









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1594-02


AARON JUNIOR HALL, Appellant

v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS

DALLAS  COUNTY



 Keller, P.J., filed a dissenting opinion.

	In its first ground for discretionary review, the State complained that the court of appeals
erred in holding the trial court's judgment void.  In its second ground, the State contended that
appellant failed to show entitlement to relief because the record reveals the occurrence of an off-the-record bench conference in which appellant might have requested the instruction.  We did not grant
these grounds for review, but we should have, and we can still do so on our own motion. (1)
	If appellant requested submission of the aggravated assault offense, then he would surely be
estopped from challenging the propriety of doing so. (2)  In this case, we do not know whether he made
such a request.  He did not object to the submission, there was an off-the-record jury charge
conference, and the record does not contain a bill of exception specifically providing that appellant
did not request the lesser-offense instruction.  I would hold that, under the circumstances, appellant
has failed to meet his burden of presenting a record showing his entitlement to relief. (3)
	But even if we knew that appellant had not specifically requested the lesser-offense
submission, appellant would still be estopped under what I would term the doctrine of "beneficial
acquiescence."  In Bradley v. State, in an opinion written by Judge Clinton, the Court specifically
opined that a defendant's failure to object to a lesser-offense instruction would have certain estoppel
consequences:
We hasten to add that this disposition of the case hinges on the fact that appellant
vociferously objected to the inclusion of the voluntary manslaughter charge. Failure
to object to the charge when given on the ground that the evidence does not support
it would signal acquiescence on the part of the accused in the trial court's judgment
that sudden passion was raised.

By invoking the benefit of the lesser included offense charge at trial in not objecting
to its submission to the jury, an accused will be estopped from then complaining on
appeal that the evidence failed to establish all the elements of the offense. (4)

Although the breadth of the rule articulated in Bradley has been limited by a recent opinion, (5) the
estoppel reasoning is still relevant.  A claim that the evidence was insufficient to show the "sudden
passion" element of voluntary manslaughter was essentially a claim that voluntary manslaughter
should never have been submitted to the jury because the evidence failed to raise it as a legitimate
issue in the case.  Consequently, a defendant who procured the improper submission would be
estopped from later challenging the impropriety, but more importantly for this case, the defendant
who merely failed to object would similarly be estopped.  The above passage from Bradley suggests
the reason why this latter type of defendant is estopped even though he did not actively seek the
conduct of which he now complains: submission of a lesser offense is ordinarily for the defendant's
benefit; if it were not to his benefit, one would expect him to object.  
	This view is consistent with the principle that, although a defendant is usually required to
request submission of a defensive issue in the jury charge in order for the issue to be considered "law
applicable to the case," he need not do so if the trial court has already submitted the issue on its own
initiative. (6)  In that situation, the defendant can rely upon the trial court's submission to substitute for
his own expressed desire for a defensive issue to be part of the case.  It would make no sense to
require a defendant to request an instruction that is already in the jury charge.
	And if the defendant can rely upon the trial court's action as a substitute for his own request,
the State also should be able to rely upon the trial court's action as a substitute for the defendant's
request.  Therefore, the trial court's submission of the defensive issue, without defensive objection,
should estop the defendant from later complaining that the defensive issue should not have been part
of the case.  A lesser-included offense submission is a type of defensive issue (7) and, thus, would be
subject to the considerations outlined above.
	I do not disagree with the Court's adoption of the cognate-pleadings approach, but because
I would not reach the merits of the lesser-included-offense issue, I respectfully dissent.
Date filed: May 9, 2007
Publish
1.   Tex. R. App. P. 67.1.
2.   Prystash v. State, 3 S.W.3d 522, 530-532 (Tex. Crim. App. 1999), cert. denied, 529
U.S. 1102 (2000).
3.   See Word v. State, 206 S.W.3d 646, 651-652 (Tex. Crim. App. 2006)(record did not
show that trial court failed to notify defendant of jury questions or that defendant objected to the
trial court's answers to those questions); Guajardo v. State, 109 S.W.3d 456, 460-461 (Tex.
Crim. App. 2003)(record did not show that issue was litigated at prior hearing).
4.    Bradley v. State, 688 S.W.2d 847, 853 (Tex. Crim. App. 1985)(emphasis added),
overruled on other grounds by, Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998).
5.   McKinney v. State, 207 S.W.3d 366 (Tex. Crim. App. 2006).
6.   Barrera v. State, 982 S.W.2d 415, 416 (Tex. Crim. App. 1998).
7.   Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006); see also Posey v. State,
966 S.W.2d 57, 66 n. 3 (Tex. Crim. App. 1998)(Mansfield, J. concurring); Sattiewhite v. State,
786 S.W.2d 271, 288 (Tex. Crim. App. 1989).
