In Ex parte Benson, 459 S.W.3d 67, No. WR-81,764-01, 2015 WL 1743459 (Tex. Crim. App. Apr. 15, 2015), the court considered whether intoxication assault and felony DWI are the same offense for double jeopardy purposes when they arise out of the same transaction.
The court began its analysis by determining whether felony DWI requires proof of a fact not required for intoxication assault.
The court held that it was "abundantly clear that the offenses of felony DWI and intoxication assault are different under the Blockburger same-elements test."
Because this gave rise to a presumption that the offenses are presumed to be different for double jeopardy purposes, the court then determined whether the presumption was rebutted by the Ervin factors. Id.