             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                           NO. AP-75,719



                          EX PARTE DIANNA MARIN, Applicant



               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                 FROM THE 144TH JUDICIAL DISTRICT COURT
                             BEXAR COUNTY



     H OLCOMB, J., delivered the opinion for the Court, in which M EYERS, P RICE,
  W OMACK, and J OHNSON, JJ., joined. K ELLER, P.J., K EASLER, and C OCHRAN, JJ.,
                    concurred. H ERVEY, J., did not participate.


                                           OPINION

        This is a post-conviction habeas corpus proceeding, brought under Article 11.07 of the Texas

Code of Criminal Procedure, in which applicant Dianna Marin seeks relief on two grounds: (1) her

conviction is fundamentally defective because the trial court erred in instructing the jury that it could

convict applicant for conspiracy to commit murder as a lesser-included offense of murder, even

though she had been indicted for murder, not conspiracy to commit murder, which is not a lesser-
                                                                                    MARIN - Page 2

included offense of murder; and (2) she was denied her Sixth Amendment right to the effective

assistance of counsel when her appellate counsel failed to raise the aforementioned claim on direct

appeal. We hold that applicant is entitled to relief.

                                             Background

       On September 15, 1999, applicant Dianna Marin was indicted for the murder1 of her husband,

Raul. The State concedes that the murder was actually committed by one of applicant’s employees,

Arnulfo “A.D.” Ayala, with whom she had an affair. State’s Brief at 2. Ayala pled guilty to the

murder and, as the court of appeals’ opinion indicates, had negotiated a deal with the State for his

testimony against applicant in the present case. Both the State and applicant seem to agree that the

State’s case against her was based primarily on Ayala’s testimony. They also agree that applicant

was in Oklahoma when Ayala killed her husband in San Antonio, Texas. Nevertheless, on June 20,

2000, applicant was tried for murder by a petit jury in Bexar County.

       After the parties rested, the trial court held a jury-charge conference in which the defense

counsel objected to the trial judge’s inclusion of instructions on conspiracy to commit murder and

solicitation to commit murder as lesser-included offenses of murder. The defense counsel pointed

out that neither he nor the State had requested those instructions, but the trial judge seemed to

believe that the defense counsel had requested them. When the defense counsel denied having done

so and referred to the record in support of his assertion that neither he nor the State had made that

request, the trial judge invited the State to then request those instructions. The State complied, and

the trial judge granted the State’s request. The defense counsel repeated his objection for the record.

The trial judge then instructed the jury essentially according to his original charge. Thus, the jury


       1
           Tex. Pen. Code § 19.02(b)(1) & (2).
                                                                                    MARIN - Page 3

could convict applicant for murder and/or being a party to murder. If it acquitted her of those two

charges, it could still convict her of the lesser-included offense of conspiracy to commit murder. If

it acquitted her of that as well, it could still convict her of solicitation to commit murder. As

indicated earlier, the indictment had alleged only murder – not conspiracy or solicitation to commit

murder.

       The jury convicted applicant of conspiracy to commit murder and assessed punishment at

twelve years of imprisonment and a fine of $10,000. On direct appeal, applicant urged her appellate

counsel to pursue the claim preserved by her trial counsel – that the trial court erred in instructing

the jury that they could convict her for conspiracy to commit murder as a lesser-included offense of

murder. The appellate counsel failed to do so. Applicant then filed her own brief, entitled “Amicus

Curiae Brief For The Appellant,” with the court of appeals, trying to raise this issue. The State

objected, arguing that the court of appeals should not consider her brief because she was not entitled

to hybrid representation. The court of appeals addressed only the appellate counsel’s brief and

affirmed applicant’s conviction. Marin v. State, No. 04-00-00475-CR, 2001 Tex. App. LEXIS 6756

(Tex. App.— San Antonio, October 10, 2001, no pet.) (not designated for publication).

       Applicant filed an application for habeas corpus relief raising both the conspiracy charge and

ineffective assistance of appellate counsel as grounds for relief. The trial judge, who had presided

over the trial on the merits, designated ineffective assistance of counsel as the only factual issue

requiring resolution. The habeas court concluded that applicant’s ineffective-assistance-of-counsel

claim was “predicated solely on the contention that the trial court erred in submitting an instruction

on conspiracy.” It analyzed the issue under our decisions in Day v. State, 532 S.W.2d 302 (Tex.

Crim. App. 1976), and Cunningham v. State, 726 S.W.2d 151 (Tex. Crim. App. 1987), to determine
                                                                                        MARIN - Page 4

whether conspiracy to commit murder was a lesser-included offense of murder. Failing to find merit

in applicant’s lesser-included-offense claim, the habeas court concluded that there was no merit in

applicant’s ineffective-assistance claim either, and recommended that relief be denied. We filed and

set the application to determine whether applicant is entitled to relief.

                                               Discussion

        In the case at bar, applicant’s trial counsel timely objected to the trial judge’s inclusion of

instructions on conspiracy to commit murder as a lesser-included offense of murder, thus preserving

the issue for appeal. Applicant urged her appellate counsel to pursue this issue on appeal, but the

latter failed to do so. Applicant then went so far as to file a brief herself on that claim, but the court

of appeals declined to address it because of the State’s objection on the grounds of hybrid

representation. Thus, because of her appellate counsel’s failure to present the issue on appeal,

applicant was effectively barred from raising it in a petition for discretionary review.

        We turn first to the merits of applicant’s claim that conspiracy to commit murder is not a

lesser-included offense of murder. Article 37.09 of the Texas Code of Criminal Procedure sets out

a general definition of a lesser-included offense:

        Art. 37.09. Lesser Included Offense

        An offense is a lesser included offense if:

        (1) it is established by proof of the same or less than all the facts required to establish
        the commission of the offense charged;

        (2) it differs from the offense charged only in the respect that a less serious injury or
        risk of injury to the same person, property, or public interest suffices to establish its
        commission;

        (3) it differs from the offense charged only in the respect that a less culpable mental
        state suffices to establish its commission; or
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       (4) it consists of an attempt to commit the offense charged or an otherwise included
       offense.

       We interpreted this statute in our opinion on original submission in Day v. State, establishing

a two-step method of determining whether a given offense is a lesser-included offense of the one that

has been charged. 532 S.W.2d at 304-07. We illustrated this approach by first comparing the

statutes defining the crimes in question, criminal trespass and burglary, to determine whether the

elements of criminal trespass could be established by proof of the same facts necessary to prove the

elements of burglary. Id. at 304-06. We concluded that they could, that proof of additional facts

would not be necessary, and that the requirement of Article 37.09(1) would thus be satisfied. Id. at

306. We therefore held that the offense of criminal trespass was a lesser-included offense of

burglary. Id.

       It was only after we made this initial determination, under the first step of the analysis, that

we proceeded to the second step of then determining whether there was sufficient evidence at trial

to have required the court to submit the issue of the lesser-included offense to the jury. Id. at 306.

We concluded that the evidence had been sufficient to raise the issue of criminal trespass and that

the court’s failure to submit to the jury a requested charge on that issue therefore constituted

reversible error. Id. at 307.

       We have recently approved the two-step method, established in Day on the original

submission, of determining under Article 37.09 whether a given offense is the lesser-included

offense of the offense charged. See Hall v. State, 225 S.W.3d 524, 527-28 (Tex. Crim. App. 2007).

Even before Day, however, this Court had held “on a number of occasions that when the greater

offense may be committed in more than one manner, the manner alleged [in the indictment] will
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determine the availability of lesser-included offenses.” Id. at 531. As we explained,

               To hold otherwise would be contrary to the better analysis of the statute and
       might run afoul of the requirements of due process by making it impossible to know
       before trial what lesser offenses are included within the indictment, yet making it
       possible at the end of the trial to convict for any offense that was incidentally shown
       by the evidence.

Id. at 537. In making these observations, we shared the same concerns about a defendant’s

constitutional right to notice as those articulated by the Supreme Court in Schmuck v. United States,

489 U.S. 705 (1989).2 Hall, 225 S.W.3d at 531-32. Hence, we approved our Day opinion on the

original submission because, in our view, it adequately addressed those concerns, id. at 5333, and we

disapproved those statements in our opinion on rehearing that implied a deviation from the approach

taken on the original submission. Id. at 537.4



       2
           As the Supreme Court noted,

               It is ancient doctrine of both the common law and of our Constitution that a
       defendant cannot be held to answer a charge not contained in the indictment brought
       against him. This stricture is based at least in part on the right of the defendant to
       notice of the charge brought against him. Were the prosecutor able to request an
       instruction on an offense whose elements were not charged in the indictment, this
       right to notice would be placed in jeopardy.

489 U.S. at 717-18 (citations omitted).
       3
        “Article 37.09, as it was applied in the Court’s opinion on original submission in Day, is
compatible with the cognate-pleadings approach [adopted in Hall] to lesser-included offenses,
although this label was not adopted in the opinion.”
       4
         We note that the State concedes that, in arguing that the lesser-included-offense
instructions were properly submitted under the facts of this case, it is “relying principally” on
those portions of Day that were repudiated by Hall. State’s Brief at 4-5. It, nevertheless, claims
that “Jones appears to be dispositive of the contention that under the facts of the case conspiracy
is a lesser-included offense of murder.” State’s brief at 5 (emphasis added). The State does not
give us any citation for Jones, however, nor does it develop the argument beyond that single
sentence.
                                                                                   MARIN - Page 7

       We will now apply the lesser-included-offense analysis introduced in Day on original

submission, and further explained in Hall, to the instant case. The first step requires a comparison

of the statutory elements of the alleged lesser-included offense and the alleged greater offense, as

those elements have been modified by the particular allegations in the indictment. Hall, 225 S.W.3d

at 536. Thus, the elements of murder, as alleged in the present indictment, are:

       (1) Applicant

       (2) caused the death of an individual

       (3) by striking and stabbing with a crowbar, and by stabbing with a knife, on the body and

head of the individual

       (4) (a) with intent and knowledge to cause the individual’s death or

          (b) (i) with intent to cause the individual serious bodily injury and

              (ii) committing an act clearly dangerous to human life.

       We turn next to the alleged lesser-included offense of conspiracy to commit murder. The

elements of “criminal conspiracy,” as defined by Texas Penal Code, Section 15.02(a), are:

       (1) Applicant

       (2) with intent to commit a felony

       (3) agrees with one or more persons that they or one or more of them engage in conduct that

would constitute the offense; and

       (4) he or one or more of them perform(s) an overt act in pursuance of the agreement.

       Finally, we ask the question posed by Article 37.09(1): Are the elements of the purported

lesser-included offense “established by proof of the same or less than all the facts required to

establish the commission of the offense charged”? We find in this case that they are not. The facts
                                                                                     MARIN - Page 8

required to prove the elements of the lesser-included offense of conspiracy include at least one –

agreement – that is not the same as, or less than, those required to establish the greater offense of

murder as it was charged in the indictment.

       Since the alleged lesser-included offense fails to qualify as such in the “initial inquiry,” Day,

532 S.W.2d at 304, we need not proceed to the next step of the analysis. Even though the evidence

at trial might have supported the alleged lesser offense of conspiracy, and perhaps several other

lesser offenses, none of them can qualify as a lesser-included offense of murder unless it can be

qualified as such in the first step of our analysis. See, e.g., Hall, 225 S.W.3d at 537 (“The evidence

in the case would have supported a verdict for either theory of burglary, but the indictment did not

allege the element of committing theft after entry,” i.e., one of the elements required to prove the

lesser offense of aggravated assault by threat). We, therefore, hold that the trial court’s instruction

that the jury could consider conspiracy to commit murder as a lesser-included offense of murder

constituted reversible error.

       Applicant claims that she was denied her Sixth Amendment right to effective assistance of

counsel when her appellate counsel failed to raise her claim – that conspiracy to commit murder was

not a lesser-included offense of murder – on direct appeal.

       The Fourteenth Amendment to the United States Constitution guarantees, to a criminal

defendant pursuing a first appeal as of right, certain minimum safeguards necessary to make the

appeal “adequate and effective.” Evitts v. Lucey, 469 U.S. 387, 392 (1984) (quoting Griffin v.

Illinois, 351 U.S. 12, 20 (1956)). These safeguards include the right to counsel, id. (citing Douglas

v. California, 372 U.S. 353 (1963)), which comprehends the right to effective assistance of counsel.

Id. at 396. We must apply the standard set out in Strickland v. Washington, 466 U.S. 668 (1984),
                                                                                   MARIN - Page 9

in judging claims of ineffective assistance of appellate counsel. Evitts, 469 U.S. at 392; Smith v.

Robbins, 528 U.S. 259, 285 (2000).

       Strickland requires the defendant to show both that counsel’s performance was deficient and

that this deficient performance prejudiced the defense. 466 U.S. at 687. In the appellate context,

the defendant must first show that his counsel was objectively unreasonable, for example, in failing

to raise arguable issues on appeal. Robbins, 528 U.S. at 285. If he succeeds in such a showing, he

must then demonstrate prejudice to his defense. Id. In other words, he must show a reasonable

probability that, but for his counsel’s failure, he would have prevailed on his appeal. Id. at 285-86

(quoting Strickland, 466 U.S. at 694 (“defendant must show ‘a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.’”)). The

presumption of effective assistance of counsel will be overcome when the ignored issues are clearly

stronger than those presented by the counsel on appeal. Id. at 288 (quoting Gray v. Greer, 800 F.2d

644, 646 (CA7 1986) (“Generally, only when ignored issues are clearly stronger than those

presented, will the presumption of effective assistance of counsel be overcome.”)).

       As we noted in Hall, this Court’s cases about the correct lesser-included-offense test to be

applied have been in conflict since Day was decided. 225 S.W.3d at 533. In some opinions, we

determined whether one offense is a lesser-included offense of another by comparing the elements

of the offenses, id. at 530-31 & n.29, while in others we compared the evidence in the case to the

elements of the lesser-included offense. Id. at 530-31 & n.30. But it is important to note the dates

of those decisions. We decided Day, on original submission, in 1975. We issued our opinion on
                                                                                    MARIN - Page 10

rehearing in 1976.5 Our opinion in Cunningham, one of the two cases upon which the habeas court

in the present case relied, was decided in 1987. In fact, Cunningham appears to be the last seminal

decision from this Court in which we focused on the evidence in the case in the first part of the

lesser-included-offense analysis. Two years later, in 1989, the Supreme Court delivered its Schmuck

opinion, indicating that it might be a serious violation of a defendant’s constitutional right to notice

if the relationship between the lesser-included offense and the greater offense were determined based

on the evidence presented at trial rather than on the elements pleaded in the indictment. 489 U.S.

at 717-18. Since then, our opinions, for the most part, have focused on the statutory elements of the

lesser and greater offenses in question, see, e.g., Jacob v. State, 892 S.W.2d 905 (Tex. Crim. App.

1995); Schweinle v. State, 915 S.W.2d 17 (Tex. Crim. App. 1996); Campbell v. State, 149 S.W.3d

149 (Tex. Crim. App. 2004); Hayward v. State, 158 S.W.3d 476 (Tex. Crim. App. 2005); Irving v.

State, 176 S.W.3d 842 (Tex. Crim. App. 2005), until we finally endorsed this approach as “the sole

test for determining in the first step whether a party may be entitled to a lesser-included-offense

instruction.” Hall, 225 S.W.3d at 535.

        In short, in light of the earlier conflict in our decisions following our opinion in Day on

rehearing, applicant’s challenge to the trial court’s inclusion of conspiracy to commit murder as a

lesser-included offense of murder raised a strong issue on which she was quite likely to prevail in

light of our own decisions following Schmuck. Her trial counsel vigorously sought to and did

preserve this issue for appellate review. But her appellate counsel failed to raise it on direct appeal,


       5
         But it should be noted that “only eight weeks after the Court delivered the opinion on
rehearing in Day, the author of that opinion denied that his opinion should be read to authorize
consideration of the evidence on the issue of whether one offense was included within the
allegation of another.” Hall, 225 S.W.3d at 530 (citing Graves v. State, 539 S.W.2d 890, 892-93
(Tex. Crim. App. 1976) (Odom, J., concurring)).
                                                                                   MARIN - Page 11

instead raising issues6 that he himself, as his affidavit indicates, did not believe had any merit. For

example, he stated in his affidavit:

              The record on appeal established Appellant’s overwhelming guilt as a party
       to murder; Appellant was fortunate to escape conviction for the greater offense of
       murder, and receive in this case the lesser included of conspiracy to commit murder.
       Appellant’s intent to commit murder, agreement with A.D. Ayala to murder Raul
       Marin, and Appellant’s payment of $500.00 to Mike Ybarra in furtherance of
       Appellant’s criminal agreement with A.D. Ayala, establish the three essential lesser
       elements of conspiracy to murder.

(Emphasis added.) He also stated:

              I did not raise a point of error on appeal regarding the lesser of conspiracy
       because there was no jury charge error; the only thing the Appellant did not do was
       to physically kill her sleeping husband herself. The record on appeal amply reveals
       that Appellant pursued a conspiracy which encompassed not only the killing but also
       a cover-up.

Indeed, the appellate counsel’s affidavit as a whole indicates that he considered applicant’s case to

be frivolous. A reasonable attorney, in that situation, would have filed an Anders7 brief and thus

recused himself from the case altogether. Applicant could have then proceeded pro se or through

another counsel. Thus, there would have been no problem of hybrid representation, the matter would

have been resolved on direct appeal, and applicant would not have needed to resort to the present

extraordinary remedy to vindicate her rightful claim.

       The affidavit also indicates that the counsel failed to do any research on the issue that

applicant urged him to pursue. If he had done such research, he would have known about: (1)


       6
         The appellate counsel raised five issues related to the sufficiency of corroboration
testimony, alleged prosecutorial misconduct, alleged accomplice witnesses, and hearsay. We
note that, even on the bare record before us, these issues appear to be much weaker than the one
that the attorney failed to raise and were easily disposed of by the court of appeals. Marin, 2001
Tex. App. LEXIS at *3-8.
       7
           Anders v. California, 386 U.S. 738 (1967).
                                                                                   MARIN - Page 12

Schmuck; (2) following Schmuck, the change in this Court’s own approach to cases involving the

lesser-included-offense analyses; and (3) the fact that judges in this Court themselves had begun to

question the reasoning of Cunningham in particular, in light of the recent Supreme Court and our

own decisions in this area.8 In short, the appellate counsel appeared to be totally unaware of the

applicable law and sought to define a lesser-included offense with reference to the facts of the case,

rather than the elements of the indicted crime, in spite of the rapidly developing weight of authority

to the contrary. Thus, he ignored the importance of the trial counsel’s efforts to preserve the lesser-

included-offense issue, disregarded his own client’s earnest requests to pursue that issue, and instead

filed an appeal on claims that even he did not seem to believe had any merit. In view of all these

facts, we hold that counsel’s failure to raise the lesser-included-offense issue constituted deficient

performance.

       The prejudice caused by this deficient performance is obvious. The lesser-included-offense

issue was not preserved because of appellate counsel’s failure to raise it on direct appeal. Applicant

was thus precluded from seeking our review, in which she would quite likely have prevailed under

Schmuck, even if Hall had not yet been decided. We, therefore, conclude that the appellate counsel’s

deficient performance prejudiced applicant’s defense.9


       8
         See, e.g., Ochoa v. State, 982 S.W.2d 904, 909 (Tex. Crim. App. 1998) (Keller, J.,
concurring) (“I agree with the result reached by the majority but disagree with the majority's
reliance upon Cunningham to dispose of the issue presented” in part because “Cunningham’s
conclusion that an offense was lesser-included based upon proof at trial appears to be contrary to
precedent from the Supreme Court and this Court in that respect.”) (emphasis in original) (citing
Garrett v. United States, 471 U.S. 773 (1985); Ex Parte Kopecky, 821 S.W.2d 957 (Tex. Crim.
App. 1992)).
       9
        We note that the appellate counsel, in his affidavit, asserts that applicant was not harmed
and that she in fact “benefitted from the trial court’s charge.” Although the record before us is
                                                                                       (continued...)
                                                                                  MARIN - Page 13

                                            Conclusion

       Conspiracy to commit murder is not a lesser-included offense of murder as it was alleged in

the present indictment. Hence, we conclude that the trial court erred in instructing the jury that it

could convict applicant for conspiracy to commit murder, even though she had not been indicted for

this crime; and that her appellate counsel was ineffective in failing to raise this issue on direct

appeal. We, therefore, grant applicant relief from the judgment and remand her to the custody of the

Sheriff of Bexar County.



DELIVERED: APRIL 2, 2008.

DO NOT PUBLISH




       9
          (...continued)
admittedly sparse, we are not persuaded by counsel’s argument. The facts, as recounted by the
State and the court of appeals, indicate that the bulk of communication between Ayala (who
actually committed the murder) and applicant took place over the telephone, and that there was
no recording made of such conversations. They also indicate that Ayala had tried to persuade
one of his friends, Mike Ybarra, to kill Raul. But there is no indication in these facts that
applicant even met Ybarra. In short, the State’s case against applicant seems to be based entirely
on Ayala’s testimony and, hence, his credibility. The fact that the jury acquitted applicant of
murder, and even of being a party to the murder, indicates that they did not completely believe
him. It is therefore questionable whether the jury would have convicted applicant of conspiracy
if it had not been for the trial court’s erroneous lesser-included-offense charge. At any rate, we
believe that being convicted of a crime for which applicant had not been charged, thus violating
her constitutional due-process right of notice, is sufficient harm to hold that she was prejudiced
by her appellate counsel’s deficient performance.
