¶1(concurring).
¶2I concur in the affirmance of this case, but instead of relying upon Curtis v. State, 22 Tex.App. 227, 3 S.W. 86, as does the majority opinion, I would dispose of the issue in the following manner.
¶3Appellant was convicted of involuntary manslaughter under V.T.C.A. Penal Code, Sec. 19.05(a)(2); punishment was assessed at four years.
¶4The evidence reflects that the deceased, a thirteen year old girl, was walking with a girl friend along Hastings Street in Amarillo at about 8:00 p. m. when a pickup truck driven by appellant struck the deceased and caused the injuries that resulted in her death. It was undisputed that appellant was intoxicated at the time.
¶5Appellant in his only ground of error contends his plea of prior jeopardy, predicated upon a prior conviction for driving while intoxicated, should have been sustained. In support of the special plea, appellant brought forward in the record the information, complaint, and judgment from the driving while intoxicated conviction and the transcription of the court reporter’s notes of that trial. Appellant’s arguments in support of the plea appear to be (1) that driving while intoxicated is a lesser included offense of involuntary manslaughter by operation of a motor vehicle while intoxicated (Sec. 19.05(a)(2), supra); and (2) that the same facts used to support the instant conviction were used to support the prior driving while intoxicated conviction.
¶6Lesser included offenses are now defined by statute in Article 37.09, V.A.C.C.P. See Day v. State, Tex.Cr.App., 532 S.W.2d 302.
¶7Article 37.09(1), supra, provides that an offense is a lesser included offense if:
“it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” (Emphasis added.)
¶8The offense charged is involuntary manslaughter under Sec. 19.05(a)(2), supra. Operation upon a public road or highway cannot be established by proof of the facts required to establish involuntary manslaughter under Sec. 19.05(a)(2), yet that fact must be proven to establish driving while intoxicated. Therefore, driving while intoxicated may not be established by proof of the same or less than all the facts required to establish an offense under Sec. 19.05(a)(2) and cannot be a lesser included offense under Art. 37.09(1).
¶9Article 37.09(1) does not support the conclusion that driving while intoxicated is a lesser included offense of a Sec. 19.05(a)(2) involuntary manslaughter. In fact, Day v. State, supra, foresaw and warned against such an interpretation of that article as would be required to hold that driving while intoxicated is a lesser included offense to the offense here charged. In closing the opinion on rehearing, the Court stated:
“The careful reader will observe that each definition in Art. 37.09 is stated with reference to ‘the offense charged,’ and moreover, each such definition specifically states the manner in which the lesser included offense differs from the offense charged. The enumerated variations in the statute do not enlarge upon the offense charged, but instead vary in a manner that either is restrictive1 or reduces culpability as compared to the offense *893charged. In view of those restrictions, we hold Arts. 37.08 and 37.09, supra, are constitutional insofar as they authorize, as did the prior scheme of degrees of offenses, conviction upon an indictment charging one offense for a lesser included offense of the offense charged. . . ” (Emphasis added.)
¶10The restrictive effect of the word “required” in Art. 37.09(1) cannot be ignored. In applying the test one does not examine what the proof showed in establishing the offense charged; rather one must look to what facts in the proof were required to establish the offense charged. The broader reading of the statute would render any offense incidentally proven in the course of trial a lesser included offense, and authorize its submission to the jury. Such “lesser included offenses” under Art. 37.09(1) would include any offense committed near the time of the offense charged and proven up as “res gestae” of the offense, any offenses committed near the time of arrest and proven up as “res gestae” of the arrest, any extraneous offenses proven in rebuttal on an issue raised by the defense, and any other offense shown incidentally in the course of the trial, because any such offense would have been established by what the proof of the offense charged showed, even though it was not established by the proof of the facts required to establish the offense charged.
¶11Such a broad reading of Art. 37.09(1) is impermissible. Driving while intoxicated is not a lesser included offense of involuntary manslaughter. Neither is it a lesser included offense under the other provisions of Art. 37.09.
¶12Appellant also contends that the same facts used to support the instant conviction were used to support the prior conviction.
¶13The transcription of the court reporter’s notes from the trial on driving while intoxicated, in the record before this Court, reflects:
“MR. BACK: Your Honor, this case originated in an accident whereby Mr. Graves was driving on . . .1 forget what street . . . twelve hundred block of Hastings, ran up over the curb, hit a fourteen-year-old girl in the back with his pick-up, and I believe she is still in the hospital at the time in critical condition. He left that scene, two people and their wives . . . two men and their wives were following him, and they pursued him on down the street . I forget how far, and they found him . he had a wreck there, I believe. Is that right, Mr. .
“OFFICER RENEAU: No, sir.
“MR. BACK: They did not?
“OFFICER RENEAU: They followed him home.
“MR. BACK: Okay, and the officers arrived after that. They have statements putting him behind the driver’s seat when he hit this girl. He had a breath test that registered 0.22. I believe he has been arraigned already for felony leaving of the scene of the accident.
“THE COURT: What other charges did they file, leaving the scene?
“MR. BACK: Yes, sir.
“OFFICER RENEAU: Your Honor, it was failure to stop and render aid and Judge Byrd set a ten thousand dollar bond.
U …
“THE COURT: 0.22?
“MR. BACK: Yes, sir. The breath test was given thirty-five minutes after the arrest.”
¶14It is clear from this record that appellant’s conviction for driving while intoxicated was for an offense committed by acts persisting for some time after the comple*894tion of the conduct that resulted in the girl’s death and upon which the instant conviction was predicated. Appellant’s contention that this prosecution was barred by the prior driving while intoxicated conviction is therefore without merit.
¶15I therefore concur in the affirmance of this case.
¶16. The majority opinion on original submission in Day v. State, also acknowledged the restriction found in Art. 37.09(1):
“Therefore, the elements of criminal trespass, including ‘notice,’ could be established by proof of the same facts necessary to prove the offense of burglary. The proof of addi*893tional facts would not be necessary, and the requirement of Article 37.09(1), Vernon’s Ann.C.C.P., would be satisfied.”
¶17Here, the proof of the additional fact of operation upon a public road or highway would be necessary to prove driving while intoxicated and would not be established by proof of the same facts necessary to prove involuntary manslaughter.