IN THE COURT OF CRIMINAL APPEALS

 OF TEXAS

NO. PD-0759-21 

JOSE JUAN CHAVEZ, Appellant 

v. 

THE STATE OF TEXAS 

ON STATE=S PETITION FOR DISCRETIONARY REVIEW 

FROM THE FOURTEENTH COURT OF APPEALS 

CHAMBERS COUNTY 

KEEL, J., filed a concurring opinion, in which KELLER, P.J., and 

SLAUGHTER, J., joined. 

CONCURRING OPINION

Which of our two tests for “guilty only” is correct—possible disbelief or factual 

dispute? 

The court of appeals’ majority relied on the possible-disbelief test to hold that the 

trial court erred in refusing to instruct the jury on defense-requested lesser-included 

offenses (“LIOs”). Chavez v. State, 651 S.W.3d 140, 145 (Tex. App.—Houston [14th 
Chavez – Page 2

Dist.] 2021) (citing Jones v. State, 984 S.W.2d 254 (Tex. Crim. App. 1998)). The 

dissenting opinion relied on the factual-dispute test. Id. at 146–47 (citing Cavazos v. 

State, 382 S.W.3d 377 (Tex. Crim. App. 2012)).

If the possible-disbelief approach is correct, then we must affirm the court of

appeals’ judgment; otherwise, we must reverse. But our majority both embraces the 

possible-disbelief approach and reverses the court of appeals—logically incompatible 

actions. I would instead overrule the possible-disbelief line of cases and require a 

factual dispute about a distinguishing element of the greater offense. Doing so would reaffirm the evidentiary and exclusivity aspects of the guilty-only test and clarify its 

meaning. Since the majority does otherwise, I respectfully concur only in its judgment.

I. Factual Dispute vs. Possible Disbelief

We have taken two irreconcilable approaches to the guilty-only test. One is the 

factual-dispute approach, and the other is the possible-disbelief approach. They are 

irreconcilable because they are fulfilled in opposite ways. Jones, the foundation for the 

court of appeals holding, demonstrates the evidence-free fulfillment of the possibledisbelief version.

Jones was charged with robbery and sought instructions on theft and assault. 

Jones, 984 S.W.2d at 255–56. The State’s evidence showed that Jones punched and bit 

store employees when they confronted him for shoplifting; but Jones testified that he had 

stolen nothing and assaulted no one. Id. Asked about an altercation in the store, he 

testified that he “did selfdefense [sic]” but emphasized that he had not assaulted anyone. 
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Id. at 256. In short, there was evidence of the robbery and evidence of no crime at all;

but there was no evidence suggesting that Jones stole without assaulting or that he 

assaulted without stealing, so there was no factual dispute about a distinguishing element 

of robbery.

Instead of a factual dispute about the robbery, our opinion relied on the jury’s 

ability to “selectively believe all or part of the testimony proffered and introduced by 

either side” to require instructions on both LIOs. Id. at 257. We rationalized that 

Jones’s denial of theft raised the LIO of assault, and his denial of assault raised the LIO 

of theft. Id. at 257–58. We concluded with a sufficiency analysis: An LIO “can be 

raised by any evidence from any source so long as a rational trier of fact could conclude 

from that evidence that a defendant is guilty only of that lesser included offense.” Id. at 

258. 

Jones was not alone in using the possible-disbelief approach. E.g., Bullock v. 

State, 509 S.W.3d 921, 928–29 (Tex. Crim. App. 2016) (relying on both the jury’s ability 

to selectively believe evidence and sufficient evidence of the lesser); Saunders v. State, 

840 S.W.2d 390, 392 (Tex. Crim. App. 1992) (citing jury’s ability to interpret the 

evidence in different ways); Bell v. State, 693 S.W.2d 434, 443–44 (Tex. Crim. App. 

1985) (citing jury’s ability to disbelieve evidence of the greater); Lugo v. State, 667 

S.W.2d 144, 149 (Tex. Crim. App. 1984) (same); Thompson v. State, 521 S.W.2d 621, 

624 (Tex. Crim. App. 1974) (same). These opinions, like Jones, cited no factual dispute 

about a distinguishing element of the greater offense but hinged only on the possibility of 
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disbelief about it. They may have paid lip service to the requirement of a factual 

dispute, but they did not enforce it, notwithstanding any claims to the contrary.

Contrary to the possible-disbelief version, the factual-dispute version of the guiltyonly test depends on evidence excluding guilt of the greater offense and showing that the 

defendant is guilty exclusively of the lesser. See Cavazos, 382 S.W.3d at 385; Royster v. 

State, 622 S.W.2d 442, 446–47 (Tex. Crim. App. [Panel Op.] 1981) (op. on reh’g). The 

evidence must negate an element of the greater offense. Cavazos, 382 S.W.3d at 385. 

Under the factual-dispute version, the guilty-only test is not fulfilled merely by the jury’s 

ability to disbelieve evidence of the greater offense. See Solomon v. State, 49 S.W.3d 

356, 369 (Tex. Crim. App. 2001); Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. 

App. 2003), abrogated on other grounds by Grey v. State, 298 S.W.3d 644 (Tex. Crim. 

App. 2009); Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997). Nor is it 

fulfilled by evidence showing that the defendant committed no crime at all. See Lofton 

v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001) (citing Bignall v. State, 887 S.W.2d 

21, 24 (Tex. Crim. App. 1994). 

In short, our two approaches to the guilty-only test are irreconcilable because one 

requires evidence of the lesser as an exclusive alternative to the greater, the other doesn’t; 

one rejects possible disbelief of the greater, the other embraces it; one dismisses evidence 

showing the defendant is guilty of no crime, the other accepts it. Sometimes we require 

a factual dispute. E.g., Roy v. State, 509 S.W.3d 315, 317–18 (Tex. Crim. App. 2017); 

Flores v. State, 245 S.W.3d 432, 441 (Tex. Crim. App. 2008). Sometimes we don’t. 
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E.g., Jones, 984 S.W.2d at 257; Bullock, 509 S.W.3d at 928–29; Thompson, 521 S.W.2d 

at 624. But we have never reconciled these opposing approaches or explained when to 

apply one as opposed to the other, and we don’t today, either. 

II. Response to the Majority Opinion

The majority asserts that the court of appeals erred in relying on the jury’s ability 

to disbelieve evidence, but it doesn’t say why that was an error or why the court of 

appeals could not rely on Jones, 948 S.W.2d at 257. The majority claims the court of 

appeals “misapplied” the guilty-only test, but it doesn't say how. It does not fully 

embrace the possible-disbelief line of cases, but it fails to grapple with them, and it 

mischaracterizes Roy as one of them. Majority Op. at *6 (citing Roy for proposition that 

factual dispute about greater offense may be supported by jury’s possible interpretation of 

evidence). With its errors and omission, the majority perpetuates unworkable lines of 

competing precedent, fails to address issues essential to the outcome, and reverses the 

court of appeals’ judgment without meaningful explanation. It thus defeats the goals of 

stare decisis even while purporting to defend precedent. See Paulson v. State, 28 

S.W.3d 570, 571–72 (Tex. Crim. App. 2000). This is less than helpful.

III. Response to the Dissenting Opinion

The dissenting opinion claims that the “factual dispute” version of the guilty-only 

test is foreclosed by statute, approaches patent unconstitutionality, and is inconsistent 

with Grey, 298 S.W.3d 644. I disagree.

The dissent points to the Code of Criminal Procedure, but the statutes say nothing 
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about when LIO instructions are required. Cf. Tex. Code Crim. Proc. art. 36.14

(explaining requirements for jury charges), 37.09 (defining lesser-included offenses). 

Contrary to the dissenting opinion’s claim, the factual-dispute requirement 

implicates no constitutional concerns, as demonstrated by its long tenure in federal court. 

E.g., Hopper v. Evans, 456 U.S. 605, 612–613 (1982); Keeble v. U.S., 412 U.S. 205, 212–

13 (1973); Sansone v. U.S., 380 U.S. 343, 350 (1965).

And adhering to the factual-dispute version of “guilty only” is consonant with 

Grey’s directive about the State’s ability to pursue LIO instructions without need for a 

factual dispute. Grey, 298 S.W.3d at 650–51. If no LIO is submitted, then the jury 

must acquit unless it is convinced beyond a reasonable doubt that the defendant is guilty 

as charged. That time-tested scenario preserves the State’s authority to choose what 

charge to pursue and does not violate a defendant’s rights. See id. at 650.

IV. My Recommendations

I would put the kibosh on our competing versions of “guilty only” and adhere to 

the factual-dispute version of it. It preserves the exclusivity and evidentiary aspects of

the guilty-only test and encourages consistent outcomes because it is an objective search 

of the record for a factual dispute, whereas the subjective, possible-disbelief version guts 

the “only” aspect of the guilty-only test, mistakes belief for evidence, and sometimes 

devolves into a sufficiency of the evidence test. 

I also would stick to the original Royster formulation requiring “conflicting 

evidence concerning an element of the greater offense which is not an element of a lesser 
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offense[.]” See Royster, 622 S.W.2d at 444. It aligns with the limiting principle used in 

federal court when asking whether an LIO is a rational alternative to the greater offense. 

See Evans, 456 U.S. at 612, 613; Keeble, 412 U.S. at 213; Sansone, 380 U.S. at 350. 

And adhering to it would give meaning to our heretofore undefined “valid, rational 

alternative” verbiage and clarify what the “affirmative” and “directly germane” evidence 

must show. 

V. Conclusion

Appellant was as entitled to his LIO instructions as were the defendants in our 

possible-disbelief cases. Unless we overrule them, we must affirm the court of appeals’ 

judgment. Since the majority instead reverses the court of appeals without even 

acknowledging the dichotomy in our caselaw, I respectfully concur only in the result it 

reaches. 

 

Delivered: April 19, 2023

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