298 SW3D 644 - Grey v. State

KELLER, P.J.,

¶1delivered the opinion of the Court

in which MEYERS, KEASLER, HERVEY and COCHRAN, JJ., joined.

¶2In 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,3this 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.

¶3 *646I. BACKGROUND

¶4Appellant 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.

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

¶6II. ANALYSIS

¶7A. Rules for Overruling Precedent

¶8Though it is “[ojften 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

¶9B. The Remedy in Arevalo

¶10One 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 *647because 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

¶11C. Source of the Rule in Arevalo

¶121. Constitution?

¶13So 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.17Evans discussed Beck v. Alabama,18in 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

¶14Evans also discussed the plurality opinion of Roberts v. Louisiana,20 which addressed a situation “obverse” to the one at issue in Beck,21and 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

¶15 *648Evans, 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.27Al-manza’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

¶16The 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 “[Ajssuming 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.”33The 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

¶172. Statute?

¶18Though 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*649One 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 onl/’ requirement appears to be a matter of common law,38 which will be discussed in more detail below.

¶19D. The Reasoning Behind the Rule in Arevalo

¶20The “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-Rous-seau ] 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

¶21The 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

¶22But 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 jurys 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 that comparison? The answer must be that the State is entitled to pursue the charged offense and, therefore, is entitled to receive a response from the jury on *650whether the defendant is guilty of the charged offense. Is the defendant similarly entitled to a response from the jury on the charged offense? The answer to that question is clearly no. It is the State, not the defendant, that chooses what offense is to be charged. In fact, the State can abandon an element of the charged offense without prior notice and proceed to prosecute a lesser-included offense.46 If the State can abandon the charged offense in favor of a lesser-included offense, there is no logical reason why the State could not abandon its unqualified pursuit of the charged offense in favor of a qualified pursuit that includes the prosecution of a lesser-included offense in the alternative.

¶23E. The Consequences of the Rule in Arevalo

¶24We have already addressed one detrimental consequence of the rule in Arevalo: the remedy for the supposed error is illogical. Another detrimental consequence is that the prosecutor may be faced with a situation in which any decision he makes carries a high risk of error. If the prosecutor requests a lesser-included offense, he may run the risk of a reversal under Are-valo. But if the prosecutor fails to request a lesser-included offense, he may also run the risk of an outright acquittal by a jury or an acquittal for legal insufficiency on appeal.47

¶25The present case is illustrative. To convict appellant of aggravated assault in this case, the State had to prove that he used or exhibited a deadly weapon.48 The alleged deadly weapon in this case was appellant’s hand. The court of appeals held that the evidence in this case does not show that the defendant was guilty only of a simple assault because the evidence shows only that the defendant’s hand was a deadly weapon.49 But it is easy to see how a jury might not be willing to find that a person’s hand is a deadly weapon, despite all the evidence in favor of that proposition. And at the time of trial, the State might have legitimately perceived the possibility (though unlikely) that an appellate court would decide that the evidence was legally insufficient to prove the deadly weapon element.

¶26Arevalo’s application is not limited to cases in which the prosecutor is uncertain how a jury or an appellate court will view the strength of the State’s case.50 There can be a legitimate dispute about the meaning of the language of the aggravating element that distinguishes the charged offense from the lesser-included offense,51 or the possibility could exist that *651the aggravating element renders the charged offense unconstitutional.52 And with respect to disputes about the meaning of statutory language, appellate interpretations of statutes are not always foreseeable and can even involve the overruling of precedent.53

¶27The cautious approach for the prosecutor to take would be — or at least should be — to request the lesser-included offense. Allowing submission of lesser offenses when requested by the prosecutor would serve at least two important interests. First, society has an interest in convicting and punishing people who are guilty of crimes. When, in the prosecutor’s judgment, submission of the lesser-included offense will enhance the prospects of securing an appropriate criminal conviction for a defendant who is in fact guilty, society’s interests are best served by allowing the submission. Second, the prosecutor has “the primary duty ... not to convict, but to see that justice is done.”54 Even if the prosecutor believes in a given case that he will secure a conviction on the charged offense if the only alternative is acquittal, he might also believe that the jury should be given the option to decide whether a conviction on the lesser offense is more appropriate.

¶28Of course, the prosecutor could simply abandon the charged offense in favor of the lesser-included offense.55 But doing so would reflect not caution but capitulation. If the prosecutor believes the evidence for the charged offense is strong but also believes that the jury ought to be able to consider the lesser-included offense, then abandoning the charged offense as a remedy for the dilemma created by Arevalo would be overkill. And the decision on whether to abandon the charged offense would itself pose a dilemma because the prosecutor would not want to effectuate an abandonment unnecessarily.

¶29F. Conclusion

¶30The common-law rule established in Arevalo is based on flawed premises, places undue burdens on the prosecutor, and results in an illogical remedy. Consequently, we overrule Arevalo.

¶31The judgment of the court of appeals is reversed, and the case is remanded to address appellant’s remaining points of error.

¶32HERVEY, J., filed a concurring opinion in which MEYERS, and KEASLER, JJ., joined.

¶33COCHRAN, J., filed a concurring opinion.

JOHNSON, J., concurred. PRICE, WOMACK, and HOLCOMB, JJ., dissented.

¶34 *652HERVEY, J., concurring in which MEYERS and KEASLER, JJ., joined.

¶35I agree that we should overrule Arevalo v. State, 943 S.W.2d 887 (Tex.Cr.App.1997). I also agree with the dissenters in Arevalothat a “trial court has no discretion to deny a request for an instruction [on a lesser-included offense] when [the Royster-Rousseau ] test is met,[1] but nothing precludes a trial court from submitting an instruction even when this test is not met, provided the elements of the lesser offense are included within the elements of the charged offense[2] so as to give adequate notice.” See Arevalo, 948 S.W.2d at 892-94 (Meyers, J., dissenting) (emphasis in original) and at 890-92 (McCormick, P.J., dissenting). With these comments, I join the Court’s opinion.

¶36. See Royster v. State, 622 S.W.2d 442 (Tex.Crim.App.1981)(plurality op.); Rousseau v. State, 855 S.W.2d 666 (Tex.Crim.App.1993).

¶37. Rousseau, 855 S.W.2d at 673.

¶38. 943 S.W.2d 887 (Tex.Crim.App.1997).

¶39. Defense counsel objected as follows: “I would object to the lesser-included offense of misdemeanor assault being included. The reason is because of the strangled. There is no definition. The definition is to cause death. A lesser included is we strike elements or facts in and see if we have another lesser offense. We strike deadly weapon, well, now we have strangled indicating death of a misdemeanor.” After the objection was overruled, defense counsel requested an instruction on the lesser-included offense of Class C misdemeanor assault by offensive touching. That request was denied. The State does not raise before us any claim regarding the sufficiency of appellant’s trial objection to the lesser-included offense that was submitted.

¶40. Grey v. State, 269 S.W.3d 785 (Tex.App.Austin 2008).

¶41. Malik v. State, 953 S.W.2d 234, 236 (Tex.Crim.App.1997).

¶42. Ex parte Lewis, 219 S.W.3d 335, 338 (Tex.Crim.App.2007).

¶43. Id.

¶44. Hampton v. State, 165 S.W.3d 691, 694 (Tex.Crim.App.2005).

¶45. Hampton v. State, 109 S.W.3d 437, 442 (Tex.Crim.App.2003)(Keller, P.J., dissenting).

¶46. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); TexCode Crim. Proc. art. 37.14.

¶47. Hampton, 165 S.W.3d at 694; see also Hampton, 109 S.W.3d at 442 (Keller, P.J., dissenting).

¶48. Hampton, 165 S.W.3d at 694.

¶49. See Arevalo, 943 S.W.2d at 888-90.

¶50. Arevalo, 943 S.W.2d at 890-91 (McCormick, P.J., dissenting); id.at 892 n. 2, 893 (Meyers, J., dissenting).

¶51. 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982).

¶52. Rousseau, 855 S.W.2d at 672-73, 673 n. 4; see Evans, 456 U.S. at 612, 102 S.Ct. 2049 (quoting the federal rule).

¶53. 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).

¶54. Evans, 456 U.S. at 610, 102 S.Ct. 2049 (citing Beck, 447 U.S. at 642, 100 S.Ct. 2382)(bracketed material inserted).

¶55. 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976)(plurality op.).

¶56. Evans, 456 U.S. at 611, 102 S.Ct. 2049.

¶57. Evans, 456 U.S. at 611, 102 S.Ct. 2049 (quoting Roberts, 428 U.S. at 334, 96 S.Ct. 3001).

¶58. Id.(citing Roberts, 428 U.S. at 335, 96 S.Ct. 3001).

¶59. Beck, 447 U.S. at 638 n. 14, 100 S.Ct. 2382; see also Howell v. Mississippi, 543 U.S. 440, 444-45, 125 S.Ct. 856, 160 L.Ed.2d 873 (2005).

¶60. Howell, 543 U.S. at 445, 125 S.Ct. 856.

¶61. Almanza v. State, 686 S.W.2d 157 (Tex.Crim.1984).

¶62. Saunders v. State, 913 S.W.2d 564, 570-72 (Tex.Crim.App.1995).

¶63. Jimenez v. State, 32 S.W.3d 233, 237 (Tex.Crim.App.2000).

¶64. Saunders, 913 S.W.2d at 571 n. 3.

¶65. Roberts, 428 U.S. at 336, 96 S.Ct. 3001.

¶66. Id. at 335, 96 S.Ct. 3001.

¶67. 925 F.2d 1527, 1552-53 (3rd Cir.1991).

¶68. Id. at 1553.

¶69. Id.; see also McDougall v. Dixon, 921 F.2d 518, 531-32 (4th Cir.l990)(distinguishing Roberts on the basis that there was evidence upon which a jury could have returned a verdict on the lesser offense and North Carolina did "not have a mandatory death sentence for first degree murder as Louisiana had at the time of Roberts ").

¶70. See id. at 888 (citing Tex.Code Crim. Proc. arts. 37.08, 37.09).

¶71. Art. 37.08 provides: "In a prosecution for an offense with lesser included offenses, the jury may find the defendant not guilty of the greater offense, but guilty of any lesser included offense.” Art. 37.09 provides:

*649An 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.

¶72.See TexCode Crim. Proc. art. 36.14 ("the judge shall ... deliver to the juiy ... a written charge distinctly setting forth the law applicable to the case").

¶73. See Tex.Code Crim. Proc. art. 1.27 (“If this Code fails to provide a rule of procedure in any particular state of case which may arise, the rules of the common law shall be applied and govern.”).

¶74. 157 Tex.Crim. 266, 269, 248 S.W.2d 479, 481 (Tex.Crim.App.1952).

¶75. Id.

¶76. Arevalo, 943 S.W.2d at 889 (bracketed material substituted for original).

¶77. Id.

¶78. Id. at 889-90.

¶79. Id. at 890.

¶80. See Wasylina v. State, 275 S.W.3d 908, 909-10 (Tex.Crim.App.2009).

¶81. Eastep v. State, 941 S.W.2d 130, 134 (Tex.Crim.App.1997).

¶82. See Collier v. State, 999 S.W.2d 779, 790 (Tex.Crim.App.1999)(Keller, J., dissenting); id. at 794 (McCormick, P.J., dissenting on motion for rehearing); Haynes v. State, 273 S.W.3d 183 (Tex.Crim.App.2008)(reformation to lesser-included offense not permitted when the lesser-included offense is not submitted and the prosecutor failed to request its submission).

¶83. See Tex. Pen.Code § 22.02(a)(2).

¶84. Grey, 269 S.W.3d at 788-89.

¶85. For an example of a dispute about the strength of the State’s case, see Easier v. State, 275 S.W.3d 512, 523-24 (Tex.Crim.App.2009), and id. at 528-33 (Cochran, J., dissenting). Judge Cochran noted that, if her view were correct, the conviction could be reformed to reflect a lesser included offense that was submitted to the jury, with a remand for resentencing. Id. at 533, 533 n. 40 (Cochran, J., dissenting).

¶86.See Lomax v. State, 233 S.W.3d 302 (Tex.Crim.App.2007)(felony DWI can be an underlying offense for felony murder) and id.at 311 n. 31 (because lesser offense of felony DWI was submitted, judgment could have been reformed to lesser offense if felony murder conviction had been set aside); Haynes v. State, 254 S.W.3d 466, 469-70 (Tex.App.*651Houston [1st Dist.] 2007)(rejecting State's contention that the definition of "household” in Tex Fam.Code § 71.006 applies to prosecutions under Tex. Penal Code § 22.01(b)(2)) and Haynes, 273 S.W.3d at 185, passim (lesser-included offense of assault was not submitted, so no reformation possible).

¶87. See Long v. State, 931 S.W.2d 285, 294 (Tex.Crim.App.1996)(element distinguishing stalking from lesser offense rendered stalking offense unconstitutional).

¶88. See Roberts v. State, 273 S.W.3d 322, 330-31, 332 (Tex.Crim.App.2008)(overruling holding in Norris v. State, 902 S.W.2d 428 (Tex.Crim.App.1995), regarding the proper use of transferred intent and reforming judgment to reflect conviction for lesser-included offense of murder and remanding for resentencing).

¶89. Tex.Code Crim Proc. art. 2.01; Haynes, 273 S.W.3d at 191 (Johnson, J., concurring).

¶90. See Eastep, cited above.

¶91. This rule for determining when a trial court must submit a lesser-included-offense instruction apparently is based on federal due process, at least in death-penalty cases. See Beck v. Alabama, 447 U.S. 625, 633-38, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); Keeble v. United States, 412 U.S. 205, 208, 212-13, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973); Arevalo, 943 S.W.2d at 890-91 (McCormick, P.J., dissenting) and at 892 n. 1 (Meyers, J., dissenting).

¶92. See Hall v. State, 225 S.W.3d 524 (Tex.Cr.App.2007).