What do you do if, on remand, your judgment is reformed to a lesser-included that has the same range of punishment? We tried an attempted murder and aggravated assault w/ DW in July of '07. There were two indictments, one for the girlfriend he threatened with the knife (the agg. assault) and one for the good samaritan who tried to help her and ended up with multiple stab wounds in his neck (the att. murder). Jury was charged on att. murder as to the samaritan and, as a lesser included, on agg. assault. Now, after Rothgery, it looks like the defendant's custodial statement should have been suppressed, which in turn knocks out most of the State's evidence on the defendant's subjective intent to kill, so att. murder probably won't stand. However, since the jury was charged with the lesser-included I think the judgment can be reformed to reflect a conviction for that; ordinarily it would then be remanded for a new punishment hearing. But, since the range of punishment is the same (actually enhanced to F1; jury gave him life), is that necessary?

Assuming the appellate court reforms the judgment to a "lesser" offense, unless the court indicates otherwise, you will have to have a new punishment hearing. After all, he is found guilty of a "lesser" offense.

I made the mistake of trying an attempted murder once, and got burned a little. I will never do that again! Agg Aslt is so much easier to deal with. Victims may not be happy, but they usually understand that you can prove up an intent to kill, anyway, and, as long as the facts are in front of the jury, the punishment won't change.