Gerald Christopher Zuliani v. State, 03-13-00492-CR

Background

Appellant Gerald Christopher Zuliani appealed convictions in multiple Travis County causes, including an enhanced assault-by-strangulation count under Tex. Penal Code §22.01(b-1) and aggravated kidnapping and aggravated assault counts.
At trial the defense stipulated to a prior conviction in one indictment (D-1-DC-13-900010) but expressly limited that stipulation to that indictment; the stipulation was not entered for the strangulation indictment (D-1-DC-13-900011).
The jury charge for the strangulation cause omitted the prior-conviction element required by §22.01(b-1) and told jurors they could not use the stipulation from the separate indictment for other causes.
The State presented multiple, alternative theories of when the aggravated kidnapping occurred (spanning several days); the defense requested elections between discrete acts/occurrences, which the trial court denied.
On appeal the appellate court treated some points as jury-charge error and rejected others; the appellant moved for rehearing arguing (1) legal insufficiency for the enhancement/prior-conviction element and constitutional error under Alleyne, (2) improper resolution of timing and sufficiency for aggravated kidnapping, and (3) error in denying elections under the ‘‘same criminal transaction’’ rule.

Issues

Issue	Plaintiff's Argument (Zuliani)	Defendant's Argument (State)	Held
1. Sufficiency to support §22.01(b-1) enhancement (prior conviction)	No stipulation or evidence in the strangulation cause; the enhancement element was not proved beyond a reasonable doubt, so conviction must be set aside or reduced	Appellate court treated the point primarily as charge error and relied on the stipulation elsewhere	Appellate court did not grant relief on rehearing; appellant urges rehearing to address legal sufficiency and urges court to treat prior-conviction as an essential element under Alleyne
2. Jury-charge/Alleyne error for enhancement element	Jury charge omitted the prior-conviction element; under Alleyne the element increasing punishment must be submitted to jury, so omission is structural/egregious	Appellate court characterized the point as charge error and found no reversible harm based on stipulation context	Appellate court rejected reversal on this ground; appellant insists constitutional error requires explicit jury finding and requests rehearing
3. Sufficiency/timing of aggravated kidnapping (when restraint occurred)	State tried four alternative theories spanning multiple days; on appeal court adopted a new timing theory not argued at trial; evidence was insufficient or inconsistent to sustain the kidnapping conviction as tried	State relied on the proof and argued the acts were part of a connected sequence supporting kidnapping	Appellate court sustained conviction by construing the acts as a connected sequence; appellant argues this creates double‑jeopardy/unanimity problems and that court adopted an unpreserved theory
4. Denial of motions for election (multiple alleged assaults/weapons over time)	Trial court erred by refusing election because alleged assaults were discrete acts at different times/places and multiple convictions required election for jury unanimity and notice	Trial court/appellate court relied on Steele exception: acts were part of one criminal transaction, so election not required	Appellate court upheld refusal to order election relying on Steele; appellant urges that Steele is inapplicable to result offenses, conflicts with unit‑of‑prosecution and modern unanimity/double‑jeopardy jurisprudence

Key Cases Cited

Alleyne v. United States, 133 S. Ct. 2151 (U.S. 2013) (fact increasing mandatory minimum/punishment must be found by jury)
Winship v. United States, 397 U.S. 358 (U.S. 1970) (proof beyond a reasonable doubt is required to convict)
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (harmless/egregious harm standard for charge error)
Bryant v. State, 187 S.W.3d 397 (Tex. Crim. App. 2005) (prosecution bears burden to prove enhancement elements absent valid stipulation)
Martin v. State, 200 S.W.3d 635 (Tex. Crim. App. 2006) (analysis of egregious harm in context of omitted enhancement proof)
Cooper v. State, 363 S.W.3d 293 (Tex. App. 2012) (sufficiency/relevant issues cited by appellant)
Phillips v. State, 193 S.W.3d 904 (Tex. Crim. App. 2006) (Steele applies only where several acts form one continuous act of force)
Loving v. State, 401 S.W.3d 642 (Tex. Crim. App. 2013) (separate acts can be separate offenses despite common intent)
Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012) (unit‑of‑prosecution for aggravated assault; multiple convictions may be proper)
Garfias v. State, 424 S.W.3d 54 (Tex. Crim. App. 2014) (rejecting rule limiting convictions to a single continuous assaultive act)
Ex parte McWilliams, 634 S.W.2d 815 (Tex. Crim. App. 1982) (abolishe[d] the ‘carving doctrine’ regarding submission of multiple offenses)