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Click here for the full text of this decision FACTS:The state appeals orders sustaining appellee Alex Garcia Guzman’s plea of former jeopardy and dismissing the indictment in this cause. The question presented is whether Guzman’s previous conviction for driving while intoxicated (DWI) is a double-jeopardy bar to the instant prosecution for endangering a child. HOLDING:The orders sustaining Guzman’s special plea of former jeopardy and dismissing the indictment are reversed, and the cause is remanded to the district court. Whether offenses defined in two distinct statutory provisions are the same for double jeopardy purposes is determined by a same elements test: the two offenses are the same if one of the offenses contains all the elements of the other; they are not the same if each offense has a unique element. Blockburger v. United States, 284 U.S. 299, 304 (1932). When applying the same elements test in the successive prosecutions context, the court compares the elements of the offenses as alleged in the charging instruments. Parrish v. State, 869 S.W.2d 352 (Tex. Crim. App. 1994). If one offense is included within the other, the two offenses are the same for double jeopardy purposes. It was undisputed that the DWI for which Guzman was convicted and the child endangerment charge arise out of the same transaction. The court sustained the special plea after considering the arguments of both parties. The trial court expressly relied on two opinions cited by Guzman at the hearing: May v. State, 726 S.W.2d 573 (Tex. Crim. App. 1987), and Ex parte Peterson, 738 S.W.2d 688 (Tex. Crim. App. 1987). In May, the court of criminal appeals held that the defendant’s DWI prosecution was barred by his previous conviction for involuntary manslaughter arising out of the same automobile accident. In Peterson, the court held that the defendant’s prosecution for involuntary manslaughter was barred by his previous DWI conviction. In both opinions, the court went beyond the Blockburger same elements test and applied an additional same conduct test. The same conduct test has been repudiated by the Supreme Court. United States v. Dixon, 509 U.S. 688 (1993). “Whether May and Peterson retain any vitality is an open question, but it is clear that the”same conduct’ analysis used in those opinions does not.” The child endangerment indictment in this cause requires the state to prove that Guzman intentionally, knowingly, recklessly or with criminal negligence placed a child under 15 in imminent danger of death, bodily injury or physical or mental impairment. Such proof was not required in the DWI prosecution. To convict Guzman of DWI, the state was required to prove that Guzman operated a motor vehicle in a public place. Such proof is not required by the instant indictment. As alleged, both offenses have a unique element, and the DWI offense is not included within the proof required to establish the child endangerment offense. Applying the Blockburger/Parrish same elements test, the court concludes that the two offenses are not the same and that Guzman’s conviction for DWI in cause number 71,070 does not constitute a double-jeopardy bar to his prosecution in this cause for endangering a child. OPINION:Puryear, J.; Law, C.J., Patterson and Puryear, JJ.

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