                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-09-00347-CR


JEROMY GADDY                                                         APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

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                    EN BANC OPINION ON REMAND

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      This appeal is before us en banc on remand from the court of criminal

appeals.1 Gaddy v. State, No. PD-1118-11, 2012 WL 4448757, at *1 (Tex. Crim.

App. Sept. 26, 2012) (not designated for publication); see Tex. R. App. P. 78.1(f).

In our initial review of appellant Jeromy Gaddy’s conviction for felony driving
      1
      The appeal on remand originally was submitted to a panel of this court on
January 29, 2013. But because we determined that en banc consideration was
necessary, we resubmitted the appeal to the court for en banc review on
November 12, 2013. See Tex. R. App. P. 41.2(c); see also Tex. R. App. P. 49.7.
while intoxicated (DWI), we concluded that the evidence was insufficient to show

that Gaddy was twice previously convicted of DWI in New Mexico as required to

sustain his conviction for felony DWI. Gaddy v. State, No. 02-09-00347-CR,

2011 WL 1901972, at *5–12 (Tex. App.—Fort Worth May 19, 2011) (mem. op. on

PDR, not designated for publication), vacated, 2012 WL 4448757. Because an

instruction on the lesser-included offense of misdemeanor DWI was neither

requested nor given, we reversed the trial court’s judgment and rendered a

judgment of acquittal. Id. at *12–13; see also Tex. R. App. P. 43.2(c), 43.3. The

court of criminal appeals vacated our judgment and remanded the case to this

court “to consider the effect of Bowen, if any, on [our] reasoning and analysis in

this case.” Gaddy, 2012 WL 4448757, at *1.

      In Bowen, which was rendered after our decision in Gaddy, the court of

criminal appeals held that if an appellate court concludes that the evidence

supporting a conviction is legally insufficient, the court is not necessarily limited

to ordering an acquittal but may instead remand to the trial court for modification

of the judgment to reflect a conviction of a lesser-included offense—even if the

jury was not charged on the lesser-included offense—and to conduct a new

punishment hearing. Bowen v. State, 374 S.W.3d 427, 431–32 (Tex. Crim. App.

2012); see also Tex. R. App. P. 43.2(d).             In short, “[t]he fact finder’s

determination of guilt should not be usurped in the punishment phase if the

evidence is legally sufficient to support a conviction.” Bowen, 374 S.W.3d at 432.




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      After Bowen, the court of criminal appeals suggested that “if the State

charged someone with felony DWI and presented legally sufficient evidence of

the DWI conduct but not of the enhancing prior conviction,” it would be “easy to

strike the aggravating element and reform the judgment to reflect the crime

without the enhancement.” Britain v. State, 412 S.W.3d 518, 521 (Tex. Crim.

App. 2013). However, the court of criminal appeals cautioned that “an appellate

court should not render a judgment of conviction for a lesser-included offense

unless there is proof beyond a reasonable doubt of all elements of the lesser-

included offense.” Id. After Britain, the court of criminal appeals further clarified

when a court of appeals should reverse a judgment and remand for modification

to reflect a conviction of a lesser-included offense versus when a judgment

should be reversed and an acquittal rendered:

      [A]fter a court of appeals has found the evidence insufficient to
      support an appellant’s conviction for a greater-inclusive offense, in
      deciding whether to reform the judgment to reflect a conviction for a
      lesser-included offense, that court must answer two questions: 1) in
      the course of convicting the appellant of the greater offense, must
      the jury have necessarily found every element necessary to convict
      the appellant for the lesser-included offense; and 2) conducting an
      evidentiary sufficiency analysis as though the appellant had been
      convicted of the lesser-included offense at trial, is there sufficient
      evidence to support a conviction for that offense? If the answer to
      either of these questions is no, the court of appeals is not authorized
      to reform the judgment. But if the answers to both are yes, the court
      is authorized—indeed required—to avoid the “unjust” result of an
      outright acquittal by reforming the judgment to reflect a conviction for
      the lesser-included offense.

Thornton v. State, No. PD-0669-13, 2014 WL 1302039, at *7 (Tex. Crim. App.

Apr. 2, 2014) (footnote omitted). The court of criminal appeals warned, however,


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that we may not consider the conduct of the parties at trial or whether an

instruction on the lesser-included offense was requested in deciding the propriety

of modification or rendition. Id. at *5; see also 43B George E. Dix & John M.

Schmolesky, Texas Practice Series: Criminal Practice & Procedure § 56.214 (3d

ed. Supp. 2013–14) (“Generally, under Bowen, whether reformation is available

on appeal does not depend at all on whether a lesser[-]included offense

instruction was given or sought.”).   We are to focus solely on the evidence

presented and the lesser-included conviction sought.        Thornton, 2014 WL

1302039, at *5.

      With these precedents in mind, we now turn to the case at hand. On

remand, the State is not challenging whether Gaddy’s two prior convictions for

DWI, which occurred in New Mexico, were sufficiently proven to allow

enhancement of Gaddy’s DWI conviction from a misdemeanor to a felony under

section 49.09(b)(2).   See Tex. Penal Code Ann. § 49.09(b)(2) (West Supp.

2013). Indeed, the State “concedes that [Gaddy’s] conviction for felony DWI

must be reversed” because the evidence was insufficient to prove the offense-

enhancement convictions. Further, Gaddy does not challenge the sufficiency of

the evidence to support the elements of the lesser-included offense of

misdemeanor DWI;2 thus, the second Thornton inquiry may be answered yes.


      2
      Gaddy does argue that our prior judgment acquitting him of DWI operates
as a double-jeopardy bar to any subsequent conviction for misdemeanor DWI.
Our previous judgment rendered a judgment of acquittal solely as to felony DWI.
Gaddy, 2011 WL 1901972, at *13. Further, the court of criminal appeals vacated

                                        4
     Therefore, the only issue remaining on remand is the first Thornton

question: whether, in the course of convicting Gaddy of felony DWI, the jury

must have necessarily found every element necessary to convict Gaddy of

misdemeanor DWI. This question must also be answered in the affirmative. The

offense elements of felony DWI in this case are the same as the offense

elements of misdemeanor DWI, save and except for the offense-enhancement

paragraphs.   See id. §§ 49.04, 49.09(b)(2) (West Supp. 2013); Britain, 412

S.W.3d at 521.     Therefore, the jury necessarily found Gaddy guilty of

misdemeanor DWI in the course of convicting him of felony DWI. As such, we

must reverse the trial court’s judgment and remand the case for necessary

further proceedings—to modify its judgment to reflect a conviction for

misdemeanor DWI and to conduct a punishment hearing attendant to the

conviction for misdemeanor DWI.      See Tex. R. App. P. 43.2(d), 43.3(a);

Thornton, 2014 WL 1302039, at *11; Bowen, 374 S.W.3d at 432; see also Tex.

Penal Code Ann. § 12.22 (West 2011), § 49.04(b) (West Supp. 2013).




our prior judgment, which refutes Gaddy’s double-jeopardy argument. Cf.
Fransaw v. Lynaugh, 810 F.2d 518, 523–25 (5th Cir.) (holding double jeopardy
did not bar trial of defendant on charge that was previously dismissed under a
plea bargain that was later set aside), cert. denied, 483 U.S. 1008 (1987).


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                                             /s/ Lee Gabriel
                                             LEE GABRIEL
                                             JUSTICE

EN BANC

DAUPHINOT, J., filed a dissenting opinion.

PUBLISH

DELIVERED: May 15, 2014




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