Have a Defendant charged with both in one indictment - one victim. It probably could have named a different victim for the Agg Aslt (two hurt, but only one has SBI), but I am coming into it late and do not have time to reindict or amend the 4 year old, preferentially set case.

So, in light of the newer holdings saying that I cannot have convictions for both charges on one victim from one incident, do I have to elect and abandon one before voir dire, before charging the jury, or never and just let the judgment only reflect the conviction for Agg Aslt (the higher charge) if I get both?

I do not know if this particular situation has come up before, and all the cases on the subject were from offenses prior to this reading.

I think you can just have the trial court delete one of the convictions to solve a double jeopardy problem. See Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998) ("The jury should not have been authorized by the trial court to convict and sentence appellant for two offenses. The proper remedy is to reform the judgment by vacating the lesser conviction and sentence."); Price v. State, 15 S.W.3d 577, 578 (Tex.App. -- Waco 2000, pet. ref'd) ("The State acknowledges that in this case it should have elected the offense on which it would proceed or that the trial court should have instructed the jury that it could convict on only one of the offenses. We agree. . . . When there has been an impermissible conviction of a defendant of a greater offense and a lesser-included offense, the proper remedy is to reform the judgment by vacating the lesser conviction and sentence.")

Another approach is explained in Adams v. State, No. 12-04-00262-CR, 2006 WL 2365681 at *3 (Tex.App.-Tyler August 16, 2006) (not designated for publication) ("Moreover, if the State alleges two or more offenses in separate counts in a single indictment and refuses to make an election, the court may, instead of compelling an election, submit each of the counts to the jury with the instruction that a conviction could be had on only one of them. See Crocker v. State, 573 S.W.2d 190, 197 (Tex.Crim.App. [Panel Op.] 1978). No double jeopardy problems are extant with this type of submission because the jury returns either an acquittal or a verdict of guilty on one count only. Id.").

what newer case law are you refering to.

I cannot remember the name offhand, but the CCA holding that Manslaughter and Intox manslaughter from one incident with one victim could not both be charged. After all, the victim only died once. While not strictly the same - lower courts have extended the logic to include Intox assault. I think Fort Worth and Corpus Christi so far.

I think that Ervin v. State, 991 S.W.2d 804, Tex.Crim.App.,1999 is the case Whitney is thinking of.

Thanks, Richard, I knew you would know offhand, which is why you get more random phone calls about intoxication crimes than anyone in the State, I would guess.

As an update, we decided to abandon the Agg count in exchange for a guilty plea on the Intox Aslt, with a deadly weapon finding attached, and Defendant is going to the jury for punishment. While we are pleased that the Defendant is taking some responsibility, the lawyer asked Defendant's passenger, "You could have gotten out of the truck, couldn't you? So you bear some of the blame for this don't you?"

I'm sure that acceptance of responsibility will go over well with the jury.