pd-0997-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/10/2015 11:17:40 PM
Accepted 9/14/2015 3:29:13 PM
ABEL ACOSTA
PD-0997-15 CLERK
In the Court of Criminal Appeals of Texas
Juliane Myra Minor,
Petitioner
v.
September 14, 2015
The State of Texas,
Respondent
On review from the Thirteenth Court of Appeals
Case number 13-14-00161-CR
Petition for Discretionary Review
Franklin Bynum
Texas Bar Number 24069451
franklin@bynumlaw.net
Bynum Law Office PLLC
501 North Interstate 35
Austin, Texas 78702
(512) 887-3938
Counsel for Petitioner
Identity of Parties and Counsel
Appellant Juliane Myra Minor
328 W. Santa Gertrudis A
Kingsville, Texas 78363
Defense Counsel at Trial Nathan Fugate
and at the Court of Appeals 201 E. Henrietta PO Box 1265
Kindsville, Texas 78363
Prosecutor at Trial Kleburg County District Attorney
and at the Court of Appeals 700 E. Kleburg Avenue
Kingsville, Texas 78363
Judge Presiding at Trial The Honorable Angelica Hernandez
105th District Court
700 E. Kleburg Avenue
Kingsville, Texas 78363
Appellant’s Counsel Franklin Bynum
Bynum Law Office PLLC
2814 Hamilton Street
Houston, Texas 77004
2
Table of Contents
Identity of Parties and Counsel ............................................................................ 2!
Table of Contents ............................................................................................... 3!
Index of Authorities ............................................................................................ 4!
Statement Regarding Oral Argument.................................................................... 5!
Statement of the Case......................................................................................... 5!
Statement of Procedural History .......................................................................... 5!
Questions Presented for Review ........................................................................... 5!
Argument .......................................................................................................... 6!
Question One: Did the court of appeals commit error by performing an
analysis of the elements of the offense of criminal negligence without
considering the special pleading rules in cases alleging criminal negligence?
........................................................................................................ 7!
Question Two: Was the court of appeals wrong to limit its analysis to only a
Blockburger test?............................................................................... 9!
Question Three: Does this case violate double jeopardy under the Texas
Constitution? .................................................................................. 10!
Prayer ............................................................................................................. 10!
Certificate of Compliance .................................................................................. 11!
Certificate of Service ......................................................................................... 11!
Appendix A: The Opinion Below .........................................................................12!
3
Index of Authorities
Cases!
Ervin v. State, 991 S.W.2d 804 (Tex. Crim. App. 1999).............................................9
Garfias v. State, 424 S.W.3d 54 (Tex. Crim. App. 2014)............................................9
Minor v. State, No. 13-14-00161-CR, 2015 WL 4523812, (Tex. App. June 25, 2015,
no pet. h.). ................................................................................................. 5, 7, 8, 9
Statutes!
Tex. Code. Crim. Proc. Ann. art. 26.12 (West, WestlawNext through the end of the
84th Legislature). ................................................................................................. 8
Tex. Penal Code Ann. § 6.03 (West, WestlawNext through the end of the 84th
Legislature). ......................................................................................................... 8
Treatises!
41 George E. Dix and John M. Schmolesky, Criminal Practice and Procedure §
19:19 (3d ed.) ......................................................................................................... 7
41 George E. Dix and John M. Schmolesky, Criminal Practice and Procedure §
19:20 (3d ed.) ...................................................................................................... 10
4
Statement Regarding Oral Argument
This is a complex issue that would benefit from a discussion
among the Court and the parties.
Statement of the Case
This case presents important issues regarding the extent of dou-
ble jeopardy protection in Texas, under both the state and federal con-
stitutions. The court of appeals conducted the Blockburger test on the
elements of an offense in a way that does not properly address the pecu-
liarities of criminal negligence. In addition, it failed to apply the Ervin
factors, and failed to address the issue of whether double punishment in
this case violates the Texas Constitution.
Statement of Procedural History
A Kleburg County grand jury indicted Juliane Minor for crimi-
nally negligent homicide on August 23, 2012.1 On January 9,2014, Ms.
Minor filed a pretrial writ of habeas corpus on January 9, 2014, alleging
multiple double jeopardy violations.2 The district court denied relief on
May 19, 2014.3 The court of appeals affirmed on June 25, 2015.4
Questions Presented for Review
Question One: Did the court of appeals
commit error by performing an analysis of the
1
(C.R. at 4)
2
(C.R. at 5)
3
(C.R. at 48)
4
Minor v. State, No. 13-14-00161-CR, 2015 WL 4523812, (Tex. App. June 25, 2015, no pet. h.).
5
elements of the offense of criminal negligence
without considering the special pleading rules
in cases alleging criminal negligence?
Question Two: Was the court of appeals
wrong to limit its analysis to only a
Blockburger test?
Question Three: Does this case violate double
jeopardy under the Texas Constitution?
Argument
Juliana Myra Minor was charged and pleaded guilty to the misde-
meanor offense of knowingly allowing her child to drive her car.5
Months later, she was indicted for criminally negligent homicide by “al-
lowing an unlicensed juvenile to drive a motor vehicle.”
Ms. Minor filed a pre-trial writ alleging a double jeopardy viola-
tion under the Fifth and Fourteenth Amendments, and also Article I,
§ 14 of the Texas Constitution. The district court denied relief.
The court of appeals affirmed in an unpublished opinion that
raises three critical questions that cut to the heart of unresolved issues
regarding the extent of Due Process and double jeopardy protections.
Professor Dix identifies the problem: “Modern penal codes typi-
cally contain a proliferation of statutes with highly fragmented offenses
5
Id. at *2.
6
that have the potential to trivialize the ancient double jeopardy protec-
tions in the United States and Texas constitutions.”6
The petition should be granted because the court of appeals has
decided an important question of state and federal law that continues to
be addressed by the Court of Criminal Appeals, and because the case
conflicts with this Court’s rulings on double jeopardy.7
Question One: Did the court of appeals
commit error by performing an analysis of the
elements of the offense of criminal negligence
without considering the special pleading rules
in cases alleging criminal negligence?
The court of appeals here began its analysis with the venerable
Blockburger test, which strictly compares elements of offenses and if the
lesser offense requires more or different proof then a proposed greater
offense. If the greater offense lacks an element required by the lesser
offense, then the greater–lesser relationship fails the test.8
The court of appeals applied the Blockburger test in the wrong
way, without considering the special requirements for pleading offenses
alleging criminal negligence. Article 21.15 requires that an indictment
“allege, with reasonable certainty, the act or acts relied upon to consti-
tute…criminal negligence, and in no event shall it be sufficient to allege
6
41 George E. Dix and John M. Schmolesky, Criminal Practice and Procedure § 19:19 (3d ed.)
7
Tex. R. App. P. 66.3.
8
Minor, WL 4523812 2015 at *2 (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)).
7
merely that the accused, in committing the offense, acted…with crimi-
nal negligence.”9
Criminal negligence is a more expansive concept than other men-
tal states, and has multiple—virtually infinite—possibilities in every ap-
plication. Notice, then, is critical in such cases, as evidenced by the
strict pleading requirements for bringing such cases.
The court of appeals took fault with the lesser offense’s require-
ment that a person act “knowingly,” and said that criminally negligent
homicide need not include proof that a person act knowingly.10
The problem is that criminal negligence absolutely requires
knowledge. Knowledge is so central to criminal negligence that con-
structive knowledge under a reasonable person standard is authorized:
criminal negligence occurs when a person “is aware or ought to be
aware of a substantial and unjustifiable risk that the circumstances exist
or the result will occur.”11
The court of appeals addressed this counterargument simply by
saying that other elements are necessary as well: “that Minor let her
‘child or ward’ drive the vehicle…or that the vehicle in question was
“owned by” or “subject to” Minor’s control.”12
9
Tex. Code. Crim. Proc. Ann. art. 21.15 (West, WestlawNext through the end of the 84th Legisla-
ture).
10
Minor, WL 4523812 2015 at *3 (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)).
11
Tex. Penal Code Ann. § 6.03 (West, WestlawNext through the end of the 84th Legislature).
12
Minor, WL 4523812 2015 at *3.
8
However, those details also should have been analyzed in light of
the nature criminal-negligence allegations, because the facts would be
required to have been pleaded with specificity in the indictment.
The court of appels failed to consider the particularity of criminal
negligence in its Blockburger analysis.
Question Two: Was the court of appeals
wrong to limit its analysis to only a
Blockburger test?
Whether multiple punishments violate double jeopardy can be
evaluated one of two ways: the “elements” approach or the “unit of
prosecution” approach.13 The “elements” anlaysis “is appropriate
when the offenses in question come from different statutory sections.”14
The court of appeals employed the elements approach in this case.15
“The starting point of an ‘elements’ analysis in the multiple-pun-
ishments context is the Blockburger test” but the analysis does not end
there:16 the court of appeals must also apply the factors from Ervin v.
State.17
Applying the Ervin factors would have extended the analysis be-
yond the rigid Blockburger test to take a greater view of how the two laws
13
Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014).
14
Id.
15
Minor, WL 4523812 2015 at *3.
16
Garfias, 424 S.W.3d at 58.
17
991 S.W.2d 804, 814 (Tex. Crim. App. 1999).
9
at issue relate to each other. The court of appeals failure to perform this
analysis was error, and the case should be remanded with an opinion
that reaffirms that the Ervin factors apply in multiple-punishment dou-
ble jeopardy claims.
Question Three: Does this case violate double
jeopardy under the Texas Constitution?
Ms. Minor raised the argument that the Texas Constitution offers
greater protection against double jeopardy at the trial court and the
court of appeals.18 But the opinion of the court of appeals does not ad-
dress the State constitutional argument. This court should address the
issue on the complete record before it.
Professor Dix identifies the problems of the current federal
scheme and suggests that “Texas is free to adopt a rule that is more sen-
sitively attuned to considerations that should control these issues.”19
And it should.
Prayer
Juliane Myra Minor prays that this Honorable Court grant the pe-
tition and set this matter for briefing on the merits, or reverse the court
of appeals per curium with instructions to issue another opinion.
18
(C.R. at 5)
19
41 George E. Dix and John M. Schmolesky, Criminal Practice and Procedure § 19:20 (3d ed.)
10
Certificate of Compliance
The word-processing software used to write this brief reports its
length as 1541 words before subtracting for any of the contents that may
be excluded under Rule 9.4(i)(1).
Certificate of Service
I provided this brief to the Kleberg County District Attorney by
First Class Mail on September 11, 2015. I provided a copy to the State
Prosecuting Attorney by electronic service simultaneously with elec-
tronic filing.
Respectfully,
/s/ Franklin Bynum
Bynum Law Office PLLC Franklin Bynum
501 North Interstate 35 Texas Bar Number 24069451
Austin, Texas 78702 franklin@bynumlaw.net
(512) 887-3938
11
Appendix A: The Opinion Below
NUMBER 13-14-00161-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JULIANE MYRA MINOR, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court
of Kleberg County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Longoria
Memorandum Opinion by Justice Rodriguez
Appellant Juliane Myra Minor appeals the trial court’s denial of her application for
writ of habeas corpus alleging a double jeopardy violation. 1 By one issue, Minor
Pre-trial writs of habeas corpus are permitted in very limited circumstances. Ex parte Smith, 178
1
S.W.3d 797, 801 (Tex. Crim. App. 2005). Because Minor’s double jeopardy issue, if meritorious, would
contends that the double jeopardy prohibitions of the United States Constitution and the
Texas Constitution bar her prosecution for criminally negligent homicide following her
citation under the Texas Transportation Code for “allowing an unlicensed juvenile to drive
a motor vehicle.” See TEX. PENAL CODE ANN. § 19.05 (West, Westlaw through 2015
R.S.); TEX. TRANSP. CODE ANN. § 521.458 (West, Westlaw through 2015 R.S.). We
affirm.
I. BACKGROUND
It is undisputed that on June 1, 2012, Minor allowed her unlicensed sixteen-year-
old son, whom we will refer to as B.C., to drive her Hummer H2. B.C. failed to control
his speed while rounding a curve, veered into the opposite lane of travel, and struck
Stephanie Butler’s oncoming vehicle. Butler was eight months pregnant at the time of
the collision, and her unborn child died as a result of accident-induced trauma.
Both B.C. and Minor received traffic citations following the accident. Minor was
cited for permitting an unauthorized person to drive pursuant to the Texas Transportation
Code. Minor paid a total of $120 dollars for a fine and associated court costs.
Subsequently, Minor was indicted for criminally negligent homicide. The indictment
alleged Minor caused the death of Butler’s unborn child by allowing an unlicensed juvenile
to drive a motor vehicle.
Minor filed a writ of habeas corpus in the trial court alleging that the prosecution
for criminally negligent homicide constituted double jeopardy because she had previously
been cited for allowing an unlicensed juvenile to drive a motor vehicle and had paid a fine.
bar prosecution, we have jurisdiction over this appeal. See id. (recognizing that “the denial of relief on a
pretrial writ of habeas corpus may be appealed immediately”).
2
The trial court denied Minor’s application and determined that a citation for permitting an
unauthorized person to drive was not a lesser-included offense of criminally negligent
homicide. This interlocutory appeal followed.
II. DOUBLE JEOPARDY
By her sole issue, Minor contends that the double jeopardy prohibitions in the
federal and state Constitutions prevent her prosecution for criminally negligent homicide.
A. Applicable Law and Standard of Review
The Double Jeopardy Clause of the Fifth Amendment, applicable to the states
through the Fourteenth Amendment, protects an accused against: (1) a second
prosecution for the same offense after acquittal; (2) a second prosecution for the same
offense after conviction; and (3) multiple punishments for the same offense prosecuted in
the same trial. Brown v. Ohio, 432 U.S. 161, 165 (1977); Illinois v. Vitale, 447 U.S. 410;
415–16 (1977); Ex parte Amador, 326 S.W.3d 202, 205 (Tex. Crim. App. 2010); see Ervin
v. State, 991 S.W.2d 804, 806–07 (Tex. Crim. App. 1999) (distinguishing a “multiple
prosecution” double jeopardy claim, in which a defendant had previously received a
conviction for driving while intoxicated and was subsequently tried for involuntary
manslaughter, from a “multiple punishment” double jeopardy claim in which multiple
offenses were prosecuted in a single trial).
We apply a de novo standard of review when the trial court's decision to deny relief
on a writ of habeas corpus involves a question of law. See State v. Nkwocha, 31 S.W.3d
817, 820 (Tex. App.—Dallas 2000, no pet.); see also Rice v. State, 333 S.W.3d 140, 144
(Tex. Crim. App. 2011). In analyzing a “multiple-prosecution” double jeopardy claim in
3
which two distinct statutory provisions are at issue, as in this case, we initially determine
whether “each provision requires proof of a fact which the other does not.” See United
States v. Dixon, 509 U.S. 688, 697 (1993); Blockburger v. United States, 284 U.S. 299,
304 (1932) (applying a “same elements” test for purposes of double jeopardy). Under
Blockburger’s same-elements test, “lesser-included offenses are legally the same as a
greater offense, and are wholly subsumed by the elements of the greater offense, unless
the potential lesser-included offense requires proof of a fact not required to establish the
greater offense.” Ex parte Castillo, No. PD-0545-14, __S.W.3d__, 2015 WL 3486960, at
*2 (Tex. Crim. App. June 3, 2015) (citing Brown, 432 U.S. at 168); see also TEX. CODE
CRIM. PROC. ANN. art. 37.09(1) (West, Westlaw through 2015 R.S.) (providing the
statutory framework by which we make a lesser-included offense determination).
We apply Texas law to determine if one offense is a lesser-included offense for
double jeopardy purposes. See generally Ex parte Watson, 306 S.W.3d 259, 265 (Tex.
Crim. App. 2009) (recognizing that Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App.
2007) applies when performing a double jeopardy analysis). If we determine that the
offense is legally a lesser-included offense, we then look at the evidence to determine if
a true double jeopardy violation occurred. See id.
B. Discussion
We begin our analysis under Blockburger and decide whether the two offenses are
the same for purposes of double jeopardy. See Blockburger, 286 U.S. at 304. We do
this by determining whether Minor’s traffic citation pursuant to the transportation code is
a lesser-included offense of criminally negligent homicide under the penal code. See
4
Brown, 432 U.S. at 165; Blockburger, 286 U.S. at 304; Ex parte Watson, 306 S.W.3d at
265. Applying Hall in this double jeopardy context, we begin the lesser-included offense
analysis by looking only to the statutory elements of criminally negligent homicide as
modified by the allegations in the indictment. See 225 S.W.3d at 536. The indictment
must either allege all of the elements of section 521.458 of the transportation code, or
elements and facts from which all elements of a section 521.458 violation could be
deduced. See State v. Meru, 414 S.W.3d at 163 (Tex. Crim. App. 2013) (“The elements
of the lesser-included offense do not have to be pleaded in the indictment if they can be
deduced from facts alleged in the indictment.”).
The indictment provides as follows: “Juliane Myra Minor, defendant, on or about
June 1, 2012, in Kleberg County, Texas, did then and there, by criminal negligence, cause
the death of an individual, namely the unborn child of Stephanie Butler, by allowing an
unlicensed juvenile to drive a motor vehicle.” See TEX. PENAL CODE ANN. § 19.05 (noting
that a person commits the offense of criminally negligent homicide “if he causes the death
of an individual by criminal negligence”). An offense under this section is a state jail
felony.
Section 521.458 of the Texas Transportation Code provides the following:
(a) A person may not knowingly permit or cause the person’s child or
ward who is under 18 years of age to operate a motor vehicle on a
highway in violation of this chapter.
(b) A person may not authorize or knowingly permit a motor vehicle
owned by or under the control of the person to be operated on a
highway by any person in violation of this chapter.
TEX. TRANSP. CODE ANN. § 521.458.
5
Comparing the statutory elements of criminally negligent homicide, as modified by
Minor’s indictment, with the elements of section 521.458 of the Texas Transportation
Code, we ask: “Are the elements of the lesser offense established by proof of the same
or less than all the facts required to establish the commission of the offense charged?”
See Hall, 225 S.W.3d at 536 (citing TEX. CODE CRIM. PROC. ANN. art. 37.09(1)). The
answer is that they are not. The facts required to prove the lesser offense under the
transportation code include at least one fact that is not the same as, or less than, those
required to establish criminally negligent homicide: the requirement that the violation be
“knowingly” committed. Compare TEX. PENAL CODE ANN. § 19.05 with TEX. TRANSP.
CODE ANN. § 521.458.
Moreover, even were we to consider the indictment’s phrase “by allowing” to mean
“knowingly,” as used in the statute, the transportation code still requires proof of additional
elements—i.e., that Minor let her “child or ward” drive the vehicle under section
521.458(a) or that the vehicle in question was “owned by” or “subject to” Minor’s control
under section 521.458(b). See TEX. TRANSP. CODE ANN. § 521.458; Meru, 414 S.W.3d
163. Therefore, the transportation code requires proof of B.C.’s relation to Minor under
one section, and proof of Minor’s degree of ownership or control over the subject vehicle
under another.2 See TEX. TRANSP. CODE ANN. § 521.458(a–b). We could not therefore
deduce that if Minor is guilty as charged by the indictment, she is also guilty of the lesser-
offense described in the transportation code. See Meru, 414 S.W.3d at 162–63.
Because a determination of Minor’s traffic citation requires proof of more elements
2 The traffic citation did not specify the subsection of the statute under which Minor was initially
cited.
6
than required by her indictment for criminally negligent homicide, it cannot be a lesser-
included offense pursuant to the Texas Code of Criminal Procedure or Texas case law.
See TEX. CODE CRIM. PROC. ANN. art 39.07; Meru, 414 S.W.3d at 162–63; Hall, 225
S.W.3d at 536. Minor has not satisfied the Blockburger “same elements” test, and
Minor’s “multiple-prosecution” double jeopardy claim fails. See Vitale, 447 U.S. at 415–
16; Ex parte Watson, 306 S.W.3d at 262–63; Guzman, 182 S.W.3d at 191–92.
We overrule Minor’s sole issue on appeal.
III. CONCLUSION
We affirm the trial court’s denial of Minor’s application for writ of habeas corpus.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
25th day of June, 2015.
7