COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-09-00347-CR

JEROMY GADDY APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

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EN BANC OPINION ON REMAND

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This appeal is 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 Jeromy 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 because 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. State, 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 

requested 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 effect 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 court of 

criminal appeals held that if an appellate court concludes that the evidence 

supporting a conviction is legally insufficient, the court is not necessarily limited 

to ordering an acquittal 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 in 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 evidence 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). However, 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 lesserincluded offense.” Id. After Britain, 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 two questions: 1) in 

the course of convicting the appellant of the greater offense, must 

the jury have necessarily found every element necessary to convict 

the appellant for the lesser-included offense; and 2) conducting an 

evidentiary sufficiency analysis as 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 the 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-0669-13, 2014 WL 1302039, at *7 (Tex. Crim. App. 

Apr. 2, 2014) (footnote omitted). The court of criminal appeals warned, however,
4

that we may not consider the conduct of the parties at trial or whether an 

instruction on the lesser-included offense was requested in deciding the propriety 

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 available 

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 not challenging whether Gaddy’s two prior convictions for 

DWI, which occurred in New Mexico, were sufficiently proven to allow 

enhancement of Gaddy’s DWI conviction from a misdemeanor 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 offenseenhancement 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.

 

2Gaddy does argue that our prior judgment 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 vacated
5

Therefore, 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 elements of felony DWI in this case are the same as the offense

elements of misdemeanor DWI, save and except for the offense-enhancement 

paragraphs. See 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 necessary 

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 later 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