Bowen v. State

• Decision Date: 22 August 2012
• Docket Number: No. PD–1607–10.,PD–1607–10.
• Citation: 374 S.W.3d 427
• Parties: Deborah BOWEN, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

374 S.W.3d 427

Deborah BOWEN, Appellant,

v.The STATE of Texas.

No. PD–1607–10.

Court of Criminal Appeals of Texas.

June 20, 2012.

Rehearing Denied Aug. 22, 2012.

John R. Saringer, Abilene, for Appellant.

Lisa C. McMinn, State Prosecuting Atty., Austin, for State.

OPINION

MEYERS, J., delivered the opinion of the Court, in which KELLER, P.J., and WOMACK, JOHNSON, COCHRAN and ALCALA, JJ., joined.

In Collier v. State, 999 S.W.2d 779 (Tex.Crim.App.1999), we held that the court of appeals cannot reform a conviction of a greater offense to a lesser-included offense unless the lesser-included offense was requested by the parties or included in the jury charge. Since the case was decided, we have had to revisit the law regarding lesser-included instructions in many cases, such as those pertaining to the reformation of convictions,¹ which party can request the instructions,² and the implications of a trial court's refusal to submit requested instructions.³ The purpose of Collier, which was to prevent the State from overreaching and having an unfair advantage over the defendant, has been lost through our subsequent decisions. This Court has forced itself to work around the holding, and the decision has proved to be unworkable in practice and inapplicable in many instances. We now overrule Collier, reverse the judgment of the Eastland Court of Appeals, and remand to the trial court for further proceedings consistent with this opinion.

I. BACKGROUND

Appellant's father died in 2001. Her father's will established a family trust, and Appellant's mother was named as the primary beneficiary. The trust was to terminate at her mother's death, and the trust assets were to be distributed equally, per stirpes, to Appellant and her brother, Jackie. Jackie predeceased his mother, leaving three children. Appellant was appointed co-trustee in 2004. The balance of the trust at the time of appointment was $620,065. Appellant distributed the entire balance of the trust to herself when her mother died, rather than distribute one-half of the assets to Jackie's children, as required by the trust provisions. Jackie's daughter, Dana White, had power of attorney to act on behalf of her two brothers. Appellant was charged with misapplication of fiduciary property owned by or held for the benefit of White for the value of $200,000 or more. Tex. Penal Code § 32.45(b) & (c)(7). She was convicted by a jury, sentenced to eight years in prison, and ordered to pay a fine and restitution to White and her brothers. No lesser-included offense instructions were submitted to the jury.

The Eastland Court of Appeals concluded that the evidence was legally insufficient to prove that the misapplied assets owned by or held for Dana White's benefit equaled $200,000 or more. Bowen v. State, 322 S.W.3d 435, 442–43 (Tex.App.-Eastland 2010, pet. granted). The court held that the terms of the trust, not the powers of attorney, controlled who owned, or for whose benefit, the trust assets were held. Id. at 442. Thus, White was a beneficiary of only one-sixth of the trust amount, totaling approximately $103,344. Id. The court of appeals, bound by Collier, did not reform the judgment to reflect a conviction for a lesser-included offense because a lesser charge was not submitted to the jury. Id. at 442–43. Instead, the court ordered an acquittal. Id.

The State filed a petition for discretionary review, asking us to overrule Collier, reverse the judgment of the Eastland Court of Appeals, and remand the case to reflect a conviction for the appropriate lesser-included offense.

II. ANALYSIS

A. Caselaw

In Collier, a plurality of this Court held that an appellate court does not have the authority to reform a judgment to reflect a conviction of a lesser-included offense if it was neither requested nor submitted in the jury charge. Collier, 999 S.W.2d at 785. Judge Mansfield's lead opinion, joined by three judges, was based on the rationale that allowing the reformation of judgments would encourage the State to use a “go for broke” trial strategy of not requesting a lesser-included offense instruction in order to make it more likely to obtain a conviction for the charged offense. Haynes, 273 S.W.3d at 185 (citing Collier, 999 S.W.2d at 781–82). The four-judge plurality 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.

Judge Keasler's concurring opinion focused on the power of an appellate court to modify a trial court's judgment under Rules of Appellate Procedure 43.2(b) and (c).⁴ The opinion notes that “the ‘judgment that the trial court should have rendered’ can only be a judgment that the trial court was capable of rendering....” Collier, 999 S.W.2d at 784 (Keasler, J., concurring). Judge Keasler concluded that an appellate court cannot reform a judgment to reflect a conviction for a lesser-included offense unless the lesser-included offense was submitted to the jury. Id.

Nearly a decade later in Haynes, we determined that Judge Keasler's concurring opinion in Collier set out the majority holding because his opinion contained the narrowest ground upon which five judges agreed. 273 S.W.3d at 187. The narrowest ground was that “an appellate court may reform a judgment to reflect a conviction for the lesser-included offense when that lesser-included offense was submitted in the jury charge.” Id.

B. “Overreaching” Strategy

The rationale behind the plurality opinion in Collier was that, in some cases, the State “overreaches” or “goes for broke” by not requesting an instruction on a lesser-included offense in order to make it more likely to obtain a conviction for the greater offense, even if the evidence only weakly supports the more severe conviction. Haynes, 273 S.W.3d at 185. The holding does not consider that the defense may also have a strategic reason to not request a lesser-included offense instruction—the defense may hope for outright acquittal, rather than diminished culpability. Dix & Schmolesky, Texas Practice: Criminal Practice and Procedure § 43:47 (3d ed.2011).

On several occasions since Collier was decided, this Court has considered the implication of the State's or the defendant's strategic decision to not request a jury instruction on a lesser-included offense. The prosecution and the defense may both request the submission of a lesser-included offense instruction. The trial court may submit the instruction, but is not required to do so unless the defendant requests the instruction and sets out specific evidence that supports the lesser offense and negates the greater offense. Flores v. State, 245 S.W.3d 432, 439 (Tex.Crim.App.2008).

In holding that the trial court was not required to sua sponte provide a lesser-included instruction, we noted that regardless of which side goes for broke, the trial court need not rescue the party from its strategic choice. Tolbert v. State, 306 S.W.3d at 782 (quoting Haynes v. State, 273 S.W.3d at 191 (Johnson, J., concurring)). Tolbert was charged with capital murder (murder during the course of a robbery) and chose not to request an instruction on the lesser-included charge of murder, despite evidence that she did not decide to rob the victim until after she murdered him, which negated the capital murder charge. Id. at 777.

When she appealed her capital murder conviction, Tolbert argued that, because the State unsuccessfully requested the lesser-included offense instruction, the murder instruction was “applicable to the case,” and therefore the trial judge was required to submit the charge. See id. at 781–82. This Court compared lesser-included instructions to defensive issues, which frequently depend on trial strategy. Id. at 780–81.⁵ A defensive issue must be preserved on the record in order to be applicable to the case. See id. at 780 (quoting Posey v. State, 966 S.W.2d 57, 62 (Tex.Crim.App.1998)). Because she did not object to the trial court's denial of the State's request, we determined that she had waived her right to complain on appeal. Id. at 781 n. 10 (quoting Grey v. State, 298 S.W.3d at 654–55 (Cochran, J., concurring)).

Although the sufficiency of the capital murder conviction was not at issue, we pointed out that our holding in Haynes left open the question of whether an appellate court could reform a judgment if a lesser-included offense was requested by either party, but denied by the trial court. Id. at 782 n. 12. This alludes to one of the impracticalities of the overreaching rationale in Collier—the State is not “going for broke” if it requests a lesser-included offense, but the trial court does not submit the instruction.

To contrast, in Grey v. State, 298 S.W.3d at 646, we examined the applicability of the Royster–Rousseau test ⁶ to jury instructions that were prepared by the State and objected to by the defendant. In Arevalo v. State, we held that the second prong of the Royster–Rousseau test applies equally to requests by the State and the defendant. Id. at 645. The consequences of the rule in Arevalo were examined, particularly in light of our holding in Collier.

We noted the high risk of error that is present for prosecutors under Arevalo and Collier.Id. at 650. In some cases, the prosecutor has to weigh the benefits of requesting a lesser-included offense instruction and risk reversal under Arevalo if the submission of the instruction was given in error. Id. Or, the State may face reversal under Collier if it does not request a lesser-included offense instruction and the evidence is legally insufficient to support the greater...