
    The STATE of Texas, Appellant, v. Jose GARCIA GARCIA, Appellee.
    No. 08-91-00038-CR.
    Court of Appeals of Texas, El Paso.
    May 22, 1991.
    Tracey Bright, County Atty., Odessa, for appellant.
    Cliff Hardwick, Odessa, for appellee.
    Before OSBORN, C.J., and FULLER and KOEHLER, JJ.
   OPINION

FULLER, Justice.

This is a State appeal from an order of the trial court dismissing this prosecution due to a double jeopardy bar. We vacate the order and reinstate the prosecution.

On July 30, 1990, Appellee was charged with running a red light and driving while intoxicated. Prior to prosecution for the instant offense, Appellee was tried and convicted for the alleged traffic light violation.

This case turns upon the analysis in Grady v. Corbin, 495 U.S. -, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), which the judge and both sides relied upon in the court below. In Grady, the defendant crossed a median and struck an oncoming vehicle. One occupant of the other vehicle died, the other was injured. The defendant was immediately charged with driving while intoxicated and failure to keep to the right of the median. A homicide prosecution was commenced. In justice court, the defendant entered pleas of guilty to driving while intoxicated and failure to keep to the right of the median. He was convicted and sentenced to a fine and a six-month license revocation. Two months later, the grand jury returned an indictment for reckless manslaughter, second-degree vehicular manslaughter, criminally negligent homicide, reckless assault and driving while intoxicated. A bill of particulars identified three reckless or negligent acts upon which the homicide, manslaughter and assault charges were founded: (1) driving while intoxicated; (2) failure to keep to the right of the median; and (3) excessive speed given the road and weather conditions.

The New York Court of Appeals upheld a double jeopardy bar because of the State’s expressed intent “to rely on the prior traffic offenses as the acts necessary to prove the homicide and assault.” [Emphasis added]. Corbin v. Hillery, 74 N.Y.2d 279, 289, 545 N.Y.S.2d 71, 76-77, 543 N.E.2d 714, 719-720 (1989). The Supreme Court affirmed, noting that the test under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) is but a first step in assessing the propriety of a double jeopardy bar. In a nutshell, the ruling is best expressed in the opening paragraph of Justice Brennan’s opinion:

We hold that the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted. [Emphasis added].

495 U.S. -, 110 S.Ct. at 2087, 109 L.Ed.2d at 557.

The present ruling before us constitutes a misapplication of the rule in Grady. The confusion no doubt arises from a failure to adequately discriminate between the phrases “element of the offense” and “conduct that constitutes an offense.” Appellee and the lower court have adopted a position that the phrases are synonymous and identified the common element of Appellee’s prior convictions and the instant DWI prosecution as driving a vehicle. Driving a vehicle is an element of each offense charged against the Appellee, as was the case in Grady, but driving alone is not “conduct which constitutes an offense.” Appellee’s argument would totally eliminate Blockburger, a result not reached in Grady. In Grady, it was not driving alone which barred the subsequent prosecution for assault and homicide. Driving was a common element, but illegal driving (i.e. driving while intoxicated and failure to drive to the right of the median, as units of criminal conduct) was the conduct constituting an offense or offenses which had already been prosecuted. These prior litigated offenses became, in their entirety, elemental conduct constituting the State’s allegations in the subsequent prosecution. Ex parte Ramos, 806 S.W.2d 845 (Tex.Crim.App.1991).

Under Appellee’s analysis, if a defendant shot and killed five people, a preliminary trial and conviction for one would preclude subsequent prosecutions for the others — a result not produced even under Texas’ now-defunct carving doctrine and certainly not mandated by Grady.

Points of Error One and Two are sustained.

The dismissal order of January 29, 1991, is hereby vacated and the cause remanded for trial.  