






 



IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. PD-0435-11


JOSHUA LEE GOAD, Appellant

v.

THE STATE OF TEXAS


 
      ON THE STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE ELEVENTH COURT OF APPEALS
ECTOR COUNTY


 Alcala, J., filed a concurring opinion.  
 
CONCURRING OPINION  


I write separately to address (1) why the standard of review that appellate courts
should apply when reviewing the trial court's decision to give or to refuse an instruction on
a lesser-included offense is abuse of discretion, (2) how the abuse-of-discretion standard
should be applied by appellate courts depending on whether the trial court's decision is based
on direct evidence of a lesser-included offense or on circumstantial evidence, and (3) why
I believe the trial court abused its discretion by denying the lesser-included-offense
instruction in this case.  Although we have repeatedly explained the substantive test that trial
courts must apply in deciding whether to give a lesser-included-offense instruction, our Court
has failed to clearly state and consistently apply the appellate standard of review for
determining whether the trial court erred in that decision. This is problematic because the
review standard determines the strength of the lens through which an appellate court may
examine an issue on appeal. See Ruggero J. Aldisert, Opinion Writing 53 (West
Publishing Co. 1990) (explaining that "[s]tandards of review are critically important in
appellate decision making" and elevating "the necessity of stating the review standard to a
question of minimum professional conduct."). The question of what standard of review
applies is, therefore, relevant in every case, as the amount of deference owed to a trial court's
decision affects appellate analysis and is often outcome determinative.  For example, what
might be considered error under a de novo standard of review might not be considered error
under an abuse-of-discretion standard.
I do not join the majority opinion because it fails to specify whether it is reviewing
the trial court's denial of the lesser-included-offense instruction under the second prong for
an abuse of discretion.  I believe our opinions should clearly and consistently specify that 
we review a trial court's decision under the second prong for an abuse of discretion and that
we will not reverse that decision unless it is outside the zone of reasonable disagreement. I
also conclude that the amount of deference that an appellate court owes a trial court under
the abuse-of-discretion standard may be affected depending on whether the evidence
supporting the lesser-included offense is direct evidence or indirect, circumstantial (1) evidence.
I conclude that, in this case, the trial court did abuse its discretion by refusing to give the
lesser-included-offense instruction.   
I.     Standard of Review Applicable to Lesser-Included-Offense Instructions
The standard of review applicable to lesser-included-offense instructions depends on
which of the two substantive prongs the court is reviewing.  The substantive two-pronged test
for determining whether a trial court is required to instruct on a lesser-included offense is
well established:  the first prong requires that the lesser-included offense be included within
the offense charged, and the second prong requires that there be some evidence that would
permit a jury to rationally find that if a defendant is guilty, he is guilty only of the lesser
offense. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993); Hall v. State,
225 S.W.3d 524, 536 (Tex. Crim. App. 2007).  We have explicitly stated that the first prong
is a matter-of-law determination, and, therefore, de novo review is appropriate. See Hall, 225
S.W.3d at 535.  On a couple of occasions, our Court explicitly described appellate review of 
the second prong as abuse of discretion. (2)  But we have never explained why this is the
appropriate standard of review for that prong nor how that standard affects our analysis of
that prong.  Furthermore, our Court is inconsistent in its explicit application of the abuse-of-discretion standard for reviewing the second prong, and we usually, as here, do not mention
what standard of review we are applying in our lesser-included-offense-instruction decisions. 
See, e.g., Sweed v. State, No. PD-0273-10, 2011 Tex. Crim. App. LEXIS 1395 (Tex. Crim.
App. Oct. 19, 2011) (not yet reported).  For these reasons, an intermediate appellate court
attempting to abide by this Court's authority would find this Court's precedent unclear
concerning the standard of review applicable to the second-prong analysis.
Federal courts, which apply the same substantive two-pronged test in evaluating
instructions on lesser-included offenses, (3) apply the same two standards of review that our
Court has expressly applied intermittently in the past, and I agree that they are the appropriate
standards. (4) I also believe that, like many of the opinions by federal courts, our opinions
should consistently specify what standard of review we are applying and how the applicable
standard affects our analysis of the purported error. 
In examining the evidence under the second prong, the trial court examines the record
in two ways:  It looks for any evidence that tends to show that the defendant is guilty only
of a lesser-included offense, and it also examines all the evidence to determine whether the
lesser offense is a rational alternative to the greater offense.  See Rousseau, 855 S.W.2d at
672-73.  As to the former, the trial court initially determines if there is any evidence, credible
or not, from any source that shows that the defendant is guilty of the lesser offense and not
guilty of the greater offense. (5)  The trial court does not weigh the credibility of the evidence
for the purpose of deciding whether to give the instruction and must presume that the
evidence is true. See Young v. State, 283 S.W.3d 854, 875-76 (Tex. Crim. App. 2009) ("The
credibility of the evidence and whether it conflicts with other evidence or is controverted may
not be considered in determining whether an instruction on a lesser-included offense should
be given.").  Because the trial court does not make any credibility determinations and must
consider all evidence regardless of its quality, this portion of the second-prong analysis
strictly concerns a matter of law. De novo review is, therefore, appropriate because minimal
deference to the trial court's assessment of the evidence is necessary. Compare Guzman v.
State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).  
But the second prong also requires the trial court to examine the rationality of the
lesser offense as an alternative to the greater offense. See Rousseau, 855 S.W.2d at 672-73. 
After examining the record for all evidence that tends to establish a lesser offense, a trial
court, presuming the truth of all the evidence, must then decide whether the evidence
supports the lesser offense as a valid, rational alternative to the charged offense. See Feldman
v. State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002).  A trial court determines whether a
lesser offense is a valid, rational alternative to the charged offense by examining the evidence
tending to support the lesser offense in the context of all the evidence that has been presented
at trial. Id.  Although the trial court presumes the credibility of all the evidence in deciding
whether to instruct on a lesser-included offense, it is still in a better position than the
appellate court to assess the evidence and determine whether the lesser-included offense is
a rational alternative to the offense charged. This is because, unlike the appellate court, the
trial court has the benefit of examining the physical appearance, demeanor, and cadence of
speech of the witnesses and determining whether testimony is sarcastic, vague, or otherwise
lacks clarity. See Guzman, 955 S.W.2d at 87.  Because the trial court received the evidence
firsthand, the appellate court should review the trial court's decisions under the second prong
only for an abuse of discretion. (6) 
II.   Evaluation of Types of Evidence Under the Abuse-of-Discretion StandardThe amount of deference appellate courts give to the trial court's decision will vary
depending on whether they are reviewing a record that contains (A) direct evidence of a
lesser-included offense or (B) circumstantial evidence from which inferences may be drawn. 
A. Direct Evidence of a Lesser-Included Offense   
When the record contains direct evidence, such as a defendant's statements that he
committed an act recklessly and not intentionally or knowingly as charged, the trial court
must presume that these statements are true for jury-charge purposes. This evidence raises
the lesser-included offense of reckless conduct as a valid, rational alternative to the charged
offense because it is some evidence that the defendant possessed a lesser culpable mental
state than that alleged in the indictment. The trial court, therefore, must instruct on the lesser-included offense.  When any evidence in the record directly supports a lesser-included
offense and a lack of guilt on the greater offense, I believe that failure to give the lesser-included instruction is almost always erroneous.  See Young, 283 S.W.3d at 875-76; Moore
v. State, 969 S.W.2d 4, 11 (Tex. Crim. App. 1998). 
Although case law discussing direct evidence of a lesser-included offense almost
always requires the lesser instruction, it does appear that we have applied an abuse-of-discretion standard of review in this situation on at least one occasion.  In Mathis v. State,
we held that Mathis's testimony was not evidence upon which a jury could rationally find
that he possessed a less culpable mental state than that alleged in the indictment. 67 S.W.3d
918, 925 (Tex. Crim. App. 2002).  Mathis testified that "he acted 'recklessly' with the gun
and did not intend to kill anyone." Id.  Noting that "his testimony about the shootings was
fraught with inconsistencies," we determined that his testimony did "not amount to evidence
upon which a jury could rationally find [he] only acted recklessly with respect to killing [the
complainant], and not intentionally." Id. at 925-26. We observed that, when Mathis killed the
complainant, he had already shot and killed a different complainant with two shots to the
head and that he had "vacillated" in admitting that he had aimed and fired the gun. Id. at 925. 
Importantly, we concluded that, "[a]part from appellant's own testimony that he did not
intend to kill anyone, there was no other evidence in support of such theory, and in fact the
evidence refuted that testimony."  Id. at 926. (7)
Although we did not explicitly state in Mathis that we were reviewing the trial court's
rationality determination for an abuse of discretion, I believe that is the standard we
implicitly applied when we declined to find that the trial court erred.  See id.   I believe that,
in Mathis, the trial court should have given the lesser-included-offense instruction for
reckless intent based on the appellant's direct testimony that he had that intent. See id. 
However, I also believe that the trial court's ruling was within the zone of reasonable
disagreement because the trial court could have reasonably determined that Mathis's
testimony about his reckless intent, even presuming that the testimony was credible, did not
provide a valid, rational alternative to the greater charged offense in light of the entire
circumstances of the offense shown in the record.  See id.  Mathis is one of those rare cases
in which a trial court would not abuse its discretion either by giving or not giving a lesser-included-offense instruction.  See id.   
Although Mathis presents an exception to the rule, the general rule should be that
direct evidence of a lesser mental state is evidence supporting a lesser-included offense as
a rational alternative to a greater offense because the credibility of all the evidence in the
record must be presumed for purposes of giving a jury instruction.  I conclude that, although
an appellate court should limit its review of a trial court's rationality determination to an
abuse of discretion, a trial court is entitled to less deference when the record contains direct
evidence of a lesser culpable mental state.  
B.  Circumstantial Evidence Supports a Lesser-Included Offense
Circumstantial evidence of a defendant's culpable mental state requires a trial court
to determine what inferences a jury may reasonably draw from that evidence. Because
inferences drawn from circumstantial evidence are more subjective than conclusions drawn
from direct evidence, I believe that an appellate court should defer to a trial court's
determination as long as it is within the zone of reasonable disagreement.  
If a record contains only circumstantial evidence of deliberate conduct, such as
evidence that a victim was shot repeatedly, the State may properly rely on that evidence to
establish that the defendant's acts were intentional. See Gardner v. State, 306 S.W.3d 274,
285 (Tex. Crim. App. 2009) (State may prove "criminal culpability by either direct or
circumstantial evidence, coupled with all reasonable inferences from that evidence."). But
can a defendant rely on that same circumstantial evidence to establish that he acted with
some lesser culpable mental state?  I believe that the answer to this question is sometimes: 
sometimes circumstantial facts raise an offense with a less culpable mental state as a valid,
rational alternative to the charged offense, and sometimes they do not.  It is in these instances
that a trial court is charged with the challenging task of determining whether the facts show
a valid, rational alternative to the charged offense.   
Recently, in Sweed v. State, our Court held  that the trial court erred by failing to give
a lesser-included-offense instruction of theft in a case in which the appellant was charged
with aggravated robbery.  Sweed, 2011 Tex. Crim. App. LEXIS 1395, at *17.  The central
issue at trial was whether the appellant pulled a knife on the complainant during, or in
immediate flight after, the commission of the theft. Id. at *15. The record contained evidence
of a fifteen- to thirty-minute delay between the appellant's flight following his commission
of the theft and the appellant's use of the knife, as well as intervening activities that could
support a rational inference that he was no longer fleeing from the theft when he used the
knife.  Id. at *15-16.  We determined that there was more than a scintilla of evidence from
which the jury could have reasonably determined that theft was a valid, rational alternative
to aggravated robbery. Id.  Sweed shows that a trial court, without deciding the credibility of
the evidence, must evaluate the circumstantial evidence and assess whether a jury could
rationally decide that those facts show guilt of only a lesser offense.
But our Court's earlier decisions can seem contrary to this position.  As the State
points out in this case, we have held that a lesser-included instruction is not required when
the basis for the instruction is merely a factfinder's disbelief of certain evidence necessary
to prove a greater offense. See Hampton v. State,109 S.W.3d 437, 440-42 (Tex. Crim. App.
2003) (rejecting State's argument that since knife, which was necessary to prove aggravating
element, was never recovered, jury's finding of guilt for sexual assault was valid rational
alternative to charged offense, explaining that it is not enough that jury may disbelieve
crucial evidence pertaining to greater offense); Skinner v. State, 956 S.W.2d 532, 543 (Tex.
Crim. App. 1997), cert. denied, 523 U.S. 1079 (1998) ("It is not enough that the jury may
disbelieve crucial evidence pertaining to the greater offense. Rather, there must be some
evidence directly germane to a lesser-included offense for the factfinder to consider before
an instruction on a lesser-included offense is warranted."). We reaffirmed that position in
Sweed. 2011 Tex. Crim. App. LEXIS 1395, at *16-17. I agree that mere disbelief of evidence
necessary to establish a greater offense would not require a lesser-included offense
instruction.  See id. 
Contrary to the State's position, there is a line to be drawn here.  In one case, the
defendant is asking for a lesser-included-offense instruction by arguing that certain evidence
necessary to prove the greater offense is not credible or true.  See Hampton,109 S.W.3d at
440-42.  In another case, the defendant is asking for a lesser-included-offense instruction by
presuming the truth of all the evidence presented at trial and arguing that a jury could
reasonably infer either that the evidence shows a lesser offense or a greater offense.  See
Sweed, 2011 Tex. Crim. App. LEXIS 1395, at *16-17.  These cases show that there is a line
to be drawn between a record that shows mere disbelief of certain evidence necessary to
prove a greater offense, which would not require a lesser-included-offense instruction, and
a record that contains circumstantial evidence from which a factfinder could reasonably infer
either a greater or a lesser mental state, which would require the lesser instruction.  
I conclude that when an appellate court is reviewing a trial court's determination as
to the rationality of the inferences reasonably drawn from circumstantial evidence, the
appellate court should give great deference to the trial court's decision because the trial court
has the benefit of firsthand examination of witness testimony. See Guzman, 955 S.W.2d at
87.  Because reasonable minds may frequently differ on what inferences may properly be
drawn from circumstantial evidence, appellate courts should defer to the trial court's
rationality determination when it is within the zone of reasonable disagreement.III.       Analysis of This Case
    This case presents the scenario described in the circumstantial-evidence example
in which all the evidence in the record is presumed to be true.  Appellant is not relying on
disbelief of evidence necessary to establish the greater offense, but is instead accepting the
truth of all the evidence for the purpose of the lesser-included-offense instruction.  The
question here is whether the trial court erred in refusing to instruct on the lesser-included
offense of trespass.
As the court of appeals correctly observes, the only distinction between criminal
trespass and burglary of a habitation is the defendant's mental state:  the latter requires proof
of intent to commit a felony, theft, or an assault, and the former does not. See Tex. Penal
Code §§ 30.02(a)(1) & 30.05(a).  Appellant did not testify at trial, and the record contains
no direct evidence of his mental state when he entered the complainant's home.  Rather, the
only evidence of appellant's mental state is circumstantial: the record shows that
appellant--the complainant's neighbor--and a friend went to the complainant's home,
knocked on the door, and accused her of having one of appellant's dogs. (8)  The complainant
refused appellant's request to allow him to search the house for his pit bull, which the
complainant denied having, and appellant "got really upset" and called her several "choice
words."  Appellant left, and then the complainant moved the car of a visiting friend out of
view so it appeared that no one was home.  Moments later, the complainant, sitting in her
kitchen, saw appellant attempting to enter her house through the living room window.  The
complainant rushed to the window, slammed it shut, and appellant fled.  
In deciding whether the trial court properly refused the lesser-included instruction, we
must determine whether, in light of all the evidence presented at trial, the trial court's
decision is outside the zone of reasonable disagreement. Based on this circumstantial
evidence, the trial court could have determined that a jury could have rationally believed that
appellant's initial request for the dog was a ruse to determine if anyone was home and that
he later entered with the burglarious intent to commit theft.  This evidence supports the
greater offense.  See Gardner, 306 S.W.3d at 285.  The trial court also could have determined
that a jury could have rationally believed that appellant's initial request for the dog is
evidence of his intent to enter the house to search for his own property and not to commit
theft. This evidence supports the lesser-included offense. Because both inferences are
reasonable, the evidence establishes either guilt for the charged offense of burglary or guilt
for only the lesser offense of trespass.  
The question is not what our Court would have decided based on a de novo review of
the record.  The question instead is whether any trial-court judge could have reasonably
decided that there was no evidence to rationally support a finding of only trespass.  I
conclude that no trial court could reasonably determine that a jury would be irrational in
finding that appellant lacked burglarious intent and, therefore, was guilty only of trespass. 
Although we should generally defer to a trial court's determination as to what inferences a
jury may reasonably draw from circumstantial evidence, the record here shows that the trial
court abused its discretion in its determination. In light of all the evidence presented at trial,
the trial court's decision not to instruct on the lesser-included offense of trespass was outside
the zone of reasonable disagreement.   IV.  ConclusionI believe that the better practice is for trial courts to instruct the jury on all lesser-included offenses when the defendant has stated that he had a lesser culpable mental state or
when the only evidence of a defendant's culpable mental state is circumstantial and that
evidence provides a basis for a jury to rationally find a lesser culpable mental state.  But I
also believe that appellate courts must review a trial court's decision to give or to refuse an
instruction on a lesser-included offense only for an abuse of discretion and find error only
when the trial court's ruling is outside the zone of reasonable disagreement.  Because I
conclude that the trial court did abuse its discretion in its determination as to the second
prong, I concur with the result in this case.
		Alcala, J.
Filed:  November 9, 2011
Publish
1. 	Because the law uses the terms "circumstantial evidence" and "indirect evidence"
interchangeably, I refer to evidence that is based on inference and not on personal knowledge or
observation as "circumstantial evidence." See Black's Law Dictionary 595 (8th ed. 2004); Shippy
v. State, 556 S.W.2d 246 (Tex. Crim. App. 1977) (Phillips, J., concurring) ("We have three classes
of evidence: (1) Direct or testimonial evidence; (2) indirect or circumstantial evidence; (3) autoptic
preference, or real evidence.") (internal quotations omitted).
2. 	Although we have never discussed what standard of review we apply in analyzing trial-court
rulings on lesser-included instructions, we have, in at least one case, concluded that the "trial court
did not abuse its discretion in concluding that there was no evidence that would permit a jury
rationally to find that appellant" was guilty only of the lesser-included offense. Threadgill v. State,
146 S.W.3d 654, 666 (Tex. Crim. App. 2004); see also Gongora v. State, No. AP-74,636, 2006 Tex.
Crim. App. LEXIS 2531 (Tex. Crim. App. Feb. 1, 2006) (not designated for publication) ("The trial
court did not abuse its discretion in refusing to give the lesser-included offense instruction."). 
Moreover, we have never explicitly stated that we apply a review standard other than an abuse-of-discretion standard.
3. 	See United States v. Mays, 466 F.3d 335, 341 (5th Cir. 2006) ("A defendant is entitled to a
lesser-included-offense instruction if '(1) the elements of the lesser offense are a subset of the
elements of the charged offense (statutory elements test), and (2) the evidence at trial permits a
rational jury to find the defendant guilty of the lesser offense yet acquit him of the greater.'")
(quoting United States v. Avants, 367 F.3d 433, 450 (5th Cir. 2004)).
4. 	We followed the federal standard in imposing a rationality requirement to the second prong
of the test. See Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993) (citing Cordova v.
Lynaugh, 838 F.2d 764, 767 (5th Cir. Tex. 1988)).  It is thus appropriate to look to the circuit courts'
standard for reviewing that prong, which is an abuse of discretion.  See, e.g., Mays, 466 F.3d at 341-42 ("The first prong of this test, examining the elements, is reviewed de novo, while the second
prong, evaluating the sufficiency of the evidence for a finding of guilt on the lesser-included offense,
is reviewed for abuse of discretion."); United States v. Mullins, 613 F.3d 1273, 1284 (10th Cir. 2010)
(same); United States v. Pedroni, 958 F.2d 262, 268 (9th Cir. 1992) ("The district court's decision
whether a jury rationally could conclude that the defendant was guilty of the lesser offense and not
guilty of the greater is reviewed for an abuse of discretion. In reviewing for abuse of discretion this
court must consider the instructions as a whole and in the context of the entire trial.").
5. 	Our cases have uniformly held that a defendant is entitled to an instruction on a lesser-included offense if evidence from any source affirmatively raises the issue, regardless of whether the
evidence is "strong, weak, unimpeached, or contradicted." Bell v. State, 693 S.W.2d 434, 442 (Tex.
Crim. App. 1985); Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994) ("[T]he jury is the
sole judge of the credibility of the witnesses, and it does not matter whether the evidence is strong,
weak, unimpeached or contradicted."); Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998)
(same).  Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser
charge. Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007); Ferrel v. State, 55 S.W.3d 586,
589 (Tex. Crim. App. 2001).  A defendant's testimony alone is sufficient to raise an issue.  Bell, 693
S.W.2d at 442; Mitchell v. State, 807 S.W.2d 740, 742 (Tex. Crim. App. 1991). Furthermore, the
trial court does not "determine the weight to be given the evidence; rather it is the jury's duty, under
proper instruction, to determine whether the evidence is credible and supports the lesser included
offense." Moore v. State, 969 S.W.2d 4, 11 (Tex. Crim. App. 1998); see also Saunders v. State, 913
S.W.2d 564, 571 (Tex. Crim. App. 1995) (observing that whether "guilty only" evidence is
compelling has not been considered in determining whether trial court erred in refusing instruction). 
6. 	Our opinions discuss the abuse-of-discretion standard in jury instructions in other contexts.
See, e.g., Woods v. State, 152 S.W.3d 105, 115 (Tex. Crim. App. 2004) (inclusion of a "Geesa
instruction" in jury charge); Paredes v. State, 129 S.W.3d 530, 538 (Tex. Crim. App. 2004) (denial
of appellant's request for accomplice-witness instruction). We have explained that if the trial court
is in "an appreciably better position than the reviewing court" to make a determination, deference
to the trial court is appropriate. Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997); see
also Villarreal v. State, 935 S.W.2d 134, 139 (Tex. Crim. App. 1996) (McCormick, P.J.,
concurring).
7.  Mathis relies on an earlier decision by our Court in Wesbrook v. State, 9 S.W.3d 103 (Tex.
Crim. App. 2000).  Mathis v. State, 67 S.W.3d 918, 925 (Tex. Crim. App. 2002).  In Wesbrook, we
similarly stated, "The only contrary evidence that this was not an intentional or knowing act is
appellant's own assertion that he did not intend to kill. In light of all the evidence in the record, this
was not evidence from which a jury could rationally conclude that appellant was guilty only of
aggravated assault." Wesbrook, 9 S.W.3d at 113-14.  But in Wesbrook, the defendant denied any
intent to kill as compared to Mathis, in which the defendant claimed he acted only recklessly. See
Mathis, 67 S.W.3d at 925; Wesbrook, 9 S.W.3d at 113-14.  Mathis, therefore, appears to be the only
case from this Court, in which direct testimony describing a lower mental state did not require a
lesser included-offense-instruction on the lower mental state. Compare Mathis, 67 S.W.3d at 925. 
   
8. 	At trial, the complainant, a professed animal lover, testified that dog fighting routinely
occurred in appellant's backyard and that she "did not care for him at all."

