*3 intermediate offense estab- lesser-ineluded MORRISS, C.J., Before CARTER evidence, the same lished Hudson was MOSELEY, JJ.
not entitled to an instruction on man-
slaughter. See id. We thus affirm Hud-
OPINION
son’s conviction
sentence.
Opinion by
Justice MORRISS.
Chief
Cynthia Ann Hudson stands convicted
murder,
the
charging capital
son,
of her
adopted
murder
alleged
intentionally
State
that Hudson
her con
previously
Samuel. We
reversed
Samuel’s death in
course of
our
holdings
viction based on
that
him.1
kidnapping
See Tex. Penal Code
raising a
on
jury question
was evidence
(West
§ 19.03
20.03
Supp.2013),
Ann.
recklessly'
causing
whether she acted
(West
Texas Court Criminal
Samuel’s death and that
the trial court
decision,
original
Appeals,
reversing our
harmfully
failing
thus
erred
to instruct
we
whether
ruled that
failed to consider
on the lesser-ineluded offense
sup
relied on
Hudson to
evidence
manslaughter. Hudson v.
366
request
the trial court
port her
have
878,
(Tex.App.-Texarkana
S.W.3d
891-92
give
jury manslaughter
(Tex.Crim.
2012), rev’d,
The Texas
Criminal
Court
charged capital
ruled
murder.2
reversed and remanded. That court
lesser than
origi-
lesser-ineluded
opinion
1. We
is for a
refer the reader
our
offense,
(2)
of the
there is
nal
for a detailed recitation of the
submission
that,
analysis
appel-
guilty,
facts of the
our
of the
if
is
case
some evidence
the defendant
878,
Hudson,
points.
guilty only
late
366 S.W.3d
lesser offense.
he or she
of the
rev’d,
185,
188
Guzman
(citing Hayward v.
158
Crim.App.2006)
Camp
required
(Tex.Crim.App.2005);
being
lesser-
Before
to submit a
S.W.3d
(Tex.Crim.
(1)
charge, the court
bell v.
ineluded
must conclude:
established one of these offenses
suggested for our
have
high
than
possible offenses
circumstance would
three
and whether such a
murder,
charged capital
being
from
entitled
prevented
have
her
manslaughter
manslaughter.
but
greater
are
than
to the submission of
mental
culpable
with a
are consistent
(footnotes
at 525
to the
respect
state of recklessness with
omitted).
(1)
in-
based on
victim’s death:
any
possible
If
of the
inter
one
(2)
injury,
bodily
tent
to cause serious
mediate
lesser-included
offenses would
underlying felo-
felony murder
*4
the
by
have been established
evidence
(3) felony murder
ny
kidnapping,
of
and
in
to
points
argument
Hudson
in her
favor
underlying
injury to a
felony
the
of
instruction,
manslaughter
a
she would
of
complete analysis
.... A
of wheth-
child
disqualified
requested
be
from the
instruct
should
manslaughter
er a
instruction
ion.3 We consider the last listed offense
therefore,
would,
have
given
have been
first,
murder with
felony
the offense of
the
whether
the
included consideration of
child,4
felony
a
appellant
underlying
injury
relied on
of
to
to
evidence
recklessness,
Further,
es
was
App.2004)).
the evidence must
While there
evidence of
and
valid
might
offense as a
tablish the lesser-included
Thomas
have been entitled to an in
charged
alternative to the
offense.
rational
manslaughter,
struction on
there was no evi
State,
103,
therefore,
29
113
Wesbrookv.
S.W.3d
negligence;
he was
dence of
not
Crim.App.2000). This
the evidence
means
entitled to an
of
instruction
offense
rationally
must allow a
to
conclude
criminally negligent
Specifically,
homicide.
guilty
appellant
only
lesser offense.
was
of the
accident;
Thomas claimed
defense and
self
Id. at 114.
of the
his evidence showed an awareness
risk
injury
involving
of
or death
the use or exhibi
stated,
Appeals
3.The Texas Court of Criminal
gun
present.
tion of
the circumstances
jury instruc
defendant is not entitled to a
''[A]
Thus,
Id.
there was no error
the trial
if the evi
tion on
lesser-included offense
requested
denial of
court’s
Thomas’
lesser-
relying
which the
raises
dence on
defendant is
offense
In the Flores
instruction.
offense that
between’ the re
another
‘lies
murder,
capital
and Flores re
charged
quested
Flores v.
and
offenses.”
quested a lesser-included-offense instruction
State,
432,
(Tex.Crim.App.
439
deadly conduct.
Court of Crimi
The Texas
2008) (quoting Jackson v.
that,
pointed
Appeals
nal
while there
out
Jackson,
469,
1999)). In
(Tex.Crim.App.
475
death,
some evidence Flores had not caused
charged
the defendant was
and convicted
there was no evidence he did not intend to
murder,
requested
and
a lesser
issue
any
cause death.
the absence of
evidence
only
aggravated
issue was
assault. The
recklessness,
was not entitled
an
Flores
recklessly,
intentionally
he acted
or
whether
"By
deadly
instruction on
conduct.
marshal
and there was no evidence he did not commit
ing
might
evidence that
have
he
not
caused
only
dispute in the
homicide. The
factual
deaths,
disputing
without
the evidence
have
case relevant to whether Jackson should
intentionally, appellant might
that he acted
received a lesser-included-offense instruction
raised,
to,
an
have
been entitled
instruc
whether he caused the death intentional
tion on an offense that lies between
re
recklessly.
ly
pointed
out that
or
offenses-namely,
quested
charged
at
recklessly causing
manslaughter, "an
death is
Flores,
tempted murder.”
897 if re- requested he could leave the room he to raise the of Samuel lesser-included they siblings two testified heard fense pented, establishes lesser-included offense in the so- say repented, he greater Samuel is than the one requested, when she “suicide note” Hudson left called then is the defendant not entitled to his days tried to kill in the supposedly herself submission.”11 Hudson v. death, wrote that she after Samuel’s she (Tex.Crim.App. 525 on peed carpet Samuel—he “[w]hipped this proposition, For the court cites “[w]hipped at him again 2:30 and again” Flores v. 439 pieces about 4:00.”10 Hudson claims these turn, Crim.App.2008). In case Flores show that her of evidence intent relies on Jackson discipline her son. Hudson punish (Tex.Crim.App.1999), and Thomas v. that this that she argues evidence shows Af (Tex.Crim.App.1985). reckless in Samuel’s causing was thus examination, ter I careful have concluded death. simply support long- these cases rule that a established lesser-included of same
That evidence would also establish fense not be should submitted if there felony underlying murder with the to support charge. no evidence the lesser hoped to a child. injury Hudson that, that evi- jury would find based on The eldest these cases is Thomas. dence, just she was reckless in her actions Thomas was indicted for murder however, If, Samuel’s death. causing but of the was convicted lesser offense reckless, were to have been found Thomas, voluntary manslaughter. jury finding have estab- that same S.W.2d at 847. Thomas had felony injury lished murder based on to a jury instruction on the lesser child, evidence. given state of the homicide, criminally-negligent which Therefore, Hudson was not entitled to an give. reviewing trial court refused to Id. In manslaughter. decision, this the Texas Court of Criminal no thus no Since error and *7 Appeals recounted the evidence and point- a harm since our need for ed out that the difference between involun- opinion other original addressed Hudson’s tary manslaughter and criminally-negli- error, we court’s points affirm the trial gent culpable homicide is the mental state and sentence. judgment establish each necessary to offense—reck- negli- the former and lessness for criminal Concurring Opinion by Justice gence latter. Id. at After for the 849. CARTER. facts, the reviewing the court held CARTER, Justice, concurring. JACK negligence; no evidence of con- was to a opinion sequently, Court of Thomas was not entitled Appeals’ Criminal upon “when on that id. at jury theory. states that the evidence relied submission not, fact, deny beating in appeal, does not even raised its 10. Hudson on it was State trial, Samuel, beating At Samuel. she denied discretionary Texas petition review. The any beatings, having involvement Appeals granted Court of Criminal review depriving Arguing Samuel for a of food. its this issue on own motion and addressed however, manslaughter charge, must live she finding it was "similar” to the this issue after having admitted her involvement ground argued State’s second of review which beatings, as contained in note.” the "suicide the trial error was harmless. at n. 394 S.W.3d 16. This issue was not this case 11. raised when originally Court. In submitted to this that Jackson there was no evidence sup- simply employs holding This than death. bodily injury less a defendant is a serious rule that the familiar ports theory charge on a jury to a not entitled case, which Flores Finally, there is the Thomas does the evidence. raised not to that statement contains a similar the evidence raised because not hold that stated, “A de The Flores court Hudson. voluntary manslaughter the offense jury instruction entitled to a fendant is not conduct), (reckless not enti- Thomas was if the evidence on a lesser-included negli- criminal tled to the submission raises relying is which the defendant on Rather, entitled to the he was not gence. the re that ‘lies between’ another offense because submission negligence criminal Flores, offenses.” quested negligence. evidence of there was no Jackson, 992 (citing at 439 murder case was a Jackson 474-75). Flores, the defen at jury instruction which Jackson and re with murder dant assault aggravated on the lesser on the lesser offense jury charge quested bodily injury. causing serious by recklessly Id. at 438-39. deadly conduct. Jackson, In that at 474-75. reveals opinion the Flores Examination of no doubt that Jackson there was lesser actually found the the court victim and no death of the caused the no evi not warranted because charge was a lesser the victim suffered evidence that charge. raised the Court dence then, issue, bodily injury; the form of the basis for the Appeals stated Criminal inten- caused the death whether Jackson as denial of the lesser-included In find- recklessly. Id. at 475. tionally or appellant presented has follows: “Because in the trial court’s refusal ing no error acts were reckless no evidence that his assault, instruct intentional, no evi there is rather than murder defendant noted that “[a] the court deadly Id. at raising conduct.” dence to an instruction not entitled not that the Flores case does We know aggravated as- included offense of is not enti- actually mean that defendant him, at evidence showed sault when the charge simply be- to a lesser-included tled least, of a homicide.” Id. guilty to be presented has been cause evidence (citations omitted). continued, The court a lesser-included the defendant committed which a was no evidence from “Since there that “lies between” appellant conclude that rational could charge. Id. at 439 and the indicted the death of the other than cause did *8 omitted). (citations very argument This victim, only lesser included offense the by the of Criminal rejected has been Court by the evidence of reck- that was raised decided, the Appeals. After Flores So, manslaughter.” Id. once lessness was the Appeals addressed of Criminal Court the issue based on the court decided again, issue lesser-included-offense nonexistence of evidence the existence or 63, 67 again Sweed not the requested charge, support the There, the defen- (Tex.Crim.App.2011). higher-degree offense was fact that some dant, aggravated who words, In other raised the evidence. robbery, requested an instruction that because the does not hold Jackson theft, the trial court which manslaugh- the offense of evidence raised trial argued The State (recklessness), denied. not enti- Jackson was ter refusing the lesser- court did not err aggravated as- tled to the submission because Rather, included-offense instruction to the he was not entitled sault. had com- that the defendant was evidence assault submission because aggravated assault, aggravated requested mitted the offense of offense that requested which, according to the “lies be- offense cannot be submitted jury? to the requested tween” the theft offense and the Surely not. charged aggravated robbery offense. Id. Perhaps the solution is that in this rejecting argument, this the court noted the defendant did not request the lesser the State misconstrued Flores and offense that was “between the then clarified that Flores does not hold and, and the one” there- that a defendant should be “denied less- fore, should not be jump allowed to se- simply er-included offense instruction be- quence. Because she did not request an cause there possible was a ‘lies between’ instruction on murder based on intent to requested by offense instruction the State cause bodily injury, serious felony murder
that was Id.12 denied.” with the underlying offense of kidnapping, Thomas, Jackson, and Flores deci- or felony murder with the underlying felo- appear actually sions hold nothing new. ny child, of injury to a she should not be Instead, they appear support long- allowed to submit the lower sanctioned standing general rule that if the evidence offense manslaughter. support does not for a lesser Clearly the Texas Court of Ap- Criminal offense, then the lesser offense should not peals thought important it to address the jury. words, be submitted to the In other topic of submission of lesser-included of- supported by must be fenses in this case. I suggest presented evidence at trial. the lawyers and courts of this state need a What if the evidence supports submitted more detailed discussion and explanation offenses, several lesser-included which is given than that in Hudson. not an uncommon event? Does the rule I concur the result. require announced that only one charge may lesser-included ever be
submitted? really Does Hudson hold that
when the evidence supports a lesser-in-
cluded offense between the charged of-
fense and the requested offense well as as Sweed, majority opinion
12. In
did not
now directed in
Sweed
directly address whether the intermediate of-
would not have been entitled to a submission
fense,
assault,
was a lesser-includ-
of the lower offense of theft. Neither Flores
aggravated robbery
ed offense of
if it
compel
nor Sweed
that conclusion. To the
However,
supported by the evidence.
contrary,
finding
the court reversed Sweed
Johnson,
concurring opinion
Judge
joined
judge
refusing
that the trial
erred in
to submit
Cochran,
by Judge
found it was a lesser-
the lesser-included offense of theft.
supported by
included offense
the evidence in
and,
the case
since it was
See,
e.g.,
Louis v.