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William Burney BURKE, Appellant, v. The STATE of Texas, State.
OPINION
On June 24, 1997, Appellant William Burney Burke drove his automobile while intoxicated, ran a red light, and collided with the automobile driven by Armon Hunter, who suffered serious bodily injury as a result of the collision. Appellant was charged in count one of the indictment with reckless aggravated assault with serious bodily injury 1 and in count three of the indictment with intoxication assault.2 Appellant pled guilty to both count one and count three. The jury found him guilty of both offenses and assessed his punishment at fifteen years' and ten years' confinement, respectively. The trial court entered judgment on the jury's verdict and ordered the sentences to run concurrently.
In five issues on appeal, Appellant argues that the trial court erred in denying his motion for new trial because (1) his plea of guilty to the reckless aggravated assault charge was involuntary, (2) the trial court should have sua sponte withdrawn his plea of guilty to the reckless aggravated assault charge when the evidence raised an issue of innocence, (3) his conviction under the general aggravated assault statute violated his right to due course of law pursuant to article I, section 19 of the Texas Constitution because the intoxication assault statute specifically proscribes the same conduct, (4) his conviction under the general aggravated assault statute violated due process pursuant to the Fifth and Fourteenth Amendments to the United States Constitution because the intoxication assault statute specifically proscribes the same conduct, and (5) the trial court's instruction to the jury to convict and assess the second degree felony punishment under the general aggravated assault statute before determining the third degree felony punishment under the special intoxication assault statute violated his right to a fair and impartial jury determination of punishment for the intoxication assault.
The State argues that any constitutional error was waived by Appellant's failure to object at trial, that Appellant's briefing was inadequate, that the trial court did not abuse its discretion in denying Appellant's motion for new trial, and that the State may properly prosecute an offender under both sections 22.02(a)(1) and 49.07 of the penal code.
The court of criminal appeals has recently examined a similar issue, and we are guided by that court's analysis.3 In Ex parte Ervin, the court of criminal appeals examined the intoxication manslaughter and manslaughter statutes under a double jeopardy analysis.4 Ervin was convicted of intoxication manslaughter and manslaughter pursuant to a plea agreement.5 As in the case before us, both offenses arose out of a traffic accident involving a single victim.6 And, as in the case before us, Ervin was convicted under both the general and the specific statutes and was given a sentence for each offense, to run concurrently.7
Considering the legislative intent of both statutes, the court of criminal appeals noted that effective September 1, 1994, the Texas Legislature moved the intoxication manslaughter portion of the involuntary manslaughter statute to a new section of the penal code consisting of intoxication offenses.8 In addressing the question “did this move by the Legislature change intoxication manslaughter into an entirely different offense for double jeopardy purposes?,” the court of criminal appeals concluded that the answer was no.9 The court of criminal appeals held that “manslaughter and intoxication manslaughter are the same offense for double jeopardy purposes when they involve the same victim, and imposing convictions for both in this situation violates the Double Jeopardy Clause. A double jeopardy violation occurs even when, as in this case, the sentences are concurrent.” 10
As the gravamen of manslaughter and intoxication manslaughter is the death of an individual, the gravamen of reckless aggravated assault and intoxication assault is serious bodily injury to an individual. We therefore conclude that reckless aggravated assault causing serious bodily injury and intoxication assault causing serious bodily injury are the same offense for due process and due course of law purposes when they involve the same victim. Imposing convictions for both offenses in this situation violates due process and due course of law, even when the sentences are concurrent.
Applying the well-established rule that, if the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision,11 we hold that, in this case, the specific intoxication assault statute prevails over the general aggravated assault statute. Accordingly, we vacate Appellant's conviction under count one, violation of section 22.02(a)(1) of the penal code.
The State suggests that, if we conclude that prosecution under section 22.02(a)(1) was improper, we should affirm Appellant's conviction under section 49.07, the intoxication assault statute. In Ervin, the court of criminal appeals expressly held that the State may waive an illegal portion of a judgment and maintain the remainder of the plea agreement.12 We hold that the State may waive an illegal portion of a judgment and maintain the remainder of the judgment, even absent a plea agreement. Consequently, we vacate Appellant's conviction under count one of the indictment, violation of section 22.02(a)(1) of the penal code, and affirm his conviction under count three of the indictment, violation of section 49.07 of the penal code. We reform the trial court's judgment to delete the fifteen-year sentence under count one for reckless aggravated assault. As reformed, we affirm the trial court's judgment.
FOOTNOTES
1. See Tex. Penal Code Ann. § 22.02(a)(1) (Vernon 1994).
2. See id. § 49.07.
3. See Ex parte Ervin, 991 S.W.2d 804 (Tex.Crim.App.1999).
4. Id. at 805-07. Although, in the case before us, Appellant phrases his issues as due course of law and due process violations rather than as a double jeopardy violation, we conclude that the analysis used by the court of criminal appeals in Ervin is applicable to this case. See generally Cook v. State, 940 S.W.2d 623, 639 (Tex.Crim.App.1996) (noting “the due process concern upon which the double jeopardy doctrine is ultimately based”), cert. denied, 522 U.S. 821, 118 S.Ct. 75, 139 L.Ed.2d 35 (1997).
5. See Ex parte Ervin, 991 S.W.2d 804, at 805-07.
6. See id., at 805-07.
7. See id., at 805-07.
8. See id. at 815-16.
9. Id. at 815-16.
10. Id. at 814.
11. See Tex. Gov't Code Ann. § 311.026 (Vernon 1998).
12. Ex parte Ervin, 991 S.W.2d 804, at 817-18.
LEE ANN DAUPHINOT, Justice.
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Docket No: No. 2-98-185-CR.
Decided: June 17, 1999
Court: Court of Appeals of Texas,Fort Worth.
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