Hall v. State

• Citation: 225 S.W.3d 524
• Decision Date: 09 May 2007
• Docket Number: No. PD-1594-02.,PD-1594-02.
• Parties: Aaron Junior HALL, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

225 S.W.3d 524

Aaron Junior HALL, Appellant v. The STATE of Texas.

No. PD-1594-02.

Court of Criminal Appeals of Texas.

May 9, 2007.

Rehearing Denied June 27, 2007.

Sue Korioth, Dallas, for Appellant.

Anne Wetherhold, Asst. District Atty., Dallas, Matthew Paul, State's Atty., Austin, for State.

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

An important issue in this case was whether the offense of aggravated assault by threat is a lesser-included offense of murder. We granted review to resolve ambiguities and conflicts in our decisions about the method of determining whether the allegation of a greater offense includes a lesser offense. We hold that the determination should be made by comparing the elements of the greater offense, as the State pled it in the indictment, with the elements in the statute that defines the lesser offense. We decide that aggravated assault was not a lesser offense included in the offense of murder that was alleged in the indictment in this case.

I.

The laws in our nation have taken four approaches to lesser-included offenses, which have been labeled "strict-statutory," "cognate-pleadings," "cognate-evidence," and "inherently related."¹

Some states permit a lesser included-offense instruction only when all of the statutory elements of the lesser offense are contained within the statutory elements of the greater offense.² This has been called the strict statutory approach.³

Many states have found this approach to be inflexible,⁴ and have adopted standards that permit an instruction even when the lesser offense is not composed of a subset of the statutory elements of the greater crime. This approach is known as the "cognate" theory, and it is the majority approach.⁵ There are two significantly different versions of the cognate theory, which mirror the two divergent lines of authority in our own cases.

One is known as the "cognate-pleadings" approach,⁶ in which the court looks to the facts and elements as alleged in the charging instrument, and not just to the statutory elements of the offense, to determine whether there exists a lesser-included offense of the greater charged offense.⁷

The other cognate approach is known as the "cognate-evidence" approach, a more liberal approach in which the court includes the facts adduced at trial in its lesser-included offense analysis.⁸

The fourth, and most liberal, view is the one reflected in the Model Penal Code, which permits a lesser-included offense instruction on any offense that is "inherently related" to the greater offense.⁹ At least one state permits lesser-included offenses to be determined solely from the evidence without reference to relationship or the elements of the crime, taking the most expansive portions of the cognate evidence approach and the inherent relationship approach.¹⁰

II. Article 37.09

In this state, the answers to questions about lesser-included offenses must be based on Article 37.09 of the Code of Criminal Procedure, which was Texas' first general statute that defined lesser-included offenses.

Before the enactment of Article 37.09 in 1973, the Code of Criminal Procedure did not contain a generally applicable rule for lesser-included offenses. Instead, it specified that certain offenses included certain lesser offenses:

The following offenses include different degrees:

(1) Murder, which includes all the lesser degrees of culpable homicide, and also an assault with intent to commit murder;

(2) An assault with intent to commit any felony, which includes all assaults of an inferior degree;

(3) Maiming, which includes aggravated and simple assault and battery;

(4) Burglary, which includes every species of house breaking and theft or other felony when charged in the indictment in connection with the burglary;

(5) Riot, which includes unlawful assembly;

(6) Kidnapping or abduction, which includes false imprisonment; and

(7) Every offense against the person includes within it assaults with intent to commit said offense, when such attempt is a violation of the penal law.¹¹

Article 37.09 became effective on January 1, 1974, as a conforming amendment in the new Penal Code Act. Rather than providing a list of greater and lesser offenses, it set out general definitions of a lesser-included offense that apply to all offenses:

An offense is a lesser included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.¹²

The problematic definition is in Article 37.09(1)—specifically the term "facts required to establish."

III. Day v. State

We gave the term "facts required to establish" two different interpretations in the very first case in which we construed Article 37.09(1): Day v. State.¹³ One interpretation was in our opinion on original submission, on which we shall rely in this case. The other interpretation was in the opinion on rehearing, which we shall modify and correct.

Day was charged with, and convicted of, burglary with intent to commit theft. He appealed, complaining of the trial court's refusal to charge the jury on a lesser-included offense of criminal trespass. The evidence was that police found Day inside a restaurant, which was not open, at 3 a.m. The front window was broken, a cigarette machine had been broken into, a box containing property from the manager's office was near the cigarette machine, and Day had a letter opener from the office in his pocket.

[Day,] testifying in his own behalf, stated that at approximately 3 a.m. on the date in question he was proceeding past [the restaurant] on the way home from a girlfriend's house. He stated that he observed a man come out of the restaurant and then noticed that a window had been broken out. [He] entered the restaurant through the broken window intending to telephone the police to report the broken window. He stated that the cigarette machine was already overturned and the cigarette packs already scattered on the floor at the time of his entry. [He] testified that he stepped on the letter opener and then put it in his pocket as a "reflex action." By his testimony, he was unable to find a light switch or telephone and was apprehended by the police approximately two minutes after entry.¹⁴

In our opinion on original submission in Day we established the method of analysis under the new statute. There are two steps in the analysis of whether there may be a conviction for a lesser offense in a particular case. "Our initial inquiry concerns whether criminal trespass is, as the appellant contends, a lesser included offense of burglary."¹⁵ After we determined that it was a lesser-included offense, "Our next inquiry concerns whether there was sufficient evidence at trial to have required the court to submit to the jury the issue of criminal trespass."¹⁶

We also demonstrated the methods and standards to be used in the two-step analysis. The first step was to determine whether criminal trespass was a lesser-included offense of burglary. We began by setting out the four definitions of a lesser-included offense in Article 37.09.¹⁷ Then we set out the statutory elements of burglary and criminal trespass.¹⁸ Then we compared the elements of the charged offense and the lesser offense and construed some terms in the statutes.¹⁹ We concluded, "Therefore, the elements of criminal trespass, including `notice,' could be established by proof of the same facts necessary to prove the offense of burglary. The proof of additional facts would not be necessary, and the requirement of Article 37.09(1), Vernon's Ann. C.C.P., would be satisfied. Therefore, we hold that the offense of criminal trespass is a lesser included offense of all three types of burglary."²⁰

The first step of the analysis was completed by comparing the elements of the greater offense and the lesser offense without any reference to the facts or evidence of the particular case.

On rehearing, the Court's opinion incorrectly said the opposite.

The Day Court took up two issues on rehearing. One was the State's argument "that the requested charge was properly denied because the indictment would not support a conviction for criminal trespass. The State cites numerous authorities for the proposition that an indictment will not support conviction for what otherwise would be a lesser included offense unless the indictment pleads all of the necessary allegations to charge such other offense."²¹ After surveying the law of lesser-included offenses before 1973, we said, "With respect to the State's challenge raised against the power of the court to enter judgment for criminal trespass upon the indictment in this case, we hold that the new statutory scheme of lesser included offenses, as contrasted with the old statutory scheme of offenses with degrees, did not create such a restriction upon the jurisdiction of the trial court once properly invoked to try the offense charged, to proceed to judgment upon the lesser included offense . . . ."²²

Just before that holding, the Court made the statement, "On original submission we held that on the facts of this case criminal trespass was a lesser included offense to the burglary charged under the terms of Art. 37.09(1), V.A.C.C.P."²³ This was a misstatement of the holding on original submission, which had made no reference to the facts of the case.

We made a similar statement in connection with the next issue, which was our sua sponte decision to consider the constitutionality of the new statut...