Lead Opinion
delivéred the opinion of the Court,
In Collier v. State,
I. BACKGROUND
Appellant’s father died in 2001. Her father’s will established a family trust, and Appellant’s mother was named as the primary beneficiary. The trust was to terminate at her mother’s death, and the trust assets were to be distributed equally, per stirpes, to Appellant and her brother, Jackie. Jackie predeceased his mother, leaving three children. Appellant was appointed co-trustee in 2004. The balance of the trust at the time of appointment was $620,065. Appellant distributed the еntire balance of the trust to herself when her mother died, rather than distribute one-half of the assets to Jackie’s children, as required by the trust provisions. Jackie’s daughter, Dana White, had power of attorney to act on behalf of her two brothers. Appellant was charged with misapplication of fiduciary property owned by or held for the benefit of Whitе for the value of $200,000 or more. Tex. Penal Code § 32.45(b) & (c)(7). She was convicted by a jury, sentenced to eight years in prison, and ordered to pay a fine and restitution to White and her brothers. No lesser-included offense instructions were submitted to the jury.
The Eastland Court of Appeals concluded that the evidence was legally insufficient to prove that the misapplied assets owned by or held for Dana White’s benefit equaled $200,000 or more. Bowen v. State,
The State filed a petition for discretionary review, asking us to overrule Collier, reverse the judgment of the Eastland Court of Appeals, and remand the ease to reflect a conviction for the appropriate lesser-included offense.
II. ANALYSIS
A. Caselaw
In Collier, a plurality of this Court held that an appellate court does not have the authority to reform a judgment to reflect a conviction of a lesser-included offense if it was neither requested nor submitted in the jury charge. Collier,
A court of appeals may reform a judgment of conviction to reflect conviction of a lesser included offense only if (1) the court finds that the evidence is insufficient to support conviction of the charged offense but sufficient to support conviction of the lesser included offense and (2) either the jury was instructed on the lesser included offense (at the request of a party or by the trial court sua sponte) or one of the parties asked for but was denied such an instruction.
Collier,
Judge Keasler’s concurring opinion focused on the power of an appellate court to modify a trial court’s judgment under Rules of Appellate Procedure 43.2(b) and (c).
Nearly a decade later in Haynes, we determined that Judge Keasler’s concurring opinion in Collier set out the majority holding because his opinion contained the narrowest ground upon which five judges agreed.
B. “Overreaching” Strategy
The rationale behind the plurality opinion in Collier was that, in some cases, the State “overreaches” or “goes for broke” by not requesting an instruction on a lesser-included offense in order to make it more likely to obtain a conviction for the greater offense, even if the evidence only weakly supports the more severe conviction. Haynes,
On several occasions since Collier was decided, this Court has considered the implication of the State’s or the defendant’s strategic decision to not request a jury instruction on a lesser-included offense. The prosecution and the defense may both request the submission of a lesser-included offense instruction. The trial court may submit the instruction, but is not required to do so unless the defendant requests the instruction and sets out specific evidence that supports the lessеr offense and negates the greater offense. Flores v. State,
In holding that the trial court was not required to sua sponte provide a lesser-included instruction, we noted that regardless of which side goes for broke, the trial court need not rescue the party from its strategic choice. Tolbert v. State,
When she appealed her capital murder conviction, Tolbert argued that, because the State unsuccessfully requested the lesser-included offense instruction, the murder instruction was “applicable to the case,” and therefore the trial judge was required to submit the charge. See id. at 781-82. This Court compared lesser-included instructions to defensive issues, which frequently depend on trial strategy. Id. at 780-81.
Although the sufficiency of the capital murder conviction was not at issue, we pointed out that our holding in Haynes left open the question of whether an appellate court could reform a judgment if a lesser-included offense was requestеd by either party, but denied by the trial court. Id. at 782 n. 12. This alludes to one of the impracticalities of the overreaching rationale in Collier — the State is not “going for broke” if it requests a lesser-included offense, but the trial court does not submit the instruction.
To contrast, in Grey v. State,
We noted the high risk of error that is present for prosecutors under Arevalo and Collier. Id. at 650. In some cases, the prosecutor has to weigh the benefits of requesting a lesser-included offense instruction and risk reversal under Arevalo if the submission of the instruction was given in error. Id. Or, the State may face reversal under Collier if it does not request a lesser-included offense instruction and the evidence is legally insufficient to support the greater conviction. Id. Because of the illogical result of this combination, we overruled Arevalo and determined that the State is not bound by the second prong of the Royster-Rousseau test. Id. at 645. The case demonstrates yet another instance in which this Court forced itself to work around the Collier holding.
Subsequent decisions by this Court and lower appellate courts have followed Collier and ordered acquittals in a number of cases in which there was neither a request for a jury instruction on a lesser-included offense, nor was one given by the trial court, but the evidence was legally insufficient to support a conviction of the more serious offense. In many of these cases, there was no indication that either the State or the defendant exercised gamesmanship by nоt requesting a lesser-included offense instruction. Thus, it is questionable if the rationale behind Collier applies in practice.
For example, in Lawrence v. State,
Similarly, in Haynes, the appellant was convicted of family-violence assault, a felony.
III. APPLICATION
In this case, the defendant was charged with misapplication of fiduciary property. The State must prove beyond a reasonable doubt that the defendant intentionally, knowingly, or recklessly misapplied property that she held as fiduciary in a manner that involved a substantial risk of loss to the owner of the property or to the person for whose benefit the property was held. Tex. Penal Code § 32.45. The State met its burden of proof and presented sufficient evidеnce to support a conviction for misapplication of fiduciary property. However, the indictment listed only Dana White as the owner
The court of appeals, following Collier, reversed the trial court’s judgment and acquitted Appellant. While compatible with our mandate in Collier, this result is unjust. Acquittal is improper because, although the State failed to prove thе value of the property misapplied, which is an aggravating element of the offense, the State proved the essential elements of the offense of misapplication of fiduciary property beyond a reasonable doubt. The fact finder’s determination of guilt should not be usurped in the punishment phase if the evidence is legally sufficient to suрport a conviction. There is no indication that either party “overreached” here. The failure to request the second-degree felony was not a result of gamesmanship by the State or Appellant, but rather a mistake as to the applicable law.
The rationale of Collier is unworkable here, as it has been in many other instances since the decision came down. Because of the impracticalities created by the case, we now overrule Collier.
Here, the State has met its burden by proving the essential elements of the offense of misapplication of fiduciary property beyond a reasonable doubt, but the amount of property shown to have been misapplied, an aggravating element of the offense, was legally insufficient to support a first-degree felony conviction. The value of the property misapplied was approximately $103,344, which supports a felony conviction in the second degree.
IY. CONCLUSION
We overrule Collier and its progeny. The “overreaching” rationale behind the plurality in Collier does not take into account the trial strategy of both parties, it is unworkable in practice, and the decision applies only to jury trials, making it difficult to apply fairly across all cases.
The conviction stands, and wе reverse the judgment of the Eastland Court of Appeals. We remand to the trial court to reform the conviction to reflect the felony of misapplication of fiduciary property in the second degree and to conduct a new punishment hearing.
Notes
. See, e.g., Miles v. State,
. See, e.g., Grey v. State,
. See, e.g., Tolbert v. State,
. The court of appeals may:
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(b) modify the trial court’s judgment and affirm it as modified;
(c) reverse the triаl court’s judgment in whole or in part and render the judgment that the trial court should have rendered....
Tex.R.App. P. 43.2.
. The trial court is not required to sua sponte instruct the jury on potential lesser-included offenses, defensive issues or evidentiary issues because these “frequently depend upon trial strategy and tactics.” Delgado,
. The Royster-Rousseau test is used to determine if a trial judge should submit to the jury a lesser-included offense to the jury. See Arevalo v. State,
1) The lesser-included offense must be included within the proof necessary to establish the offense charged.
2) There must me some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense.
Id.
. See Grey,
. Tex. Penal Code § 32.45(c)(6):
"An offense under this section is a felony in the second degree if the value of the property misapplied is $100,000 or more but less than $200,000.”
. See Ddc & Schmolesky, Texas Practice: Criminal Practice and Procedure § 56:214 ("Where trial was to the court without a jury, there are apparently no similar qualifications on the courts of appеals power to reform.”).
Dissenting Opinion
filed a dissenting opinion in which KEASLER and HERVEY, JJ., joined.
In Haynes v. State,
Twice in its opinion in this cause, the court of appeals took pains to point out that the jury charge contained no lesser-includеd-offense instruction authorizing the jury to convict the appellant for misapplication of fiduciary property as a second-degree felony.
At least four times in recent memory, the State has urged us to overrule Collier.
I would honor stare decisis and affirm the judgment of the court of aрpeals. Because the Court does not, I respectfully dissent.
.
. Id. at 187 (citing Collier v. State,
. Id. at 186 n. 4. See Tex.R.App. P. 43.2(c) (“Types of Judgment The court of appeals may ... reverse the trial court’s judgment in whole or in part and render the judgment that the trial court should have rendered.”).
. Collier, supra, at 784 (Keasler, J., concurring).
. Id.
. Id.
. Id. at 785.
. Haynes, supra, at 187.
. Bowen v. State,
. Besides this case and Haynes, the State has also urged us to overrule Collier in Shipp v. State,
. See Haynes, supra, at 189 n. 14 (pointing out that "the rule applied in this case should be changed through the legislative or rule-making process rather than through judicial activism").
. Id. at 187.