*1 is the date of forfeiture hold the manner and at we in the same of forfeiture signs judgment nisi.8 the the date trial court the provided rate as accrual same the for 22.01 See Articles in civil cases.” prejudgment interest (Emphasis Supplied). proper Finally, appellant the raises provides: Article 5069-1.03 Arti the interest for nomenсlature of 22.16(e) claims the provides. Appellant specified cle rate interest “When characterizing parties, interest at agreed “prejudgment interest.” interest as percent per annum shall be of six rate Dees, Article 707. He claims all and contracts as- on accounts allowed 22.16(e) the bond for interest on provides commencing payable, certaining the sum forfeiture, and not the date amount from (30th) day on the thirtieth fi-om after judgment. See prejudgment interest pay- when is due and the time the sum Park Quality generally Control Cavnar (Emphasis Supplied). able.” (Tex.1985). Inc., Article ing, argues allowing interest 22.16(e) provides for interest exрressly accrue from the date amount of bond to forfeiture; from the the bond amount date nisi, judgment as the Court therefore, proper nomenclature wе hold here,7 “in the same manner” did nullifies the bond such interest is “interest on 22.16(e). disagree. language of Article holding, how amount forfeiture.” This after 22.16(e) provides for inter еxpressly Article ever, judgment not affect does amount est to accrue the bond “from Ap Appeals because the Court of 22.16(e) of forfeiture.” Articlе describes date on the face peals actually calculated “interest “using accrue how the interest is to interest percent at six amount of thе bond rate in civil cases prejudgment interest judgment per annum from date Dees, from the date of Shaw v. forfeiture.” S.W.2d at 707. nisi.” 672, (Tex.App. ground for Worth we overrule fourth — Fort ref'd). review, 1991, judgment of the Court example, parties and affirm pet. For Appeals. agree in the on how interest bond in which calculated case Tex.Rеv.Civ.Stat. J., MALONEY, dissents. 5069-1.01(c) Ann. would authorize the Article calculating “manner” for the interest. WHITE, J., participating. not Corp. v. e.g., Triton Oil E.W. Mor and Gas Co., 678, (Tex. Drilling 687-88 n.r.e.). 1974, Civ.App. writ ref'd — Fort parties agree that when the do not We hold
otherwise, interest accrue begins to bond amount from the date forfeiture. Jr., Appellant, RAMOS, Paul Sandoval The next deсide is the we Appeals, forfeiture. date of Texas, Appellee. The STATE effect, held the of forfeiture is the date date No. 331-92. entered, agree. nisi аnd we Dees, 22.01, Article Appeals of V.A.C.C.P., a states that when defendant his bail appear, forfeiture of fails to Oct. judicial declaration of such forfeiturе shall Rehearing Denied provided Article 22.- taken the manner 22.02, effect, pro V.A.C.C.P. Article that a bail bond is forfeited when vides signs judgment nisi. There-
trial court fails to date thе defendant nisi on the same 7. 822 S.W.2d appear. appear note 22.01 and 22.02 8. We also Articles sign provide trial court to *2 Paul, Atty. and Matthew Asst. W. State’s Austin, Atty., for State. ON
OPINION STATE’S PETITIONS FOR DISCRETIONARY REVIEW McCORMICK, Judge. Presiding jury aggravated A convicted punishment sexual assault and assessed Y.T.C.A., fifty years. confinement for Code, Penal Section The Fort Worth conviction, Court of reversed holding failing the trial court jury instruct the included of lesser assault. Ramos fense of 1991); (Tex.App S.W.2d 418 . —Fort see Section 22.011. petitions granted discretionary review County filed the Tarrant District Attor Prosecuting ney Attorney the State determine whether the Court cor rectly single ap held that a statement from isolation, pellant’s tеstimony, examined issue of raised the the lesser included of We will fense. reverse. grabbed
The victim testified dragged her to locations several where sexually hе assaulted her under threats of stabbing and death. resist. lawyer, ap- his direct examination pellant threatening denied victim and claimed she consented to thе relations he with her. When asked his had advances, if the victim resisted his sexual “[Mjost testified, like know, girl, you they like don’t kind of act but, do, it, know, they you so—.” want then testimony, this held of thrеaten- together with denial lesser included ing the raised the Ramos, of sexual 420; see 22.011. The Section testi- reasoned mony the victim his sexual ad- that resisted “like most оther con- vances by jury strued to mean the constituting thereby his sexual advances Beech, Worth, appellant. Jack Fort W. consent the victim did not instead admissiоn the offense. Curry, Atty., Tim Mar- of a committed Dist. and C. Chris denial id.; Mallín, shall and Dist. At- See see Charles Asst. Worth, Huttash, tys., Fort Robert State’s in- he not entitled to an determining evi and we hold offеnse, the Dis- We sustain a two- struction on issue.
dence raises
First,
Prosecuting
Attorney’s
and the State
step analysis
required.
trict
proof Attorney’s
for review.
grounds
must be included within the
*3
necessary
charged;
to establish the offense
of the Court of
We reverse
second,
from
there must be
evidence
some
there to con-
Apрeals and remand
cause
any
issue wheth
source that raises
fact
remaining points
appellant’s
of error.
sider
guilty
er the defendant is
of
the lesser
State,
Royster
offense.
v.
622 S.W.2d
OVERSTREET, J.,
in the result.
concurs
reh’g)
(opinion
(Tex.Cr.App.1981).
446
CLINTON, J.,
affirm the
would
two-step analysis
The
first condition
v.
under Arcila
Court
clearly
prove aggravatеd
was
met. To
sexu
State,
(Tex.Cr.App.1993),
struction on the lesser included offense of Godsey.
sexual assault is controlled Con
sequently, opinion nec
essarily opinion. conflicts with that There appropriate this was an case for our 200(c)(3).
review. Rule comments, these join majority
With I
opinion. *4 Texas, Appellant,
The STATE of
Tracy Christine DUKE and Julie
Lynn Horstman, Appellees. 725-92,
Nos. Anderson, Dallas, for Duke.
Scott Dallas, Fitzmaurice, Jr., Edward J. Horstman.