Collier v. State, 108198

• Decision Date: 29 September 1999
• Docket Number: 108198
• Citation: 999 S.W.2d 779
• Parties: IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. 1081-98 JOHN HENRY COLLIER, Appellant v. THE STATE OF TEXAS ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF APPEALS TOM GREEN COUNTY JOHNSON, J., filed an opinion respecting the denial of the state's motion for rehearing. OPINION RESPECTING DENIAL OF STATE'S MOTION FOR REHEARING I join the denial of the state's motion for rehearing. I write separately to note the precedential value of the Court's opinion on original submission, as a guide to the bench and bar. This case deals with the authority of a court of appeals, upon finding that the evidence is legally insufficient to sustain a defendant's conviction but sufficient to sustain a conviction for a lesser-included offense, to reform the judgment to reflect conviction of that lesser-included offense when the jury was not instructed on the lesser-included offense. While no opinion in this case has garnered the votes of a majority of this Court, there are clear, albeit shifting, majorities, depending on the circumstances. Two situations are presented here: (1) one of the parties requested, but was denied an instruction on the lesser-included offense; (2) neither party requested for such an instruction. Under the plurality's approach, reformation is authorized in the first instance, but not in the second. Ante, at ___ (slip op. at 6) (Mansfield, J., joined by Meyers, Price and Johnson, JJ.). Under Judge Keller's approach, reformation is authorized in either instance. Post, at ___ (slip op. at 3-6, 10) (Keller, J., dissenting, joined by McCormick, Holland and Womack, JJ.). Under Judge Keasler's approach, reformation is authorized in neither instance. Post, at ___ (slip op. at 4-5, 7) (Keasler, J., concurring). Therefore, in the situation in which one of the parties asked for, but was denied, an instruction on the lesser-included offense, eight members of the court (Judges McCormick, Meyers, Mansfield, Keller, Price, Holland, Womack, and Johnson) find th
• Court: Texas Court of Criminal Appeals

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 1081-98

JOHN HENRY COLLIER, Appellant

v.

THE STATE OF TEXAS

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE THIRD COURT OF APPEALS

TOM GREEN COUNTY

JOHNSON, J., filed an opinion respecting the denial of the state's motion for rehearing.

OPINION RESPECTING DENIAL

OF STATE'S MOTION FOR REHEARING

I join the denial of the state's motion for rehearing. I write separately to note the precedential value of the Court's opinion on original submission, as a guide to the bench and bar.

This case deals with the authority of a court of appeals, upon finding that the evidence is legally insufficient to sustain a defendant's conviction but sufficient to sustain a conviction for a lesser-included offense, to reform the judgment to reflect conviction of that lesser-included offense when the jury was not instructed on the lesser-included offense. While no opinion in this case has garnered the votes of a majority of this Court, there are clear, albeit shifting, majorities, depending on the circumstances.

Two situations are presented here: (1) one of the parties requested, but was denied an instruction on the lesser-included offense; (2) neither party requested for such an instruction. Under the plurality's approach, reformation is authorized in the first instance, but not in the second. Ante, at ___ (slip op. at 6) (Mansfield, J., joined by Meyers, Price and Johnson, JJ.). Under Judge Keller's approach, reformation is authorized in either instance. Post, at ___ (slip op. at 3-6, 10) (Keller, J., dissenting, joined by McCormick, Holland and Womack, JJ.). Under Judge Keasler's approach, reformation is authorized in neither instance. Post, at ___ (slip op. at 4-5, 7) (Keasler, J., concurring).

Therefore, in the situation in which one of the parties asked for, but was denied, an instruction on the lesser-included offense, eight members of the court (Judges McCormick, Meyers, Mansfield, Keller, Price, Holland, Womack, and Johnson) find that the court of appeals is authorized to reform the judgment to reflect conviction of the lesser-included offense. In the situation in which neither party asked for an instruction on the lesser-included offense, five members of the court (Judges Meyers, Mansfield, Price, Johnson and Keasler) find that the court of appeals is not authorized to reform the judgment to reflect conviction of the lesser-included offense.

With these observations, I join the denial of the state's motion for rehearing.

Johnson, J.

Date Delivered: September 29, 1999

Publish

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 1081-98

JOHN HENRY COLLIER, Appellant

v.

THE STATE OF TEXAS

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE THIRD COURT OF APPEALS

TOM GREEN COUNTY

McCormick, PJ, filed dissenting opinion to denial of State's motion for rehearing in which Keller, J., joined.

DISSENTING OPINION TO DENIAL OF

STATE'S MOTION FOR REHEARING

I respectfully dissent to the Court's decision to deny rehearing. The Court should grant rehearing to reexamine its "holding" on original submission and to reexamine the lead plurality opinion's rationale which misapplies and cannot be reconciled with this Court's decision in Arevalo v. State, 943 S.W.2d 887 (Tex.Cr.App. 1997).

A fragmented court decided this case with no single rationale explaining the result or supporting the judgment. A fair reading of the lead plurality opinion1 and the concurring opinion2 on original submission reveals two "majority holdings" on when an appellate court can reform a trial court's judgment to reflect conviction of a lesser offense3 when the appellate court decides the evidence is insufficient to support conviction of the greater offense but sufficient to support conviction of the lesser offense. Cf. Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 1926-27, 128 L.Ed.2d 745 (1994) (when "a fragmented court decides a case and no single rationale explaining the result enjoys the assent" of at least five judges, "the holding of the Court may be viewed as that position taken by those members who concurred in the judgments on the narrowest grounds").

The appellate court can reform the trial court's judgment to reflect conviction of the lesser offense when the jury charge contains an instruction on the lesser offense. And, when, as in this case, the jury charge contains no lesser offense instruction and neither party has requested one, the appellate court cannot reform the judgment to reflect conviction of the lesser offense. See King v. Palmer, 950 F.2d 771, 779-85, 781 (D.C.Cir. 1991), cert.denied, 112 S.Ct. 3054 (1992) ("narrowest opinion must represent a common denominator of the Court's reasoning; it must embody a position implicitly approved by at least five Justices who support the judgment").

When the jury charge contains no lesser offense instruction but a party has requested one, there is no "majority holding" or controlling decision on original submission under the Nichols test so the Court's opinions supporting the judgment on original submission have no precedential value in these circumstances. See King, 950 F.2d at 779-85, 783-84 (in applying Nichols to determine court's "holding," appellate courts not "free to combine a dissent with a concurrence to form" a majority holding). However, the bench and bar should note that all the Court's opinions on original submission contain eight votes to support the result that the appellate court can reform the judgment to reflect conviction of the lesser offense in these circumstances.4

The lead plurality opinion requiring a requested or actual jury instruction on a lesser offense before an appellate court can reform is contrary to the overwhelming weight of authority from other jurisdictions. See, e.g., Rutledge v. United States, 517 U.S. 860, 116 S.Ct. 1241, 1250, 134 L.Ed.2d 419 (1996) (not making requested or actual jury instruction on lesser offense condition to appellate court's ability to reform); United States v. Hunt, 129 F.3d 739, 744-46 (5th Cir. 1997) (jury instruction on lesser offense "appears to be a separate requirement only in the Ninth Circuit") and authorities cited and discussed therein; Shields v. State, 722 So.2d 584, 585-87 (Miss. 1998) and authorities cited and discussed therein. A requested or actual jury instruction on a lesser offense are red herrings and should have no bearing on or relevance to whether an appellate court can reform.

The holding and rationale of the lead plurality opinion on original submission purport to follow and to rely heavily on the minority position set out in the Wisconsin Supreme Court's decision in State v. Myers, 461 N.W.2d 777 (Wis. 1990). However, the holding in the lead plurality opinion and the express holding in Myers conflict in that the former permits reformation when a party requests a lesser offense instruction while the express holding in Myers, consistent with Judge Keasler's concurring opinion on original submission, permits reformation only when the jury is actually instructed on the lesser offense. See Myers, 461 N.W.2d at 778. If the lead plurality opinion intended to follow the express holding in Myers, then Judge Keasler's one-judge concurring opinion on original submission arguably should have contained the court's holding.5

Myers and the lead plurality opinion also fail to give sufficient, if any, consideration to the criminal justice system's basic purpose of convicting the guilty and freeing the innocent by treating a criminal trial as a sporting contest or a game and penalizing the prosecution for what they perceive to be prosecutorial "overreaching." However, a criminal trial is not a sporting contest or a game. See Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 1618, 75 L.Ed.2d 610 (1983), quoting Roscoe Pound, The Causes of Popular Dissatisfaction With The Administration Of Justice, 29 ABA Ann. Rep. 395, 406 (1906), (condemning American courts for their tendency to ignore "substantive law and justice" by treating criminal trials as "sporting contests").

Under this "sporting contest" approach, innocent citizens are usually the losers. For example, under this Court's federal constitutional decision in Stephens v. State,6 whose reasoning closely parallels the reasoning of the Court's decision in this case, one effect of the Court's decision is that a fairly-tried and guilty criminal defendant walks totally free. Neither the federal constitution nor anything in our state law require this.7

Myers and Stephens demonstrate a fundamental misunderstanding of federal constitutional double jeopardy principles by erroneously believing they bar a subsequent prosecution for the lesser offense in cases like this. See Stephens, 806 S.W.2d at 819-20; Myers, 461 N.W.2d at 783 fn 9. These cases fail to appreciate the legally significant distinction between when a jury acquits a defendant of the greater offense versus when a jury convicts the defendant of the greater offense but an appellate court decides the evidence is insufficient to support only an aggravating element of the greater offense. See Stephens, 806 S.W.2d at 821-22 (McCormick, P.J., dissenting) (acquittal by appellate court after jury's finding of guilt significantly differs from a jury's finding of not guilty).

Double jeopardy principles clearly do not bar a subsequent prosecution for the lesser offense in cases like this. See Morris v. Matthews, 475 U.S. 237, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986); Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970); Stephens, 806 S.W.2d at 820-34 (McCormick, P.J., dissenting) (fully explaining why Stephens was wrongly decided). And, this is the rule this Court followed in a host of cases before this Court overruled them in Stephens. See Stephens, 806 S.W.2d at 829, 831 (McCormick, P.J,...