-1526, 1528; United States v. Clark, supra, 642; cf. United States v. Calderone, at 724 (Newman, J., concurring).¹⁰

Accordingly, we construe the Cor-bin test to require that whether evidence of “conduct that constitutes an offense for which the defendant has already been prosecuted” will bar a subsequent prosecution wherein the State represents that it again “will prove” that conduct, depends on whether the State claims there is other evidence of unprosecuted conduct that it will prove to show “an essential element” of the subsequently charged offense. When the prosecutor will rely alone on such other conduct to demonstrate an essential element of the subsequent offense, the prosecution is not jeopardy barred. Corbin, 495 U.S. at 523, 110 S.Ct. at 2094, 109 L.Ed.2d at 565-566; United States v. Calderone, supra, (Newman, J., concurring at 723-724 including n. 1). In other words, when Corbin says the State will prove previously prosecuted conduct, but also will prove previous conduct in the same transaction that has not been prosecuted, “to establish” an element of a subsequently charged offense, at trial it must rely solely on the latter conduct to put beyond reasonable doubt the existence of that element. See Calderone, supra, (Newman, J., concurring at 723).

Thus understood, the holding in Corbin does not entitle appellee to relief in this cause. The State first said it would need failure of appellee to stay in a single marked lane to prove probable cause; that is “specific evidence” contemplated by Cor-bin in that it does not go to an essential element of the offense to be tried. Now the State concedes, as it must, that the fact that appellee weaved out of her marked lane comprises some evidence of driving while intoxicated. Not only has the State not indicated in any manner that it will rely on appellee’s failure to drive in a single lane to prove the necessary element of intoxication in this cause, but from the declarations of the trial prosecutor and from the excerpted offense report, the failure to drive in a marked lane is not even the most compelling evidence of intoxication available to the State. So long as the State relies solely on the latter conduct to prove intoxication, evidence that appellee failed to drive in a single lane is not sufficient in and of itself to bar subsequent prosecution for driving while intoxicated.¹¹

Accordingly, we affirm the judgment of the court of appeals.

1 . This Court has held that the courts of appeals do not have jurisdiction to entertain appeals from denial of a special plea brought pursuant to Article 27.05, V.A.C.C.P., such being in the nature of an interlocutory appeal. Apolinar v. State, 820 S.W.2d 792 (Tex.Cr.App.1991). It may well be, however, that when a trial court dismisses a prosecution on purported authority of Article 27.05, supra, courts of appeals can entertain a State’s appeal under Article 44.-01(a)(1) or (4), supra. At any rate, neither party contests the court of appeals' jurisdiction in this cause, and we do not address it now.

2 . In Brown the Supreme Court justified transposition of the Blockburger test from the multiple punishment context to the successive prosecution context thus:

“If two offenses are the same under this test for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions.”

432 U.S. at 166, 97 S.Ct. at 2226, 53 L.Ed.2d at 194. But the Court itself acknowledged in Brown what it would later nail down in Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), viz:

"Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.”

432 U.S. at 165, 97 S.Ct. at 2225, 53 L.Ed.2d at 194. In context of multiple punishment, then, the Blockburger rule operates merely as a rule of statutory construction, a means of divining legislative intent where that intent is not otherwise manifest. Missouri v. Hunter, supra. Intimations in Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985), to the side, however, the Supreme Court has never said that in the successive prosecution context, the role of double jeopardy is limited to ensuring that courts do not exceed the legislative will. Indications are to the contrary. See Grady v. Corbin, 495 U.S. at 518-520, 110 S.Ct. at 2091-92, 109 L.Ed.2d at 562-63. Thus, Blockburger, which in the context of multiple punishment operates as no more than a rule of statutory construction, appears to operate in the context of successive prosecution as a substantive limitation upon the legislature.

3 . All emphasis supplied unless otherwise indicated.

4 . At least since Brown the Supreme Court has construed the Blockburger test to entail “a technical comparison of the elements of the two [statutory] offenses." Grady v. Corbin, supra, 495 U.S. at 520, 110 S.Ct. at 2093, 109 L.Ed.2d at 564. So understood, application of the Block-burger test alone would presumably have altered the result in Harris v. Oklahoma, supra. For felony murder could be perpetrated in the course of some felony other than robbery with a firearm; and robbery with a firearm need not result in a killing to be actionable. See Grady v. Corbin, supra, 495 U.S. at 520, 110 S.Ct. at 2092, 109 L.Ed.2d at 563.

It is curious to note, however, that in at least one context involving felony murder and a predicate felony, the Supreme Court has in fact applied the Blockburger test to find a jeopardy bar. Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), involved a question of multiple punishment. The Supreme Court was called upon to apply a District of Columbia statute which it construed to codify the Blockburger rule to decide whether Whalen could be punished separately for rape and for murder committed in the course of that rape. In applying Blockburger the Court rejected the Government’s argument that the rape and murder statutes defined different offenses inasmuch as, because the murder could be established by some predicate offense other than rape, each statute therefore contained an element the other did not. The Court observed:

“Where the offense to be proved does not include proof of a rape — for example, where the offense is a killing in the perpetration of a robbery — the offense is of course different from the offense of rape, and the Government is correct in believing that cumulative punishments for the felony murder and for a rape would be permitted under Blockburger. In the present case, however, proof of a rape is a necessary element of proof of the felony murder, and we are unpersuaded that this case should be treated differently from other cases in which one criminal offense requires proof of every element of another, offense."

445 U.S. at 694, 100 S.Ct. at 1439, 63 L.Ed.2d at 725. In a footnote the majority denied the dissenter’s allegation that it was applying Block-burger to the facts alleged in the indictment, rather than the statutory elements alone, explaining that it had "simply concluded that ... Congress intended rape to be considered a lesser offense included within the offense of a killing in the course of a rape.” Id., n. 6. It bears asking why the Court did not earlier conclude similarly, applying a Blockburger analysis in Harris v. Oklahoma, that the Oklahoma Legislature had intended robbery with a firearm to be treated as a lesser included offense of felony murder. In that event the Court might have found a jeopardy bar to successive prosecutions, just as it had in Brown v. Ohio, but without resort to, e.g., In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889). Be that as it may, the Court apparently was content to accept the statement of the Oklahoma Court of Criminal Appeals and the concession of the State that proving the underlying robbery with firearms was needed to provide intent necessary for a felony murder conviction, thus making the "common incident” test of In re Nielsen, supra, more appropriate than a Blockburger inquiry into legislative intent.

5 . Transposed to the language of Vitale and Harris, the Court might have said that death caused either by driving while intoxicated or by a failure to stay to the right of the median is "itself a separate statutory offense" from death caused in some other reckless or negligent manner, and that driving while intoxicated and crossing the median are “a species of lesser included offense.” Indeed, the Court has since read Corbin to have "simply adopted the suggestion we made in dicta in Vitale." United States v. Felix, 503 U.S. -, at -, 112 S.Ct. 1377, at 1384, 118 L.Ed.2d 25, at 35-36 (1992). In Corbin the Court went on to hold that had the State indicated there was other conduct it could have relied on "solely,” such as driving at an excessive speed for the existing conditions, no jeopardy problem would be presented; again, the Court might have said that driving while intoxicated and failure to keep right of the median are not "a species of lesser-included offense" of the offense of causing death by driving at a speed that is excessive for the existing weather and road conditions. But it did not.

Corbin is thus a restatement of Vitale with significant modifications. The latter was concerned with relationships under Illinois law between the crimes of manslaughter and careless failure to reduce speed et cetera, that is, whether the latter is "always a necessary element” of the former. That the Corbin Court did not resort to the "species" notion means that whether those matters are “lesser included offenses” is not dispositive under the Corbin rule. The inquiry is, “what conduct the State will prove” to make out an essential element of the offense; the concern is not whether that conduct is "always a necessary element" under state law, but whether it is criminal conduct that has already been prosecuted. Also important is that acts comprising conduct in Corbin are not per se requisite elements of offenses to be tried; they are previously prosecuted conduct the prosecution was not required but chose to use as evidence to persuade the factfinder to infer and find those elements beyond a reasonable doubt.

6 . Of course, we have no provisions for a bill of particulars in this jurisdiction, and the Houston [1st] Court noted in the instant cause that the State did not inform the trial court that it would rely on the failure of appellee to drive in a single marked lane to establish a necessary element of driving while intoxicated; it further opined that without such disclosure an appellate court need not anticipate what evidence the State will use. It did, however, resort to the record (as we have) to find witnesses the State could call to prove elements of driving while intoxicated without relying on conduct of failing to maintain a single lane. State v. Houth, supra, at 855.

Alerted to similar problems posed by Justice Scalia in dissent, the Supreme Court approved a "procedural mechanism [to] ensure that the test set forth today is in fact 'implementable,' ” viz:

" '[W]hen a defendant puts double jeopardy in issue with a non-frivolous showing that an indictment charges him with an offense for which he was formerly placed in jeopardy, the burden shifts to the government to establish that there were in fact two separate offenses.’ United States v. Ragins, 840 F.2d 1184, 1192 (CA4 1988) (collecting cases).”

Corbin, note 14, 495 U.S. at 522, 110 S.Ct. at 2094, 109 L.Ed.2d at 565.

In the instant cause all pertinent events occurred subsequent to the Corbin decision; the record reflects the parties were well aware of its implications. During the hearing on motion to dismiss the State analyzed Corbin, related its holdings to the instant cause and submitted that while it "needs” the failure to drive in a marked lane to show probable cause,

"it is possible to show that the defendant was intoxicated without ever relying upon or showing that one of the indications was that she failed to drive in a single marked lane. * * * * The Officer could testify in this particular case that he formed the opinion that she was intoxicated based upon observations outside of her driving facts[.] * * * * Therefore, it is the State's position that [defendant's] argument fails because the essential elements of D. W.I. are not essential elements of failure to drive in a single marked lane. They are two distinct and separate offenses[.]”

S.F. 18-29. That response manifests an understanding of and reveals an attempt to conform to the procedural mechanism contemplated in Corbin; it forms the basis of our analysis here. We suggest, however, that a prudent prosecutor would first join issue in writing to a pretrial jeopardy pleading in order to preclude "extraneous evidence” and to protect the record in event of an appeal. See Scalia, J., dissenting, id., 495 , 110 S.Ct. at 2104, 109 L.Ed.2d at 577-578.

7 . We observe, however, that if proving "probable cause” is not jeopardy barred, it might still be ruled out on objection that it is not relevant under Tex.R.Cr.Evid. Rules 401 and 402. Neaves v. State, supra.

8 . U.S. v. Clark, and U.S. v. Calderone, both supra, are two of various federal cases in which courts sought to determine the meaning of terms used in the Corbin test, and then apply that determination to the particular facts in more complicated crimes involved in the cause being decided. See also, e.g., Ladner v. Smith, 941 F.2d 356 (CA5 1991); United States v. Felix, 926 F.2d 1522 (CA10 1991); United States v. Pungitore, 910 F.2d 1084 (CA3 1990); United States v. Russo, 906 F.2d 77 (CA2 1990). Because like Corbin, the instant cause presents successive prosecutions of simpler offenses arising out of “a single course of conduct" rather than “multilayered conduct” in conspiracy prosecutions, and also because often the deciding court itself is divided and as among the several courts the results are uneven, we may look to one or more cases for a common understanding of certain aspects of Corbin without regard to their application in those cases. See United States v. Felix, 503 U.S. -, 112 S.Ct. at 1385, 118 L.Ed.2d at 36.

On the point of "to establish,” in Calderone the lead opinion believes it means "to take the prosecution at its word,” so to speak, viz: “because the state had indicated in its pleadings that it would rely on conduct for which Corbin had already in fact been prosecuted[,]" and then focuses on that conduct. 917 F.2d, at 721. The concurring opinion reads Corbin to bar a second prosecution “if the prosecutor seeks to establish an ‘element’ of the second crime by providing 'conduct that constitutes and offense for which the defendant has already been prosecuted,’ ’’ id., at 723, and then focuses on "element” as well as "conduct." Id., at 723-725; along the way Judge Newman opines:

"What Grady holds is that the State may not use Corbin’s conduct in driving while intoxicated or driving across the center line to establish these required elements of the subsequent offenses. 1 Grady does not bar the State from introducing in the second trial evidence that Corbin was intoxicated or drove across the center line, but these acts (or that conduct) cannot be used as elements of reckless or negligent action underlying the homicide and assault charges."

Id., at 723-724. In note 1 he agrees with Justice Scalia in dissent that Corbin bars such previously prosecuted conduct because although not constituting statutorily prescribed elements of the second offenses, “the State chose to satisfy the statutory elements of a reckless or negligent act by proving the previously prosecuted conduct of driving while intoxicated and driving across the center line.” Id., at 723. Accord: United States v. Felix, supra, at 1528-1530.

On the other hand where there was no bill of particulars, only an indictment indicating what the Government would prove as, inter alia, an overt act, in Clark the question to be decided was "whether evidence of the airport drug possession — ‘conduct that constitutes an offense for which the defendant has already been prosecuted’ — 'established] an essential element’ of the conspiracy charge.” (brackets in original). Id., at 641. Based on the applicable law related to the allegations, the court concluded that "evidence of Clark’s airport possession of cocaine and heroin did not ‘establish an essential element' of the § 846 conspiracy charge.” Id., at 642.

9 . When the State represented in Corbin that it "will prove” and thus rely on driving while intoxicated and crossing the median to demonstrate recklessness and negligence, it limited itself to an understanding that the culpable mental states are susceptible to being established by conduct which violates other statutorily defined offenses. Because accused has already been prosecuted for driving while intoxicated and crossing the median, a second prosecution will violate jeopardy protections. That ultimately he might be acquitted of the homicide and assault offenses does not alter the analysis. The Double Jeopardy Clause protects against successive prosecutions, not just successive convictions.

10 . To be admissible under Rule 404(b) and Tex. R.Cr.Evid., Rules 401 & 402, evidence of “other crimes, wrongs, or acts," whether or not previously adjudicated, must logically serve “to make more or less probable” an elemental fact or an evidentiary fact that inferentially leads to an elemental fact. See Montgomery v. State, 810 S.W.2d 372, at 387 (Tex.Cr.App.1990) (Opinion on rehearing on Court’s own motion). In this sense every extraneous offense seems to serve “to establish an essential element of an offense charged" in the subsequent prosecution.

Nevertheless, the Supreme Court held in Dowling that because in a Rule 404(b) context "specific evidence” need only be sufficient to allow the jury to "reasonably conclude” — rather than to find beyond of reasonable doubt — “that the act occurred and that defendant was the actor,” even though it might not believe beyond a reasonable doubt that defendant committed the crime charged in the first trial (robbery of an individual), the "collateral-estoppel component of the Double Jeopardy Clause" did not preclude the Government from introducing in a subsequent trial on an unrelated offense (bank robbery) that evidence to enhance its proof of identification of Dowling and his linkage with another man implicated in the offense. Id., at 348-349, 110 S.Ct. at 672, 107 L.Ed.2d at 717.

The “specific evidence” alluded to in Corbin is that which merely "related to prior conduct which the Government failed to prove violated a criminal law.” Dowling, at 350, 110 S.Ct. at 673, 107 L.Ed.2d at 719. Although related to prior conduct alleged to constitute an offense, "specific evidence” admissible under Rule 404(b) does not ipso facto “establish an essential element of an offense charged” in a later prosecution for another offense arising from a completely different transaction. See Felix, supra, at 1528 (no same act or conduct at issue in Dowling, treating separate crimes from separate conduct); Clark, supra, at 642 ("["Dowling evidence”] standing alone, did not prove any essential elements of bank robbery”); Calderone, supra, at 724 (Newman, J., concurring) (conduct in committing robbery A was introduced only as evidence that defendant committed robbery B, not as entirety of an element of robbery B); United States v. Felix, supra — U.S. at -, 112 S.Ct. at 1383, 118 L.Ed.2d at 34.

11 . Unlike elements in other offenses at issue in Corbin, Vitale, Harris, et cetera, the element of being "intoxicated” while driving or operating a motor vehicle in a public place is not readily establishable by proof of conduct that constitutes an offense for which the accused has already been prosecuted. For example, the offense of public intoxication is statutorily at least declared not to be a lesser included offense of driving while intoxicated. V.T.C.A. Penal Code, § 42.08(g). While conduct constituting one or another traffic offense may well be symptomatic of intoxication, none quickly comes to mind that the prosecution "will prove to establish" the essential element of actually being intoxicated. Thus under our analysis of the facts of this cause application of the Corbin test here is in a real sense sui generis.