As Idiscuss in Section 4, inf ra , th e ma jor ity ’s re lia

nc e e ve n o n th a t c on c ur

re nc e is 1 misplaced be cause the re asoning in that opinion is not applicable to the pr esent c ase. 

## IN THE COU RT O F CR IM IN AL AP PE ALS

OF TE XAS

N O . P D - 0265- 09

V I C K I E L A SH U N TO LB ER T , A ppe l l ant

v . THE S TA TE OF TE X AS ON S TATE ’ S PET I TI ON FOR DI S CRETI ON ARY REVI EW

FROM THE FI FTH CO URT O F AP PEALS

DALLAS CO UNTY H OL C OM B , J ., f

i l e d a di s s e nt i ng o

pi ni on, i n whi c h J OHNS ON , J. , j oi ned. O P I N I O N Ijoi n Jud g e John so n’ s d iss e nt a nd wi shto a dd

the fo llo wi ngpo int s. 1. The majority opinion conflicts w ith our recent dec ision. Ibelieve that the main problem with the majority ’s opinion is i ts view of the lesse r-include doffe nse i nstructions as a defe nsive issue. Although the majority repe atedly

cites Judge Cochr an’s

concur ring opinion in our rece nt decision in Gr e yv . S tat e , 298 S.W .3d 644 (Tex. Crim. App. 2009), 1TOL BERT PAGE - 2

Ar e v alo v . S

tat e , 943 S.W .2d 887 (Tex. Crim. App. 1997). 2 As we note d in Grey , the Royster-R ousseau ( Ro y ste r v . S tat e , 6 2 2 S. W. 2 d

4 4 2 ( T e x. 3 Cr im. Ap p. 19 81 ) ( plu

ra lity op .) ; Ro us se au v . S

tat e , 855 S.W .2d 666 (Tex. Crim. App. 1993)) line of ca ses had e stablished a two-pr ong ed test for deter mining whe n a trial judg e wa s require d to submit to the jury

a lesser -included of

fense reque sted by

the def endant. 298 S.W.3d at 645. L ater , in Ar e v alo , we he ld that the second pr ong of that test – which r equire d that some evidenc e mus t e xist in

the re c or d th a t w ou ld p e rm it the jur y to f ind that if the de fe nd ant i s g uil ty , h e is g uilty only of the lesse r-include d offe nse – wa s equally applicable to the submissi on of the lesser- included off

enses r equeste d by

the State. Id. T h u s , b y

o v erru l i n g Ar e v alo and holding that the State is not bound by

the sec ond prong of the Royster-R ousseau test, id. , in Grey we r emoved the burde n Ar e v alo had plac ed on the State in obtaining the lesser -included- offe nse instructions (continued...) it fa ils to re a lize that its vie w of the le sse r- inc lud e d- of fe ns e ins tr

uc tio ns a s a de fe ns ive iss ue is almost the opposite of the position take n by the majority in that same ca se. In fac t, it is fair to sa y that we virtua lly

moved heavens and e arth in Gr ey to c on vin c e the re a de rs of the State ’s ri g ht t o obtain the lesser -included- offe nse instructions from the tria l court. So Iam bef uddled as to how

we

can now turn around a

nd say that those same instructions ar e a de fensive issue. I n Grey , appellant Steven Gre y was c harg ed with ag g ravated assault by causingbodily

injury with a dea dly

wea pon, to wit, Grey ’s hand use d to strang le the victim . The jury char g e, pre pare d by the prosec utor’s off

ice, c ontained instructions on both the indicted off ense a nd the lesser -included offe nse of simple assa

ult by causingbodi l y i n

j u ry . The de fense counsel objec ted to the lesser

included-of

fense instruction, but the objection wa s o v er rul ed. The jury found Gre y

g uilty of the lesser- included off

ense of simple a ssault. On appea l, G rey claimed that the submission of the lesser

included off

ense w as er

ror. The court of a

ppeals a g ree d and reverse d the conviction. Gr e yv . S tat e , 269 S.W .3d 785 (Tex. App.

— Au s t i n 2 008). We g rante d the State’s petition for discr etionary

re vie w, and ov e rr

ule d a n o ld p re c e de nt, Grey , 298 S.W .3d at 645, in order to make it easie r for

the 2 State to o bta in t

he le sse r- inc lud e d- of

fe ns e ins tr

uc tio ns fr om t

he tr ia l c ourt

. 3TOL BERT PAGE - 3

(...continued) 3 fr om t he tr ia l c ourt

. I nitially , we justified our decision to overrule Ar e v alo by explaining t hat i t was the r ight thing to do for both the State and the defe ndant. As we stated:

O n e o b v i o u s f

l aw i nt h e r

u l e l a i d d o w nb y Ar e v alo and its prog eny , one that pr od uc e s in c on sis te nt a

nd un ju st res ult s in

e ve ry sin g le c a se in w hic h th e ru le is applied, is the re medy . When a lesser -included of fense is submit ted in violation of Ar e v alo , and the d ef

endant is convic ted of that off ense, the reme dy

this Court has imposed is a rema

nd for a new trial on the very same lesse r-include d offe nse that the de fe nd ant h a s ju st c la ime d s ho uld ne ve r h a ve be e n s ub mit te d. Suc h a re su lt i s "illog ical," but we fa shioned this remedy beca use alter native re medies see med unavailable or worse . Be cause a convic tion on the lesser off ense ope rat es as an acquittal of the g reater offe nse, re trial on the g reater off ense is not possible. But a n ou tr ig ht a c qu itt a l of the c ri min a l cha rg e wo uld be a bs ur d w he re the e vid e nc e wa s in fac t leg ally

sufficie nt to support a conviction for the lesser- included off ense. Id. at 646-47 (c itations omitted). But our conce rn m oved quickly to the l og ic of making it easier f or the State to obtain a lesser -included- offe nse instruction from the tria l court. As we explained:

The Court in Ar e v alo . . . held that [the] rationale [for the second pr ong of the Royster-R ousseau test] "is as applicable to the State' s reque st for a le sser-inc luded of fe ns e a s it is to a def

e nd ant' s re qu e st. " Why ? B e c a us e a le sse r- inc lud e d- of

fe ns e instruction "must not constitute an invitation to the jury to rea ch an ir rational verdic t." But the Court [in Ar e v alo ] did not ask or a nswer the next obvi ous question: How does a

lesser- i n cl u d ed -off

ense instruc tion invit e a jur y to rea ch an ir

rational verdic t? I f the lesse r off

ense is viewe d in isolation, a jury ' s verdict would be rational so long a s the lesser offense is included in the charg ing instrument and supported by leg ally sufficie nt evidence . The [second ] p ro n g of the Royster-R ousseau te st require s, howeve r, t hat we view the rationality of t he lesser offe nse, not in isolation, but in comparison to the offe nse desc ribed in the c harg ing i n s t ru m en t . But why sh ou ld w e make tha

t c omp ari so n? The ans wer mu st b e that th e State is e nti tle d to pursue the cha

rg ed off ense a nd, there fore , is entitled to rece ive a r esponse f rom the jury on whether

the def endant i s gu i l t y of the c harg ed off ense. I s the defe ndant sim ila rl y e nti tle d to a

re sp on se fr om t

he jur y on the c ha rg e d o ff e ns e ? Th e ans we r t o that question is clear ly

no. I t is t h e S t at e, not the defe ndant, that choose s what offe n s e is to b e c h ar g e d

. I n f a c t, th e St a te c an a

b an d o n an e le me n t o f

the cha rg ed o f f e n s e w i t h o u tp r i o r

n o t i c e an d p r o c e e d

t o p r o s e c u t e a

l e s s e r - i n c l u d e d

o f f e n s e . IfTOL BERT PAGE - 4

the State ca

n abandon the char g ed off ense in fa vor of a lesser- included off

ense, the re is no logica l rea son w h y t h e S t at e could not aba ndon its unqualified pursuit of the ch ar g ed offe nse in f

avor of a qualified pursuit that inc ludes the prosec ution of a lesser- included off

ense in the a lternative. Id. at 649-50 (c itations omi tted). Thus, we emphasized that it was the State, m o re t h an the defe ndant, who was entitl ed to the benefit of having the lesser- included-of fense instructions, in li g ht

o f i t s b u rd en t o prove that the defe ndant, eve n if he wa s not guilty of the c harg ed off

ense, w as at least g uilty

of the lesse r off

ense. We went on to emphasize that the s ociety ’s i ntere sts would also be best serve d by making it easier f or the State to obtain those instructions from the tria l court. As we explained, [A] t the time of trial, the State mig ht . . . leg itimately perc eive[] t he possibility

. . . th at an a pp e llate c ourt

wo uld de c ide that th e e vid e nc e wa s le g a lly ins uf fi c ie nt t o p r o v e th e [e le me n t n e c e s s ar y f o r th e ju r y to c o n v ic t o nth e g r e a te r

o f f e n s e ].

. . . . Th e c a

uti ou s a pp ro a c h f or the pr os e c uto r t o ta

ke wo uld be

-- or a t le a st s ho uld be -- to r equest the lesser -included of fense . Allowing submission of lesser offe nses wh e n r e qu e ste d b y

the pr os e c uto r wo uld se rv e a t le a st tw o im po rt a nt i nte re sts . F ir st, so c ie ty ha s an in te re st i n c on vic tin g and punis hin g pe op le wh o a

re g uil ty of c ri me s. Whe n, in the pr os e c uto r' s judg me nt, su bmi ssi on of the le sse r- inc lud e d o ff e ns e wi ll enhanc e the prospects of se curingan appr opriate c riminal conviction for a defe ndant who is in fact guilty , society ' s interests ar e best serve d by allowing the submission. Second, the pr osecutor ha s "the primary duty

. . . not to convict, but to see that justice is done." Even if the pr osecuto r believe s in a g iven ca se that he w ill secure a c on vic tio n o n th e c ha

rg e d o ff e ns e if the on ly a lte rn a tiv e is a c qu it tal , he mig ht a lso believe that the j ury should be given the option to dec ide whethe r a c onviction on the lesser of fense is more appr opriate. Id. at 650-51 (c itations omi tted). We e mph a size d o ur

vie w f a vo ri ngthe State ’s ri g ht t o o bta in t he le sse r- inc lud e d- of

fe ns e instructions even in our c onclusion, stating that we had to over rule Ar e v alo beca

use the c ommon-law rule e stablished in that case place d “undue bur dens on the prose cutor.” Id. at 651.TOL BERT PAGE - 5

I n short, in Grey

we r ecog nized the State’s rig ht to the lesser-inc luded-off ense instruc tions

a s b e ingsu

pe ri or to t he de fe nd ant’ s ri g ht to have su c h ins tr uc tio ns ins of

ar a s w e e xemp te d th e State from the se cond prongof the Royster-R ousseau test, which re mains applicable to the submissi on of the lesser- included-of

fense instructions r equeste d by the defe ndant. As such, I do not see how the majority in the prese nt case can now call those instructions a de fensive issue. O n the contra ry , I believe that appellant in the pre sent ca se is e ntitled to relief for the same rea sons w e g rante d relief to the State in Grey

. 2. Ap pli c ab ili ty

of Gre y to the present case

. Th e ma jori ty a dmi ts that it

wa s th e State wh o h a d r e qu e ste d th e le sse r- inc lud e d- of fe ns e instructions in the present c ase. This fac t in itself conflicts with the majority ’s cha rac terization of those instructions as a “ defe nsiv e” i s s u e b eca use the State wa s obviously not try ing to he lp the defe nse in this case. I n f a c t, t he re c or d s ho ws that the pr os e c uto r in the pr e se nt c a se did muc h mo re tha

n ju st a sk for the le sser-inc luded-off ense instruc tions. Although the trial in this ca s e p re dates our r ece nt decision in Grey , even a

c ur so ry e xami natio n o f t

he re c or d s ho ws that th e pr os e c uto r d id e xac tly what we sug g ested the pr osecutor should do whe n there is a possibili ty that the ava ilable evidenc e might not b e s u f

f ic ie n t to c o n v in c e th e ju

r y to c o n v ic t th e d e f

e n d an t o n th e c h ar g e d o f

f e n s e . The

re c or d in the pr e se nt c a se c le arl y

sh ow s su c h a

po ssi bil ity . In f

a c t, t he re wa s no dir e c t e vid e nc e to prove that appellant had actua lly killed the vi ctim during the course of robbing him. There wer e no ey ewitnesses to e ither cr ime, nor any video recording to show what actually happene d. There wer e

no t eve n an y wi tne ss ac c ounts of a pp e lla nt’ s tel lin g the m, f

or e xamp le , th a t sh e ha d k ill e d th e vic tim beca use he had caug ht her stealing the items in question, or that she had w anted to g et her hands onTOL BERT PAGE - 6

See T EX . P EN . C ODE §§ 19.03(b) & 12.31(a)

. 4 those items but he stood in her way , etc. The witnesses at trial stated only that she had told them that he had said hurtful t hings, that the m ore she thought a bout what he ha d said the more it hurt, a nd that it was i n t h is state of hurting that she killed him, and that eve n as she wa s stabbing him she ke pt telling him, “Ilove y ou, Ilove y ou, Ilove y ou.” This was the evidenc e that the State pr esente d, and the evidenc e that it e mphasized in both its closing arguments. Thus, there is no wa y to determine on this evidence whether

the murder

was c ommitt ed bef

ore the ro b b er y

(in which c ase it wa s not capital murde r), or

during the cour se of the r obbery (in which c ase it wa s capital murde r). On the state of

such evidence, it is not surprising that the prosecutor adopted the “c autious approa ch” that we later

encour ag ed in Grey

. 298 S.W .3d at 651. The recor d clea rly shows – from the indictment rig ht up to the closing a rg uments – that the prosecutor was trying to ensure that the jury would find appe llant guilty at least of the lesser- included off ense of murder.

! The Indictme nt : I n the s econd para g raph of the indictment, the State alleg es for enhanc ement that appellant ha d been former ly convicted of the fe lony

offe nse of r obbery . Enhanc ement would not be re levant if the State wer e anticipating a conviction for c apital murder , for whic h the a uto ma tic punis hme nt i n th is c a se wo uld be a lif e se nte nc e , be c a

us e the State did

no t a sk fo r t he de a th p e na lty

. I t w ou ld b e re le va nt o nly if the State we re un c e rt a in a bo ut t he str e ng th 4 of its c ase and was there fore prepa ring for a possible c onviction f or t h e l esser -included offe nse of murde r, in which c ase a former conviction w o u l d enhanc e the minimum punishment of only

five y ear s for a

first-deg ree felony to 15 y ear s for a repe at and ha

bitualTOL BERT PAGE - 7

See T EX . P EN . C ODE §§ 19.02(c) , 12.32(a) , & 12.42( c)( 1). 5 felony offe nder. 5

! The Lesser-Inc luded-OffenseInstructions : The majority in the pre sent ca se notes that “the parties ha d discussed seve ral lesse r-include d offe nse sce narios such as murder and robbe ry during voir dire.” Maj. op. at 2. Contrary to the majority ’s sug g estion, the rec ord shows that the State spent a g reat deal o f t ime discussing the lesser- included off ense involved in the prese n t c a s e : mu

r d e r . I n d e e d , th e St a te s p e n t f a r mo r e ti me d is c u s s in g th is is s ue with the jurors than the de fense did.

! The Evidenc e at Trial : T he ma jor ity sta te s th a t th e S t a t e p r e s e n t e d e v i d e n c e t h a t c ou ld support either a

finding that appellant ha d com m i t t ed t h e murde r duringthe cour se of robbing the victim (ca p i t al m urder ), or that she had dec ided to rob the victim only afte r killing him ( murder)

. Id. at 1. But, while the re w as strong evidenc e to show that appe llant committed the murder a

nd the t heft, the evidenc e in the record purporting to show the cr itical lin k n e c e ssa

ry to e le vate the of

fe ns e fr om mur de r to c a

pit a l mur de r – that th e mur de r w a s in fa c t c omm itt e d d

ur ingthe c ours e of

a ro bb e ry – w a s, a t be st, we a k a

nd on ly inf e re nti a l.

! Clo sin g A rg um e nts : The majority fa i l s t o m en t i o n t h at t h e S t at e fo cu s ed o n t h e l es s erincluded off

ense in both its final arguments to the jury , even a fter the trial judg e had a lrea dy

overr uled i ts reque st for inst ructions on that offe nse and had not included those instructions in the jury

char g e. The State did so by emphasiz ing a

ppellant’s own state ments to the witnesses wh o later te stified at trial, which pr oved appe llant guilty only of murder , not capital murde r. I n fac t, the S tate did not discuss any evidenc e, or e ven dra

w any infere nces fr om t he e vid e nc e pr e se nte d, to t ry to s ho w that the mur de r wa s c omm itt e d duri ng the c ours eTOL BERT PAGE - 8

The jury note stated: “Should we c onsider lesser included cha

rg es if we [t ext s cratched 6 out] believe the robber

y was a n afte rthoug ht[ ? ] Does it make a diffe renc e if the r obbery was a n afte rthoug ht [ text scratched out] to a crime of passion[? ]” I t is im portant to note her e that the tr ia l c ourt , in te rp re tin g thi s jury no te a s a re qu e st f or a le sse r- inc lud e d- of

fe ns e ins tr

uc tio n, c ou ld have c harg ed the jury

on the lesser

offe nse at this point. See T EX . C ODE . C R IM . P R OC . art. 36.16 (“A fter the argument beg ins no further c harg e shall be g iven to the jury unless require d by

. . . the (continued...) of a ro bb e ry . T hu s, the State ’s arg ume nts , in the a bs e nc e of the le sse r- inc lud e d- of

fe ns e instructions in the j ury char g e, relay ed a rema rkably distorted messag e to the jury : that if they

wer e to fin d ap pellant g uilty of the lesse r-include d offe nse of murde r, they should convict her for the g reater off

ense of capital murde r, eve n though the State had done vir tually nothing

a t tr ia l to tr

y to p ro ve the c ri tic a l e le me nt n e c e ssa ry to elevat e th e of

fe ns e fr om m

ur de r t o capital murde r, i.e. , that the murder had bee n committed during the cour se of a robber y . Thus, the rec ord clea

rly shows the prosec utor’s intense f ocus on the lesse r-include d offe nse. There was nothing wrong with that ina smuch as she was doing exactly what we , in Grey , r e c e ntl y sug g ested that a

prosec utor should do when the e vidence supporting a convicti o n fo r t h e cha

rg ed offe nse is wea

k: take the “ cautious appr oach” and try to pr ove the lesser offe nse, including a sking the trial cour

t for the lesse r-include d-off ense instruc tions, in order to ensure that a g uilty

defe ndant would not go c ompletely fre e simply beca use the e vidence was insuffic ient to convict her on the char g ed off

ense. Grey , 298 S.W .3d at 651. B ut the prosec utor cre ated a p ro b l em when she continued that strateg y , discussing the lesser of fense even a fter the trial judg e denie d her r equest for the l esser -included- offe nse i nstruction and did not include that instruction in the jury char g e. He r pe rs ist e nc e in t

he str a te g y c on fu se d the jur or s, re su lti ng in the no te that the y se nt to the tr ia l c ourt , a sk inga bo ut t he le sse r- inc lud e d o ff

e ns e that th e pr os e c uto r, no t th e de fe ns e , h a d p ra c tic a lly ing ra ine d in the ir br a in fr om the ve ry be g inn ing of the tr ia l. Th e tr ia l c ourt mig ht have be e n a ble 6TOL BERT PAGE - 9

(...continued) 6 reque st of the jury .”). to, bu t f a ile d to , p ro vid e the jur

y wi th t he g uid anc e that th e y

a sk e d f or t o hel p th em c on vic t a defe ndant that they , judgingby their note, seriously considere d might have been g uilty of murder , but not capital murder

. Th e tr ial cou rt ’s r efus al t o giv e th e le ss er-i ncl ud ed-o ffen se i ns tr uct io ns requ est ed b y

the Sta te unduly limit ed the jury ’s choice s: they could either

convict appe llant on capital murde r, or a cquit her. The jury could not acquit appe llant beca use t here was enoug h evidenc e in t he ca se (in the f orm of appellant’ s own statements to other witnesses) to show that she had committed the murder and the theft. So, they went for the onl y choice they had lef t for convic tion: capital murder. B ut, in Grey , we t al k edat l en gt hab o u t“u n j u s tre s u l t s ” a n d h o w “ an o u t ri gh tac qu i t t al o f t h e c ri m i n al ch ar ge would be absur d wher e the e vidence was in fa ct l ega l l y s u ff i cient to s upport a c onviction for the lesser- included off

ense.” Id. at 646-47. I s an out rig ht conviction any more just or less absur d wher e the evidenc e is in fac t leg ally insufficient to support a c onviction for the g reater off ense? 3. Law appl icable to the case

. This is an important point that the majority neg lects to addre ss. Ibelieve that the question of what law is or is not “applica ble to the case ” should not be deter mined in hindsig ht, ba sed on who won and who lost at t rial. The question of whether or not the trial court e rre d in refusingthe State’s

re qu e st f or le sse r- inc lud e d- of

fe ns e ins tr

uc tio ns should b e de te rm ine d, no t on the ba sis of

wh o is

c omp la ini ngand

wh e n, bu t w hy ? Ibe lie ve that th e tr ia l c ourt e rr e d in the pr e sen t case because it limit ed the jury

to a choice of two extreme dec isions (to convict for capital m urder , or ac quit), when the evidenc e at tria l war

rante d something in the m iddle: a conviction for a lesser- included off

ense.TOL BERT PAGE - 10

By taking awa

y this mi ddle choice , the trial cour t tur ned the verdic t into a g amble, which guara nteed a windfa ll to one side to the complete de triment of the other, but no way to be sure w ho was g oing to be t he big winner and who would be the big loser. The jury in the prese nt case opted to g ive the benef it to the St ate, a

nd it was the appellant who s uffe red the detriment whe n she wa s convicted f or capital murde r in the abse nce of any rea l e vidence to show that the murder was c ommitt ed during the cour se of a

robber y . But the jury

might just as ea sily

have c ome out the opposite way . They

co u l d h av e a cq u i t t edap p el l an t , an d i t wo u l d h av e b ee nt h e S t at e t o s u ff er t h e d et ri m en to f s ee i n g a de fe nd ant, wh o w a s at le a st guil ty of the le sse r- inc lud e d o ff

e ns e , g o s c ot- fr e e . I be lie ve tha t ve rd ic ts

s h o u l d b e re ac h ed , n o t b y a gam b l e, b u tb y cl ea r- cu tru l es o f l aw t h at ar e l ai d o u ti nt h e j u ry

ch ar ge well bef ore a ny one ca n be sure which party will win. I also believe that our courts are c ourts of “la w and justice,” and that such la w and justice is not just for the be nefit of the State. 4. The majority misinterprets appellant’s claim. The majorit y

has misunderstood appe llant’s argument. I t virtually adopts the State’s

ar gu m en t(t h at ap p el l an t wa s “go i n g fo r b ro k e” an d i s n o w c o mp l ai n i n g o n l y b ec au s e h er

s t ra t egy did not pay

off a nd she wa s convicted of

capital murde r, s e e, e . g., Maj

. op . at 5- 6) thr ou g ho ut i ts

o p i n i o n . T h e m aj o ri t y

t h en p ro ce ed s t o re b u ff ap p el l an t o n t h e gro u n d t h at we s h o u l d “d i s co u ra ge parties f rom sandbag g ing or

ly ing be hind the log.” See, e .g., id. a t 5 n .6 (c itatio n o mit te d) . B ut, in so doing, the m aj o rity

completely

misses appellant’s re al ar g ument befor e us. As appe llant has clea rly stated in her ow n formulation of the “ I ssue Presente d,” Under the fa cts of this case , does the S tate’s failure of proof of the eleme nts alleg ed in the indictment t o prove c apital murder result in the lesser -included of fense of murder becoming a defensive issue; or di d the error oc cur w hen the c ourt ref used the j u r y ’ s r e qu e s tf

o r ani n s t r u c t i o no nt h e l e s s e r - i n c l u d e d m u r d e r o f f e n s e [ ?]TOL BERT PAGE - 11

See A p p e l l an t ’ s B r i e f

a ti i , 2 & 9

. A s a

p p e l l an tl a t e r

s t a t e d e v e nm o r e c l e ar l y: Respondent arg ues t hat t he failure of the S tate' s evidenc e to initially convince the jur y bey on d a r e a so na

ble do ub t th a t a

c a pit a l murd e r w a s c omm itt e d, a s is e vid e nc e d b y

the jur y ' s re qu e st fo r an ins tr

uc tio n on a le sse r o ff

e ns e , d oe s n ot c re a te a de fe ns ive iss ue bu t is ins te a d th e law o f t he c a se , a nd the c ourt the re fo re e rre d in not orig inally

char g ing the jur y

on murder, sua sponte, wi tho ut r e g ard to a re qu e st from the de fenda

nt; and that the court err ed aga in in not providing this law to t he jury me mbe rs a t th e ir

re qu e st. Id. at 10. One ha d to draw a

n infere nce f

rom the evide nce pr esente d to think that the murder mig ht have be en committed during the cour se of a robber y , making it capital murder. The indictment, as well as the State’ s strateg y from voir dire to the closing arguments, clea rly indicate the State’ s own

uncer tainty wh et h er i t would be able to c onvince the jur y to convict appe llant for ca pital murder. That wa s why

it was the State, not the def endant, who a sked the trial court for the lesser -includedoffe nse instruction, in the first place

. The State was obviously not try ing to he lp the defe ndant by

a sk ingfo r a

de fe ns ive ins tr

uc tio n. B ut, e ve n af

te r t he tr ia l c ourt

re fu se d to g ive tho se ins tr uc tio ns , the State summarized the evidenc e proving the lesser offe nse, without e ven trying to show any link betwee n the m urder and the robber y that could have helped persuade the jury that the murder

was committed during the cour se of a robber y . As appellant has corr ectly argued, the fac t that the jury was not convinced t hat appellant had committed ca pital murder is shown by

the note it sent to the trial court. This note indicated the jur y ’s “be lie[f] ” that “the robber y was a n afte rthoug ht,” which reduc ed appellant’ s offe nse to w hat eve n the jury rea liz ed wa s only

a “le sser include d char g e[] ,” see supra note 6, which i n turn indicates that the State ha d failed to prove a cr itical element of the

c harged off

e ns e : th a t th e mur de r w a s c omm itt e d d ur ingthe c ours e of

the ro bb e ry . A nd

tha t is appellant’ s rea l contention, which the major ity fails to addre ss in its opinion.TOL BERT PAGE - 12

5. Ha ll re qu ire d th e tri al c ou rt to g iv e thele sse r- inc lud

e d- off e ns e ins tru c tio ns . The majority declines to r eview the prese nt c ase in lig ht of our decision in Ha ll v . S tat e , 225 S.W .3d 524 (Tex. Crim. App. 2007). See maj. op. at 2 n.1. I submit, however, that suc h a re view is i nd isp e ns a

ble e sp e c ia lly

to t he fa c ts o f thi s c a se . Th e ma jor ity state s th a t Ha ll

sets out a “two- part test for when a defe ndant i s entitled to her requeste d lesser- included-of fense instruction.” Id. But there is nothing in Ha ll to sup po rt the ma jor ity ’s su g g e sti on

that Ha ll is a pp lic a ble on ly to c a se s in which the lesse r-include d-off ense instructions w ere reque sted by the defe ndant. As we state d at the very beg inning of

that opinion, “We gr anted r eview to r esolve am b i guities and conflicts in our de c isi on s a

bo ut t he me tho d o f d e te rm ini ng whe the r t he a lle g a tio n o f a

g re a te r o ff

e ns e inc lud e s a lesser of fense .” 225 S.W.3d at 525. We continued in this vein throughout that opinion, discussing that method of whe n an d h ow to deter mine whether

a lesser -included of

fense was include d in the char g ed off

ense, w ithout reg ard to whe ther such instructions had been requested by the S tate or the de fe nd ant o r, fo r t

hat matte r, no on e a t a ll. As we state d, “[t] he evide nce a dduced at trial should remain a n important part of the court’s decision whe ther t o ch ar ge t h e jury on lesser- included off

enses.” Id. a t 53 6. We r e pe a te d th is

c e ntral id ea in t

he ve ry ne xt lin e , a s w e state d th a t “ [t]he se c on d s te p in the ana ly sis sh ou ld a sk whether there is evidenc e that supports g iving the instruction to the jury .” Id. I t is true that we then went on to state that “[a] def endant is e ntitled to an instruc tion on a lesser- included off ense w here the pr oo f fo r the of

fe ns e c ha rg e d inc lud e s th e pr oo f n e c e ssa ry to e sta bli shthe le sse r- inc lud e d o ff e ns e and ther e is some evidenc e in the re cord that wo u l d permit a jury rationally

to find that if the defe ndant is g uilty , he is g uilty only of the lesse r-i n cluded offense .” Id. B ut t hat is no t th e same

as requiring the def

endant to re quest the lesser -included- offe nse instructions befor e she is entitledTOL BERT PAGE - 13

I t would have be en a dif

fer ent matter if a

ppellant in the pre sent ca se had obje cted to the 7 submissi on of the lesse r-include d-off ense instruc tions requested by the State, and the tr ial court had over ruled the State’ s reque st beca use of that objec tion. I n that case , Imight ag ree with the majority that appellant c annot have it both way s: object to the instructions at trial and, if she loses the ca se, to then appe al on the g rounds that the trial c ourt should have g rante d the State’s re qu e st, a ft e r a ll. B ut t

hat is no t th e c a se be fo re us . App e lla nt s ta te d th a t sh e ha d n o o bje c tio n to the jury char g e, which did not have the lesser -included- offe nse instructions; but her not objecting and, in ef fec t, goingalong with the court’s r uling is not the same a s actively objecting to the inclusion of the lesser -included- offe nse instructions in the char g e. to r e c e ive the m. 7 The pre sent ca se is a per fec t illus tration of the diff ere nce be tween the si t uation in which a de fe nd ant i s e nti tle d to a les se r- inc lud e d- of fe ns e ins tr

uc tio n a nd on e in w hic h s he is r e qu ir e d to reque st such an instruction before she can become entitled to it. Ha ll require s only

“some e vidence in t he re c or d th a t w ou ld p e rm it a jur y ratio na lly to fi nd that if the de fe nd ant is g uil ty , h e is guil ty on ly of the lesse r-include d offe nse.” Id. Specifica lly , “any thing more than a sc intill a of e vidence may be suff icient to entitle a def

endant to a le s s er ch arge .” Id. I n th e pr e se nt c a se , it is q ue sti on a ble whether a scintilla of evide nce e x isted to prove a c ritical ele men t o f t h e char g ed off ense: that the murder w as committed during the cour se of a robb er y . The prose cutor’s c ase – f rom the

e nh anc e me nt p ara g ra

phin t he ind ic tme nt, to t

he disc us sio n o f t

he le sse r- inc lud e d o ff

e ns e in v oir dire, to the pre sentation of evide nce f rom witnesses relating a

ppellant’s own a ccount that she had committed the m urder only in a heat of passion, to the closi ng arguments that failed to eve n mention

or oth e rw ise sh owtha

t th e mur de r w a s c omm itt e d d ur ingthe c ours e of

the ro bb e ry

– w a s si ngula

rl y focuse d on proving the lesser offe nse. The f

act that the jury sent out a note, spec ifically asking the court for g uidance on the lesser offe nse, eve n though the jury char g e itself did not even me ntion that offe nse, showed the ir inclination to find appellant guilty of t hat offense rather than the one c harg ed in t he ind ic tme nt. Thus , th e re wa s mo re tha n “ so me e vid e nc e in t

he re c or d” to pe rs ua de the jur y toTOL BERT PAGE - 14

Al ma nz a v . S

tat e , 686 S.W .2d 157 (Tex. Crim. App. 1985) (op. on re h’g ). 8 “rationally

. . . find” that appellant was g uilty only of t he lesser -included of fense

. Id. I t is, therefor e, clea r that the trial c ourt err ed in not g iving the le sser-inc luded-off ense instruction reque sted by the State. The fa ct that appe llant failed to objec t to the char g e is relevant only to the extent that Al ma nz a applies, re quiring a showing of egr eg ious harm before appellant can be gr anted r elief. B ut

8 it is clear that a

ppellant in this case did suffe r such eg reg ious harm in lig ht of the fa ct that she wa s

c on vic te d of c a

pit a l mur de r, e ve n tho ug h the jur y its e lf se e me d in c lin e d to be lie ve that sh e wa s g uil ty only of the lesse r-include d offe nse of murde r. 6. The trial court’s error Finally , Ibelieve that we ar e avoidingan issue which sta nds out like an elephant i n a bathtub; and that is wh et h er a

ppellant’s counse l was ineff ective f or not specif

ically asking and ar g uing f

or a lesser -i n cl u d ed-offense instruction. Irea liz e that no point of er ror wa s advanc ed on this issue. Howeve r, if we look closely at what occur red, we ca n see that an ar g ument for inef fec tive assistance of counse l makes some sense . The State ha d reque sted a lesse r-include d-off ense instruc tion and, based on the evidenc e prese nted at trial, appe llant’s counsel should have joined the re quest and/or objected t o t h e char g e without such an instruc tion. I t would not have hurt c ounsel’s strate g y of

asser ting ap p el lant’s complete innoc ence to have sided w ith the State on this i ssue. I believe, there fore , that counsel wa s ineffe ctive in fa iling to join the State’s re quest for the lesser- includedoffe nse instruction. On the other

hand, Judge Johnson may be right in sug g esting that the fa ilure of a ppellant’s

c ouns e l to re qu e st a

le sse r- inc lud e d- of

fe ns e ins tr

uc tio n mig ht have be e n re a so na ble if su c h a re qu e stTOL BERT PAGE - 15

would have been futile in light of the tr ial court’s r esponse to the State’ s reque st on this s ame issue. See Dis. op. at 8 (Jo h n s o n , J

. , dissenting) . But, re g ardle ss of whethe r appe llant’s counsel wa s ineffe ctive or justified in f ai l i n g t o ask for

and/or join the State’s re quest for the lesser- includedoffe nse instruction, my

point is t hat the trial court should still have included that instruction in the char g e bec ause the need f or such a n instruction should have bee n obvious from what i t had hea rd from the pa

rties during voi r di re and seen as evidenc e presented at trial. As Isug g ested e arlier , see supra note 6, eve n if the t rial court had originally failed to rec og nize the need to include the lesserincluded-o f

f e n s e in s tr u c ti o n in th e ju

r y c h ar g e , it s h o u ld ( an d , u n d e r A rti c le 3 6

. 1 6 o f th e Co d e of Criminal Procedure , could) have cha rg ed the jury

on the l esser -included offense when it receive d the note from the jur

y asking specific ally

about that offe nse. * * * * * * * * The que stion of the lesser- included

- o f f e n s e in s tr u c ti o ns in this case is not a “de fensive” issue, but rather one of “ law applicable to the case .” The rea l issue before this Court i s that the trial cour t

e rr e d in no t g ivi ngthe le sse r- inc lud e d- of fe ns e ins tr

uc tio ns re qu e ste d by the State be c a us e the State failed to pr ove bey ond a rea sonable doubt a cr itical element of capital murde r: that the murder was committed during the course of the robbery

. The recor d strong ly sug g ests that the State itself was

uncer tain as to a conviction on the char g ed offe nse and did its best to c onvince the jur y to convict appellant on the le sser off ense. The State’s sing ular focus on the lesser off ense in itself wa s sufficie nt to make the question of the le sser-inc luded-off ense instruc tions “ l aw ap p licable to the

case .” The fac t that the jury happene d to err on the side of convic ting r ather than ac quitting appe llant should not detract us fr om the se basic fac ts: the State failed to pr ove a cr itical element of the cha rg ed offe nse, the trial c ourt failed to pr ovide the jury with the proper “law applicable to the case ” cove ringTOL BERT PAGE - 16

all three verdic ts (capital murde r, murder , acquittal) possible in the pre sent ca se, and a ppellant was convicted of

an off ense muc h g reater than the one the jury itself seeme d inclined t o believe she had committed. F or the fo re g oin g re a so ns , I

re sp e c tf ull y dis se nt.

FI L ED: MARCH 17, 2010. PUBL I SH.