Girdy, Steven G. ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. PD-1773-05

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STEVEN G. GIRDY, Appellant

v.

THE STATE OF TEXAS

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ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE SEVENTH COURT OF APPEALS LUBBOCK COUNTY

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   Keller, P.J., filed a concurring opinion.

I am uncertain what the Court means when it discusses "notice" and "the universe of theoretically possible lesser-included offenses." ⁽¹⁾ My reading of the State's arguments is that the State is attempting to show that the two offenses contain different elements that would distinguish them under the test set forth in Blockburger v. United States. ⁽²⁾ In addition, I cannot agree with the Court's comments regarding the use of evidence at trial in determining the relationship between greater and lesser offenses for double jeopardy purposes. A lesser-included offense cannot be based upon a different instance of conduct than the instance of conduct upon which the State relies, and the evidence at trial is relevant to determining whether such is the case. ⁽³⁾ But once it is determined that the alleged offenses pertain to the same instance of conduct, whether they are related to each other in such a way as to be lesser and greater offenses for double jeopardy purposes is a question that does not depend in any form upon the evidence introduced at trial. ⁽⁴⁾ To hold otherwise is to resurrect the defunct and discredited "same evidence" test of Grady v. Corbin. ⁽⁵⁾ For this reason, I would not say, as the Court does, that double jeopardy analysis turns upon whether proving one offense necessarily proves another offense. ⁽⁶⁾ The inquiry, under Blockburger, is simply whether each charged offense requires proof of a fact the other does not. ⁽⁷⁾ As for the Court's manslaughter example, whether the evidence at a murder trial supports a manslaughter instruction depends on the second prong of the Rousseau test (whether some evidence supports the proposition that the defendant was guilty only of manslaughter), ⁽⁸⁾ which is an issue wholly unrelated to double jeopardy analysis.

I agree that the term "using deadly force" encompasses threatening imminent bodily injury and using a deadly weapon. Aggravated assault was therefore a lesser-included offense of aggravated kidnapping, as charged in this case. Therefore, though I do not join the Court's opinion, I concur in its judgment.

Date filed: November 1, 2006

Publish

1. See Court's op. at 5-6.

2. 284 U.S. 299 (1932).

3. See Campbell v. State, 149 S.W.3d 149 (Tex. Crim. App. 2004)

4. Ortega v. State, 171 S.W.3d 895, 898 (Tex. Crim. App. 2005).

5. Id. (discussing Grady, 495 U.S. 508 (1990)).

6. See Court's op. at 6.

7. Ortega, 171 S.W.3d at 898-900.

8. See Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993).