273 S.W.3d 183 (Tex.Crim.App. 2008), PD-1923-06, Haynes v. State

Docket Nº:PD-1923-06.
Citation:273 S.W.3d 183
Party Name:Larry Glenn HAYNES, Appellant, v. The STATE of Texas.
Case Date:April 30, 2008
Court:Court of Appeals of Texas, Court of Criminal Appeals of Texas
 
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Page 183

273 S.W.3d 183 (Tex.Crim.App. 2008)

Larry Glenn HAYNES, Appellant,

v.

The STATE of Texas.

No. PD-1923-06.

Court of Criminal Appeals of Texas.

April 30, 2008

Rehearing Denied Aug. 20, 2008.

Page 184

James M. Leitner, Houston, TX, for Appellant.

Shirley Cornelius, Asst. Dist. Atty., Houston, Jeffrey L. Van Horn, State's Atty., Austin, for Appellee.

OPINION

HERVEY, J., delivered the opinion of the Court in which MEYERS, PRICE, JOHNSON, KEASLER and HOLCOMB, JJ., joined.

The issue in this case is whether an appellate court may reform a trial court's judgment to reflect a conviction for an unrequested lesser-included offense not submitted to the jury, when the appellate court decides that the evidence is insufficient to support the jury's guilty verdict for the greater offense but is sufficient to support a conviction for the lesser-included offense. We decide that, under these circumstances, an appellate court may not reform the trial court's judgment to reflect a conviction for the lesser-included offense.

A jury convicted appellant of the charged felony offense of assaulting a member of his household by causing her bodily injury several years after appellant had been convicted of assaulting a family

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member on another occasion.1 The jury charge does not contain any lesser-included offenses, and the record does not reflect that either party requested the inclusion of any lesser-included offenses in the jury charge. At the punishment phase, appellant pled " true" to two felony enhancement paragraphs, and the trial court sentenced appellant to the minimum of 25 years in prison.

The court of appeals decided that the evidence is insufficient to support appellant's conviction for the charged offense, because the evidence does not support an elemental finding that the more recent assault victim was a member of appellant's household at the time of the assault. See Haynes, op. at 189. The court of appeals reversed appellant's conviction and entered a judgment of acquittal. See id. We granted ground two of the State's petition for discretionary review, which presents the claim that, instead of ordering a judgment of acquittal, the court of appeals should have reformed the trial court's judgment to reflect appellant's conviction for the lesser-included, Class A misdemeanor offense of assault.

This Court addressed this reformation issue as one of first impression in Collier v. State, 999 S.W.2d 779, 780 (Tex.Cr.App.1999). Judge Mansfield's lead four-judge plurality opinion in Collier decided 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.

Collier, 999 S.W.2d at 782 (Mansfield, J., joined by Meyers, Price, and Johnson, JJ.) (italics in original).

Judge Mansfield's lead opinion in Collier was based in large part on the rationale that in cases like this the State " overreaches" or goes " for broke" by pursuing a trial strategy of not requesting a lesser-included offense instruction to make it more likely it will obtain a conviction for the greater offense that the evidence might only " weakly" support. See Collier, 999 S.W.2d at 781-82.2 According to this opinion, if the jury then convicts the defendant of the greater offense, but an appellate court later decides that the evidence is insufficient to support one of its elements, permitting the appellate court to reform

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the judgment to reflect a conviction for a supported-by-the-evidence lesser-included offense would " rescue [the State] from a trial strategy that went awry." See id. (permitting appellate court to reform judgment would permit State to " 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" of its trial strategy).3

Judge Keasler's opinion concurring only in the judgment in Collier was the necessary fifth vote to support the judgment in that case. See Collier, 999 S.W.2d at 783-85 (Keasler, J., concurring). Judge Keasler's concurring opinion decided that a " court of appeals cannot reform a judgment to reflect a conviction for a lesser-included offense unless that lesser-included offense was submitted in the jury charge." See Collier, 999 S.W.2d at 784 (Keasler, J., concurring) and at 785 (same).4

We understand the State to claim that Collier has no precedential value, because there is no majority holding contained within its lead and concurring opinions. See, e.g., Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (when " a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds" ) (internal quotes omitted). We further understand the State to argue that the issue presented in Collier and in this case should, therefore, be reexamined anew as an issue of first impression unburdened by any stare decisis considerations.

We note, however, that the " overreaching" rationale in Judge Mansfield's lead opinion in Collier replicates much of the rationale of this Court's majority opinion in Stephens v. State, 806 S.W.2d 812, 817-18 (Tex.Cr.App.1990) (Campbell, J., joined by Davis, Clinton, Teague, Miller, White, Berchelmann, and Sturns, JJ.).5 In

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addition, we do not agree with the State that Collier contains no majority holding. Judge Keasler's concurring opinion in Collier sets out a majority holding, because this opinion does contain the narrowest ground upon which five of the judges concurring in the judgment in Collier agreed. The narrowest ground upon which these five judges agreed is that an appellate court may in cases like this reform a judgment to reflect a conviction for the lesser-included offense when that lesser-included offense was submitted in the jury charge. See Collier, 999 S.W.2d at 782 (lead plurality op.) (appellate court may reform judgment if " the jury was instructed on the lesser included offense" ) and at 784 (Keasler, J., concurring) (appellate court may not reform judgment unless the " lesser-included offense was submitted in the jury charge" ).6

And, Judge Keasler's concurring opinion in Collier is based on Rules 43.3 and 43.2(b), which have not changed since Collier was decided. What has changed since Collier was decided is the composition of this Court, which is not a valid reason for ignoring stare decisis principles. See Wheatfall v. State, 882 S.W.2d 829, 843 (Tex.Cr.App.1994) (change in court membership not sufficient reason to ignore stare decisis principles). We decide that the court of appeals could not reform the trial court's judgment to reflect a conviction for the unrequested lesser-included, Class A misdemeanor assault offense, since it was not submitted in the jury charge.

Presiding Judge Keller's dissenting opinion asserts that this Court's 8-1 majority opinion in Stephens cannot supply the " overreaching" 7 rationale for Judge Mansfield's lead plurality opinion in Collier, primarily because Stephens is a double jeopardy case that does not apply in the reformation context. See Dissenting op. at 192-93 (Keller, P.J., dissenting).8 However, the State's " overreaching" conduct

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in both the double jeopardy and the reformation contexts is the same, thus requiring similar treatment and analysis.9 A rejection by a majority of this Court of the " overreaching" rationale in the reformation context would undermine this rationale in the double jeopardy context, which could very well require a reexamination of this Court's 8-1 majority opinion in Stephens. 10

Presiding Judge Keller's dissenting opinion also asserts that Collier contains no majority holding, because Judge Mansfield's lead plurality " opinion and Judge Keasler's concurring opinion contain entirely disparate rationales." See Dissenting op. at 194. But, the rule for determining a majority holding in a case decided by a fragmented court applies when there are " disparate rationales" for the result. See Marks, 430 U.S. at 193, 97 S.Ct. 990 (when " a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as the position taken by those Members who concurred in the judgments on the narrowest

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grounds" ) (emphasis supplied). In determining " the holding of the Court" in these cases, this rule does not search for a majority rationale, it searches for the " position taken by those [Judges] who concurred in the judgment[ ] on the narrowest grounds." See id. The position taken by those Judges " who concurred in the judgment[ ] on the narrowest grounds" in Collier is that when " the jury charge contains no lesser included offense instruction and neither party has requested one, [ 11] the appellate court cannot reform the judgment to reflect conviction of the lesser offense." See also Collier, 999 S.W.2d at 791 (McCormick, P.J., dissenting on reh'g) (also characterizing this as majority holding in Collier ).12

Judge Cochran's dissenting opinion seems to suggest that this Court is at liberty to decide the issue presented in this case as one of first impression. See Dissenting op. at 189-91 (Cochran, J., dissenting). The Court's opinion...

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