*1 So, did not have to take the I that the trial court would hold erred his probation eligibility. to establish sustaining objection stand the state’s based on already by saying done so His father had personal knowledge, lack of but that never had been convicted of error was harmless fa- appellant’s felony.5 Appellant could have declined already ther had appellant’s established testify solely upon and relied the testi- eligibility community supervision. for successfully mony he had elicited his
father to the submission of the probation. issue judgment appeals of the court of affirmed.
JOHNSON, J., filed a concurring COCHRAN, opinion which PRICE and TOLBERT, Appellant, Vickie Lashun JJ., joined. JOHNSON, J., concurring filed a opinion COCHRAN, in which PRICE and The STATE of Texas.
JJ., joined. No. PD-0265-09. Court, I judgment concur of the correctly appellant’s notes that bur- Appeals Criminal of Texas. community supervision den on a motion for March prove was to that he never before felony been convicted of a and that appel-
lant’s testimony appel- father’s established eligibility
lant’s community supervision. go further and state that question of whether had ever community been on supervision is one that not, not, probably need be asked, asked. If it is the answer is admis- sible subject and not to exclusion as being
outside of personal knowledge; if the wit- ness knows enough testify as to lack of prior convictions, the witness knows
enough testify prior about community
supervision. notes, As the imposition regular community supervi-
sion counts as a conviction under our case law the purposes of a motion for com-
munity supervision, testimony thus about
prior any prior convictions includes com-
munity supervision. separate A question
is redundant subject to an
objection of “asked and answered.”
(Tex.Crim.
App.1979).
Trevino v.
Donald R. ap- pellant. Stride,
John A. Atty., Asst. Dist. Den- ton, Horn, Jeffrey L. Atty., Van Austin, for State.
OPINION J.,
HERVEY, opinion delivered the KELLER, P.J., the Court which MEYERS, WOMACK, KEASLER and COCHRAN, JJ., joined. presented
The issue in this case is whether required court was sponte instruct the jury on the lesser- appellant’s included offense of murder in capital-murder prosecution. We decide that the trial court was not to sua sponte provide instruction. Appellant capital with (murder during the course of a robbery). presented The State evidence that that mur supports finding victim, knew, whom appellant dered the course him. The during robbing support finding evidence could also did decide to rob the victim him, until after she which is not murdered capital murder under Texas Iba law. See (Tex.Cr. nez v. (a App.1986) killing by unrelated followed murder).1 taking property is not guilty appeals pellant 1. The court decided that there of murder because this finding ap- supports finding some evidence to evidence did a crime of afterthought robbery was parties had discussed though Even responded scenarios The trial court passion.” several during voir robbery murder and the evidence had “all the law and such *3 trial was that dire,2 theory at appellant’s that it should “refer in the case” and the acquit her of jury the your to Charge for the answers Court’s didn’t becausе “she offense capital-murder your delibera- continue questions and anything. guilty it” and she was do appellant jury tions.”3 The convicted at one of finger the pointed Appellant also murder, and, with the State capital the one who acquaintances as appellant’s appellant sought penalty, the death having stat- appellant And the victim. murdered to life. was sentenced the Court objection” had “no ed that she apparently appeal, appellant On direct on jury charging nothing” her “all or strate- rethought for the State’s in the face of even that the trial court should and claimed gy parties,” which included and “a lesser jury sponte have sua instructed denied. trial court Appel- of murder. lesser-included offense going The Court COURT]: [THE erred in claimed that “the trial court ascertaining wheth- lant go on the record submitting jury either before any objection to Court’s not er there is F07-00762, styled the began, guilt Cause innocence arguments [sic] Lashun of Texas versus Vickie State jury a from the requested by or when note Tolbert. deliberations, an instruction during their Honor, Your only thing, The offense of murder.” [STATE]: on the lesser included for is a lesser included asking we were totality Appellant further claimed that parties. required of the circumstances of this case will overrule COURT]: sponte [THE court to sua instruct says the de- request. What the State’s offense of mur- jury on the lesser-included fense? voir dired jury panel der because “the was objection. No testimony [DEFENSE]: included on the lesser by two of the witnesses presented deliberations, jury sent During its potential verdict of the supported “con- whether it should asking out a note murder, included offense of if it believed charges” sider lesser offense requested the lesser included afterthought” robbery “was jury in a note to the court charge, “if the it made a difference and whether during example, explained property until For to take the victim’s not decide guilty only appellant dire that would be v. voir him. See Tolbert after she murdered 8-9, beyond 05-07-00920-CR, of murder if the did not believe slip op. at No. 16, 2008) appellant doubt that murdered reasonable (Tex.App.-Dallas, July WL 2747189 robbery. during robbery attempted victim (not Hall designated publication); see also (Tex.Cr.App. 2007) (setting two-part for when a 3. The record does not reflect that out test response requested objected lesser- the trial court’s to this entitled to her defendant is instruction). requested any ex ad- We did not note or that included-offense authority discretionary to review instructions on lesser-includ- our ditional ercise Thus, case, ap- murder. the record purposes of this ed offense of this decision. For appellant's pears evidence that to reflect that it was still that there is some will assume acquittal go outright after finding for an support a the note. sent out guilty only of murder. also on thе lesser appeal, complaints involving “law ap- plicable included offense.” pre- case” need not be served at trial but “defensive issues” appellant’s The State responded preserved. must be Did Fifth objection” statement that she had “no Appeals Court of wrongly hold that charge estopped her Court’s where a defendant “no objec- states claiming that the trial court tion” the proposed charge and then sponte instruct complains on appeal about the omis- lesser-included offense murder. sion of in- *4 “egre- claimed that alternatively no struction, the ap- Almanza standard gious error” resulted from the trial court’s plies? sponte jury failure to sua instruct the on this appel- lesser-included offense because opinion The court of appeals’ ap lant adopted nothing posture by “an all or pears to assume that the court trial erred putting the the jury to election of [convict- sponte not sua instructing jury ing appellant] capital of murder or an ac- the lesser-included offense of murder and quittal.” argued The State further then addressed whether jury-charge this jury’s “the fact coupled verdict “error” egregiously appellant harmed un jury with a Appellant’s note indicate strat- der Almanza after rejecting State’s egy ... not the backfired is trial court’s estoppel argument appellant’s based on egregiоus error.” that she objection” statement had “no jury charge. This was error. Before
Based on this Court’s decision in Bluitt applying Almanza’s egregious-harm stan State, appeals v. of court decided that unobjected-to error, dard jury charge for objec she stating that had “no appeals the court of should have first de tion” charge to the operate Court’s did not cided whether was for the trial “error” as an estoppel, equivalent but was the of a sponte court not to sua the jury instruct object failure to court’s “error” on the lesser-included offense murder. in not sponte instructing jury State, 57, v. See Posey 966 S.W.2d 61 offense of lesser-included murder. See (Almanza (Tex.Cr.App.1998) not ap does Tolbert, slip op. 7-10.4 The court ply the appellate unless court first finds appeals reversed and remanded for further jury error in charge). proceedings finding after that this unob- jected-to charge jury egregiously “error” requires This a determination of wheth- harmed under deci this Court’s er a instruction on the lesser-included Tolbert, sion in v. State.5 Almanza See murder “applicable offense of slip op. granted at 7-10. review the We (trial Posey, case.” at 62 See 966 S.W.2d following ground for petition statutory duty sponte has to suei discretionary review: submit setting “ap- forth law case.”). charges ap- plicable
Criminal contain “law Posey, case,” plicable to “de- and often that a not Court held trial court is statuto- fensive To rily required issues.” obtain review on to sua instruct sponte 51, (Tex. 4. See Bluitt v. 53 obtain a unless it re- reversal such error (a Cr.App.2004) harm”). defendant’s statement “no egregious sulted in objection” jury charge erroneous "shall equivalent object” deemed to a failure and (Tex.Cr.App.1985) (op. 5. 686 S.W.2d "may unobjected-to defendant raise such reh’g). [jury] charge appeal, may error on not sandbag- improper gamesmanship ie., issue” of fact “defensive mistake jury on a — “applica- and trial prosecution ging issue” is a “defensive time- ap- unless the defendant a windfall on case” court—so to obtain ble objects the issue ly requests peal. charge. the issue in omission omitted). (Footnote to record and citation id,6
See
These considerations underscore
discretionary
argues on
re-
The State
stating
case-law
our
permit-
not be
view that
like defensive issues
instructions are
strategy,
hind-
pursue
ted
statutorily required
a trial
“going
now
court is
regret,
sight she
sua,
that the
on lesser-
hoping
sponte
the trial court
instruct
broke”
acquit
her of
because these issues
included offenses
failed,
then,
having
strategy
with that
“frequently depend upon
a quite different strat-
successfully pursue
Delgado
See
S.W.3d
tactics.”
*5
“with
trial court never
appeal
the
egy
(“The
on
244,
(Tex.Cr.App.2007)
trial
249-50
pass on the
opportunity
the
having [had]
sponte duty
an
sua
judge has
absolute
argues
State
in its brief:
lattеr.”
jury
accurately
a
sets
prepare
Tolbert,
after she
evident
It
specific
the
of
applicable
the law
out
a
jury
out
note
the
had sent
learned
inevitably
not
charged. But it does
fense
in
indicating an interest
lesser-included
sponte
that he has a similar sua
follow
offenses,
her
trial
simply regretted
on all
duty
jury
potential
to instruct
the
join-
not
going
in
for broke—in
strategy
offenses,
issues,
included
defensive
lesser
for lesser-
request
its
ing
evidentiary
These are issues
or
issues.
hoping
the
offenses and
included
strategy
trial
frequently depend upon
proved
not find
would
tactics.”) (footnote omitted); Posey,
and, thereby, acquit her.
(“defensive
S.W.2d at
issue” is not
966
62
[*]
[*]
[*]
“applicable to the case” unless the defen
“timely
objects
or
requests the issue
dant
law,
have the
way
the
Tolbert would
But
to the omission of the issue
the
strategy
could have one
at
a defendant
State,
491,
225
charge”); Druery v.
S.W.3d
quite
spring
that failed and then
a
trial
P.J.,
(Keller,
(Tex.Cr.App.2007)
512-13
strategy
with
appeal,
on
different
(“a
concurring)
offense in
lesser-included
opportunity
never
having
trial court
citing
is a
of defensive issue”
latter,
struction
kind
prevail.
on the
still
pass
State,
779,
v.
n.
207 S.W.3d
782
the forbidden “two bites
This is
ufkin
B
Camp
which cited
(Tex.Cr.App.2006),
an
10
Such
apple.”
opportunity
State,
(Tex.
443,
integrity
bell v.
614 S.W.2d
445-46
only to undermine the
serve
Cr.App.1981)).7
Delgado,
quoted
by encouraging
“main event” of trial
question
Posey
"to
der. This case does not
decision
was intended
dis
Our
sandbagging
lying
cоurage parties from
require
to decide
and does not
us
whether
discourage
log” and
a
defen
behind
may
provided
have
trial court in
discretion
its
retrying
appeal
under a
from
case on
dant
Grey
generally
v.
lilis instruction. See
theory, effectively giving the
defensive
new
(Her
(Tex.Cr.App.2009)
298 S.W.3d
652
apple.”
"two bites at the
See Po
defendant
J.,
vey,
concurring); Grey,
er submission
in-
er-included-offense instruction on murder
struction is waived if the
defense fails
“applicable
object to the
requiring
instruction.8
case”
a deci-
sion that
the trial court
We, therefore, decide that
sponte provide
sponte
duty
had no
to sua
instruct
record
reflects
did
the lesser-included offense of
murder and that
instruction on this want.10
Haynes
See
*6
instruction,
an
request”)
"frequently depend
with or without a
strategy
on trial
and tac-
original).
(emphasis
tics”);
Posey,
(strategic
966 S.W.2d at
de-
63
cisions and
to
decisions as
the defensive theo-
George
8.
See 43
E. Dix & Robert Dawson,
ry
generally
lawyer
of a
are
left to the
§
36.50 at
Criminal
And
Practice
Procedure
client).
and the
(Supp.2006).
202
654-55,
Grey,
Judge
that,
circumstances,
for a lesser included offense
HOLCOMB, J.,
dissenting
filed a
trial
penalized
that it should not be
for the
JOHNSON, J.,
opinion
joined.
in which
failure to
the lesser offense
court’s
include
PRICE, J., dissented.
charge
jury”);
see also Ex
Feryl
Granger,
Parte
John
S.W.2d
KELLER, P.J.,
concurring
filed a
(distin-
(Tex.Cr.App.1993)
519-20
opinion.
guishing Stephens
basis
this Court
question
pretty
here is
basic: who
out re-
Stephens
point
was “careful to
gets
theory
to decide the defendant’s
trial,
original
...
that at the
peatedly
says
the case? The
the defendant
chosen not to
an instruc-
State had
does;
says
Judge
judge
Johnson
rape.
on the lesser included offense of
tion
go
does. I’ll with the Court.
words,
had,
In other
at the first
case,
is an
what
trial,
important
This
the lesser included
pursue
failed
right
who has the
to decide
issue is
had attached
jeopardy
after
was,
go
jury.
what theories
If we were
barred
therefore,
to it and
forever
failing
erred in
in to hold that the
prosemtvng
again.”) (emphasis
here,
on murder
Stephens,
include an instruction
original).
State was
*8
rely
telling judges
on the
un-
to include lesser-
permitted
defendant’s
would
requesting
in-
"applicable
included” make it
a lesser-included[-]offense
for “a lesser
lo
support
likely
case” would
a decision that
[this]
make it more
it will obtain
struction to
rely
the State could
on a defendant’s unsuc
greater
for the
offense that the
conviction
cessful
for a lesser-included-offense
might only 'weakly' support. Ac-
evidence
permit
when the
instruction to
reformation
opinion,
cording
if the
then con-
“goes
appellate
an
broke” and
greater
defendant of the
but
victs the
decides that the evidence is insufficient to
appellate
an
court later decides that the evi-
greater
a conviction for the
offense.
support one of its
dence is insufficient to
arguably
This
would be inconsistent with the
elements, permitting
appellate court to
overreaching-by-the-State
Haynes
in
rationale
judgment
to reflect a conviction
reform
Haynes,
and Collier. See
is not v. by majority, As observed in Bluitt that, idea. it is bad denial we held that affirmative “[a]n equiva ... objection shall be deemed the next Judge opinion, Johnson’s Under object.”1 lent to a failure to Bluitt’s attor broke, go time a defendant wants to objection had no ney stated that he here, have to judge Tolbert did would jury charge.2 appeal, On anyway. Even give charge complaint claimed that Bluitt waived his objected, judge if the defendant judge by refusing the trial erred give have to it. sponte jurors they instruct could like Bluitt because This case is not consider extraneous offense evidence strategy. Bluitt didn’t involve they believed that Bluitt committed the did not include an charge in that case beyond extraneous offenses a reasonable proof on the burden of for ex- rejected argument, doubt.3 We the State’s If there were ever a traneous offenses. an reasoning that affirmative refusal a defendant could benefit object governed Almanza’s failure instruction, lack of an then from the such standard; thus, object error be relevant to this case. But Bluitt appeal nevertheless be raised on but a correctly assumed Bluitt strate- reversal is not warranted unless there is gy was not issue be included our egregious harm.5 Bluitt’s strict dichoto analysis. however, my, did not the notion of address Court, with the with agree I Profes- estoppel, perhaps because of the State’s Dawson, sors Dix and that “because of the posit failure to such an argument. decision, strategic appro- nature of the it is Prystash Prys- we held that priate for the trial court to defer to the estopped complaining tash was from implied strategic parties decisions of the judge’s about the trial failure to by refraining submitting from lesser of- anti-parties special include an issue in the party’s fense instructions without a re- jury charge attorney because his had affir- quest.” matively asked the trial to leave it of the join opinion I Court. Prystash recognized out.6 that there is a crucial distinction between the concepts KEASLER, J., filed a concurring waiver, which is more accurately charac- opinion. (invited forfeiture, estoppel terized as error).7 join opinion write sepa- party complaint Court’s A forfeits a when rately party because I also believe that Tolbert optional fails to invoke an evi- estopped challenging dentiary procedural rule.8 Estoppel, on *9 51, 522, 1999). (Tex.Crim.App.2004). (Tex.Crim.App. 1. 137 S.W.3d 53 6. 3 S.W.3d 529-30 2. Id. at 52. 7. Id. at 531.
3.
Id. at 53.
State,
275,
(Tex.
8. Marin v.
278
(Tex.
4.
785 hand, prevents from party the other assess harm under Almanza. As the holds, party about an action that the complaining judge the trial duty had no induced; part “it of of sua sponte the definition instruct on the lesser- constitute error.”9 included offense of what can murder because Tol- bert request.12 made no such Recently, we Prystash relied on v. State when an analo- Druery addressing J., JOHNSON, filed a dissenting oрinion gous today. to the one us situation before HOLCOMB, J., joined. the charge Druery’s conference at During trial, attorney murder told Druery’s The state indicted for capital judge trial that he want a did not murder. At the close of guilt phase, offense on first lesser-included instruction requested state that instructions on “a degree murder.10 On direct to this parties”1 be included Court, Druery estopped we held that jury charge. The trial court denied complaining judge request. Appellant state’s neither have included the instruction sua should joined objected state’s nor sponte.11 queried its denial. as to When whether her, jury charge was acceptable to view, my nothing In this case has do said, objections.” “No ap- On forfeiture; preservation with error this peal, she asserted that judge trial disposed estoppel be case should have, sponte, included an in- grounds. parties struction on the lesser-included and an instruction on a nondes- that, murder. court of appeals found cript The trial offense. was “law applicable overruled the judge request and asked case,” that instruction should have been attorney objections Tolbert’s if he given. It further found that the error proposed charge. stating By harm, resulted in egregious reversed the objection no he had on the heels of the judgment the trial court and remanded request, attorney ap- State’s Tolbert’s “for proceedings further with consistent proved charge sans a lesser-included opinion.”2 offense instruction on As a re- murder. sult, we should not entertaining be Tol- Court, petition its to this the state claim that the bert’s trial erred presented single ground for review. sponte to sua failing include a charges Criminal contain ap- “law murder. case,” plicable to and often “de-
However,
grant
because we
re-
did not
fensive
To obtain review
issues.”
view the court of appeals’s rejection
appeal, complaints
involving
ap-
“law
estoppel argument,
join
plicable
to the case” need not
pre-
be
Court’s determination that
the court of
served at
“defensive issues”
erred in
wheth-
appeals
failing to consider
must
preserved.
Did the Fifth
error
proceeding
Appeals
er there was
before
wrongly
Court of
hold that
Prystash,
9.
11. Id. 506. (not 2008) July (Tex.App.-Dallas,delivered Majority op., designated publication). 781. for objec- we did not reach state’s “no therefore states where a defendant and then proposed charge ground. to tion” second appeal about omis- complains on of ground, ground third As offense in- a lesser-included sion of here, that Almanza ap- noted interest the Almanza struction, ap- standard to all and that plies jury-charge error plies? for harm establishes two standards objection harm analysis egregious for no Almanza — timely objection. harm for a We or some granting for The second reason state’s that, objection” “no is not held the court of states that petition review its objection,” response objec- “no “timely of incorrectly interpreted this appeals of equivalent must a failure tion” be in Bluitt v. unanimous decision Court’s subject “egre- object and to the therefore (Tex.Crim.App.2004), Almanza. Under analysis harm” of gious of preservation com- “which addressed Bluitt, pur- entitled is case, applicable law plaints for the error, harm jury-charge any with ported of for de- preservation complaints to the Bluitt stan- “egregious” considered under fensive instructions.” Nowhere case, petition I find a discussion. In that to the do such dard. answer state’s (1) three grounds: the state raised discretionary for review as submitted— required prior erroneously court of appeals Appeals wrongly “Did the Fifth of proved beyond a reason- convictions to be the Almanza standard ap- ... hold (2) doubt; appeals misap- the court able of the court did plies?” appeals of —is (3) standard; and the Almanza plied err, and this Court should therefore erroneously ruled that appeals court of ap- affirm the of judgment the court error, appeal jury-charge appellant could peals. affirmatively even he stated after objection he had trial court that no Preservation jury charge. two begin of law that statеments ground,
As to the first
we held
for
ground
state’s
review4 indicate
clear; only
is
language of the statute
unad-
Almanza
that within
state’s
articulated
have
judicated
acts
offenses
bad
complaint
assumption
re-
is
proof.
Final convic-
articulated burden
quest for an instruction
a lesser-includ-
already
beyond
tions
been
proved
have
issue,
ed offense
a defensive
which leads
is
doubt,
proof
the fact
reasonable
to the conclusion that
failed to
conviction is sufficient
a final conviction
that the
preserve error. This is the issue
to be
The trial
jury.
submitted
addresses,
give
although preservation
in failing
court did not err
of error
a different
than what
requested instruction. Because no error
issue
occurred,
analysis
needed,
apply
jury-charge
harm
standard to
error.
no
language
ground
charges
appli-
Although
of the state’s
4. "Criminal
'law
contain
case,’
complains
applying
for review
error
cable to the
and often ‘defensive issues.’
Almanza,
argument
its brief’s
headed
appeal, complaints
obtain review on
in-
To
"(PRESERVATION OF DEFENSIVE JURY
volving
applicable
Taw
to the case' need not
ISSUES)."
Petition
INSTRUCTION
preserved
at trial but
'defensive issues’
argument
Discretionary
Review at 5. The
preserved.”
must be
plain language
thus
not match
does
ground for review.
*11
thought
that
be re-
that
permission
Some
instructions
he had
to drive
such as self-defense and necessi-
quested,
the stolen car
“imposеs
duty on trial
certainly,
exclusively,
ty, are
and
defensive
courts to
sponte
sua
instruct
on
The Penal
issues.
Code
labels
unrequested defensive issues.” Id. at 62.
issues and others as “defenses.”5 If
those
The Court’s answer was no.
an
on lesser-included
instruction
offenses
State,
(Tex.
v.
Druery
gado
say
does not
that the submission to
case,
sault
was whether
instructions on
lesser-included offenses is a
consent,
self-defense and
both of which
issue;
“defensive”
it states
that the
defendant,
were requested by the
judge
sponte
dоes not have a sua
duty
have been
jury.
submitted
Self-
“all potential
include instructions on
de-
are statutory
defense7
consent8
de
issues,
issues,
fensive
issues
are unhelpful
fensive
and so
in dis
evidentiary
words,
By
very
issues.”
its
cussing lesser-included offenses.9
Delgado removes lesser-included offenses
category
from the
of defensive issues.
State,
In Campbell v.
The issue v. been 966 S.W.2d by Campbell, raised like (Tex.Crim.App.1998), was the lack of a defense. Del- fact,6 gado, clearly recognized instruction on a stat- lesser-includ- mistake utory ed-offense instructions are not exclusively defendant had not defense. requested the a defensive missing instruction. This issue: “This Court has held question framed the issue as that when evidence from source raises testimony whether defendant a defensive issue or raises an issue that a Eight. Code, Chapter Bufkin, majority, 9. Footnote 10 of cited Penal Tex. refers to two v. cases: Ferrel § Penal Code Tex. 8.02. (instruction 586 (Tex.Crim.App.2001) on self- defense); (defen Campbell infra § 7. Tex. Penal Code 9.31. instruction). dant § 8. Tex Penal Code 22.06.
788 instruction, an but on may party requested have been a offense at trial. prеsented the evidence on the issue jury charge a and committed must the issue be requested, applicable the “the law properly By expressions, is case,” case,” at 445. Orn- “the the jury.” the Id. to the and law of submitted Code, evidently in- requests for in the employed law is clear: as ease the case applicable lesser-included offenses are meant the law as structions by proofs applicable made the law issues. per se “defensive” not —the evidence; the pleadings and the treatise on and Dawson’s Professoi-s Dix has the uniform construction this been refers and Procedure Practice Criminal given by Supreme Court them on lesser-included for instructions requests State, by The court. Davis v. this implied strate- as “the part offenses decided at term parties.”10 par- “The gic decisions court, post. to have is said case are the state and criminal ties” duty he shall have performed that when professors also note the defendant. applica- law instructed every legitimate ble to deduction which [bjoth may benefit from potentially sides facts in jury may draw from the included offense instruction. a lesser evidence. limiting pun- interest The defense State, Texas, Lister v. Appeals by providing a lesser exposure ishment 17, 8462, Tex.App. 3 1877 WL 1877 Tex. offense while alternative (1877). “However, Crim.App. LEXIS 198 greater can prosecution obtain (even statutorily-de defensive issues type by of some of conviction likelihood fined) applicable do constitute the ‘law option convicting giving to the case’ unless defendant makes proof with less difficult by them so presenting evidence particularly prose- if the requirements, by their re charge submission weak cution fears that evidence is charge.” questing their inclusion in the distinguishes greater point (Tex. State, Rodgers v. 180 721 S.W.3d the lesser.11 offense from 2005). preserva Our App.-Waco task on Their affirms that an instruction treatise claim, then, is to what in tion determine on a lesser-included offense is not exclu- hypo have structions would been it is sively a defensive issue because thetically jury charge.12 While the correct exclusively the domain of the within de- jury charge may be affected the choices fense. parties requests make as for in structions, giv must be some instructions Law
Defensive Instruction or applica en “law because the issue raised is Applicable to the Case? ble case.” instruction on lesser-included of- An If raises evidence source may prosecu- a defense or a fense be issue issue of a lesser included issue, State, law applica- given. also be v. tion must Moore case, depending not on who 574 122 (Tx.Cr.App.1978).... ble to S.W.2d As Thompson the instruction or even whether noted 521 S.W.2d (Tex.Crim. George E. Dix & O. 12. Malik v. 10. 43 Dawson, Robert 1997). § 36.50 at App. and Procedure Criminal Practice (Supp.2009). Id. at 249. *13 (Tx.Cr.App.1974), 621 “it is ... well appellant tаking rec of any complain- of the ognized that a defendant is entitled to ant’s possessions the time of the mur- every an by instruction on issue raised der. testify She could only that appellant evidence, produced by whether came to her carrying jewel home box14 defendant, that, or and whether it murder, and after she and a weak, unimpeached, be strong, con friend drove complainant’s (Citations omitted.) tradicted.” home, where appellant removed long four guns from complainant’s pickup. As (Tex. Bell v. 442 Bell, we stated in “it is ... well recognized Crim.App.1985). that a defendant is entitled an instruc- alleged The indictment in this case capi- tion every by evidence, issue raised as tal murder murder the course of produced by whether the State or the de- robbery. It is reasonable to deduce that fendant, weak, and whether it strong, the state believed that the evidence unimpeached, or contradicted.” Sheffield’s because, raise lesser-included offenses dur- testimony may have been weak con- and dire, ing explained voir the state tradicted, but it raised the issue of the venire the lesser-included offense of mur- lesser-included offense of murder. The der, out the setting difference between it state was entitled to an instruction on that the range and also of offense, lesser and the trial court erred in 2 punishment. R.R. 41-42. It also ex- denying the request. state’s Given the robbery, range plained punishment, its response, a request court’s from appellant process deliberating and the first the for instructions on lesser-included offenses charged, any then could reasonably be seen Given as futile. by offenses raised 2 the evidence. R.R. evidence, have 42-43. state also instruc- an instruction on a lesser-includ- parties.” tions on “a lesser included and applicable ed offense as law to the case. R.R. 64. inquiring Without what wanted, offense was the trial denied Sheffield part denied request. but implicated other her state’s witnesses dire, As the explained state in voir sale attempted long un- stolen and, killing inference, less the guns by course of the in the murder. murder, robbery, contradicted, capi- the offense was Even if weak and the evi- Sheffield, tal murder.13 Monica the dence raised issue an murder, witness party state’s who asserted direct given knowl- that evi- edge any aspect dence, of appellant’s guilt, the trial court should have included testified by appellant parties an applicable confession instruction on as law murder, she no direct knowledge the case.15 by
13. That have only thing, discussion been recalled trial belie "The that assertion: deliberations, jurors; during they Honor, sent out asking Your we were for is a lesser asking a note about lesser-included offenses. parties.” included and R.R. The state's immediately denied the trial Testimony jewel about box did not court, so the not rеveal what record does appearance, provenance, reveal its its or its (or instruc- lesser-included-offense instruction contents. tions) spite it wanted. of that lack of specificity, failing the state faults argues 15. The state brief an its instruc- join request. tion on in its State's brief at 11 and the lesser-included offense of murder defense, is an issue but its footnote 4. actions at right to obtain readers of
Conclusion lesser-included-offense instructions analyzed appeals correctly The court as to court. So am befuddled and found presented the evidence say how can now turn around the lesser-included offense are defensive those same instructions issue and not a defensive of murder was issue. given applicable *14 as been law should have ruling our in It followed the case. Grey was Grey, Steven Bluitt, complain could held caus- charged by assault aggravated with and, using the of that omission deadly weapon, with a ing bodily injury egregious standard of proper Almanza wit, strangle vic- used the Grey’s hand harm, judgment such harm. Its found the jury charge, prepared by The tim. respectfully dissent. be affirmed. I office, contained instructions prosecutor’s the offense and lesser- on both the indicted HOLCOMB, J., dissenting filed a simple caus- by offense of assault included JOHNSON, J., joined. in opinion, which bodily injury. The defense counsel ing dissent and join Judge I Johnson’s wish the in- objected to lesser-included-offense following points. the to аdd struction, objection but the was overruled. the Grey guilty The found of lesser- with majority opinion 1. The conflicts of On simple included offense assault. our recent decision. Grey that the submission appeal, claimed problem the with the I believe that main of the lesser-included offense was error. is its view of the lesser- majority’s opinion agreed and reversed appeals included-offense instructions a defensive State, Grey v. 269 the conviction. S.W.3d majority repeatedly the Although issue. 2008). (Tex.App.-Austin granted 785 We concurring opinion Judge cites Cochran’s petition discretionary for re- the State’s State, Grey in v. 298 in our recent decision view, precedent,2 and overruled old (Tex.Crim.App.2009),1 fails S.W.3d 644 make Grey, 298 S.W.3d at in order to the realize that its view of lesser-includ- it easier for the State obtain lesser- ed-offense as defensive issue instructions from the trial included-offense position opposite is almost the taken court,3 fact, in that same case. In by Initially, we virtually justified our decision say it is fair to that we moved explaining it was Grey by in overrule Arevalo heavens and earth convince 4, infra, requested by majori- 298 S.W.3d at in Section the defendant. 1. As discuss Arevalo, Later, ty’s in we held that sec- reliance even that concurrence mis- 645. reasoning opinion required in placed prong ond of that test —which applicable case. some evidence must exist in the record that permit to find that the defen- State, (Tex.Crim. guilty, guilty only he is of the lesser- Arevalo v. 943 S.W.2d dant is equally applicable to App.1997). offense—was the submission of lesser-included offenses Thus, requested by by Royster-Rousseau State. Id. overrul- Grey, in As noted (Tex.Crim. holding ing Arevalo and that the State is (Royster v. 622 S.W.2d 442 Royster- by prong App.1981) (plurality op.); bound second Rousseau test, id., Grey (Tex.Crim.App.1993)) line in we removed the Rousseau placed two-pronged Arevalo had test burden cases established obtaining determining the lesser-included-offense instruc- when tions from trial court. to submit to the a lesser-included offense right thing to do both offense is included in- charging the defendant. As we stated: strument and supported by legally suffi- cient evidence. The prong of [second] in the rule laid down
One obvious flaw the Royster-Rousseau requires, test one that progeny, Arevalo and its however, rationality that we view the produces unjust inconsistent and results offense, isolation, the lesser not in but in every single case in which the rule is comparison to the offense described applied, remedy. is the When a lesser- the charging instrument. But why included offense is submitted violation comparison? should we make that Arevalo, convict- and the defendant is answer must be that the State is entitled remedy ed of that this Court and, to pursue imposed has is a remand for new trial therefore, is entitled to receive a re- very on the same lesser-included offense *15 sponse from the on whethеr the just that the defendant has claimed guilty defendant is charged of the of- never have should been submitted. similarly fense. Is defendant enti- a “illogical,” Such result is we fash- to a response tled from the on the remedy ioned this because alternative charged offense? The answer to that remedies seemed unavailable or worse. question no. It is the Because conviction on lesser of- defendant, not that chooses what operates acquittal fense as an of the fact, offense is to be charged. offense, greater greater retrial on the State can abandon an element of the possible. outright offense is not But an charged prior offense without notice and acquittal of the criminal would be proceed prosecute a lesser-included absurd where the evidence was in fact If offense. the State can abandon the legally sufficient to a conviction charged offense favor of a lesser- for the lesser-included offense. offense, logical there is no rea- (citations omitted). Id. at 646-47 But our why son the State could not abandon its quickly logic concern moved of mak- unqualified pursuit charged of the of- ing it easier for the State to obtain a qualified pursuit fense in favor of a that lesser-included-offense prosecution includes the of a lesser-in- explained: court. As we cluded offense the alternative. The ... hеld that Court Arevalo (citations omitted). Thus, at Id. 649-50 we prong rationale the second [the] [for emphasized that it was the more the Royster-Rousseau appli- “is as test] defendant, than the who was entitled to cable to the for a lesser- having benefit of the lesser-included- included offense as it is to a defendant’s instructions, in light its burden request.” Why? Because a lesser-in- defendant, prove that the even he was cluded-offense instruction “must not guilty of the was at an constitute invitation to the guilty least of the lesser offense. an reach irrational verdict.” emphasize We went on the soci- But Arevalo did not [in ] ety’s interests would also be best served ask or the next question: answer obvious by making it easier for the to obtain State How in- does lesser-included-offense those instructions from the trial court. As struction invite a to reach an irra- explained, we tional verdict? If the lesser offense is isolation, trial, jury’s
viewed in verdict the time of [A]t long legitimately perceivef possibili- would be rational so ... the] in- of the lesser-included-offense court would mission appellate an ... ty in- the defendant. As legally requested the evidence structions decide such, in the neces- how the prove [element I do not see sufficient great- on the instruc- to convict case can now call those present for the sary contrary, issue. On offense]. er tions defensive present in the believe the same reasons еntitled to relief for prose- for the approach cautious Grey. relief to the State granted at least to take would be—or cutor request the lesser-includ- be—to present Applicability Grey to the Allowing submission of offense. ed case. by the requested when lesser offenses two im- would serve least prosecutor it was the majority admits that First, society has an interests. portant who had lesser-includ- convicting punishing interest in the case. ed-offense When, guilty are of crimes. people who majori- with the This fact in itself conflicts judgment, submis- prosecutor’s ty’s characterization of those instructions offense will sion of issue because the State as a “defensive” prospects securing enhance obviously trying help the de- *16 criminal conviction for de- appropriate in fense this case. guilty, society’s in fact fendant who is fact, prose- the record shows that the In by allowing are best served interests present case did much more cutor Second, prosecutor the submission. just ask for the lesser-included-of- than ... duty “the not to con- primary has Although trial in fense instructions. vict, justice is done.” but to see that in our recent decision predates this case giv- believes in a prosecutor Even if the cursory even a examination of the drey, that he will secure a conviction en case prosecutor that the did ex- record shows only charged on the offense if the alter- suggested prosecutor we actly what acquittal, might native he also believe possibility that should do when there is given option should be that the available evidence not be suffi- on the to decide whether a conviction jury to convict the cient to convince the appropriate. lesser offense is more defendant on the offense. (citations omitted).
Id. at 650-51
clearly
shows
present
record
emphasized
favoring
our view
We
fact, there was no
possibility.
such a
In
right
State’s
to obtain
lesser-included-
prove
had
direct evidence to
conclusion,
even in our
offense instructions
the course
actually
during
killed the victim
that we had to overrule Arevalo
stating
eyewit-
no
robbing
him. There were
because the common-law rule established
crime,
any
nor
video re-
nesses to either
placed
in that case
“undue burdens
actually happened.
cording to show what
prosecutor.” Id. at 651.
even
witness accounts
There were not
them,
short,
example,
appellant’s telling
Grey
recognized
the victim because he
that she had killed
right
lesser-included-offense
stealing
ques-
her
the items
being superior
caught
to the defen-
instructions as
tion,
her
get
had wanted to
have such instructions inso-
or
she
right
dant’s
he
in her
on those items but
stood
exempted
far as we
the State from the
hands
at trial stated
way, etc. The witnesses
prong
Royster-Rousseau
second
of the
test,
them that he had
only
that she had told
applicable
which remains
sub-
things,
said hurtful
the more
years
she
to 15
repeat
for a
and habitual
thought about what he
had said
more
felony offender.5
hurt,
it
it
and that
this state of
(cid:127) The
Instruc-
Lesser-Includedr-Offense
him,
hurting that she killed
and that even
tions: The
in the present
stabbing
kept
as she was
him she
telling
case notes that
parties
“the
had dis-
him,
you,
“I love
I
you,
you.”
love
love
cussed several lesser-included offense
This was the evidence that the
pre-
State
scenarios such as murder and robbery
sented, and the evidence that
it empha-
during voir dire.” Maj. op. at 778.
Thus,
sized in both
closing arguments.
its
Contrary to the majority’s suggestion,
way
there is no
determine
this evi-
the record shows that the State spent
dence whether the murder was committed
great
deal of time discussing the
(in
before the robbery
which case it was
lesser-included offense involved in the
murder),
capital
during
the course
Indeed,
case: murder.
(in
robbery
of the
case was
spent
State
far more time discussing
murder).
this issue with
jurors
than the
evidence,
On the state of such
it is not
defense did.
surprising that
prosecutor adopted
(cid:127) The Evidence at Trial: The majority
approach”
“cautious
that we later encour-
states that
presented
evi-
aged
Grey.
be a life because the State fails to mention that the did not ask for the State focused penalty.4 death It would be the in only relevant if the lesser-included offense both final arguments jury, were uncertain its strength about the even of its case after the trial preparing already and was therefore had over- possible for a conviction for the ruled its lesser- instructions on murder, that included offense of offense and had not which case a former conviction would en- those jury charge. instructions hаnce the minimum punishment by The State emphasizing ap- did so only years five for a first-degree felony pellant’s own to the wit- statements 19.03(b) 12.31(a). 19.02(c), 12.32(a), §§ 4. See Tex. Pen §§ & 5. See Tex. & Code Pen.Code 12.42(c)(1). trial, and did lesser-included-offense instruction later testified at who nesses not that in the only of include appellant guilty proved fact, charge. persistence Her in the murder, capital murder. not note evidence, jurors, resulting confused any not discuss the State did court, asking they that sent from the even inferences or draw that about the lesser-included offense try that to show presented, evidence defense, prosecutor, practically not during committed was murder very Thus, ingrained in their brain from the robbery. the State’s course of a the trial.6 trial court beginning of absence the less- arguments, in the to, to, failed might have been able er-included-offense that provide guidance with the relayed remarkably dis- jury charge, they help for to convict asked them that message jury: torted note, they, by their judging defendant they guilty to find were seriously considered have been murder, offense of the lesser-included murder, but murder. guilty capital greater her for the they should convict murder, though capital even give court’s the less- The trial refusal to virtually nothing done the State had er-included-offense instructions prove trial to critical ele- try unduly jury’s limited necessary to elevate the offense ment could they appel- choices: either convict ie., murder, capital murder murder, lant her. capital acquit had been committed acquit could during robbery. of a the course (in there the case enough evidence in Thus, appellant’s form of own statements pros record shows witnesses) other to show that she had com- ecutor’s intense focus on lesser-includ So, they the murder and the theft. nothing with mitted wrong ed offense. There was went they for the choice had left doing exactly inasmuch as she But, Grey, we, conviction: murder. recently Grey, suggested what length “unjust talked at about results” prosecutor should do when the evidence crim- outright acquittal “an supporting for the how a conviction inal charge would be where ap offense is take the absurd weak: “cautious in fact legally evidence was sufficient proach” try prove *18 and to of lesser fense, support for a conviction the lesser-included asking the trial court for including outright Id. at instructions, offense.” 646-47. Is an the lesser-included-offense just any more less absurd a conviction or guilty order to ensure that defendant is in legally free where the evidence fact insuf- go completely simply would not be a for the cause the ficient conviction evidence was insufficient con greater offense? vict her on offense. charged Grey, the prosecutor S.W.3d at 651. But the created applicable Law the case. problem a when she continued that strate gy, discussing important the lesser even after is an that the ma- point This request jority neglects denied her for the I believe that address. jury request 6. The "Should we as a note staled: consider note lesser-includ- instruction, charges if we [text scratched ed-offense could have robbery point. believe the an after- on the lesser offense at this out] See ("After thought!?] it make a Proc art. the ar- Does difference 36.16 Tex.Code.Crim. robbery afterthought gument begins giv- no further shall be [text was an scratched passion[?]” important by It en ... to crime of unless out] court, interpreting request jury."). to note here that the trial of tire (that “appli- argument what is not question law is or State’s was “go- be ing cable to the case” should not deter- for broke” and is now complaining only hindsight, won mined based on who because her off pay did not The of whether question who lost at trial. murder, see, of capital she convicted refusing or court not the trial erred 779-80) e.g., Maj. op. throughout at its State’s lesser-included-offense opinion. proceeds then determined, not on instructions should rebuff ground that we when, complaining the basis who is parties should “discourage sandbag- why? I believe that the trial court See, or ging lying log.” e.g., behind the id. case it present erred limited (citation omitted). But, 780 n. in so choice jury to a of two extreme deci- doing, the majority completely ap- misses (to murder, capital sions сonvict for real pellant’s argument before ap- us. As trial acquit), when evidence at war- pellant has stated in own her for- something ranted a convic- middle: Presented,” mulation of the “Issue By tion for a tak- lesser-included offense. case, Under the of this facts does the choice, away ing this middle court of proof failure of the elements gamble, turned the verdict into a alleged in the indictment prove capital guaranteed side to a windfall to one murder result in the lesser-included of- other, complete of the but no detriment fense of becoming a defensive way going big to be who was to be the sure issue; or did the error when occur big winner and who would be the loser. court jury’s request refused the for an give opted the benefit instruction on the and was the lesser-included mur- appellant who suffered the detriment when der offense[?] capital she was convicted for murder in the ii, Appellant’s See Brief at 2 & 9. As absence of real evidence to show that clearly: later even stated more during murder was committed robbery. course of a But the Respondent argues that the failure of just as have come easily opposite out the the State’s to initially evidence convince way. They acquitted appellant, could have jury beyond a reasonable doubt that and it would have been the State to suffer committed, murder was as is defendant, of seeing detriment who jury’s request evidenced for an guilty was at least of the lesser-included instruction on a lesser does not offense, go scot-free. I believe that ver- create a issue defensive but is instead reached, aby gamble, dicts should be case, the law of the and the there- but by clear-cut rules of law that are laid *19 originally charging fore erred in not the out in the jury charge anyone well before murder, jury sponte, without re- can party be sure which will win. I also gard defendant; to a the believe that our courts are of “law courts and that erred in not again the court justice,” that justice such law and to providing jury this law the members just is not the the benefit of State. at request. their at Id. 10. Jp. majority The misinterprets appel-
lant’s claim. One had to an from the draw inference presented to the The evidence think that mur- majority appel- has misunderstood It argument. virtually adopts during lant’s the have the der been committed The Hall sets robbery, capital majority it case. states that making of a course indictment, “two-part well as the test for when a defendant out murder. The from voir dire clos- lesser-includ- is entitled to her State’s indicate is ing arguments, Id. But there ed-offense instruction.” whether it would be able uncertainty nothing majority’s own in Hall to convict to convince the applicable only is suggestion that Hall it capital why murder. That was was cases which the lesser-included-offense defendant, who not asked requested by instructions were the defen- for the lesser-included-of- very beginning As we at the dant. stated instruction, place. in the first fense to re- opinion, granted that “We review obviously trying help State was ambiguities in our deci- solve and conflicts asking for a defensive in- by defendant determining about the method of sions But, even after the trial court struction. greater of a allegation whether instructions, those give refused to includes a S.W.3d at lesser offense.” 225 proving the evidence State summarized throughout in this 525. We continued vein offense, trying the lesser without even discussing method of opinion, that that between the murder and the show link when and how to determine whether robbery helped persuade have that could was in the lesser-included offense included that the murder was committed charged regard without to wheth- robbery. appel- of a As during the course by er such had been requested correctly argued, the fact that the lant has or, the State or the defendant for that convinced that matter, no one at all. committed is shown stated, As we at evidence adduced “[t]he to the trial court. This note note sent important trial should part remain “belie[f|” that jury’s indicated the “the the court’s whether decision robbery afterthought,” was an re- lesser-included offenses.” Id. offense what even appellant’s duced We this central in the repeated idea only a “lesser realized included line, very nеxt as we that “[t]he stated ],” charge! supra note which turn see step analysis second should ask prove indicates that had failed whether evidence supports there is that the charged a critical element of offense: It giving jury.” Id. instruction during murder was committed is true that we then went on to state robbery. appel- course of the And defendant is entitled to an “[a] contention, majority lant’s real which the lesser-included offense where opinion. fails to in its address proof for the offense includes the give Hall tñal court to proof necessary to the lesser- establish instruc- there included offense and is some evi- lesser-included-offense tions. permit dence the record jury rationally to find that the defendant declines to review the guilty, guilty he is of the lesser- light of our decision Hall But Id. that is not the offense.” S.W.3d 524 (Tex.Crim.App. *20 2007). request the defendant to requiring at same maj. op. 777-78 n. 1. I See submit, however, that such a review the lesser-included-offense instructions be- is especially of to receive indispensable to the facts this fore she entitled them.7 objected appellant present It a case to would have been different matter if in the had perfect case is a present “rationally illustration to ... find” that appellant of the between the situation in difference was guilty only of the lesser-included of- to a which a defendant is entitled lesser- is, therefore, fense. Id. It clear that the included-offense instruction and one in trial court not giving erred the lesser- request which she is to such an requested by included-offense instruction can instruction before she become entitled the State.
to requires only it. Hall “some evidence fact that appellant object failed to permit the record that would a jury charge is relevant the extent if rationally find that the defendant is applies, that Almanza8 requiring a show- guilty, guilty only he is of the lesser-in- ing egregious harm before can Specifically, cluded offense.” Id. “any- granted relief. But it is clear that than thing more a scintilla of evidence appellant in egre- did suffer such be sufficient to entitle a defendant a gious harm in light the fact that she was charge.” case, Id. In the it murder, convicted of capital though even questionable a whether scintilla of evi- the jury itself seemed inclined to believe prove dence existed critical element of that guilty only she was of the lesser- charged that offense: the murder was included offense of murder. during committed the course of robbery.
The prosecutor’s case—from the enhance- indictment, paragraph
ment
in the
6. The trial court’s error
discussion
the lesser-included offense in
Finally, I
that
avoiding
believe
we are
dire,
presentation
voir
of evidence
an issue which
elephant
stands out like an
relating
witnesses
appellant’s own ac-
bathtub;
in a
and that is whether аppel-
count
she
that
had committed the murder
lant’s counsel
spe-
was ineffective for not
only in a heat
passion,
to the closing
cifically asking and
for a
arguing
lesser-
arguments that failed to even mention or
included-offense
I
instruction.
realize that
show
otherwise
murder was com-
no
point
error was advanced on this
during
mitted
robbery'—
course of the
However, if
closely
issue.
we look
at what
singularly
proving
focused
the less-
occurred, we can see that
argument
er offense. The
fact
sent out
ineffective assistance of counsel makes
note,
specifically asking the court for
some
sense. The State had
guidance
offense,
on the lesser
even
and,
lesser-included-offense
though
jury charge
itself did not even
trial,
on the
presented
based
evidence
mention that
showed their inclina-
appellant’s
joined
have
tion to
counsel should
guilty
find
of that offense
request
objected
rather than the one
indict-
and/or
Thus,
ment.
there was more than “some without such an
It
not
instruction.
persuade
evidence in the record” to
asserting
have hurt
counsel’s
jury charge,
submission of the lesser-included-offense
which did
have the lesser-
requested by
instructions;
and the
but her
ob-
included-offense
overruled the State's
and,
effect,
jecting
along
going
with the
case,
objection.
because of that
In that
ruling
actively
court's
is not the same as
ob-
might agree
with the
jecting to the inclusion of the lesser-included-
ways: object
cannot
have
both
to the in-
charge.
offense instructions in the
and,
case,
at trial
structions
she loses
grounds
then
on the
(Tex.
earlier, 6, if the trial supra see note even originally recognize
court had failed need include the lesser-included-offense jury charge,
(and, under Article 36.16 the Code of could) Procedure, Criminal have UNIVERSITY OF TEXAS and Ellen on the Wartella, Appellants, the jury when it received the note from asking specifically about offense.
fense [*] question [*] [*] in this the lesser-included-of- [*] [*] [*] Paula No. 03-04-00806-CV. POINDEXTER, Appellee. issue, “defensive” but rather one of “law Texas, Appeals applicable the case.” The real issue Austin. before this Court is that the trial court July giving erred in not the lesser-included- requested by offense instructions prove beyond the State failed capi- doubt a critical element of
reasonable tal murder: that the murder was commit- during robbery. ted the course of strongly record suggests