           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS

                                   No. PD-1118-11

                            JEROMY GADDY, Appellant

                                           v.

                               THE STATE OF TEXAS

           ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE SECOND COURT OF APPEALS
                           DENTON COUNTY

             Per curiam.

                                     OPINION

      Appellant was convicted of felony driving while intoxicated and sentenced to 3 years

confinement. On appeal, Appellant claimed that the prior DWI convictions from New

Mexico were insufficient to elevate his offense to a felony under Texas Penal Code

§49.09(b)(2). The Court of Appeals reversed. Because an instruction on the lesser offense

of misdemeanor DWI was neither requested nor given by the trial court, the court reversed

the trial court’s judgment and rendered a judgment of acquittal. Gaddy v. State, No.
                                                                                             2

02-09-00347-CR (Tex. App.–Ft. Worth, May 19, 2011). The State petitioned this Court for

discretionary review

       When the Court of Appeals issued its opinion in this case, it did so without the benefit

of this Court’s recent opinion in Bowen v. State, ___ S.W.3d ___; No. PD-1607-10 (Tex.

Crim. App. June 20, 2012). Therefore, we vacate the judgment of the Court of Appeals and

remand for that court to consider the effect of Bowen, if any, on its reasoning and analysis

in this case.




Filed: September 26, 2012
Do Not Publish
