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BOWEN v. STATE
374 S.W.3d 427 (2012)
Deborah BOWEN, Appellant,
v.
The STATE of Texas.
No. PD-1607-10.
Court of Criminal Appeals of Texas.
June 20, 2012.
Rehearing Denied August 22, 2012.
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. BACKGROUNDAppellant'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.
4. The court of appeals may:
. . .
(b) modify the trial court's judgment and affirm it as modified;
(c) reverse the trial court's judgment in whole or in part and render the judgment that the trial court should have rendered....
TEX.R.APP. P. 43.2.
5. The trial court is not required to sua sponte instruct the jury on potential lesser-included offenses, defensive issues or evidentiary issues because these "frequently depend upon trial strategy and tactics." Delgado, 235 S.W.3d at 249.
6. The Royster-Rousseau test is used to determine if a trial judge should submit to the jury a lesser-included offense to the jury. See Arevalo v. State, 943 S.W.2d 887, 889 (Tex.Crim. App.1997). The test is two-pronged:
1) The lesser-included offense must be included within the proof necessary to establish the offense charged.
2) There must me some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense.
Id.
7. See Grey, 298 S.W.3d at 650-51 (discussing the implications of Arevalo's application in cases in which there is a legitimate dispute about the meaning of the language of the aggravating element that distinguishes the greater and lesser offenses).
8. TEX. PENAL CODE § 32.45(c)(6):
"An offense under this section is a felony in the second degree if the value of the property misapplied is $100,000 or more but less than $200,000."
9. See DIX & SCHMOLESKY, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 56:214 ("Where trial was to the court without a jury, there are apparently no similar qualifications on the courts of appeals power to reform.").
2. Id. at 187 (citing Collier v. State, 999 S.W.2d 779 (Tex.Crim.App.1999)).
3. Id. at 186 n. 4. See TEX.R.APP. P. 43.2(c) ("Types of Judgment The court of appeals may ... reverse the trial court's judgment in whole or in part and render the judgment that the trial court should have rendered.").
4. Collier, supra, at 784 (Keasler, J., concurring).
5. Id.
6. Id.
7. Id. at 785.
8. Haynes, supra, at 187.
9. Bowen v. State, 322 S.W.3d 435, 437 & 442 (Tex.App.-Eastland 2010).
10. Besides this case and Haynes, the State has also urged us to overrule Collier in Shipp v. State, 331 S.W.3d 433, 434 n. 5 (Tex.Crim. App.2011), and in Tucker v. State, 274 S.W.3d 688, 691 n. 13 (Tex.Crim.App.2008), but we disposed of each of those cases in such a way that we ultimately did not have to reach the question.
11. See Haynes, supra, at 189 n. 14 (pointing out that "the rule applied in this case should be changed through the legislative or rule-making process rather than through judicial activism").
12. Id. at 187.
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