Gerald Christopher Zuliani v. State, 03-13-00490-CR

Background

Appellant Gerald Christopher Zuliani appealed convictions in multiple Travis County causes, including an assault‑strangulation case (D‑1‑DC‑13‑900011) and related aggravated assault and aggravated kidnapping charges.
At trial a stipulation to a prior conviction was entered but expressly limited to a different cause (D‑1‑DC‑13‑900010); the jury charge for the strangulation cause barred use of that stipulation for D‑1‑DC‑13‑900011.
The jury charge for the strangulation count omitted an element (the prior conviction required by Tex. Penal Code §22.01(b‑1)) from the abstract/application language.
The State and defense presented multiple theories at trial about when the aggravated kidnapping occurred (several different days); no election was requested or given to force the State to pick one theory.
Appellant filed a motion for rehearing arguing (1) legal sufficiency and jury‑charge error as to the §22.01(b‑1) enhancement element (invoking Alleyne/Winship), (2) the State failed to prove the prior in the strangulation cause, (3) the appellate court improperly adopted a new sufficiency theory for aggravated kidnapping, and (4) the trial court erred in denying motions for election under the same‑transaction rule.

Issues

Issue	Appellant's Argument	State/Appellate Court's Argument	Held
Sufficiency / omitted enhancement element in assault‑strangulation (§22.01(b‑1))	Zuliani: the jury charge omitted the prior‑conviction element and no stipulation applied to this cause, so the State failed to prove an essential element; conviction must be set aside.	Appellate court treated Point 14 as charge error only and did not treat it as a separate sufficiency‑of‑evidence claim.	Appellate court declined to grant relief on Point 14 as framed; appellant moves for rehearing asking the court to consider sufficiency and constitutional error.
Use of stipulation limited to other cause	Zuliani: stipulation expressly limited to D‑1‑DC‑13‑900010; trial charge prevented jury from using it in D‑1‑DC‑13‑900011, so State failed to prove the enhancement.	State accepted the stipulation’s limitation at trial; appellate court did not find reversible error based on stipulation placement.	Appellant argues the limitation means no evidence of the prior was admitted in the strangulation cause; court did not grant relief and appellant seeks rehearing.
Aggravated kidnapping timing / appellate construction of offense	Zuliani: the State tried multiple timing theories (several days); appellate court adopted a new theory on appeal that was not argued at trial, creating double‑jeopardy/unity‑of‑offense concerns.	Appellate court adopted a theory that the kidnapping was a connected sequence (Sunday) tied to deadly‑weapon acts and sustained sufficiency.	Appellant contends that adopting an unadvocated theory is improper; court previously upheld conviction but appellant requests rehearing.
Election / same criminal transaction rule for multiple assaults/kidnapping incidents	Zuliani: trial evidence showed discrete acts across time/locations and multiple weapons—election should have been ordered to protect jury unanimity and avoid multiple punishments for separate acts.	Appellate court relied on Steele and related decisions, holding no election required because alleged acts were part of one criminal transaction.	Appellate court overruled appellant’s election claims; appellant argues Steele does not apply to result‑oriented offenses or multi‑day conduct and seeks rehearing.

Key Cases Cited

Bryant v. State, 187 S.W.3d 397 (Tex. Crim. App. 2005) (State must prove enhancement elements beyond a stipulated plea unless stipulation applies)
Cooper v. State, 363 S.W.3d 293 (Tex. App. — Texarkana 2012) (discusses sufficiency and enhancement proof)
Henry v. State, 331 S.W.3d 552 (Tex. App. — Houston [14th] 2011) (similar treatment of enhancement/stipulation issues)
Martin v. State, 200 S.W.3d 635 (Tex. Crim. App. 2006) (Almanza/egregious‑harm analysis in charge errors; discussion of stipulations)
Rodriguez v. State, 129 S.W.3d 551 (Tex. App. — Houston [1st] 2003) (motion for rehearing considerations for legal sufficiency claims)
Steele v. State, 523 S.W.2d 685 (Tex. Crim. App. 1975) (holds election not required when acts are part and parcel of same criminal transaction)
Phillips v. State, 193 S.W.3d 904 (Tex. Crim. App. 2006) (limits Steele to continuous acts of force; election analysis)
Garfias v. State, 424 S.W.3d 54 (Tex. Crim. App. 2014) (unit‑of‑prosecution analysis)
Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012) (aggravated assault allowable unit of prosecution; separate bodily‑injury events can be separate offenses)
Loving v. State, 401 S.W.3d 642 (Tex. Crim. App. 2013) (multiple acts may constitute separate offenses despite single intent)
Martinez v. State, 225 S.W.3d 550 (Tex. Crim. App. 2007) (multiple convictions may be supported from a single transaction)
Ex parte McWilliams, 634 S.W.2d 815 (Tex. Crim. App. 1982) (abolished carving doctrine; implications for election and jury instructions)