James Dwayne Hoisager v. State, 03-13-00328-CR

Appellant James Dwayne Hoisager was convicted by a jury of aggravated kidnapping and aggravated assault arising from the same incident, with a deadly-weapon finding on both offenses and concurrent 10-year sentences.
The Third Court of Appeals previously affirmed the convictions in an unpublished memorandum in 2015, and Hoisager timely filed a motion for rehearing.
Hoisager argued that double jeopardy requires vacating the aggravated assault conviction as a lesser-included offense of aggravated kidnapping, citing Girdy v. State.
Hoisager also argued that the indictment was improperly amended without proper notice, implicating Article 28.10 and related notice requirements.
The State contends the court correctly relied on Gollihar to reject the notice-ameliorating claims and that the aggravated kidnapping location issue was not a basis for double jeopardy reversal.
The court reviews whether a supplemental brief on double jeopardy should be considered and whether the indictment amendment affected notice and sufficiency.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court should consider Hoisager's supplemental brief on double jeopardy	Hoisager (Hoisager) argues the court abused discretion by not considering the supplemental brief.	The State argues the court correctly denied the supplemental brief and did not abuse discretion.	Court abused discretion; rehearing granted to address double jeopardy and vacate aggravated assault.
Whether the indictment amendment on location violated notice under Article 28.10	Hoisager contends the location omission was a substantive change affecting notice.	The State argues the location language was surplusage and not a substantive amendment.	Indictment amendment improperly affected notice; location is not surplusage; reversal warranted on notice grounds.

Girdy v. State, 213 S.W.3d 315 (Tex. Crim. App. 2006) (double jeopardy in lesser-included-offense context; reverse for assault)
Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) (surplusage and notice issues; sufficiency focus)
Ex parte Denton, 399 S.W.3d 540 (Tex. Crim. App. 2013) (double jeopardy apparent on face of record)
Gonzales v. State, 8 S.W.3d 640 (Tex. Crim. App. 2000) (double jeopardy; discretionary filing of supplemental briefs)
Langs v. State, 183 S.W.3d 680 (Tex. Crim. App. 2006) (double jeopardy standards; facial viability on appeal)
Hall v. State, 62 S.W.3d 918 (Tex. Crim. App. 2001) (notice and sufficiency considerations; deemed substantive)
Moore v. State, 54 S.W.3d 529 (Tex. App. – Fort Worth 2001) (notice vs. sufficiency; supplementation)
Burrell v. State, 526 S.W.2d 799 (Tex. Crim. App. 1975) (early guidance on appellate notice and briefing)
G.A.O. v. State, 854 S.W.2d 710 (Tex. App. – San Antonio 1993) (court-initiated double jeopardy review)
Mason v. State, 905 S.W.2d 570 (Tex. Crim. App. 1995) (location-based elements in kidnapping define offense)