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Click here for the full text of this decision FACTS:Appellant was charged in a single indictment with aggravated kidnapping, Texas Penal Code �20.04, and aggravated assault, Texas Penal Code, �22.02(a)(2). Both charged offenses arose from the same event. The aggravated-kidnapping count alleged that appellant “did intentionally abduct [complainant] without the consent of the said [complainant], with intent to prevent the liberation of the said [complainant], by using and threatening to use deadly force on the said [complainant], and with intent to inflict bodily injury on her.” The aggravated-assault count alleged that appellant “did then and there intentionally and knowingly threaten [complainant] with imminent bodily injury and did then and there use a deadly weapon, to-wit: a knife, that in the manner of its use and intended use was capable of causing death and serious bodily injury.” A jury convicted appellant of both offenses and sentenced him to 50 years in prison for the kidnapping and 10 years in prison for the assault. On appeal, appellant asserted that his double-jeopardy rights under the Fifth Amendment of the U.S. Constitution were violated by his convictions for both aggravated kidnapping and aggravated assault because aggravated assault has been held to be a lesser-included offense of aggravated kidnapping and because there is no legislative intent to punish both offenses. The court of appeals noted that the events at issue occurred during an unbroken sequence in which appellant obtained a knife, threatened the complainant and others with it, directed all present not to leave, demanded car keys from the complainant and forced her into the car with the knife in his hand, drove the car to a lot, brandished the knife while removing her from the car, and held the knife against her. The court of appeals also noted that, while the state need not have proved an abduction in order to convict appellant of assault, in proving the abduction for purposes of kidnapping, the state had satisfied the elements for aggravated assault; thus “the very same evidence used to prove the kidnapping proved the assault.” The court of appeals held that, given the identity between the parties, time, manner and means involved, and the elements of the offense as alleged in the indictment, the aggravated assault was a lesser-included offense of the aggravated kidnapping. Without being directed to anything clearly indicating that the legislature intended to permit punishment for both of the offenses when one is a lesser-included offense of the other, the court of appeals concluded that convicting appellant of both crimes violated double jeopardy. It therefore vacated the conviction with the lesser punishment, aggravated assault. This Court of Criminal Appeals (CCA) refused appellant’s petition for discretionary review, but granted the state three grounds for review, all of which challenge the court of appeals’ reversal and judgment of acquittal on the aggravated-assault conviction. HOLDING:Affirmed. In this case, the CCA found that aggravated assault was a lesser-included offense of aggravated kidnapping because it was “established by proof of the same or less than all the facts required to establish the commission of” the aggravated kidnapping. If as here, the prosecution, in proving the elements of one charged offense, also necessarily proves another charged offense, then that other offense is a lesser-included offense, the CCA stated. In such a case, the CCA stated, there must be clear legislative intent to punish the offenses separately. If no such intent is shown, multiple punishments for the criminal act that is the subject of the prosecution is barred, the court declared. No such intent was shown in this case, the court stated. OPINION:Johnson, J., delivered the opinion of the court in which Meyers, Price, Womack, Keasler, Hervey, Holcomb, and Cochran, J.J., joined. CONCURRENCE:Keller, P.J., filed a concurring opinion. “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. 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.”

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