COLLIER v. STATE
999 S.W.2d 779 (1999)
John Henry COLLIER, Appellant,
The STATE of Texas.
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.OPINION
MANSFIELD, 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 The Relevant Facts
to reflect conviction of the lesser included offense?
A 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.