Case Summary - Ex parte Frank Eugene Watson

Frank Watson was drunk and driving a truck when he turned left and hit a motorcycle coming from the opposite direction. The State charged him with intoxication assault for driving while intoxicated and causing bodily injury by “failing to yield the right of way while turning left”. Of course, at the time of the accident Watson also got a ticket for failure to yield the right of way which he plead out to deferred adjudication in justice court before he was indicted on the felony intoxication assault charge. So, when he was indicted, Watson filed a pre-trial writ of habeas corpus alleging that the intoxication assault indictment violated double jeopardy.

In an unpublished opinion, the court of appeals affirmed the trial court’s denial of habeas relief after applying both the Blockburger and Hall tests. According to the court of appeals, failure to yield the right of way was not the same offense as intoxication assault. Under Hall, it was not a lesser-included offense. [Here’s a link to the court of appeals case info.]

The Court of Criminal Appeals affirmed. Judge Holcomb writing for a six judge majority, explained that the elements of intoxication assault as modified by the allegations in the indictment only required the State prove that Watson had driven a car while intoxicated and by reason of that intoxication caused bodily injury by accident or mistake. Notably, the majority does not regard the phrase “failure to yield the right of way while turning left” in the indictment as an element of the offense of intoxication assault. The majority points out the language in Hall that court’s must look to the way elements of an offense are modified in an indictment does not transform such language into additional elements of the offense. Here, the State only had to show that Watson caused bodily injury, the manner in which he did so was not an element.

Moreover, the facts required to prove failure to yield the right of way were not the same or less than those required to prove the greater offense. For example, failure to yield the right of way requires proof of a vehicle approaching from the opposite direction. In contrast, intoxication assault does not even require as an element proof that Watson failed to yield. It only requires proof that he caused bodily injury by driving while intoxicated. [I supposed this squares with Schmidt because the CCA ultimately held that the State is required to prove a threat when proving retaliation even if striking is only the manner in which the threat is conveyed.]

Presiding Judge Keller, joined by Judge Cochran, concurred to suggest that there wasn’t even a need to decide if the language “failure to yield the right of way while turning left” was made an element by inclusion in the indictment. The offense of failure to yield the right of way contains an element not found in intoxication assault. The language included in the indictment was merely an allegation of conduct. This rationale jibes with the majority, though avoids the clarification of Hall, so it’s not as helpful as the majority opinion in this regard. Judge Cochran also concurred to note that Hall did not resurrect the “same conduct” test for double jeopardy analysis. Blockburger is still the way to go for that analysis.

Interestingly, Judge Womack, author of Hall, dissented along with Price and Meyers. According to the dissent, the State had alleged the full offense of failure to yield the right of way. Consequently, failure to yield the right of way was a lesser-included offense, and Watson had been placed in jeopardy for a lesser offense so he could not be placed in jeopardy on the greater. [Dude, what’s the problem? Ryan Gosling did it in Fracture.]