Collier v. State

999 S.W.2d 779, 1999 Tex. Crim. App. LEXIS 107, 1999 WL 391091

• Court: Court of Criminal Appeals of Texas
• Decided: September 29, 1999
• Docket: 1081-98
• Status: Published

Opinions

OPINION

MANSFIELD, J.,

delivered an opinion,

in which MEYERS, PRICE, and JOHNSON, JJ., joined, announcing the judgment of the Court.

This case presents the following question: If, on appeal by a convicted defendant, a court of appeals finds that the evidence is insufficient to support the conviction but sufficient to support conviction of a lesser included offense on which the jury was not instructed and on which the State did not seek to have the jury instructed, may the court of appeals nevertheless reform the judgment of conviction to reflect conviction of the lesser included offense?

The Relevant Facts

A grand jury in Tom Green County indicted appellant, John Henry Collier, for the felony offense of serious bodily injury to a child. See Tex. Penal Code § 22.04(a)(1). The case went to trial before a petit jury in the 51st District Court of Tom Green County. At the close of the evidence, the district court instructed the jury only on the offense charged in the indictment. Neither appellant nor the State requested an instruction on any lesser included offense. The jury found appellant guilty and assessed his punishment, enhanced by a prior felony conviction, at imprisonment for 35 years and a $10,000 fíne.

On direct appeal, appellant argued that he had been denied his liberty without due process of law because the evidence presented at his trial had been insufficient to prove his guilt beyond a reasonable doubt. See Griffin v. State, 614 S.W.2d 155, 158-159 (Tex.Crim.App.1981). The Third Court of Appeals agreed with appellant’s argument, reversed the district court’s judgment of conviction, and rendered a judgment of acquittal. Collier v. State, No. 03-97-00033-CR, 1998 WL 238523 (Tex.App. — Austin, delivered May 14, 1998) (not designated for publication). Although the court of appeals concluded that the evidence presented at appellant’s trial had been sufficient to prove his guilt of the lesser included offense of bodily injury to a child,¹ the court held that it lacked authority to reform the district court’s judgment to reflect conviction of that lesser included offense because the district court had not instructed the jury on that offense. In support of its holding, the court cited its previous decision in Thorpe v. State, 831 S.W.2d 548 (Tex.App.—Austin 1992, no pet.).²

We granted the State Prosecuting Attorney’s petition for discretionary review to determine whether the court of appeals had erred in holding that it lacked authority to reform the district court’s judgment. See Tex.R.App. Proc. 66.3(b). In his brief to this Court, the State Prosecuting Attorney argues that the absence of a jury instruction on the lesser included offense was irrelevant to the court of appeals’ authority to reform the judgment to reflect conviction of that lesser included offense, because when the jury found appellant guilty of the greater offense, it necessarily found him guilty of the lesser included offense as well. Appellant argues in response that the State Prosecuting Attorney is really asking this Court to give the State the benefit of a jury instruction it failed to request at trial.

Analysis

The question before us today is one of first impression in this Court, but we faced a similar question in Bigley v. State, 865 S.W.2d 26 (Tex.Crim.App.1993). In that case, a jury convicted Ervin Bigley of possession of 400 grams or more of methamphetamine after being instructed on that offense as well as the lesser included offense of possession of 28 grams or more but less than 400 grams of methamphetamine. On appeal, the court of appeals held that the evidence was insufficient to support the conviction but sufficient to support conviction of the lesser included offense. The court of appeals then reformed the judgment of conviction to reflect conviction of the lesser included offense, on the ground that, “[b]y finding that Bigley [had] possessed 400 grams or more of methamphetamine, the jury necessarily found that he [had] possessed the lesser amounts.” Bigley v. State, 831 S.W.2d 409, 415 (Tex.App.—Austin 1992). On petition for discretionary review, Big-ley argued that the court of appeals had lacked authority to reform the judgment of conviction as it had. We held, though, that the court of appeals had not erred, because we believed its reasoning was sound. Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim.App.1993).³ In that case, however, we were not faced with a situation like the one at bar, in which the jury was not instructed on the lesser included offense.

In State v. Myers, 158 Wis.2d 356, 461 N.W.2d 777 (1990), the Supreme Court of Wisconsin addressed directly the question we face today. In that case, Wisconsin defendant Eugene Myers was charged with aggravated battery, i.e., battery causing great bodily harm. At trial, Myers moved to dismiss at the close of the state’s case, arguing insufficient evidence of great bodily harm. The trial court denied the motion, and the case went to the jury. The jury was instructed on the crime of aggravated battery only. Neither the state nor Myers requested a jury instruction on any lesser included offenses. The jury convicted Myers of aggravated battery.

Myers appealed, and the court of appeals reversed his conviction because of insufficient evidence on the issue of great bodily harm. The court of appeals also refused the state’s request to direct the trial court to enter a judgment of conviction of attempted aggravated battery, a lesser included offense. The court of appeals viewed the state’s request as the state’s attempt to remedy its failure at trial to request an instruction on the lesser included offense.

The Supreme Court of Wisconsin agreed with the reasoning of the court of appeals and affirmed its judgment. The supreme court explained:

In Wisconsin the decision to request jury instructions on lesser included offenses is left largely to the parties, because the decision involves trial strategy, including the presentation and evaluation of evidence. The parties are therefore best equipped to decide when a request for lesser included offense instructions is appropriate. The state and the accused must assess at trial the risks and benefits of requesting jury instructions on lesser included offenses.

A circuit court [ie., trial court] need not instruct on a lesser included offense unless one of the parties requests the instruction and the evidence under a reasonable view ... is sufficient to establish guilt of the lower degree and also leave a reasonable doubt as to some particular element included in the higher degree but not the lower....

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... [W]e conclude that although the state’s argument [in this case] is made in terms of seeking a modification of the judgment, the state is in effect asking the appellate court to give it the benefit of jury instructions it failed to request at trial. The state is asking us to rescue it from a trial strategy that went awry.

By not requesting instructions on lesser included offenses, the state’s strategy is that the jury will convict an accused of the greater offense rather than let the accused (who the jurors will believe is apparently guilty of some offense) go scot-free, even when the jury may have some doubt about the evidence. According to this strategy, the jury’s inclination to punish a “bad” person may overpower any jury’s misgivings about whether the evidence proves guilt of the greater offense beyond a reasonable doubt.

The defendant also had a trial strategy in not requesting lesser included offense instructions. Both the state and the defendant opted for an all (conviction of the greater) or nothing (acquittal) verdict. In oft used terminology, both parties “went for broke.”

By not requesting instructions on lesser included offenses, the accused hopes that the jury will acquit of the greater offense rather than convict on what the accused views as arguably insufficient evidence. The accused is counting on the jury to comply with the instructions that the state’s burden is to prove guilt beyond a reasonable doubt.

The state would have us direct the court of appeals to direct the circuit court to enter a conviction of the lesser included offense when neither of the parties requested instructions on the lesser included offense. In that way, the state would have all the benefits and none of the risks of its trial strategy, while the accused would have all the risks and none of the protections....

Were we to adopt the state’s position, we would be encouraging the state, even when its evidence was weak, to avoid requesting jury instructions on the lesser included offense and to seek instead a guilty verdict of the greatest possible offense. If the state was successful at trial but the guilty verdict was reversed on grounds of insufficient evidence, the state could then, should it prevail in this appeal, seek a conviction of the lesser included offense in the appellate court.

State v. Myers, 461 N.W.2d at 780-783 (citations, footnotes, and some internal quotation marks omitted).

We agree with the reasoning of the Supreme Court of Wisconsin in State v. Myers, and we hold that 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. See United States v. Vasquez-Chan, 978 F.2d 546, 552 (9 th Cir.1992); State v. Holley, 604 A.2d 772, 776 (R.I.1992); Ex parte Roberts, 662 So.2d 229, 232 (Ala.1995); but see also Shields v. State, 722 So.2d 584, 587 (Miss.1998).

Our holding today places no onerous burden on the State. It means only that, at the close of the evidence at trial, the State, no less than the accused, must take care to evaluate the sufficiency of the evidence to support the charge. If the evidence will support a lesser included offense instruction, then either the State or the accused may, and probably should, request one. See Arevalo v. State, 943 S.W.2d 887 (Tex.Crim.App.1997). If the trial court does not instruct the jury on the lesser included offense and neither party seeks such an instruction, then the court of appeals will not be authorized to reform the judgment and thereby give the State the benefit of jury instructions no one at trial requested.

In the case at bar, the district court did not instruct the jury on the lesser included offense of bodily injury to a child, and neither party sought to have the jury instructed on that lesser included offense. Therefore, the court of appeals lacked authority to reform the judgment of conviction to reflect conviction of the lesser included offense.

We affirm the judgment of the court of appeals.

KEASLER, J., delivered an opinion concurring in the judgment of the Court. KELLER, J., delivered a dissenting opinion, in which McCORMICK, P.J., and HOLLAND and WOMACK, JJ., joined.

1 . See Tex. Penal Code § 22.04(a)(3).

2 . In Thorpe v. State, a cocaine possession case, the court of appeals held that the evidence was insufficient to support conviction for the charged offense but sufficient to support conviction of a lesser included offense. The court declined, however, to reform the judgment of conviction to reflect conviction of the lesser included offense, because the jury had not been instructed on the lesser included offense. The court explained: “Having concluded that the evidence is insufficient to support a conviction for [the charged offense], we must enter the only other judgment authorized by the trial court’s charge: acquittal. See Boozer v. State, 111 S.W.2d 608 (Tex. Crim.App.1984), and its progeny.” Thorpe v. State, 831 S.W.2d 548, 552 n. 1 (Tex.App.— Austin 1992, no pet.). We are uncertain what the court of appeals meant by its cite to Boozer v. State "and its progeny,” but the central rationale of Boozer v. State was expressly overruled in Malik v. State, 953 S.W.2d 234, 239 (Tex.Crim.App.1997).

3 . State and federal courts have long exercised the power to reverse a conviction for eviden-tiary insufficiency while at the same time rendering judgment on a lesser included offense. See Rutledge v. United States, 517 U.S. 292, 116 S.Ct. 1241, 1250, 134 L.Ed.2d 419 (1996); W. LaFave & J. Israel, Criminal Procedure § 25.4(b) at 1079 (2”* ed.1992); J. Shellenberger & J. Strazzella, The Lesser Included Offense Doctrine: The Development of Due Process and Double Jeopardy Remedies, 79 Marq. L.Rev. 1, 183-189 (1995).