NOS. 12-12-00428-CR

 12-12-00429-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JARED TYRELL STINECIPHER, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

§

§

§

APPEAL FROM THE 7TH

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

OPINION

Jared Stinecipher appeals his convictions for accident involving personal injury or death 

(cause number 12-12-00428-CR) and criminally negligent homicide (12-12-00429-CR). We 

modify the judgment and affirm as modified in cause number 12-12-00428-CR. We affirm in 

cause number 12-12-00429-CR.

BACKGROUND

A Smith County grand jury returned two indictments against Appellant for the offenses 

of accident involving personal injury or death and criminally negligent homicide. Both 

indictments alleged the use of a deadly weapon, namely, a motor vehicle. Appellant pleaded 

“guilty” to both offenses and “true” to the deadly weapon allegations without an agreement on 

punishment. A presentence investigation report was prepared and a sentencing hearing was held. 

The trial court found Appellant guilty of both offenses, found the deadly weapon allegations true, 

and assessed punishment for each case at imprisonment for ten years and no fine. The sentences 

were ordered to run concurrently. This appeal followed.
2

DOUBLE JEOPARDY

In his first issue, Appellant contends that his prosecution under both indictments resulted 

in multiple punishments for the same offense under a double jeopardy analysis. The State 

contends that Appellant failed to preserve this issue at the trial court level. 

Preservation of Error

Failure to present a timely and specific objection, request, or motion to the trial court for 

a ruling results in waiver or forfeiture of the right to present the claim on appeal. See TEX. R.

APP. P. 33.1; Mendez v. State, 138 S.W.3d 334, 341-42 (Tex. Crim. App. 2004). The 

requirement that complaints be raised in the trial court (1) ensures that the trial court will have an 

opportunity to prevent or correct errors, thereby eliminating the need for a costly and timeconsuming appeal and retrial; (2) guarantees that opposing counsel will have a fair opportunity to 

respond to complaints; and (3) promotes the orderly and effective presentation of the case to the 

trier of fact. Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006).

A defendant has the burden to “preserve, in some fashion” a double jeopardy objection at 

the trial court level. See Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim. App. 2000) (en banc). 

But a double jeopardy claim may be raised for the first time on appeal when (1) the double 

jeopardy violation is clearly apparent on the face of the record, and (2) when enforcement of the 

usual rules of procedural default serves no legitimate state interests. Garfias v. State, 424 

S.W.3d 54, 58 (Tex. Crim. App. 2014) (citing Gonzalez, 8 S.W.3d at 643). 

Applicable Law

The Fifth Amendment’s Double Jeopardy Clause 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. Ex parte Denton, 399 

S.W.3d 540, 545 (Tex. Crim. App. 2013). A multiple punishments violation can arise in the 

context of lesser included offenses and when the same conduct is punished under two distinct 

statutes where the legislature intended for the conduct to be punished only once. Garfias, 424 

S.W.3d at 58. Legislative intent can be ascertained by analyzing the elements of the offense in 

question, or by identifying the “unit of prosecution” for the offenses. Id. When the offenses in 

question come from different statutory sections, as they do in this case, the legislative intent can 

be ascertained by analyzing the elements of the offenses in question. See id. 
3

There are three steps to an “elements” analysis in determining legislative intent in the 

multiple punishments context. Id. at 58-60. First, the reviewing court must apply the 

Blockburger test to determine whether each of the offenses requires proof of an element that the 

other does not.1Id. at 58. Second, the court must consider a list of factors set forth by the court 

of criminal appeals in Ervin v. State, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999), to determine 

whether two offenses are the same in the context of multiple punishments, i.e., whether the 

legislature intended two punishments for the same conduct. See id. at 59; Bigon v. State, 252 

S.W.3d 360, 371 (Tex. Crim. App. 2008). And third, the court should determine the “allowable 

unit” of prosecution for the offenses in question. Garfias, 424 S.W.3d at 59. If, after conducting 

an analysis of each of these factors, it appears that the legislature did not intend multiple 

punishments, the reviewing court will consider whether enforcement of the usual rules of 

procedural default serves any legitimate state interest. See Gonzalez, 8 S.W.3d at 643.

Discussion

Appellant did not make a double jeopardy objection in the trial court. Therefore, we 

must determine whether a double jeopardy violation is apparent on the face of the record. The 

State contends that Appellant was convicted of two different offenses requiring different 

elements of proof, and as a result, a double jeopardy violation is not clearly apparent on the face 

of this record. We apply the Garfias elements analysis to determine whether the State is correct.

The Blockburger Test 

The Blockburger test is used to determine whether each of the offenses with which the 

accused is charged requires proof of an element that the other does not. Garfias, 424 S.W.3d at 

58. Our focus is on the elements alleged in the indictments, and double jeopardy challenges may 

be made “even against offenses that have different statutory elements, if the same facts required 

to convict are alleged in the indictment[s].” Id. at 58-59.

Here, the indictment in cause number 12-12-00428-CR (accident involving personal 

injury or death) alleged that Appellant did then and there

intentionally or knowingly drive a vehicle that became involved in an accident 

resulting in death to Arthur Dewayne Murphy, and the said defendant did 

thereafter, knowing said accident had occurred, intentionally or knowingly fail 

to render to Arthur Dewayne Murphy reasonable assistance when it was then 

apparent that Arthur Dewayne Murphy was in need of medical treatment [and]

. . . 

 

1 Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932). 
4

did then and there intentionally or knowingly drive a vehicle that became 

involved in an accident resulting in death to Arthur Dewayne Murphy, and the 

said defendant did thereafter, knowing said accident had occurred, intentionally 

or knowingly leave the scene of said accident, without giving his name, address, 

registration number of the vehicle the defendant was driving, or the name of the 

defendant’s motor vehicle liability insurer to any person, and without rendering 

reasonable assistance to Arthur Dewayne Murphy when it was then apparent 

that Arthur Dewayne Murphy was in need of medical treatment. . . .

The indictment in cause number 12-12-00429-CR (criminally negligent homicide) alleged that 

Appellant did then and there

by criminal negligence, cause the death of an individual, Arthur Dewayne 

Murphy, by operating a motor vehicle while disregarding a stop sign and failing 

to obey an official traffic control device. . . .

Both indictments alleged that Appellant used a motor vehicle as a deadly weapon during the 

commission of or immediate flight from the offense.

In cause number 12-12-00429-CR, the State was required to prove that Appellant 

“operat[ed] a motor vehicle while disregarding a stop sign and failing to obey an official traffic 

control device.” The State was not required to prove this element in cause number 12-12-00428-

CR. Instead, the State was required to prove that after knowing an accident had occurred, 

Appellant “intentionally or knowingly fail[ed] to render . . . reasonable assistance [and left] the 

scene of [the] accident, without giving his name, address, registration number of [his vehicle], or 

the name of [his] insurer. . . .” The indictment in each cause number required proof of an 

element that the other did not. See, e.g., Ex parte Pritzkau, 391 S.W.3d 185, 190 (Tex. App.—

Beaumont 2013, pet. ref’d) (prosecution for criminally negligent homicide not barred by double 

jeopardy when defendant is convicted of underlying traffic offense). The offenses in the two 

indictments are not the same under a strict application of the Blockburger test, which is one 

indicator that the legislature intended to allow multiple punishments for accident involving 

personal injury or death and criminally negligent homicide. See Bigon, 252 S.W.3d at 370.

The Ervin Factors

We now consider the Ervin factors, which include 

 

whether offenses are in the same statutory section; whether the offenses are 

phrased in the alternative; whether the offenses are named similarly; whether the 
5

offenses have common punishment ranges; whether the offenses have a common 

focus; whether the common focus tends to indicate a single instance of conduct; 

whether the elements that differ between the two offenses can be considered the 

same under an imputed theory of liability that would result in the offenses being 

considered the same under Blockburger; and whether there is legislative history 

containing an articulation of an intent to treat the offenses as the same or 

different for double[] jeopardy purposes.

See Garfias, 424 S.W.3d at 59 (citing Bigon, 252 S.W.3d at 371; Ervin, 991 S.W.2d at 814). 

The most significant factor in determining legislative intent is the focus or “gravamen” of the 

offense. See Garfias, 424 S.W.3d at 61. 

Criminally negligent homicide is a result-oriented offense, with the gravamen of the 

offense being an individual’s death. See TEX. PENAL CODE ANN. § 19.05(a) (West 2011) (“A 

person commits an offense if he causes the death of an individual by criminal negligence.”) 

(emphasis added); see also Womble v. State, 618 S.W.2d 59, 64 (Tex. Crim. App. [Panel Op.] 

1981).

2 However, the offense of accident involving personal injury or death is more akin to a 

conduct-oriented offense because it requires an operator of a vehicle involved in an accident to 

engage in certain conduct, and criminalizes his failure to do so. See TEX. TRANSP. CODE ANN.

§ 550.021(a), (c) (West Supp. 2013). The statute focuses on “the circumstances surrounding” an 

individual’s conduct, with the gravamen of the offense being the individual’s culpable mental 

state surrounding such circumstances, i.e., an operator’s knowledge of the accident and 

knowledge of a victim’s suffering an injury become criminal upon the operator’s leaving the 

scene of the accident. See Huffman v. State, 267 S.W.3d 902, 907-08 (Tex. Crim. App. 2008). 

The indictments in this case illustrate the distinction between the two gravamina. 

Appellant’s criminally negligent homicide indictment focused on Murphy’s death, while the 

accident involving personal injury or death indictment focused on Appellant’s leaving the scene 

of the accident. This factor indicates that the legislature intended to allow multiple punishments 

for the two offenses. See Garfias, 424 S.W.3d at 60-61. 

Other Ervin factors support the same conclusion. First, criminally negligent homicide 

and accident involving personal injury or death are not included in the same statutory section or 

even the same statutory code. Second, the offenses are not named similarly. And third, the 

 

2

“The distinction to be drawn in determining if the homicide is criminal is not whether the act is intentional 

or unintentional, but whether the act is voluntary or involuntary.” Womble v. State, 618 S.W.2d 59, 64 (Tex. Crim. 

App. [Panel Op.] 1981) (citations omitted). “A person may act unintentionally and still commit a criminal offense, 

provided he acts with knowledge, recklessness[,] or negligence.” Id.
6

offenses have different punishment ranges. Compare TEX. PENAL CODE ANN. § 19.05(b) with 

TEX. TRANSP. CODE ANN. § 550.021(c); see also Garfias, 424 S.W.3d at 61. Application of the 

Ervin factors to this case indicates that the legislature intended multiple punishments for the 

conduct involved. 

Allowable Unit of Prosecution

The last factor we consider in our analysis is the “allowable unit of prosecution” for the 

offenses, which determines if one course of conduct results in more than one offense. See id. 

The allowable unit of prosecution for criminally negligent homicide is one offense per victim. 

See Ex parte Amador, 326 S.W.3d 202, 220 (Tex. Crim. App. 2010) (citations omitted). The 

allowable unit of prosecution for accident involving personal injury or death is “each victim, 

each accident.” Huffman, 267 S.W.3d 908. 

Conclusion

The Blockburger test, the Ervin factors, and the allowable unit of prosecution for 

accident involving personal injury or death and criminally negligent homicide indicate that the 

legislature intended to allow multiple punishments. As a result, a double jeopardy violation is 

not clearly apparent from the face of this record. See Garfias, 424 S.W.3d at 58; Gonzalez, 8 

S.W.3d at 643. Appellant has not sustained his burden of presenting a record showing on its face 

a multiple punishments violation. Id. at 642, 645. Accordingly, we overrule Appellant’s first 

issue.

TRIAL COURT ADMONISHMENTS

In his second and third issues, Appellant contends that his guilty plea to the offense of 

criminally negligent homicide (cause number 12-12-00429-CR) was involuntary because the trial 

court admonished him on the incorrect range of punishment for the offenses. The State contends 

that Appellant’s plea was voluntary because the trial court corrected its admonishments.

Standard of Review and Applicable Law

When the voluntariness of a guilty plea is challenged on appeal, the reviewing court 

should examine the record as a whole. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 

1998) (citations omitted). A guilty plea is voluntary if the plea is the expression of the 

defendant’s own free will, not induced by threats, misrepresentations, or improper promises. 

State v. Guerrero, 400 S.W.3d 576, 587 (Tex. Crim. App. 2013). 
7

Before accepting a plea of guilty, the trial court must admonish the defendant of the 

proper range of punishment associated with the offense to which he entered his plea. TEX. CODE 

CRIM. PROC. ANN. art. 26.13(a)(1) (West Supp. 2013). If the record does not affirmatively show 

an admonishment on the range of punishment, the guilty plea is invalid. Ex parte Gibautich, 

688 S.W.2d 868, 871 (Tex. Crim. App. 1985) (en banc). 

When the record shows an incorrect admonishment regarding an offense’s range of 

punishment, the courts may nevertheless find the guilty plea valid. See id. (“[W]hen the record 

shows that the trial court gave an admonishment that was incomplete or incorrect, there is a 

prima facie showing of a knowing and voluntary plea of guilty.”); Grays v. State, 888 S.W.2d 

876, 878 (Tex. App.—Dallas 1994, no pet.) (defendant’s being incorrectly admonished about the 

range of punishment “does not necessarily lead to the conclusion that the defendant was misled 

or harmed [because the] defendant’s decision to plead guilty may not have been adversely 

affected at all by the incorrect admonishment”). This is because a trial court’s “substantial 

compliance” with Article 26.13 is sufficient unless the defendant was not aware of the 

consequences of his plea and was misled or harmed by the trial court’s admonishment. TEX.

CODE CRIM. PROC. ANN. art. 26.13(c); Martinez, 981 S.W.2d at 197. Whether admonishments 

substantially comply with the statute is an issue that should be considered when the trial court 

has addressed the admonishment in some form or fashion. Id.

If a trial court has substantially complied with the requirements of Article 26.13, the 

defendant must show that, despite the trial court’s substantial compliance, “he entered the plea 

without understanding the consequences of his action and thus was harmed.” Gibauitch, 688 

S.W.2d at 871.

Discussion

On October 29, 2012, Appellant pleaded guilty to accident involving personal injury or 

death (cause number 12-12-00428-CR) and criminally negligent homicide (cause number 12-12-

00429-CR). The trial court stated that the range of punishment for criminally negligent homicide 

was “a state jail felony, which means the range of punishment is six months to two years in the 

state jail and up to a $10,000 fine.” The indictments in each case alleged the use of a deadly 

weapon to which Appellant pleaded true. The trial court found Appellant guilty and the deadly 

weapon allegation true in both cases. 
8

The trial court conducted a sentencing hearing on December 18, 2012. After the State’s 

second witness testified, the prosecutor informed the trial court that he “just realized” the 

punishment range for criminally negligent homicide would be treated as a third degree felony if 

the court made a deadly weapon finding.3

Appellant had already signed a document that stated the range of punishment was a fine 

not to exceed $10,000 and confinement for not more than two years or less than 180 days. The 

prosecutor corrected this document to show that the range of punishment for the offense was a 

“state jail felony with a deadly weapon—no less than 2 years and no more than 10 years with a 

fine not to exceed $10,000.” The trial court then explained to Appellant that the previous 

admonishment was incorrect and that the correct punishment range for criminally negligent 

homicide would be that of a third degree felony due to the deadly weapon finding. Thus, the trial 

court explained that the punishment would be “similar to your other case, which is the two years 

to ten years in the penitentiary and a fine of up to $10,000.” Appellant confirmed that he 

understood the punishment range and initialed the changes made to the State’s 

“Acknowledgment of Admonishments.” The trial court and Appellant then engaged in the 

following discourse:

Court: And the State has offered [the Acknowledgement of Admonishments]. 

Your lawyer indicated that he has no objections to it under these circumstances, 

which, the Court will admit it. However, I always try to go back, whenever 

there’s been some type of punishment enhancement that maybe we didn’t 

discuss at the time you entered your plea, to make sure that is what you wanted 

to do now that there’s been a change. You’ve entered a plea of guilty and a plea 

of true in this case. Do you still wish to stand on that plea of guilty and plea of 

true that you made back in October?

Appellant: Yes, sir.

Court: All right. Because I’ll be happy, under these changes, since you didn’t 

know about it back when you were doing it, then I will let you withdraw your 

plea of guilty, proceed to trial on this charge, see what a jury would do, if that’s 

what you want to do in this case.

 

3

See TEX. PENAL CODE ANN. § 12.35(c)(1) (West Supp. 2013) (“An individual adjudged guilty of a state 

jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that . . . a deadly 

weapon . . . was used or exhibited during the commission of the offense or during immediate flight following the 

commission of the offense[.]”). 

The punishment range for a third degree felony is imprisonment in the Texas Department of Criminal 

Justice for any term of not more than ten years or less than two years and a possible fine not to exceed $10,000. 

TEX. PENAL CODE ANN. § 12.34 (West 2011). 
9

Appellant: No, sir.

Court: You want to go forward as we’re doing today?

Appellant: Yes, sir. I’m just ready to get it done with.

Court: And you had a little bit of time to talk to Mr. Jarvis about that. Need any 

more time to visit with him on that issue before we move forward?

Appellant: No, sir. 

Court: You’re sure this is what you wish to do?

Appellant: Yes, sir.

Court: All right. State’s 1 is admitted with these changes. And the record will 

reflect that we’ve now corrected the punishment range, not the offense. Offense 

doesn’t change, but the punishment range will be the same in both cases, that 

being a third[] degree felony level.

Based upon our review of the record, we hold that the trial court’s improper 

admonishments regarding the range of punishment in cause number 12-12-00429-CR did not 

render Appellant’s guilty plea invalid. Once the error was recognized, the trial court halted the 

proceedings, informed Appellant of the error, gave the correct range of punishment, and advised 

Appellant that he had the option of withdrawing his guilty plea in light of the court’s previous 

mistake. Appellant’s responses to the trial court’s inquiry indicate that Appellant’s decision to 

maintain his plea of guilty and proceed with sentencing was voluntary and not induced by 

threats, misrepresentations, or improper promises. See Guerrero, 400 S.W.3d at 587. The trial 

court’s corrective measures in admonishing Appellant of the correct punishment range upon 

learning of the mistake substantially complied with Article 26.13(a)(1) of the code of criminal 

procedure. See Martinez, 981 S.W.2d at 197. Appellant has failed to show that his decision to 

maintain his plea of guilty was made without understanding the consequences of his action, and 

has also failed to show that he was harmed by maintaining his guilty plea in light of the trial 

court’s corrected admonishments. See Gibauitch, 688 S.W.2d at 871. Accordingly, we overrule 

Appellant’s second and third issues.

ATTORNEY’S FEES

In his fourth and fifth issues, Appellant contends that it was error for the trial court to 

impose court costs not supported by legally sufficient evidence and by ordering that funds be 

withdrawn from his inmate trust account. Appellant’s specific challenge relates to the 
10

assessment of attorney’s fees in cause number 12-12-00428-CR. Appellant contends that the 

attorney’s fees should be deleted because he is indigent. The State agrees. 

Standard of Review and Applicable Law

The imposition of court costs upon a criminal defendant is a “nonpunitive recoupment of 

the costs of judicial resources expended in connection with the trial of the case.” Johnson v. 

State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014) (citations omitted). When the imposition of 

court costs is challenged on appeal, we review the assessment of costs to determine if there is a 

basis for the cost, not to determine if there is sufficient evidence offered at trial to prove each 

cost. Id.

A trial court has the authority to assess attorney’s fees against a criminal defendant who 

received court-appointed counsel. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 

2013). But once a criminal defendant has been determined to be indigent, he “is presumed to 

remain indigent for the remainder of the proceedings unless a material change in his financial 

circumstances occurs.” TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2013). Before 

attorney’s fees may be imposed, the trial court must make a determination supported by some 

factual basis in the record that the defendant has the financial resources to enable him to offset in 

part or in whole the costs of the legal services provided. See Johnson v. State, 405 S.W.3d 350, 

354 (Tex. App.—Tyler 2013, no pet.) (citations omitted). If the record does not show that the 

defendant's financial circumstances materially changed, the evidence will be insufficient to 

support the imposition of attorney’s fees. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Mayer

v. State, 309 S.W.3d 552, 553, 557 (Tex. Crim. App. 2010); Johnson, 405 S.W.3d at 354. 

Discussion

The judgment of conviction in cause number 12-12-00428-CR assesses $602.00 as court 

costs and contains a withdrawal order reflecting the same amount. The bill of costs includes the 

assessment of attorney’s fees in the amount of $300.00. 

The record shows that the trial court twice determined that Appellant was indigent—by 

appointing counsel to represent Appellant both before and after his guilty plea. The record does 

not show that the trial court ever made any finding that Appellant’s financial circumstances had 

materially changed. Thus, there is no basis in the record to support the imposition of attorney’s 

fees as court costs. See Johnson, 423 S.W.3d at 390; Johnson, 405 S.W.3d at 355. We sustain 

Appellant’s fourth and fifth issues.
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DISPOSITION

Having sustained Appellant’s fourth and fifth issues, we modify the trial court’s judgment 

in cause number 12-12-00428-CR to reflect that the amount of court costs is $302.00. See TEX.

R. APP. P. 43.2(b). We also modify Attachment A in cause number 12-12-00428-CR to delete 

the assessment of attorney’s fees and to state that the total amount of “court costs, fees and/or 

fines and/or restitution” is $302.00. We affirm the judgment in cause number 12-12-00428-CR 

as modified. See TEX. R. APP. P. 43.2(b). Having overruled Appellant’s first, second, and third 

issues, we affirm the judgment of the trial court in cause number 12-12-00429-CR. 

SAM GRIFFITH

Justice

Opinion delivered July 23, 2014.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 23, 2014

NO. 12-12-00428-CR

JARED TYRELL STINECIPHER,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 7th District Court 

of Smith County, Texas (Tr.Ct.No. 007-0811-12)

THIS CAUSE came on to be heard on the appellate record and the briefs 

filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s 

judgment below should be modified and, as modified, affirmed.

It is therefore ORDERED, ADJUDGED and DECREED that the trial 

court’s judgment below be modified to reflect that the amount of court costs is $302.00; we also 

modify Attachment A in cause number 12-12-00428-CR to delete the assessment of attorney’s 

fees and to state that the total amount of “court costs, fees and/or fines and/or restitution” is 

$302.00; and as modified, the trial court’s judgment is affirmed; and that this decision be 

certified to the trial court below for observance.

Sam Griffith.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 23, 2014

NO. 12-12-00429-CR

JARED TYRELL STINECIPHER,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 7th District Court 

of Smith County, Texas (Tr.Ct.No. 007-0812-12)

THIS CAUSE came on to be heard on the appellate record and the briefs 

filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s 

judgment below should be affirmed.

It is therefore ORDERED, ADJUDGED and DECREED that the trial 

court’s judgment below be affirmed; and that this decision be certified to the trial court below 

for observance.

Sam Griffith, Justice.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.