*1 315 however, require impose us to
presumption that the attor- jury awarded
ney’s proportionality fees on some basis damages.
actual jury in- methodology
structed to consider such
making finding, we see no indication so, jury did and we decline to
impose remedy such a for the error before Co.,
us. See Tatum v. Preston Carter 702 (Tex.1986) 186,
S.W.2d (holding that
court of in proportionally erred
reducing exemplary damages in the exact reduced).
ratio as actual damages were
IV. Conclusion noted,
For the reasons we conclude that
the case must be remanded to the trial
court for a new trial attorney’s as to fees. Wayland
See v. City Arlington, 711 232, (Tex.1986). S.W.2d We affirm
that part of the court appeals’ judgment
reducing the trial compensatory court’s
damage $16,180.14. award to reverse We part of the court of appeals’ judgment
which affirmed the trial judgment court’s
as to attorney’s fees part and remand that
of the case to the trial court for further
proceedings consistent with this opinion. GIRDY, Appellant,
Steven G.
v.
The STATE of Texas.
No. PD-1773-05.
Court of Criminal of Texas. 1,
Nov. 2006.
Rehearing Denied Jan.
intentionally knowingly and threaten [com- bodily injury plainant] with imminent and deadly weapon, did then and there use knife, in the to-wit: a manner capable of caus- use and intended use was A ing bodily injury....” death and serious him jury convicted of both offenses and fifty years prison sentenced him to in for in kidnapping years prison the and ten for assault.1 the appellant asserted that appeal, On his Fifth double-jeopardy rights under the Amendment U.S. Constitution were for aggra- violated his convictions both kidnapping aggravated vated and assault aggravated has been held because aggravat- to be a lesser-included offense Crook, Lubbock, Appellant. for David no kidnapping and there is ed because legislative punish both offenses. Horn, intent Jeffrey L. First. Asst. State’s Van Austin, Paul, Atty., Atty., Matthew State’s the appeals The court of noted for State. during an unbro- events at issue occurred in sequence appellant
ken
obtained
knife,
OPINION
and oth-
complainant
threatened the
it,
present
directed all
not to
ers with
JOHNSON, J.,
opinion
delivered the
leave,
keys
demanded car
from the com-
MEYERS, PRICE,
the Court which
forced
into the car with
plainant and
her
WOMACK, KEASLER, HERVEY,
hand,
the knife in his
drove the car to
HOLCOMB,
COCHRAN, JJ., joined.
and
lot,
removing
knife while
brandished the
single
in a
Appellant was
indict-
car, and held the knife
her
from the
aggravated kidnapping, Tex. Pe-
ment with
State,
Girdy v.
175 S.W.3d
against her.
assault,
20.04,
aggravated
§
Code,
2005).
and
(Tex.App.-Amarillo,
nal
881-82
22.02(a)(2).
§
Code,
Both
that, while
Tex. Penal
appeals
The court of
also noted
from
same
charged offenses arose
the
proved
state need not have
an abduc-
the
aggravated-kidnapping
event. The
count
as-
appellant
tion in order to convict
intentionally
“did
alleged
appellant
sault,
pur-
for
the abduction
the consent
[complainant]
abduct
without
had satisfied
poses
kidnapping,
assault;
of the said
with intent
[complainant],
thus
aggravated
the elements for
the liberation of the said
prevent
[com-
used to
very
prove
“the
same evidence
by using
to use
Id. at
plainant],
proved the assault.”
kidnapping
that, given
[complainant],
force on the said
held
882. The court
time,
identity
parties,
inflict
on
with intent
between
”
involved,
the ele-
al-
aggravated-assault
her....
count
manner and means
alleged in the
offense as
then and there ments of the
leged that
“did
$7,500
addition,
aggravated
jury
for the
assault.
assessed fines of
fense and
$10,000
aggravated kidnapping of-
for the
indictment,
double-jeopardy analysis is made
pose
assault was a
law,
by examining
applicable
lesser-included offense of the
instrument,
and the evidence
charging
kidnapping. Girdy,
As he did in the court of
that
kidnapping.” The SPA also contends
an ele-
appellant argues
kidnapping
that the determination as
contains
aggravated
assault,
by aggravated
to whether one offense constitutes a less ment not contained
abducting
person,
another
and asserts
pur-
er-included offense of another for the
i.e.
Appeals
by concluding
included offense if:
2. "Did the Court of
err
An offense is
lesser
aggravated kidnap-
(1)
that
by proof
convictions for both
the same or
it is established
ping
aggravated
by
and
assault were barred
required to establish
less than all the facts
principles
jeopardy?”
of double
charged;
the commission of the offense
"Did the Court of
err
conclud-
(2)
charged only
the offense
it differs from
ing
aggravated
that the offense of
assault was
injury
respect that a less serious
or risk
aggravated
a lesser-included offense of
kid-
property
injury
person,
or
same
napping,
alleged?”
as those offenses were
public
to establish its com-
interest suffices
aggra-
"Are the elements
the offense
mission;
by threatening
vated assault
to inflict immi-
(3)
charged only in
it
from the offense
differs
by using
nent
culpable
respect that a less
mental
aggra-
weapon included within the offense of
commission; or
suffices to establish its
kidnapping by using
vated
(4)
attempt to commit the
it consists of an
use
force?”
included
or an otherwise
offense
Included Offense
offense.
3. Art. 37.09. Lesser
actually
had
com-
finding
are elements of
as-
that there
assault and that
this
unique
sault that are
mitted
aggravated kidnapping,
by incorporating
not included within
the evi-
Court has “erred
requirement
the actor
such as the
proven, into the
presented,
dence
or facts
bodily
another with “imminent”
threaten
inquiry.”4
Art. 37.09
deadly weapon, while
injury and use a
argu-
by the
addressed
SPA’s
issue
only requires
“[a]ggravated kidnapping
inadequate
A claim of
ments is notice.
deadly force
that the actor threaten to use
(lack
knowledge of what convic-
notice
person.”
ignores
the other
This
on
might be
tions for lesser-included offenses
clearly
pleadings
state’s
this
had)
double
not the same as a claim of
using
language
the exact
allege,
*4
(in
case, multiple punish-
this
statute,
committed the of-
appellant
that
act). Appellant does
ments for the same
“by using
aggravated kidnapping
of
fense
is,
notice,
lack
that
he does
allege
not
deadly force.”
threatening
to use
from
claim that he could not determine
not
added.)
con-
pleadings
The
(Emphasis
possible
all
less-
the face of the indictment
allege
ap-
that
cerning aggravated
might
he
be
er-included offenses of which
deadly
then and there use a
pellant “did
that
the two
position
His
knife,
convicted.
in
a
the manner
weapon, to-wit:
offenses,
a
comprise
charged
plead,
as
capable
use was
of its use and intended
its lesser-in-
bodily injury.”
greater offense and one of
causing death and serious
here is
Because the issue
cluded offenses.
trial shows the
the evidence at
When
charged of-
relationship
two
between
deadly
a
deadly
by
force
the use of
use
fenses,
possible
of all
lesser-included
notice
any argu-
over
weapon,
quibble
we will
is not an issue.
offenses
terms;
the two
able difference between
deadly
logically requires a
deadly force
the
of the universe of
While notice
display
deadly weapon
of a
weapon, and
offenses
oretically possible lesser-included
does,
a threat
may,
frequently
produce
trial, the evidence
given
must be
before
injury may
deadly
Bodily
force.
be
in
ignored
at trial cannot be
presented
a
anticipated
logical consequence
as
a
offense is
determining whether
lesser
perpetra-
a
If the
deadly weapon.
use of
of a
proof
within the
actually included
deadly force to abduct the
tor has used
offense;
theoretically possi
not all
greater
victim,
injury
bodily
general-
the threat
sup
will be
offenses
ble lesser-included
injury.
“imminent”
ly
involve
will
at trial.
by
presented
ported
the evidence
ap-
argues
further
that the court
SPA
is a lesser-
example, manslaughter
For
it
to the evidence
peals erred when
looked
the lan-
murder under
included offense of
supported
if the evidence
presented to see
charged
as
two
offenses
supported by
the elements of the
proposition were
4. Even if this
law,
alleged
indictment.
required
prove
in its
case
the state was
our
§22.02
Aggravated
Kidnapping, §20.04
Assault
Aggravated
(a)(4)
knowingly
intentionally
abducts
or
(§20.01(2)
means
"Abduct”
(not
applicable)
prevent
with intent to
liberation
"restrain"
§20.01(2)(B)
knowingly
threaten
using force)
deadly weapon
use a
to use
(not applicable)
with intent to inflict
bodily injury
with imminent
elements,
bodily injury.
complainant with
threaten
Rephrasing the three common
required in
of additional elements
prove
case that
Proof
had to
in each
kidnapping.
deadly weapon
or a
used
force
dis
37.09,
elements
yet
pre-
evidence
contain different
guage of Art.
in
the test set forth
tinguish them under
jury-
may support
at trial
neither
sented
In addi
Blockburger v. United States.2
instruction nor a conviction
charge
com
tion, I
with the Court’s
agree
cannot
of the testimo-
manslaughter. Evaluation
the use of evidence
regarding
ments
critical in such a circum-
ny at trial
relationship be
determining
in
trial
stance.
for dou
and lesser offenses
tween
A
assault is
lesser-included
jeopardy purposes.
this
ble
upon
kid
a different
offense of
cannot be based
lesser-included
than the instance
by proof
it
of conduct
napping because
is “established
instance
relies, and
the State
upon
or less than all the facts
conduct
of the same
at trial is relevant
deter
the commission of’
the evidence
required to establish
But
here,
such is the case.3
mining
If
whether
aggravated kidnapping.
as
of
alleged
that the
of once it is determined
prosecution,
the elements
instance of
offense,
to the same
necessarily
pertain
fenses
charged
one
also
conduct,
to each
offense,
they are related
whether
another
then
proves
lesser and
way
as to be
offense. other
such
other offense is a lesser-included
*5
jeopardy pur
offenses for double
legisla
there must be clear
such a
depend
that does not
separate
poses
question
is
punish
tive intent to
the offenses
introduced at
shown,
upon the evidence
ly.
multiple
any
If no
intent is
form
such
hold otherwise is to resurrect
punishments for the criminal act that
trial.4 To
“same evi
subject
and discredited
prosecution
is barred.
the defunct
Grady
For this
dence” test of
v. Corbin.5
No such intent has been shown here.
does,
reason,
say,
I
as the Court
error,
overrule
Because we find no
we
analysis
upon
turns
that double
grounds
and affirm
the SPA’s
for review
necessarily
one offense
whether
judgment
appeals.
of the court of
inquiry, un
offense.6 The
proves another
each
Blockburger,
simply
whether
der
KELLER, P.J.,
concurring
filed
of a fact
requires proof
charged
opinion.
does not.7 As for
Court’s
the other
the evi
example, whether
manslaughter
KELLER, P.J., concurring.
a man
supports
at a murder trial
dence
sec
depends on the
slaughter
I
instruction
am uncertain what the Court means
(whether
test
prong
uni- ond
of the Rousseau
it discusses “notice” and “the
when
supports
proposition
theoretically
some evidence
possible
verse of
lesser-in-
only of mans
guilty
My reading of the
that the defendant
cluded offenses.”1
wholly unre
is an issue
laughter),8
is at-
arguments is that the State
State’s
jeopardy analysis.
offenses
lated to double
tempting to show that
the two
508,
Grady,
110
(discussing
495 U.S.
op.
5.
Id.
1.
Court’s
at 318-19.
See
2084,
(1990)).
L.Ed.2d 548
S.Ct.
109
299,
180,
force” using weapon.
Aggravated assault was therefore a lesser- aggravated kidnapping,
included offense of Therefore, though in this case.
as I join opinion,
I concur do not the Court’s judgment. parte CHAVEZ, Applicant.
Ex Adrian AP-75245.
No. of Texas.
Court of Criminal 22, 2006.
Nov.
Rehearing Denied Jan.