I have a typical intox manslaughter case where I have alleged manslaughter and intox manslaughter due to possible issues with my blood test results. The defense Atty has filed a motion to quash claiming that I have to elect which count to rely upon prior to trial. I am almost positive this is incorrect. I beleive the jury gets both counts in the charge and has to elect which to convict on. I also beleive that the jury cannot convict on both because of 2x jeopardy.
I have researched and cannot find anything on point verifying this.

Looking under CCP 21.24 and Penal Code 3.02 seems to answer the question as to charging defednant with two counts- but doesn't address charging the jury. Any help would be greatly appreciated. I can't seem to make sense of where the defednant is going with this and what he is relying on.

thanks!

You have hit upon an interesting issue that was caused by the Legislature in 1994 splitting manslaughter into two places in the Penal Code: Ch. 19 for recklessness and Ch. 49 for intoxication. Previously, you could just charge a manslaughter with two paragraphs.

A good argument can be made that the jury should be able to hear both and simply render a verdict on just one, avoiding the double jeopardy issue.

Another argument can be made that the defendant has a right to severance. The answer is that severance applies to separate offenses and these aren't separate offenses, even though they are decribed in different places in the Penal Code.

Most defendant don't push for the severance, because it leaves them exposed to two trials should the first trial end in a not guilty.

I don't know of an appellate case that provides a definitive answer. The most logical answer is to permit both theories to be presented in a single trial. But I'm not guaranteeing that's what the CCA would say.

A slight amendment to the Penal Code could fix this, eh Shannon?

John,
Would it change anything if the there were a third and fourth Agg Assault deadly weapon count? We threw in the entire kitchen sink and will eliminate counts after the close of our case.Case is similar to the one posted but victim took a year to die.Having major problems with blood- Have filed the records as business records but now need to get a reluctant doctor to come testify. Also no one is interested in trying to do an extrapolation.

Effectively an offense under 49.08 is one of the means by which one could commit an offense under 19.04. Thus, you are not alleging separate offenses subject to 3.02, but rather alternative means of committing the same offense. No election is required in this situation. E.g., Renteria, No. 01-05-590-CR (07/20/06). Blockburger is not used for the purposes of election. E.g., Sperling, 924 S.W.2d 722.

Doesn't Landers v. State, 957 S.W.2d 558 (Tex. Crim. App. 1997)say that any double jeopardy problem can be solved by just striking one of the two convictions -- if you get two. See also Hoffman v. State, 877 S.W.2d 501 (Tex.App.-Fort Worth 1994, no pet.). This remedy also applied where there was a misjoinder problem. Ex parte Pena, 820 S.W.2d 806 (Tex. Crim. App. 1991).