JAMES EARL DODSON v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

JAMES EARL DODSON, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–10–00764–CR

Decided: November 22, 2011

Before Justices Bridges, Richter, and Murphy

MEMORANDUM OPINION

Opinion By Justice Bridges

Appellant James Earl 1 Dodson appeals his convictions for aggravated assault with a deadly weapon and driving while intoxicated and his accompanying sentences.   In his initial brief, appellant raises a single issue, contending “the State indicted, tried, convicted, and sentenced appellant on an indictment which was fundamentally defective and void because it failed to state an offense in Cause No. 2–10–5 [aggravated assault with a deadly weapon].”   In his supplemental brief,2 appellant raises a second issue, contending the State violated appellant's protection against double jeopardy by prosecuting two offenses (aggravated assault with a deadly weapon and driving while intoxicated), which arose out of the same criminal offense.   We affirm.

Background

On July 13, 2009, Tristan McCullough was a passenger in a Dodge Caravan, driven by his stepmother, heading westbound on Interstate 30 in Rockwall.   While traveling at approximately 65 miles per hour, the McCullough's van was struck from behind by appellant's vehicle.   The impact left Tristan with injuries to his head and neck.

Officers located appellant's vehicle in a field near the scene with appellant still belted into the driver's seat.   Officer Young testified appellant had:  (1) slurred speech, (2) red, glassy, bloodshot eyes, (3) admitted to consuming alcohol, and (4) the odor of alcohol emitting from his vehicle, breath, and person.   Officer Young located two empty Miller Lite cans and numerous prescription bottles in appellant's vehicle.   Because appellant was complaining of chest pains, he was attended by paramedics and ultimately transported to the hospital.   Medical records obtained from Presbyterian Hospital of Rockwall show appellant had a blood alcohol level of 218 milligrams per deciliter (.182–.198  grams per hundred milliliters after conversion).

In two indictments, appellant was charged with aggravated assault with a deadly weapon and driving while intoxicated (third or more offense).   The jury convicted appellant of both offenses.   This appeal ensued.

Analysis

In his first issue, appellant alleges “the State indicted, tried, convicted, and sentenced appellant on an indictment which was fundamentally defective and void because it failed to state an offense in Cause No. 2–10–5 [aggravated assault with a deadly weapon].”   Specifically, appellant contends the indictment fails to state a manner and means of committing the offense.   The indictment reads, in pertinent part, as follows:

JAMES EARLE DODSON hereinafter styled Defendant, on or about the 13th day of July, 2009 and before the presentment of this indictment, in the County and State aforesaid, did then and there intentionally, knowingly, or recklessly cause bodily injury to Tristan McCullough by the defendant's inattention while driving, defendant's consumption of alcohol while driving or by defendant being under the influence of alcohol, a drug, a dangerous drug or the combination thereof, and the defendant did then and there use or exhibit a deadly weapon, to-wit:  a motor vehicle, during the commission of said assault.

If a defendant does not object to a defect, error, or irregularity of form or substance in an indictment before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and may not raise the objection on appeal.  Tex.Code Crim. Proc. Ann. Art. 1.14(b) (West 2010);  see also Studor v. State, 799 S.W.2d 263, 273 (Tex.Crim.App.1990) (a failure to allege a substantive defect in an indictment is waived by a failure to make a pre-trial objection).   The record before us demonstrates appellant failed to object to the indictment prior to the commencement of trial.   Therefore, appellant has waived his argument on appeal.   See Tex.Code Crim. Proc. Ann. Art. 1.14(b).  We overrule appellant's first issue.

In his second issue, appellant argues the State violated appellant's protection against double jeopardy by prosecuting two offenses (aggravated assault with a deadly weapon and driving while intoxicated), which arose out of the same criminal offense.   Specifically, appellant complains that, under the facts of the instant case, driving while intoxicated is a lesser included offense of aggravated assault with a deadly weapon.

However, appellant failed to assert his double jeopardy claim to the trial court.   For a double jeopardy complaint to be considered in the court of appeals, the appellant must have preserved the issue in the trial court through an objection, unless the face of the record shows a jeopardy violation.   Gonzalez v. State, 8 S.W.3d 650, 645 (Tex.Crim.App.2000);  Nethery v. State, 29 S.W.3d 178, 186 (Tex.App.-Dallas 2000, pet. ref'd).   A double jeopardy violation is not apparent on the face of the record when the charge permitted the jury to convict appellant on an alternative manner and means that would not violate the prohibition against double jeopardy.  Gonzalez, 8 S.W.3d at 645.

The jury charge in the aggravated assault with a deadly weapon case provided three different manners and means by which the jury could find appellant caused McCullough's injuries:

(1) by the defendant's inattention while driving,

(2) defendant's consumption of alcohol while driving, or

(3) defendant being under the influence of alcohol, a drug, a dangerous drug or the combination thereof.

The jury returned a general verdict of guilty.   Because the jury could have found appellant committed the offense through a manner and means other than “operat[ing] a motor vehicle in a public place while the said defendant was intoxicated” (i.e., through his attention while driving), the asserted double jeopardy violation is not apparent from the face of the record.  Gonzalez, 8 S.W.3d at 645;  see also Tuda v. State, No. 05–02–01767–CR, 2003 WL 22456357, *1 (Tex.App.-Dallas Oct. 30, 2003, no pet.).   Accordingly, appellant had to object in the trial court to preserve this issue for appellate review.   Gonzalez, 8 S.W.3d at 645.   We overrule appellant's second issue.

Having overruled both of appellant's issues on appeal, we affirm the judgment of the trial court.

FOOTNOTES

FN1. Appellant's middle name ends with an “E” in documents included in the clerk's record, but appellant has dropped the “E” in his filings with this Court.   We have also dropped the “E” for consistency purposes..  FN1. Appellant's middle name ends with an “E” in documents included in the clerk's record, but appellant has dropped the “E” in his filings with this Court.   We have also dropped the “E” for consistency purposes.

FN2. This Court received appellant's supplemental brief 4 days after his initial brief was filed, and appellant's supplemental brief was filed 10 days prior to the filing of the State's brief.   See Tex.R.App. P. 38.7..  FN2. This Court received appellant's supplemental brief 4 days after his initial brief was filed, and appellant's supplemental brief was filed 10 days prior to the filing of the State's brief.   See Tex.R.App. P. 38.7.

DAVID L. BRIDGES JUSTICE

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