Grey v. State, PD-0137-09.

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 298 S.W.3d 644
• Docket Number: No. PD-0137-09.,PD-0137-09.
• Parties: Steven GREY, Appellant, v. The STATE of Texas.
• Decision Date: 18 November 2009

298 S.W.3d 644 Steven GREY, Appellant,
v.
The STATE of Texas. No. PD-0137-09. Court of Criminal Appeals of Texas. November 18, 2009.

[298 S.W.3d 645]

Scot R. Courtney, San Marcos, for appellant.

Lisa McMinn, First Asst. State's Atty., Jeffrey L. VanHorn, State's Attorney, Austin, for state.

KELLER, P.J., delivered the opinion of the Court in which MEYERS, KEASLER, HERVEY and COCHRAN, JJ., joined.

In the Royster-Rousseau line of cases, we established a two-pronged test for determining when a trial judge should submit to the jury a lesser-included offense that is requested by the defendant.¹ Under the second prong of the test, "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."² In Arevalo v. State,³ this Court held that the second prong applies equally to the submission of lesser-included offenses that are requested by the State. We granted review in this case to determine the following ground presented by the State: "Arevalo v. State should be overruled." Agreeing with the State, we overrule Arevalo and hold that the State is not bound by the second prong of the Royster-Rousseau test.

298 S.W.3d 646

I. BACKGROUND

Appellant was indicted for aggravated assault by causing bodily injury and using a deadly weapon. The alleged deadly weapon was appellant's hand, used to strangle the victim. In addition to instructions about the indicted offense, the jury charge contained an instruction on the lesser-included offense of simple assault by causing bodily injury. The jury charge was prepared by the prosecutor's office, and one of the prosecutors stated on the record that she had no objection to it and thought it was sufficient. But defense counsel objected to the lesser-included-offense instruction.⁴ The jury found appellant guilty of the lesser-included offense of simple assault.

On appeal, appellant claimed that the submission of the lesser-included offense was error. The court of appeals agreed and reversed the conviction.⁵

II. ANALYSIS A. Rules for Overruling Precedent

Though it is "[o]ften better to be consistent than right,"⁶ precedent may be overruled "if the reasons for doing so are weighty enough."⁷ Factors that support the overruling of precedent include:

(1) that the original rule or decision was flawed from the outset,

(2) that the rule's application produces inconsistent results,

(3) that the rule conflicts with other precedent, especially when the other precedent is newer and more soundly reasoned,

(4) that the rule regularly produces results that are unjust, that are unanticipated by the principle underlying the rule, or that place unnecessary burdens on the system, and

(5) that the reasons that support the rule have been undercut with the passage of time.⁸

B. The Remedy in Arevalo

One obvious flaw in the rule laid down by Arevalo and its progeny, one that produces inconsistent and unjust results in every single case in which the rule is applied, is the remedy. When a lesser-included offense is submitted in violation of Arevalo, and the defendant is convicted of that offense, the remedy this Court has imposed is a remand for a new trial on the very same lesser-included offense that the defendant has just claimed should never have been submitted.⁹ Such a result is "illogical,"¹⁰ but we fashioned this remedy

298 S.W.3d 647

because alternative remedies seemed unavailable or worse. Because a conviction on the lesser offense operates as an acquittal of the greater offense,¹¹ retrial on the greater offense is not possible.¹² But an outright acquittal of the criminal charge would be absurd where the evidence was in fact legally sufficient to support a conviction for the lesser-included offense.¹³

C. Source of the Rule in Arevalo 1. Constitution?

So where did the rule in Arevalo come from, and what is the legal basis for its existence? Arevalo's holding was based upon the "guilty only" requirement that is the second prong of the Royster-Rousseau test.¹⁴ In dissents in Arevalo, Presiding Judge McCormick and Judge Meyers both suggested that the "guilty only" requirement has constitutional underpinnings, describing when a lesser-included-offense instruction is required, but not necessarily describing all the circumstances under which such an instruction is permitted.¹⁵ In Rousseau, we had clarified the "guilty only" prong (but did not change existing law) by borrowing language from the federal standard, which we observed was stated in the Supreme Court decision of Hopper v. Evans¹⁶ and quoted by the Fifth Circuit.¹⁷ Evans discussed Beck v. Alabama,¹⁸ in which the Supreme Court concluded that a failure in a capital case to submit a lesser-included offense when raised by the evidence violates the constitution because there is an unwarranted risk that "a jury might convict a defendant of a capital offense because it found that the defendant was guilty of a serious [but lesser] crime."¹⁹

Evans also discussed the plurality opinion of Roberts v. Louisiana,²⁰ which addressed a situation "obverse" to the one at issue in Beck,²¹ and thus analogous to the Court's holding in Arevalo. In Roberts, a Louisiana statute required the submission in a capital case of lesser-included offenses "even if there was not a scintilla of evidence to support the lesser verdicts."²² The practice was impermissible because "it invited the jurors to disregard their oaths and convict a defendant of a lesser offense when the evidence warranted a conviction of first-degree murder, inevitably leading to arbitrary results."²³

298 S.W.3d 648

Evans, Beck, and Roberts were all capital cases. The Supreme Court expressly reserved the question of whether the federal constitution can require the submission of a lesser-included offense in a non-capital case,²⁴ and more recently it has suggested that Beck's holding may be limited to cases in which the death penalty was automatic upon conviction for the greater offense.²⁵ We have assumed that the erroneous failure to submit a lesser-included-offense instruction requested by the defense in a non-capital case constitutes ordinary jury charge error under Almanza v. State²⁶ to be analyzed for some harm when error was preserved.²⁷ Almanza's "some harm" standard applies only to non-constitutional errors,²⁸ and in any event, we used a "Beck-like" rationale to assess harm rather than holding that Beck controls the case.²⁹

The arguable relevance of Roberts to Texas jurisprudence is far more tenuous. The Roberts opinion found arbitrariness in the context of a scheme that automatically imposed the death penalty upon conviction for first-degree murder.³⁰ The submission of lesser-included offenses was the only method by which the jury was given the discretion to determine whether a convicted defendant would receive the death penalty, and the Supreme Court held that such a method did not provide sufficient guidance.³¹ In Lesko v. Lehman, the Third Circuit distinguished Roberts on the basis of this factual context and rejected a defendant's claim that constitutional error resulted from the submission of a lesser-included offense that was not raised by the evidence.³² "[A]ssuming arguendo that the trial evidence could not support a voluntary manslaughter verdict, we do not believe that the fact that the court instructed on that offense violates the rationale of Roberts."³³ The submission of the lesser offense did not violate Roberts because the death penalty was not mandatory, the jury was permitted to consider the full range of mitigating evidence, there were standards to guide the jury's sentencing discretion, and meaningful appellate review was available.³⁴

2. Statute?

Though the Court's opinion in Arevalo cited to articles 37.08 and 37.09,³⁵ neither statute contains any language that suggests the application of a "guilty only" requirement for determining when a lesser-included offense should be submitted.³⁶

298 S.W.3d 649

One could argue that a lesser-included offense does not become "law applicable to the case" under Article 36.14³⁷ unless it is raised by the evidence. But such an argument begs the question of what it means for a lesser offense to be "raised by the evidence." The propriety of the "guilty only" requirement appears to be a matter of common law,³⁸ which will be discussed in more detail below.

D. The Reasoning Behind the Rule in Arevalo

The "guilty only" requirement was originally articulated by this Court in Daywood v. State.³⁹ The only reasoning given for this requirement was that it had to be met to "raise[] the issue" of the lesser-included offense.⁴⁰ In Arevalo, this Court conceded that we had "never stated a rationale for the second prong of the [Royster-Rousseau] test," but we "thought the rationale was obvious."⁴¹ We said that the "guilty only" rule was designed to preserve the integrity of the jury as a factfinder by ensuring that it was instructed on a lesser-included offense "only when that offense constitutes a valid, rational alternative to the charged offense."⁴²

The Court in Arevalo then made an inferential leap: It held that this rationale "is as applicable to the State's request for a lesser-included offense as it is to a defendant's request."⁴³ Why? Because a lesser-included-offense instruction "must not constitute an invitation to the jury to reach an irrational verdict."⁴⁴

But the Court did not ask or answer the next obvious question: How does a lesser-included-offense instruction invite a jury to reach an irrational verdict? If the lesser offense is viewed in isolation, a jury's verdict would be rational so long as the lesser offense is included in the charging instrument and supported by legally sufficient evidence.⁴⁵ The "guilty-only" prong of the Royster-Rousseau test requires, however, that we view the rationality of the lesser offense, not in isolation, but in comparison to the offense described in the charging instrument. But why should we make...