## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 09 - 00347 - CR
JEROMY GADDY APPELLANT V. THE STATE OF TEXAS STATE

---------- FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

---------- 

### EN BANC OPINION ON REMAND

---------- This appeal i s before us en banc on remand from the court of criminal appeals. 1 Gaddy v. State , No. PD
- 1118
- 11, 2012 WL 4448757, at *1 (Tex. Crim. App. Sept. 26, 2012) (not designated for publication) ; see Tex. R. App. P. 78.1(f). In our initial review of appellant J erom y Gaddy’s conviction for felony driving

1 The appeal on remand originally was submitted to a panel of this court on January 29, 2013. But be cause we determined that en banc consideration was necessary, we resubmitted the appeal to the court for en banc review on November 12, 2013. See Tex. R. App. P. 41.2(c); see also Tex. R. App. P. 49.7.2

while intoxicated (DWI), we concluded that the evidence was insufficient to show that Gaddy was twice previously convicted of DWI in New Mexico as required to sustain his conviction for felony DWI. Gaddy v. Stat e , No. 02
- 09
- 00347
- CR, 2011 WL 1901972, at *5

– 12 (Tex. App.

— Fort Worth May 19, 2011) (mem. op. on PDR, not designated for publication), vacated , 2012 WL 4448757. Because an instruction on the lesser
- included offense of misdemeanor DWI was neither requeste d nor given, we reversed the trial court’s judgment and rendered a judgment of acquittal. Id. at *12

– 13 ; see also Tex. R. App. P. 43.2(c) , 43.3 . The court of criminal appeals vacated our judgment and remanded the case to this court “to consider the effec t of Bowen , if any, on [our] reasoning and analysis in this case.” Gaddy

, 2012 WL 4448757, at *1. In Bowen , which was rendered after our decision in Gaddy , the cour t of criminal appeals held that if an appellate court concludes that the evidence supporti ng a conviction is legally insufficient, the court is not necessarily limited to ordering an acqui ttal but may instead remand to the trial court for modification of the judgment to reflect a conviction of a lesser
- included offense

— even if the jury was not charged on the lesser
- included offense

— and to conduct a new punishment hearing

. Bowen v. State , 374 S.W.3d 427, 431

– 32 (Tex. Crim. App. 2012) ; see also Tex. R. App. P. 43.2( d )

. In short, “[t]he fact finder’s determination of guilt should not be usurped i n the punishment phase if the evidence is legally sufficient to support a conviction.” Bowen , 374 S.W.3d at 432.3

After Bowen , the court of criminal appeals suggested that “if the State charged someone with felony DWI and presented legally sufficient evid ence of the DWI conduct but not of the enhancing prior conviction,” it would be “easy to strike the aggravating element and reform the judgment to reflect the crime without the enhancement.” Britain v. State , 412 S.W.3d 518, 521 (Tex. Crim. App. 2013). H owever, the court of criminal appeals cautioned that “an appellate court should not render a judgment of conviction for a lesser
- included offense unless there is proof beyond a reasonable doubt of all elements of the lesser
included offense.” Id. After B ritain , the court of criminal appeals further clarified when a court of appeals should reverse a judgment and remand for modification to reflect a conviction of a lesser
- included offense versus when a judgment should be reversed and an acquittal rendered : [A]fter a court of appeals has found the evidence insufficient to support an appellant’s conviction for a greater

- inclusive offense, in deciding whether to reform the judgment to reflect a conviction for a lesser
- included offense, that court must answer tw o questions: 1) in the course of convicting the appellant of the greater offense, must the jury have nec essarily found every element necessary to convict the appellant for the lesser
- included offense; and 2) conducting an evidentiary sufficiency analysis a s though the appellant had been convicted of the lesser
- included offense at trial, is there sufficient evidence to support a conviction for that offense? If the answer to either of these questions is no, the court of appeals is not authorized to reform th e judgment. But if the answers to both are yes, the court is authorized

— indeed required

— to avoid the “unjust” result of an outright acquittal by reforming the judgment to reflect a conviction for the lesser
- included offense. Thornton v. State , No . PD
- 066 9
- 13 , 2014 WL 1302039, at *7 (Tex. Crim. App. Apr. 2, 2014) (footnote omitted) . The court of cr iminal appeals warned, however,4

that we may not consider the conduct of the parties at trial or whether an instruction on the lesser
- included offen se was reques ted in decid ing the pr opriety of modification or rendition

. Id. at *5 ; see also 43B George E. Dix & John M. Schmolesky, Texas Practice Series: Criminal Practice & Procedure § 56.214 (3d ed. Supp. 2013

– 14 ) (“Generally, under Bowen , whether reformation is a vailable on appeal does not depend at all on whether a lesser[
- ]included offense instruction was given or sought.”). We are to focus solely on the evidence presented and the lesser
- included conviction sought. Thornton , 2014 WL 1302039, at *5

. With these precedents in mind, we now turn to the case at hand. On remand, the State is n ot challenging whether Gaddy ’s two prior convictio ns for DWI, which occurred in New Mexico , were su fficiently proven to allow enhance ment of Gaddy’s DWI conviction from a misde meanor to a felony under section 49.09(b)(2). See Tex. Penal Code Ann. § 49.09(b)(2) (West Supp. 2013). Indeed, the State “concedes that [Gaddy’s] conviction for felony DWI must be reversed ” because the evidence was insufficient to prove the offense
enha ncement convictions. Further, Gaddy does not challenge the sufficiency of the evidence to support the elements of the lesser
- included offense of misdemeanor DWI ; 2 thus, the second Thornton inquiry may be answered yes

.

2 Gaddy does argue that our prior ju dgment acquitting him of DWI operates as a double
- jeopardy bar to any subsequent conviction for misdemeanor DWI. Our previous judgment rendered a judgment of acquittal solely as to felony DWI. Gaddy , 2011 WL 1901972, at *13. Further, the court of criminal appeals vacated5

Theref ore, the only issue remaining on remand is the first Thornton question: whether, in the course of convicting Gaddy of felony DWI, the jury must have necessarily found every element necessary to convict Gaddy of misdemeanor DWI. This question must also be answered in the affirmative. The offense ele ments of felony DWI in this case are the same as the offense elements of misdemeanor DWI , save and except for the offense
- enhancement paragraphs. S ee id. § § 49.04, 49.09(b) (2) (West Supp. 2013) ; Britain , 412 S.W.3d at 521 . Therefore, the jury necessarily found Gaddy guilty of misdemeanor DWI in the course of convicting him of felony DWI. As such, we must reverse the trial court’s judgment and remand the case for necessar y further proceedings

— to modify its judgment to reflect a conviction for misdemeanor DWI and to conduct a punishment hearing attendant to the conviction for misdemeanor DWI. See Tex. R. App. P. 43.2(d), 43.3 (a) ; Thornton , 2014 WL 1302039, at *11 ; Bowen , 374 S.W.3d at 432 ; see also Tex. Penal Code Ann. § 12.22 (West 2011), § 49.04(b) (West Supp. 2013)

.

our prior judgment , which refutes Gaddy’s double

- jeopardy argument

. Cf. Fransaw v. Lynaugh , 810 F.2d 518, 523

– 25 (5th Cir.) (holding double jeopardy did not bar trial of defendant on charge that was previously dismissed under a plea bargain that was late r set aside), cert. denied , 483 U.S. 1008 (1987).6 /s/ Lee Gabriel LEE GABRIEL JUSTICE EN BANC DAUPHINOT, J., filed a dissenting opinion. PUBLISH DELIVERED: May 15, 2014