                                                                                               ACCEPTED
                                                                                           03-13-00328-CR
                                                                                                   6333620
                                                                                THIRD COURT OF APPEALS
                                                                                           AUSTIN, TEXAS
                                                                                       8/3/2015 3:29:18 PM
                                                                                         JEFFREY D. KYLE
                                                                                                    CLERK
                               No. 03-13-00328-CR

    IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT
                                                     FILED IN
                                               3rd COURT OF APPEALS
                      OF TEXAS, AT AUSTIN          AUSTIN, TEXAS
                                                                 8/3/2015 3:29:18 PM
                     James Dwayne Hoisager, Appellant              JEFFREY D. KYLE
                                                                         Clerk

                                          v.

                          The State of Texas, Appellee

         On Appeal from the 424th District Court of Burnet County, Texas
        Cause No. 39,332, The Honorable Daniel H. Mills, Judge Presiding

                  Appellant’s Motion for Rehearing

TO THE HONORABLE THIRD COURT OF APPEALS:

      COMES NOW James Dwayne Hoisager, Appellant, and, by and through David

K. Chapman, his attorney of record, respectfully files this Motion for Rehearing, and

in support of the Motion would show the Court that rehearing should be granted,

                          Grounds for Rehearing

                                          I.

      By refusing to consider Appellant’s Supplemental Brief and sustain its

contentions regarding double jeopardy, the Court placed itself in direct conflict with

the Court’s opinion in Girdy v. State, 213 S.W.3d 315 (Tex. Crim. App. 2006), aff’g

175 S.W.3d 877 (Tex. App. – Amarillo 2005).


                                          1
                                          II.

      The Court’s reliance on Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App.

2001) was misplaced because that case dealt with sufficiency of the evidence and

Appellant’s case deals with the failure to provide Appellant with notice of what was

in fact an amendment to the indictment.

                                   Background

      Appellant was charged in a two-count indictment with the aggravated

kidnapping and aggravated assault of his ex-wife. A jury found him guilty of both

charges, made an affirmative finding of a deadly weapon as to both, and assessed his

punishment at 10 years imprisonment on each count. The court ordered that the

sentences run concurrently.

      On July 17, 2015, this Court affirmed Appellant’s conviction in an unpublished

memorandum opinion. Hoisager v. State, No. 03-13-00328-CR, 2015, Tex. App.

LEXIS 7402 (Tex. App. - Austin July 17, 2015) (mem. op., not designated for

publication). This motion for rehearing is timely filed if presented or efiled on or

before Monday, August 3, 2015.




                                          2
                                          I.

                     Failure to Consider Supplemental Brief

                                          A.

      On November 22, 2013, Appellant filed a supplemental brief and a motion for

leave to file that brief. This Court denied Appellant’s motion for leave to file on

December 2, 2013. Appellant was convicted of aggravated kidnapping and

aggravated assault arising from the same incident. In his supplemental brief Appellant

argued that his conviction for aggravated assault was, in this case, a lesser included

offense of the conviction for aggravated kidnapping and that double jeopardy barred

the affirmance of his conviction for both. He relied on Girdy v. State, 213 S.W.3d

315, 316-17 (Tex. Crim. App. 2006), aff’g 175 S.W.3d 877 (Tex. App. - Amarillo

2005). Appellant therefore urged that the Court order that a judgment of acquittal be

entered in the aggravated assault case because it was a lesser included offense of

aggravated kidnapping. Supp. Br. of Appellant at 2-8.

                                          B.

      A double jeopardy claim "may be raised for the first time on appeal or even for

the first time on collateral attack when the undisputed facts show the double jeopardy

violation is clearly apparent on the face of the record and when enforcement of usual

rules of procedural default serves no legitimate state interests." Gonzales v. State, 8

                                           3
S.W.3d 640, 643 (Tex. Crim. App. 2000). Accord, Langs v. State, 183 S.W.3d 680,

687 (Tex. Crim. App. 2006).

                                          C.

      A double jeopardy claim is apparent on the face of the trial record if resolution

of the claim does not require further proceedings for the purpose of introducing

additional evidence in support of the double-jeopardy claim. Ex Parte Denton, 399

S.W.3d 540, 544 (Tex. Crim. App. 2013). The critical inquiry is whether the record

before the reviewing court clearly reflects a double jeopardy violation. Long v. State,

130 S.W.3d 419, 424 (Tex. App. – Houston [14th Dist.] 2004, no pet.).

                                          D.

      The record before this Court is virtually identical to the one in Girdy. In both

cases the offenses alleged abduction without consent with intent to prevent the

complainant’s liberation. Girdy, 213 S.W.3d at 316; Hoisager, 2015 Tex. App.

LEXIS, 7402 at *2-3. In that case, as here, there was “an unbroken sequence” of

events in which Girdy brandished a knife, threatened the complainant with it (and in

Girdy, others), forced the complainant into the car with him, and abducted her. Girdy,

213 S.W.3d at 316; Hoisager, 2015 Tex. App. LEXIS, 7402 at *1-2.

                                          E.

      Because aggravated assault is a lesser included offense of aggravated

                                          4
kidnapping, it should be the offense to be vacated as a result of the double jeopardy

violation, as was done in Girdy, 213 S.W.3d at 316-17, 319, aff’g Girdy, 175 S.W.3d

at 882. The same should be done in Appellant’s case.

                                          F.

      It is left to the sound discretion of the Courts of Appeals to grant or deny a

party’s request to file a supplemental brief. Tex. R. App. P. 38.7; State v. Krizan-

Wilson, 321 S.W.3d 619, 623 n.1 (Tex. App. - Houston [14th Dist.] 2010), aff’d, 354

S.W.3d 808 (2011). However, this discretion is not so great as to be beyond question,

especially when the issue is one of double jeopardy. Gonzales, 8 S.W.3d at 643.

                                         G.

      These recent specific authorities find a foundation in earlier cases. In G.A.O.

v. State, 854 S.W.2d 710, 713-15 (Tex. App. – San Antonio 1993, no writ), the

juvenile did not raise a double jeopardy issue, but the Court of Appeals perceived

one, raised it on its own motion, and found that the juvenile’s adjudication should be

reversed on that ground. Cf. McDonald v. Edwards, 115 S.W.2d 762, 766 (Tex. Civ.

App. – Beaumont 1938), aff’d, 137 Tex. 423, 153 S.W.2d 567 (1941)(where

supplemental brief presents claims of fundamental error, issues must be reviewed).

                                         H.

      Under these special circumstances involving a clear double jeopardy violation,

                                          5
a Court of Appeals’ failure to consider such a supplemental brief should be treated

as beyond the normal freedom granted by Rule 38.7. The Court should grant

rehearing and hold that it abused its discretion by refusing to file and consider the

double jeopardy issue raised in Appellant’s supplemental brief. Upon doing so, it

should vacate Appellant’s conviction for aggravated assault and render a judgment

of not guilty. Tex. R. App. P. 43.2(c).

                                          II.

                        Misapplication of Gollihar v. State

                                          A.

      Appellant argued in his brief that he was deprived of the notice required by

Article 1, Section 10 of the Texas Constitution and Article 28.10 of the Texas Code

of Criminal Procedure. Br. of Appellant at 7-18. His specific complaint was that the

trial court allowed Appellee to alter the indictment in a substantive way by removing

language fixing the location of the offense. He contended that this deletion was

reversible error because it expanded the area in which the aggravated kidnapping

could be committed. Id. at 5, 12-18. He made no complaint about the sufficiency of

the evidence. The Court’s response was to hold that the language omitted was not

substantive, but only surplusage, and thus permissible. Hoisager, Tex. App. LEXIS

7402 at *4-8.

                                          6
                                            B.

          In affirming Appellant’s conviction, the Court relied on Gollihar v. State, 46

S.W.3d 243, 256-57 (Tex. Crim. App. 2001) as authority for rejecting Appellant’s

claims. In Gollihar, the Court overruled “surplusage” law as it related to issues of

sufficiency of the evidence, “and, in particular, what constituted a hypothetically

correct jury charge.” Hall v. State, 62 S.W.3d 918, 920 (Tex. App. - Dallas 2001, pet.

ref’d).

                                            C.

          Appellant contends this Court erred by extending the holding of Gollihar to

cases involving notice rather than sufficiency and surplusage. This Court should grant

rehearing to join the other Courts of Appeals which have come to this conclusion.

Hall, 62 S.W.3d at 920; Moore v. State, 54 S.W.3d 529, 547 (Tex. App. – Fort Worth

2001, pet. ref’d).

                                            D.

          The Court held that the language that was removed from the indictment was not

an amendment for purposes of Article 28.10 because it was not legally essential to the

offense of aggravated kidnapping. Hoisager, Tex. App. LEXIS at *6-9. Therefore, the

Court held, Appellant’s request for additional time to prepare for the change in the

indictment was unjustified. Hoisager, 2015 Tex. App. LEXIS 7402 at *6-9.

                                             7
                                                E.

      Appellant contends that, regardless of the overruling of the Burrell1 rule in

Gollihar, 46 S.W.3d at 256-57, the phrase “to her home” is legally essential to the

offense of kidnapping - and hence aggravated kidnapping - for purposes of Article

28.10, especially in the present case. This is because it is necessary to provide notice,

not to measure the sufficiency of the evidence. Hall, 62 S.W.3d at 920; Moore, 54

S.W.3d at 547.

                                                F.

      Also, restraint is an element of the offense of aggravate kidnapping. Prudholm

v. State, 330 S.W.3d 590, 599 (Tex. Crim. App. 2011). In this case the original

indictment alleged that it took place in the complainant’s home where Appellant

restrained the complainant. The amendment to the indictment omitted this latter

limitation, allowing Appellee to prove that the facts of this offense took place well

outside the complainant’s home. Sufficiency of the evidence was not affected, but

notice was.

                                               G.

      This was a substantive change because the offense is aggravated kidnapping,

which, unlike most offenses, is based on location (secretion), part of the mens rea of


      1
          Burrell v. State, 526 S.W.2d 799 (Tex. Crim. App. 1975).

                                                8
kidnapping. Mason v. State, 905 S.W.2d 570, 575 (Tex. Crim. App. 1995), cert.

denied, 516 U.S. 1051 (1996). That is, kidnapping is circumscribed by a place or

places definition, unlike most other offenses.

                                          H.

      For all of the foregoing reasons, in an aggravated kidnapping case the location

of the secretion is not surplusage for purposes of notice under Article 28.10, and the

Court erred by holding to the contrary. Accordingly, the Court erred when it held that

the trial court did not error when he allowed the Appellee to amend the indictment

and refused to allow Appellant an additional ten days to prepare for trial after the

amendment was made.

                          Conclusion and Prayer

      PREMISES CONSIDERED, Appellant prays that the Court grant his motion

for rehearing, reverse and vacate the trial court’s judgment of conviction for

aggravated assault and render a judgment of acquittal, and reverse the judgment of

conviction for aggravated kidnapping and order that the case be remanded to the trial

court for a new trial on that count of the indictment.




                                          9
                              Respectfully submitted,

                               /s/ David K. Chapman

                                 David K. Chapman
                                  Attorney at Law
                               Post Office Box 427
                            Karnes City, Texas 78118
                           heartregardless@gmail.com
                                (830)780-3472 Tel.
                               (210) 428-6479 Fax
                           State Bar Number 04121500

                       Attorney for James Dwayne Hoisager


             CERTIFICATE OF COMPLIANCE AND SERVICE

      On this 2nd day of August, 2015, I filed a copy of this document through

EFILETEXAS.GOV, using an approved service provider, File & ServeXpress, which

provided a copy to the attorney for Appellee, Hon. Gary W. Bunyard, Assistant

District Attorney, P.O. Box 725, Llano, Texas 78643. I certify that this document was

prepared on WordPerfect™ 8.1, contains a total of 1818 words, and otherwise

complies with the Texas Rules of Appellate Procedure, as amended effective January

1, 2014.

                               /s/ David K. Chapman

                                David K. Chapman

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