             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. PD-0265-09



                          VICKIE LASHUN TOLBERT, Appellant

                                                  v.

                                     THE STATE OF TEXAS

              ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE FIFTH COURT OF APPEALS
                              DALLAS COUNTY

                K ELLER, P.J., filed a concurring opinion.


        The question here is pretty basic: who gets to decide the defendant’s theory of the case? The

Court says the defendant does; Judge Johnson says the trial judge does. I’ll go with the Court.

        This is an important case, because what is at issue is who has the right to decide what theories

go to the jury. If we were to hold that the judge erred in failing to include an instruction on murder

here, we would be telling judges to include lesser-included-offense instructions regardless of whether

the parties want them. We could do that, but it would be something new, it is not required by the

law, and, on top of that, it is a bad idea.

        Under Judge Johnson’s opinion, the next time a defendant wants to go for broke, as Tolbert
                                                                    TOLBERT CONCURRENCE - 2

did here, the judge would have to give the charge on murder anyway. Even if the defendant objected,

the judge would have to give it.

        This case is not like Bluitt because Bluitt didn’t involve strategy. The jury charge in that case

did not include an instruction on the burden of proof for extraneous offenses. If there were ever a

case in which a defendant could benefit from the lack of such an instruction, then Bluitt might be

relevant to this case. But we correctly assumed in Bluitt that strategy was not an issue to be included

in our analysis.

        I agree with the Court, and with Professors Dix and Dawson, that “because of the strategic

nature of the decision, it is appropriate for the trial court to defer to the implied strategic decisions

of the parties by refraining from submitting lesser offense instructions without a party’s request.”

        I join the opinion of the Court.



FILED: March 17, 2010
PUBLISH
