             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                           NO. 1923-06



                           LARRY GLENN HAYNES, Appellant

                                                 v.

                                   THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE FIRST COURT OF APPEALS
                             HARRIS COUNTY

               K ELLER, P.J., filed a dissenting opinion in which C OCHRAN, J., joined.

       In a fractured decision, in which no opinion commanded a majority, the Court in Collier v.

State came to the remarkable conclusion that insufficiency of the evidence of an aggravating element

of an offense may result in an acquittal rather than in conviction of the unaggravated lesser-included

offense.1 This conclusion is remarkable because a jury’s verdict on a greater offense necessarily




       1
         See 999 S.W.2d 779, 779-83 (Tex. Crim. App. 1999)(plurality op.); id. at 783-85 (Keasler,
J., concurring); see also id. at 785-90 (Keller, J., dissenting).
                                                                                         HAYNES – 2


constitutes a finding on every essential element of a lesser-included offense.2 Despite the fact that

the lead opinion in Collier v. State was only a plurality, the Court contends that we are bound to

follow Collier as a matter of stare decisis, and as a consequence, declines to re-examine the merits

of the positions taken by the various opinions in that case. Because I disagree with the conclusion

that we are bound by Collier, and because I disagree with Collier, I respectfully dissent.

        The Court’s first reason for concluding that we are bound by Collier is that the lead opinion’s

“overreaching” rationale can be traced back to earlier majority opinions in Stephens v. State3 and Ex

parte Granger.4 But Stephens is distinguishable because in that case the defendant asked for but was

denied submission of a lesser-included offense, while in Collier and the present case, neither party

asked for the submission of a lesser-included offense.5 Even though the State in Stephens did not

oppose the defendant’s request, it did not join the request either,6 and so, at least arguably, the State

relinquished conviction on the lesser-included offense. Although Granger did not appear to view

Stephens so narrowly, instead citing Stephens broadly for the proposition that a State’s failure to

request a lesser-included offense could prevent the State from prosecuting that offense in a

subsequent trial, Granger was a case where the State prevailed because it did request the lesser-




        2
            See Ex parte Granger, 850 S.W.2d 513, 519 (Tex. Crim. App. 1993).
        3
            806 S.W.2d 812 (Tex. Crim. App. 1990).
        4
            Court’s op. at 5.
        5
            Stephens, 806 S.W.2d at 817.
        6
            Id. at 817-18.
                                                                                       HAYNES – 3


included offense,7 and so the Court was not required to decide how to treat a situation in which

neither party requested the instruction.

       Even read broadly, however, Stephens and Granger are distinguishable for another reason:

In those cases, the State sought to prosecute the defendant a second time, albeit only for the lesser-

included offense, and the defendant interposed a claim of double jeopardy.8 The Court was not

called upon in either of those cases to determine whether, in the first prosecution, reformation to a

lesser-included offense (and remand for re-sentencing) would have been the appropriate remedy for

an appellate finding of legally insufficient evidence.9 Indeed, the lead opinion in Collier observed

that the reformation question before it was “one of first impression in this Court,” and neither the

lead opinion nor Judge Keasler’s concurring opinion even cited to Stephens or Granger.10

       And the procedural posture of the case crucially impacts the double-jeopardy question.

Because an acquittal is considered a jeopardy-terminating event, subjecting a defendant “to

postacquittal factfinding proceedings going to guilt or innocence violates the Double Jeopardy

Clause.”11 But the reformation remedy considered in Collier (and here) would not result in a

complete acquittal of the offense (as there would still be a conviction for the lesser-included), and,

to the extent subsequent fact-finding proceedings could be characterized as “postacquittal,” they


       7
            Granger, 850 S.W.2d at 519-20.
       8
            See Stephens and Granger, generally.
       9
            See id., passim.
       10
        See Collier, 999 S.W.2d at 779-85. But those cases were discussed in Presiding Judge
McCormick’s opinion dissenting to the denial of the State’s motion for rehearing. See id. at 792-93.
       11
            Smalis v. Pennsylvania, 476 U.S. 140, 145 (1986)(emphasis added).
                                                                                         HAYNES – 4


involve only the matter of punishment.

        Moreover the procedural posture was an important part of the “overreaching” rationale. It

is worth pointing out that the Court did not, either in Stephens or in Granger, use the words

“overreaching,” or “misconduct,” or any of their synonyms, to describe a prosecutor’s failure to

request a lesser-included offense submission.12 The question presented in Stephens and Granger was

whether the circumstances surrounding the appellate acquittal for a greater offense were sufficiently

compelling to permit an exception to the usual prohibition against fact-finding proceedings on guilt

after an acquittal; we essentially held that, when the jury charge in the first prosecution did not

include the lesser-included offense and the State failed to request it, the circumstances are not

sufficiently compelling.13 That is, the State’s “overreaching” simply prevented it from overcoming

the usual double-jeopardy rules that operated in a defendant’s favor. The “overreaching” rationale

did not have independent force outside the double-jeopardy context.

        To the extent that the reasoning in Stephens and Granger can be used to support the idea that

a prosecutor’s failure to request the submission of a lesser-included offense precludes the remedy

of reformation, that reasoning is inconsistent with our later decision in Malik v. State.14 Rejecting

the notion that the legal sufficiency of the evidence should be tied to the jury charge that was actually



        12
             See Stephens and Granger, passim.
        13
            See Stephens, 806 S.W.2d at 819 (discussing the State’s claim that “reversal based on
insufficiency of the evidence as to the aggravating element should not be accorded the same status
as other appellate reversals because the issue of the lesser included offense was never presented to
the jury”); Granger, 850 S.W.2d at 520 (State’s failure to pursue lesser-included offense instruction
was the equivalent of the trial being “abandoned or aborted by the state without manifest necessity”).
        14
             953 S.W.2d 234 (Tex. Crim. App. 1997).
                                                                                        HAYNES – 5


submitted, Malik overruled the prior Benson/Boozer15 rule that required the State to object to an error

in the charge in order to preserve the appellate court’s ability to conduct a sufficiency review under

the correct offense elements.16 Rather, Malik held that, even absent a State objection to the charge,

legal sufficiency was to be measured by “the elements of the offense as defined by the hypothetically

correct jury charge for the case.”17 The Malik Court signaled that evidentiary sufficiency was not

a game that depended upon what instructions the parties requested: it turned upon “an actual failure

in the State’s proof of the crime rather than a mere error in the jury charge submitted.”18 Indeed, in

his concurring opinion in Malik, Judge Meyers noted that the Benson/Boozer objection requirement

(that Malik overturned) was “consistent with” the request rule articulated in Stephens and Granger.19

       The Court’s second reason for concluding that we are bound by Collier is that Judge

Keasler’s concurring opinion controls, because it “contains the narrowest ground upon which five

of the judges concurring in the judgment in Collier agreed,” and the rules of appellate procedure

upon which Judge Keasler’s opinion were based have not changed.20 But the Court characterizes

Judge Keasler’s opinion as the narrowest holding on when a judgment can be reformed: if the lesser-




       15
          Benson v. State, 661 S.W.2d 708 (Tex. Crim. App. 1982); Boozer v. State, 717 S.W.2d
608 (Tex. Crim. App. 1984).
       16
            Malik, 953 S.W.2d at 236, 239.
       17
            Id. at 239.
       18
            Id. at 240.
       19
             Malik, 953 S.W.2d at 242 n. 4 (quoting Granger, which included a discussion of
Stephens).
       20
            Court’s op. at 5-6.
                                                                                         HAYNES – 6


included offense is submitted in the jury charge. In Collier, the judgment was not reformed, so any

holding arising from that case must be about when the judgment cannot be reformed. The lead

opinion is the narrowest with respect to that question: that a judgment cannot be reformed (at least)

when the lesser-included offense was not submitted and was not requested.

        The conclusion that the plurality opinion articulates the narrowest rule can also be derived

from a more common-sense approach. Counting the number of judges aligned with each position,

the lead opinion articulates the manner in which all cases would be resolved: eight judges would

have allowed reformation if a lesser-included offense instruction had been either submitted or

requested, while five judges would have denied reformation if an instruction was neither submitted

nor requested.21

        Furthermore, Judge Keasler’s opinion garnered no other votes. None of the other eight

judges on the Court subscribed to the view that the rules of appellate procedure placed a limitation

on an appellate court’s ability to reform a judgment to reflect a lesser-included offense. The lead

opinion’s conclusion was based, not upon the rules of appellate procedure, but upon a policy

rationale involving “risks and benefits.”22 Because the lead opinion and Judge Keasler’s concurring

opinion contain entirely disparate rationales (which in turn differ from the dissent), one can derive

no binding legal principle from those opinions; all one can do is arrive at a result in a particular case

by deciding how a defendant fares under each of the three competing viewpoints and then add up the



        21
          See Collier v. State, 999 S.W.2d 779, 790 (Tex. Crim. App. 1999)(Johnson, J., concurring
in denial of State’s motion for rehearing).
        22
         Collier, 999 S.W.2d at 781-82 (quoting State v. Myers, 158 Wis. 2d 356, 461 N.W.2d 777
(Wis. 1990)).
                                                                                          HAYNES – 7


number of judges who come down on his side. Under these circumstances, we should not hesitate

to re-examine Collier without the constraints of stare decisis.

        A re-examination shows Collier to be wanting. The lead opinion pointed to no constitutional

provision, statute, or appellate rule to support its position.23 Instead, it relied upon a policy argument

expressed in an out-of-state decision.24 The policy argument was that permitting reformation to a

lesser-included offense when the State did not seek to include that offense as an alternative in the

jury charge would afford the State all the benefits of its “go for broke” strategy with none of the risks

and would rescue the State from “a trial strategy that went awry.”25 There are two problems with this

argument.

        First it is untrue. As the discussion in Collier observes, when neither the State nor the

defendant asks for the submission of a lesser-included offense, both parties “go for broke.”26 The

State gambles that the jury will decide to convict of a greater offense that is weakly supported by the

evidence rather than allow a defendant who is obviously guilty of some crime to go free,27 while the

defendant gambles that the jury will acquit on the basis of the weakness in the evidence with respect

to the greater offense because the jury instructions do not cover the crime the jury believes was

committed. Both parties avoid the middle option that the jury might be more likely to choose (the



        23
             See id. at 779-83.
        24
             Id. at 781-82.
        25
             Id. (discussing Myers).
        26
             Id. at 782.
        27
             See id.
                                                                                          HAYNES – 8


lesser-included offense) while pursuing the most favored option (conviction on the greater offense

for the State, acquittal for the defendant) and risking the least favored option (acquittal for the State,

conviction on the greater offense for the defendant). If one takes into account only the jury verdict,

the risks and potential benefits pursued by both sides are equal.

        If one takes into account a defendant’s ability to appeal, the playing field becomes unequal,

but contrary to the discussion in the lead opinion in Collier, it is the defendant who benefits

disproportionately, not the State. The State cannot appeal an acquittal,28 but the defendant can appeal

a conviction.      If the State’s strategy fails before the jury, the loss is irrevocable, but if the

defendant’s strategy fails before the jury, there is still the possibility of succeeding on appeal (as

happened in this case). Allowing reformation instead of a full-blown acquittal simply serves to

mitigate somewhat the imbalance in favor of the defendant.

        The second problem with the lead opinion’s argument is that there is no good reason why the

courts must insure an equal playing field in this context. The trial is “the main event rather than a

tryout on the road.”29 The appellate scales are supposed to be weighted in favor of upholding a trial

court’s judgment of conviction, and this weighting includes, for example, the highly deferential

standard of review for legal-sufficiency claims.30 Appellate remedies should not be easy to procure,

least of all a full-blown acquittal – “the greatest form of relief in the criminal system.”31



        28
             United States v. Wilson, 420 U.S. 332, 352 (1975)
        29
             Anderson v. Bessemer City, 470 U.S. 564 (1985).
        30
             See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
        31
             Malik, 953 S.W.2d at 239.
                                                                                       HAYNES – 9


       Moreover, equalizing the playing field in the manner contemplated by the lead opinion in

Collier is simply inconsistent with what legal-sufficiency reviews are all about. Legal-sufficiency

claims are due-process claims,32 and we have recognized that the remedy for a due-process claim

should be narrowly tailored to neutralize the taint of the constitutional violation.33 As explained

above, the gravamen of a legal-sufficiency claim is the State failing to prove its case, so the remedy

should be narrowly tailored to neutralize that wrong. We should not be concerned in the legal-

sufficiency context with missteps made by the State regarding what is included in the jury charge.

A misstep in the jury charge can be remedied by means other than an acquittal, such as a new trial

on the lesser-included offense.34

       Judge Keasler’s concurring opinion in Collier relied upon a rule of appellate procedure for

the proposition that appellate courts simply do not have the power to reform a judgment to a lesser-

included offense if the lesser-included offense was not submitted in the jury charge.35 I must

respectfully disagree. Rule 43.2 permits an appellate court to “reverse the trial court’s judgment in

whole or in part and render the judgment that the trial court should have rendered.”36 Judge Keasler

       32
            Jackson, 443 U.S. at 319.
       33
            Cook v. State, 940 S.W.2d 623, 628 n. 7 (Tex. Crim. App. 1996).
       34
           United States v. Hunt, 129 F.3d 739, 745-46 (5th Cir. 1997)(remedy of reformation allowed
even if lesser-included offense was not submitted to the jury unless the defendant was prejudiced,
in which case the remedy would be a new trial); see also Rutledge v. United States, 517 U.S. 292,
305-06, 305 n.15 (1996)(“federal appellate courts appear to have uniformly concluded that they may
direct the entry of judgment for a lesser included offense when a conviction for a greater offense is
reversed on grounds that affect only the greater offense” if “no undue prejudice will result to the
accused”).
       35
            999 S.W.2d at 783-85.
       36
            TEX . R. APP . P. 43.2(c).
                                                                                      HAYNES – 10


concluded that the trial court would be authorized to render judgment for a lesser-included offense

only if the lesser-included offense had been submitted to the jury.37

       But this reasoning does not really account for the unique features of a legal-sufficiency claim.

When the evidence is sufficient to support the greater offense but also raises the lesser-included

offense, submission of the lesser-included offense is optional with the parties.38 The situation is

different, however, when the evidence is legally insufficient to support the greater offense. A finding

of legally insufficient evidence to support an offense is tantamount to a finding that the offense

should never have been submitted to the jury.39 It follows that, if the legal insufficiency goes only

to an element that distinguishes a greater offense from one that is lesser-included, then only the

lesser-included offense should have been submitted to the jury. Under those circumstances, had a

motion for directed verdict been presented at the close of the evidence, the trial court would have

been required to render a judgment of acquittal on the greater offense and to submit the lesser-

included offense to the jury. But a defendant is not required to file a motion for directed verdict to

preserve a legal-sufficiency claim on appeal.40 So, even absent a motion for directed verdict, only

the lesser-included offense should have been submitted to the jury. And, as I pointed out at the

beginning of this opinion, because the jury actually found the greater offense, it necessarily found

every element of that lesser-included offense. Since the jury found every element of the only offense




       37
            Collier, 999 S.W.2d at 784.
       38
            Delgado v. State, 235 S.W.3d 244, 249-250 (Tex. Crim. App. 2007).
       39
            Malik v. State, 953 S.W.2d at 236-37.
       40
            Moff v. State, 131 S.W.3d 485, 488-89 (Tex. Crim. App. 2004).
                                                                                     HAYNES – 11


that it should have been permitted to consider, the judgment the trial court should have rendered was

a judgment of conviction for the lesser-included offense.41

       I respectfully dissent.

Filed: April 30, 2008
Publish




       41
           Once rendition of the judgment for the lesser-included offense occurs pursuant to Rule
43.2(c), a remand for a new sentencing hearing is authorized under Rule 43.3(a). TEX . R. APP . P.
43.3(a)(“When reversing a trial court’s judgment, the court must render the judgment that the trial
court should have rendered, except when . . . a remand is necessary for further proceedings.”).
