Arevalo v. State

943 S.W.2d 887, 1997 Tex. Crim. App. LEXIS 12, 1997 WL 122598

• Court: Court of Criminal Appeals of Texas
• Decided: March 19, 1997
• Docket: 0599-96
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MANSFIELD, Justice.

This case presents the question whether the second prong of the Rousseau-Aguilar-Royster1 test regarding lesser included offenses applies to the State as well as to defendants. We hold that it does.

The Relevant Facts

The Brazoria County grand jury indicted appellant, Esteban Arevalo, for two counts of aggravated sexual assault. At appellant’s trial, the State requested a jury instruction on the lesser included offense of sexual assault as to each count. Appellant objected to the State’s request on the ground “the evidence [did] not support the inclusion of a lesser included offense in [the] jury charge.” Appellant argued that, on the evidence presented at trial, he was “either guilty of the offense of aggravated sexual assault or ... not guilty” of any offense. He argued further that the State sought the lesser-included-offense instructions simply to encourage “a compromise verdict in case the jury ha[d] a question as to the evidence.” The trial court overruled appellant’s objection and instructed the jury as requested by the State. The jury subsequently found appellant guilty of the lesser included offense of sexual assault under count one and guilty of aggravated sexual assault under count two. The trial court then assessed punishment, enhanced by a prior felony conviction, at imprisonment for 75 years on each count.

On appeal appellant reiterated his argument that the lesser-included-offense instructions were improper because no rational view of the evidence would support a conviction for sexual assault and an acquittal of aggravated sexual assault under either count. The State responded with two arguments: (a) that, under case law, it could lawfully request and obtain an instruction on a lesser included offense even if no rational view of the evidence would support a conviction for the lesser offense and an acquittal of the greater offense, and (b) that, in any event, there was evidence in the record that permitted the jury rationally to find that appellant was guilty, under count one, of sexual assault and not aggravated sexual assault.

The First Court of Appeals accepted the State’s first argument, without reaching its second, and affirmed the trial court’s judgment of conviction:

... It logically follows, from the premise that the allegation of an offense includes the implicit allegation of all lesser included offenses, that the State can submit to the jury any combination of the alleged offense and its lesser included offenses even where the State has not explicitly alleged all lesser included offenses.

Therefore, we hold that the State can request lesser included offenses to be submitted in the jury charge without satisfying the Royster requirement that there be some evidence that the accused is guilty only of the lesser offense.

Arevalo v. State, 918 S.W.2d 46, 49-50 (Tex.App.—Houston [1st Dist.] 1996). In support of its decision, the court of appeals cited two lower court opinions that had stated in dicta, and one lower court opinion that had held, that the State was not subject to the Royster requirement that, before an instruction on a lesser included offense is proper, there must be some evidence that the accused is guilty only of the lesser offense. See Gottlich v. State, 822 S.W.2d 734, 738 (Tex.App.—Fort Worth 1992, pet. ref'd); Angel v. State, 694 S.W.2d 164, 169 (Tex.App.—Houston [14th Dist.] 1985) (dicta), aff'd, 740 S.W.2d 727 (Tex.Crim.App.1987); Doss v. State, 636 S.W.2d 564, 565 (Tex.App.—Waco 1982, pet. ref'd) (dicta).² The court of appeals also noted, however, that the Tenth Court of Appeals, in Richardson v. State, 832 S.W.2d 168, 171 (Tex.App.—Waco 1992, pet. ref'd), had repudiated the position it had taken earlier in Doss.

We granted appellant’s petition for discretionary review to settle the conflict in the courts of appeals. See Tex.R.App. Proc. 200(c)(1). In this Court, the litigants make the same arguments they made below.

Analysis

Article 37.08,³ which codifies the common-law lesser-included-offense doctrine, provides: “In a prosecution for an offense with lesser included offenses, the jury may find the defendant not guilty of the greater offense, but guilty of any lesser included offense.” Article 37.09, in turn, provides:

An offense is a lesser included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the charged offense;

(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

In Royster v. State, 622 S.W.2d 442 (Tex.Crim.App.1981), a plurality of this Court held on rehearing that,

in determining whether a charge on a lesser included offense is required, a two step analysis is to be used. First, the lesser included offense must be included within the proof necessary to establish the offense charged.⁴ Secondly, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense.⁵

In Aguilar v. State, 682 S.W.2d 566, 558 (Tex.Crim.App.1985), a majority of this Court adopted the two-prong Royster test. Finally, in Rousseau v. State, 855 S.W.2d 666, 672-673 (Tex.Crim.App.), cert. denied, 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993), we modified the language, but not the meaning, of the two-prong Royster test so that “the roles of the court and jury [would] be better understood”:

[F]irst, the lesser included offense must be included within the proof necessary to establish the offense charged, and, second, some evidence must exist in the record that would 'permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense.

(Emphasis in original.) Our modification of the Royster language also brought our two-prong test in line with the test used by the federal courts, the courts of almost every other state, and the Model Penal Code. See Rousseau v. State, 855 S.W.2d at 672; J. Shellenberger & J. Strazzella, The Lesser Included Offense Doctrine and the Constitution, 79 Marq.L.Rev. 1, 6-8 (1995); Model Penal Code § 1.07(5) (1985).

We have never stated a rationale for the second prong of the Rousseaur-Aguilar-Roy-ster test, perhaps because we thought the rationale was obvious. In any event, the rationale is clear to us today, and it involves the very nature of the jury’s function at the guilt/innocence stage of a criminal trial. The jury’s sole function at the guilVinnocence stage is to find the historical facts. See 47 Am.Jur.2d Trial § 2 (1995). The second prong of the test preserves the integrity of the jury as the factfinder by ensuring that the jury is instructed as to a lesser included offense only when that offense constitutes a valid, rational alternative to the charged offense. If a jury were instructed on a lesser included offense even though the evidence did not raise it, then the instruction “would constitute an invitation to the jury to return a compromise or otherwise unwarranted verdict.” Model Penal Code § 1.07(5) at 134 (1985) (commentary on second prong of lesser-included-offense test). The Supreme Court of Wisconsin explained the rationale of the second prong this way:

... [A] determination of whether an instruction on a lesser included crime should be given to a jury is not solved by merely determining the crime charged includes the lesser offense because juries are not to be given the discretion or freedom to pick and choose what offense the accused should be found guilty of. The evidence must throw doubt upon the greater offense. Juries cannot rightly convict of the lesser offense merely from sympathy or for the purpose of reaching an agreement. They are bound by the evidence and should be limited to those included crimes which a reasonable view of the evidence will sustain....

State v. Williford, 103 Wis.2d 98, 307 N.W.2d 277, 282 (1981) (citations omitted).

In our view, the rationale underlying the second prong of the Rousseau-Aguilar-Roy-ster test is as applicable to the State’s request for a lesser included offense instruction as it is to a defendant’s request. Regardless of which litigant requests a lesser-ineluded-offense instruction, that instruction must not constitute an invitation to the jury to reach an irrational verdict. Accordingly, we hold that the second prong applies to the State as well as to defendants. Accord, United States v. Thompson, 490 F.2d 1218, 1221 (8th Cir.1974); United States v. Whitaker, 447 F.2d 314, 317 (D.C.Cir.1971); Richardson v. State, 832 S.W.2d at 171. Article 37.08 does not authorize a jury to find a defendant guilty of an offense less than the one charged unless the evidence reasonably justifies the jury in doing so.

Our holding today places no onerous burden on the State. Like the defendant, the State will be able to request and obtain a lesser-ineluded-offense instruction if it would be rational for the jury to find the defendant guilty of that lesser included offense.

Conclusion

We VACATE the judgment of the court of appeals and REMAND the case to that court so that it may (a) address the State’s argument that there was some evidence in the record that appellant was guilty only of sexual assault under count one and (b) determine whether the giving of the lesser-ineluded-offense instruction as to count two was harmless error under Article 36.19. See, e.g., O’Pry v. State, 642 S.W.2d 748, 764-766 (Tex.Crim.App.1981) (op. on reh’g).

1 . See Rousseau v. State, 855 S.W.2d 666, 672-673 (Tex.Crim.App.), cert. denied, 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993); Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App.1985); Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App.1981) (plurality op. on reh'g).

2 . The Doss court stated in dicta that the Royster requirement did not apply to the State because of the State’s "heavier burden of proof ... and ... obligation to seek a conviction if the evidence so -warrants." Doss v. State, 636 S.W.2d 564, 565 (Tex.App.—Waco 1982 pet. ref'd) (emphasis added). The Angel and Gottlich courts simply cited Doss as authority.

3 . All references to articles are to those in the Texas Code of Criminal Procedure.

4 . In other words, the lesser offense must actually be a lesser included offense as defined in Article 37.09. Schweinle v. State, 915 S.W.2d 17, 18 (Tex.Crim.App.1996) (per curiam op.).

5 . A lesser included offense is raised if "anything more than a scintilla of evidence” "either affirmatively refutes or negates an element establishing the greater offense, or the evidence on the issue is subject to two different interpretations, and one of the interpretations negates or rebuts an element of the greater.” Schweinle v. State, 915 S.W.2d 17, 18-19 (Tex.Crim.App.1996) (per curiam op.).