James Dwayne Hoisager v. State

ACCEPTED
03-13-00328-CR
6333620
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/3/2015 3:29:18 PM
JEFFREY D. KYLE
CLERK
No. 03-13-00328-CR
IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT
FILED IN
3rd COURT OF APPEALS
OF TEXAS, AT AUSTIN AUSTIN, TEXAS
8/3/2015 3:29:18 PM
James Dwayne Hoisager, Appellant JEFFREY D. KYLE
Clerk
v.
The State of Texas, Appellee
On Appeal from the 424th District Court of Burnet County, Texas
Cause No. 39,332, The Honorable Daniel H. Mills, Judge Presiding
Appellant’s Motion for Rehearing
TO THE HONORABLE THIRD COURT OF APPEALS:
COMES NOW James Dwayne Hoisager, Appellant, and, by and through David
K. Chapman, his attorney of record, respectfully files this Motion for Rehearing, and
in support of the Motion would show the Court that rehearing should be granted,
Grounds for Rehearing
I.
By refusing to consider Appellant’s Supplemental Brief and sustain its
contentions regarding double jeopardy, the Court placed itself in direct conflict with
the Court’s opinion in Girdy v. State, 213 S.W.3d 315 (Tex. Crim. App. 2006), aff’g
175 S.W.3d 877 (Tex. App. – Amarillo 2005).
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II.
The Court’s reliance on Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App.
2001) was misplaced because that case dealt with sufficiency of the evidence and
Appellant’s case deals with the failure to provide Appellant with notice of what was
in fact an amendment to the indictment.
Background
Appellant was charged in a two-count indictment with the aggravated
kidnapping and aggravated assault of his ex-wife. A jury found him guilty of both
charges, made an affirmative finding of a deadly weapon as to both, and assessed his
punishment at 10 years imprisonment on each count. The court ordered that the
sentences run concurrently.
On July 17, 2015, this Court affirmed Appellant’s conviction in an unpublished
memorandum opinion. Hoisager v. State, No. 03-13-00328-CR, 2015, Tex. App.
LEXIS 7402 (Tex. App. - Austin July 17, 2015) (mem. op., not designated for
publication). This motion for rehearing is timely filed if presented or efiled on or
before Monday, August 3, 2015.
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I.
Failure to Consider Supplemental Brief
A.
On November 22, 2013, Appellant filed a supplemental brief and a motion for
leave to file that brief. This Court denied Appellant’s motion for leave to file on
December 2, 2013. Appellant was convicted of aggravated kidnapping and
aggravated assault arising from the same incident. In his supplemental brief Appellant
argued that his conviction for aggravated assault was, in this case, a lesser included
offense of the conviction for aggravated kidnapping and that double jeopardy barred
the affirmance of his conviction for both. He relied on Girdy v. State, 213 S.W.3d
315, 316-17 (Tex. Crim. App. 2006), aff’g 175 S.W.3d 877 (Tex. App. - Amarillo
2005). Appellant therefore urged that the Court order that a judgment of acquittal be
entered in the aggravated assault case because it was a lesser included offense of
aggravated kidnapping. Supp. Br. of Appellant at 2-8.
B.
A double jeopardy claim "may be raised for the first time on appeal or even for
the first time on collateral attack when the undisputed facts show the double jeopardy
violation is clearly apparent on the face of the record and when enforcement of usual
rules of procedural default serves no legitimate state interests." Gonzales v. State, 8
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S.W.3d 640, 643 (Tex. Crim. App. 2000). Accord, Langs v. State, 183 S.W.3d 680,
687 (Tex. Crim. App. 2006).
C.
A double jeopardy claim is apparent on the face of the trial record if resolution
of the claim does not require further proceedings for the purpose of introducing
additional evidence in support of the double-jeopardy claim. Ex Parte Denton, 399
S.W.3d 540, 544 (Tex. Crim. App. 2013). The critical inquiry is whether the record
before the reviewing court clearly reflects a double jeopardy violation. Long v. State,
130 S.W.3d 419, 424 (Tex. App. – Houston [14th Dist.] 2004, no pet.).
D.
The record before this Court is virtually identical to the one in Girdy. In both
cases the offenses alleged abduction without consent with intent to prevent the
complainant’s liberation. Girdy, 213 S.W.3d at 316; Hoisager, 2015 Tex. App.
LEXIS, 7402 at *2-3. In that case, as here, there was “an unbroken sequence” of
events in which Girdy brandished a knife, threatened the complainant with it (and in
Girdy, others), forced the complainant into the car with him, and abducted her. Girdy,
213 S.W.3d at 316; Hoisager, 2015 Tex. App. LEXIS, 7402 at *1-2.
E.
Because aggravated assault is a lesser included offense of aggravated
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kidnapping, it should be the offense to be vacated as a result of the double jeopardy
violation, as was done in Girdy, 213 S.W.3d at 316-17, 319, aff’g Girdy, 175 S.W.3d
at 882. The same should be done in Appellant’s case.
F.
It is left to the sound discretion of the Courts of Appeals to grant or deny a
party’s request to file a supplemental brief. Tex. R. App. P. 38.7; State v. Krizan-
Wilson, 321 S.W.3d 619, 623 n.1 (Tex. App. - Houston [14th Dist.] 2010), aff’d, 354
S.W.3d 808 (2011). However, this discretion is not so great as to be beyond question,
especially when the issue is one of double jeopardy. Gonzales, 8 S.W.3d at 643.
G.
These recent specific authorities find a foundation in earlier cases. In G.A.O.
v. State, 854 S.W.2d 710, 713-15 (Tex. App. – San Antonio 1993, no writ), the
juvenile did not raise a double jeopardy issue, but the Court of Appeals perceived
one, raised it on its own motion, and found that the juvenile’s adjudication should be
reversed on that ground. Cf. McDonald v. Edwards, 115 S.W.2d 762, 766 (Tex. Civ.
App. – Beaumont 1938), aff’d, 137 Tex. 423, 153 S.W.2d 567 (1941)(where
supplemental brief presents claims of fundamental error, issues must be reviewed).
H.
Under these special circumstances involving a clear double jeopardy violation,
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a Court of Appeals’ failure to consider such a supplemental brief should be treated
as beyond the normal freedom granted by Rule 38.7. The Court should grant
rehearing and hold that it abused its discretion by refusing to file and consider the
double jeopardy issue raised in Appellant’s supplemental brief. Upon doing so, it
should vacate Appellant’s conviction for aggravated assault and render a judgment
of not guilty. Tex. R. App. P. 43.2(c).
II.
Misapplication of Gollihar v. State
A.
Appellant argued in his brief that he was deprived of the notice required by
Article 1, Section 10 of the Texas Constitution and Article 28.10 of the Texas Code
of Criminal Procedure. Br. of Appellant at 7-18. His specific complaint was that the
trial court allowed Appellee to alter the indictment in a substantive way by removing
language fixing the location of the offense. He contended that this deletion was
reversible error because it expanded the area in which the aggravated kidnapping
could be committed. Id. at 5, 12-18. He made no complaint about the sufficiency of
the evidence. The Court’s response was to hold that the language omitted was not
substantive, but only surplusage, and thus permissible. Hoisager, Tex. App. LEXIS
7402 at *4-8.
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B.
In affirming Appellant’s conviction, the Court relied on Gollihar v. State, 46
S.W.3d 243, 256-57 (Tex. Crim. App. 2001) as authority for rejecting Appellant’s
claims. In Gollihar, the Court overruled “surplusage” law as it related to issues of
sufficiency of the evidence, “and, in particular, what constituted a hypothetically
correct jury charge.” Hall v. State, 62 S.W.3d 918, 920 (Tex. App. - Dallas 2001, pet.
ref’d).
C.
Appellant contends this Court erred by extending the holding of Gollihar to
cases involving notice rather than sufficiency and surplusage. This Court should grant
rehearing to join the other Courts of Appeals which have come to this conclusion.
Hall, 62 S.W.3d at 920; Moore v. State, 54 S.W.3d 529, 547 (Tex. App. – Fort Worth
2001, pet. ref’d).
D.
The Court held that the language that was removed from the indictment was not
an amendment for purposes of Article 28.10 because it was not legally essential to the
offense of aggravated kidnapping. Hoisager, Tex. App. LEXIS at *6-9. Therefore, the
Court held, Appellant’s request for additional time to prepare for the change in the
indictment was unjustified. Hoisager, 2015 Tex. App. LEXIS 7402 at *6-9.
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E.
Appellant contends that, regardless of the overruling of the Burrell1 rule in
Gollihar, 46 S.W.3d at 256-57, the phrase “to her home” is legally essential to the
offense of kidnapping - and hence aggravated kidnapping - for purposes of Article
28.10, especially in the present case. This is because it is necessary to provide notice,
not to measure the sufficiency of the evidence. Hall, 62 S.W.3d at 920; Moore, 54
S.W.3d at 547.
F.
Also, restraint is an element of the offense of aggravate kidnapping. Prudholm
v. State, 330 S.W.3d 590, 599 (Tex. Crim. App. 2011). In this case the original
indictment alleged that it took place in the complainant’s home where Appellant
restrained the complainant. The amendment to the indictment omitted this latter
limitation, allowing Appellee to prove that the facts of this offense took place well
outside the complainant’s home. Sufficiency of the evidence was not affected, but
notice was.
G.
This was a substantive change because the offense is aggravated kidnapping,
which, unlike most offenses, is based on location (secretion), part of the mens rea of
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Burrell v. State, 526 S.W.2d 799 (Tex. Crim. App. 1975).
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kidnapping. Mason v. State, 905 S.W.2d 570, 575 (Tex. Crim. App. 1995), cert.
denied, 516 U.S. 1051 (1996). That is, kidnapping is circumscribed by a place or
places definition, unlike most other offenses.
H.
For all of the foregoing reasons, in an aggravated kidnapping case the location
of the secretion is not surplusage for purposes of notice under Article 28.10, and the
Court erred by holding to the contrary. Accordingly, the Court erred when it held that
the trial court did not error when he allowed the Appellee to amend the indictment
and refused to allow Appellant an additional ten days to prepare for trial after the
amendment was made.
Conclusion and Prayer
PREMISES CONSIDERED, Appellant prays that the Court grant his motion
for rehearing, reverse and vacate the trial court’s judgment of conviction for
aggravated assault and render a judgment of acquittal, and reverse the judgment of
conviction for aggravated kidnapping and order that the case be remanded to the trial
court for a new trial on that count of the indictment.
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Respectfully submitted,
/s/ David K. Chapman
David K. Chapman
Attorney at Law
Post Office Box 427
Karnes City, Texas 78118
heartregardless@gmail.com
(830)780-3472 Tel.
(210) 428-6479 Fax
State Bar Number 04121500
Attorney for James Dwayne Hoisager
CERTIFICATE OF COMPLIANCE AND SERVICE
On this 2nd day of August, 2015, I filed a copy of this document through
EFILETEXAS.GOV, using an approved service provider, File & ServeXpress, which
provided a copy to the attorney for Appellee, Hon. Gary W. Bunyard, Assistant
District Attorney, P.O. Box 725, Llano, Texas 78643. I certify that this document was
prepared on WordPerfect™ 8.1, contains a total of 1818 words, and otherwise
complies with the Texas Rules of Appellate Procedure, as amended effective January
1, 2014.
/s/ David K. Chapman
David K. Chapman
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