|
|
COLLIER v. STATE
999 S.W.2d 779 (1999)
John Henry COLLIER, Appellant,
v.
The STATE of Texas.
No. 1081-98.
Court of Criminal Appeals of Texas, En Banc.
June 16, 1999.
Concurring Opinion in denial of rehearing September 29, 1999.
Dissenting Opinion from denial of rehearing September 29, 1999.
Theodore A. Hargrove, III, San Angelo, for appellant.
Jeffery L. Van Horn, First Asst. State's Atty., Austin, Matthew Paul, State's Atty., Austin, for the State.
Before the court en banc.
Opinion of Johnson, J., concurring in denial of rehearing September 29, 1999. Opinion of McCormick, P.J., dissenting from denial of rehearing September 29, 1999. OPINIONMANSFIELD, J., delivered an opinion, in which MEYERS, PRICE, and JOHNSON, JJ., joined, announcing the judgment of the Court. This case presents the following question: If, on appeal by a convicted defendant, a court of appeals finds that the evidence is insufficient to support the conviction but sufficient to support conviction of a lesser included offense on which the jury was not instructed and on which the State did not seek to have the jury instructed, may the court of appeals nevertheless reform the judgment of conviction
to reflect conviction of the lesser included offense? The Relevant FactsA grand jury in Tom Green County indicted appellant, John Henry Collier, for the felony offense of serious bodily injury to a child. See Tex. Penal Code § 22.04(a)(1). The case went to trial before a petit jury in the 51st District Court of Tom Green County. At the close of the evidence, the district court instructed the jury only on the offense charged in the indictment. Neither appellant nor the State requested an instruction on any lesser included offense. The jury found appellant guilty and assessed his punishment, enhanced by a prior felony conviction, at imprisonment for 35 years and a $10,000 fine.
1. See Tex. Penal Code § 22.04(a)(3). 2. In Thorpe v. State, a cocaine possession case, the court of appeals held that the evidence was insufficient to support conviction for the charged offense but sufficient to support conviction of a lesser included offense. The court declined, however, to reform the judgment of conviction to reflect conviction of the lesser included offense, because the jury had not been instructed on the lesser included offense. The court explained: "Having concluded that the evidence is insufficient to support a conviction for [the charged offense], we must enter the only other judgment authorized by the trial court's charge: acquittal. See Boozer v. State,717 S.W.2d 608 (Tex. Crim.App.1984), and its progeny." Thorpe v. State,831 S.W.2d 548, 552 n. 1 (Tex.App.— Austin 1992, no pet.). We are uncertain what the court of appeals meant by its cite to Boozer v. State "and its progeny," but the central rationale of Boozer v. State was expressly overruled in Malik v. State,953 S.W.2d 234, 239 (Tex.Crim.App.1997). 3. State and federal courts have long exercised the power to reverse a conviction for evidentiary insufficiency while at the same time rendering judgment on a lesser included offense. See Rutledge v. United States,517 U.S. 292, 116 S.Ct. 1241, 1250, 134 L.Ed.2d 419 (1996); W. LaFave & J. Israel, Criminal Procedure § 25.4(b) at 1079 (2nd ed.1992); J. Shellenberger & J. Strazzella, The Lesser Included Offense Doctrine: The Development of Due Process and Double Jeopardy Remedies, 79 Marq. L.Rev. 1, 183-189 (1995). 2. 661 S.W.2d at 957 (Tex.Crim.App.1983). 3. Id. at 958. 5. Id. at 27. 7. Id. at 499. 8. Ibid. (emphasis in original). 10. Lemon v. State,861 S.W.2d 249, 250 (Tex. Crim.App.1993) (court of appeals deleted community service requirement and affirmed as modified); Rachuig v. State,972 S.W.2d 170, 179-80 (Tex.App.—Waco 1998, pet. ref'd) (modifying deadly weapon finding and affirming as modified); Howard v. State,966 S.W.2d 821, 829 (Tex.App.—Austin 1998, pet. ref'd) (modifying to delete deadly weapon finding and affirming as modified); Allen v. State,951 S.W.2d 925, 928 (Tex.App.—San Antonio 1997, pet. ref'd) (modifying to delete cumulation order and affirming as modified). 1. Collier v. State,999 S.W.2d 779 (Tex.Cr. App.1999) (op. on orig. sub'm) (Mansfield, J., joined by Meyers, Price and Johnson, JJ.) (requiring a requested or actual jury instruction on lesser offense before appellate court can reform). 2. Collier, 999 S.W.2d at 783 (op. on orig. sub'm) (Keasler, J., concurring in the judgment) (requiring actual jury instruction on lesser offense before appellate court can reform). 3. For brevity's sake this opinion refers to a "lesser included offense" as a "lesser offense." 4. Collier, 999 S.W.2d at 779 (op. on orig. sub'm) (Mansfield, J., joined by Meyers, Price and Johnson, JJ.), and 999 S.W.2d at 785 (op on orig. sub'm) (Keller, J., dissenting, joined by McCormick, P.J., Holland and Womack, JJ.) (requiring neither a requested nor actual jury instruction on lesser offense before appellate court can reform). 5. There is other language in Myers which would support a holding that reformation also is permitted when the prosecution requests an instruction on the lesser offense. See Myers, 461 N.W.2d at 780-83 (declining to give state benefit of instructions it failed to request at trial). So Myers is internally inconsistent. If Myers intended to permit reformation in both situations, then it should have expressly said so in its holding. 6. In Stephens, this Court decided, as a matter of federal constitutional law, that when an appellate court decides the evidence is insufficient to support a conviction only for the greater offense, double jeopardy principles bar a subsequent prosecution for the lesser offense. See Stephens v. State,806 S.W.2d 812, 814 fn. 4, 819 (Tex.Cr.App.1990). Stephens did not "purport to answer" whether this rule applied "if the jury charge had included an instruction on the lesser included offense or if the trial court had erroneously refused the State's request for a lesser included offense instruction." Stephens, 806 S.W.2d at 814 fn. 4. In Ex parte Granger, the Court decided this rule does not apply when the jury is actually instructed on the lesser offense. See Ex parte Granger,850 S.W.2d 513, 520 (Tex.Cr.App.1993). 7. The dissenting opinion in Stephens also answers the prosecutorial overreaching-requiring-the-prosecution-to-be-punished argument that some like to make in cases like this. See Stephens, 806 S.W.2d at 831, 833 (McCormick, P.J., dissenting). 8. Arevalo also confused those situations when a trial court must instruct on a lesser offense with those situations when a trial court may instruct on a lesser offense. See Arevalo, 943 S.W.2d at 890-92 (McCormick, P.J., dissenting) and at 892-94 (Meyers, J., dissenting). Arevalo effectively removed a trial court's discretion to instruct on a lesser offense.
|
|