              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                          NO. PD-0137-09



                                   STEVEN GREY, Appellant

                                                  v.

                                    THE STATE OF TEXAS

               ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                     FROM THE THIRD COURT OF APPEALS
                                HAYS COUNTY

       COCHRAN , J., filed a concurring opinion.

                                              OPINION

       I agree that Arevalo 1 was wrongly decided, that the four dissenters in Arevalo were

correct,2 that the doctrine has proven unworkable, and that it has led to unjust, unanticipated

results. I join the majority in overruling it.

       But I would go further and provide some guidance to the bench and bar on when a




       1
           Arevalo v. State, 943 S.W.2d 887 (Tex. Crim. App. 1997).
       2
           Id. at 890-92 (McCormick, P.J., dissenting), and id. at 892-94 (Meyers, J., dissenting).
                                                               Grey    Concurring Opinion Page 2

trial court must grant a request by either the defense or State for a lesser-included instruction

and when it may include such an instruction, with or without a request.

       The goal of jury instructions is to guide the jury’s deliberations in reaching an accurate

verdict based upon the facts and the law.3 The submission of instructions on lesser-included

offenses has become a quagmire for trial and appellate courts when it should be a relatively

simple affair designed to ensure the integrity of the factfinding process without unduly

interfering with the parties’ legitimate strategies.4

       First, the parties and the trial judge must determine if a particular offense is a lesser-

included offense of the charged offense. Article 37.08 states, “In a prosecution for an

offense with lesser included offenses, the jury may find the defendant not guilty of the

greater offense, but guilty of any lesser included offense.” 5 Second, article 37.09 defines a

lesser-included offense.6 We have recently reiterated our fidelity to the “cognate pleadings”


       3
           Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996).
       4
         Courts across the nation have noted the confusion and uncertainty relating to submission
of instructions on lesser-included offenses. See, e.g., State v. Jeffries, 430 N.W.2d 728, 730
(Iowa 1988) (noting that the lesser-included-offense doctrine is “fraught with confusion because
of the doctrine’s elusiveness in its definition and application.”); State v. Fike, 757 P.2d 724, 725
(Kan. 1988) (“there are very few areas of the criminal law which have given the appellate courts
more difficulty than the problem of lesser offenses”); State v. Keffer, 860 P.2d 1118, 1128 (Wyo.
1993) (“the uncertainty evolving from various precedents and variable application suggests the
necessity for a restatement of the rule. This demand emerges from a need for a clarified rule that
can consistently be applied by courts in determining: (1) what is a lesser-included offense; (2)
when should a court instruct on it; and (3) when challenged, what is the proper appellate standard
of review.”).
       5
        T EX . CODE CRIM . PROC. art. 37.08.
       6
           Id. art. 37.09.
                                                                  Grey   Concurring Opinion Page 3

approach toward lesser-included offenses, in which lesser-included offenses are determined

from the statutory elements of the offense as modified by the facts alleged within the

indictment.7

       Second, the parties and the trial judge must determine whether there is evidence in the

record that supports giving a particular lesser-included instruction to the jury. A defendant

is “entitled to” 8 an instruction on a lesser offense if the proof for the offense charged includes

the proof necessary to establish the lesser-included offense and there is “some evidence . .

. in the record that would permit a jury rationally to find that if the defendant is guilty, he is

guilty only of the lesser offense.” 9 The defendant must point to specific evidence in the

record that negates the greater offense and raises the lesser-included offense. As we stated

in Hall, the defendant may rely on “anything more than a scintilla of evidence” in requesting

an instruction, but he is entitled to such an instruction (and the trial judge must include a

requested instruction) only when the evidence establishes the lesser-included offense as “‘a

valid, rational alternative to the charged offense.’”10           Thus, if a defendant requests a

particular lesser-included instruction and he sets out, on the record, the specific evidence that


       7
           Hall v. State, 225 S.W.3d 524, 534-35 (Tex. Crim. App. 2007).
       8
           That is, the trial judge must give a requested instruction.
       9
         Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994) (citing Rousseau v. State,
855 S.W.2d 666, 673 (Tex. Crim. App. 1993), and Royster v. State, 622 S.W.2d 442, 446-47
(Tex. Crim. App. 1981) (plurality op. on reh’g)).
       10
        Hall, 255 S.W.3d at 536 (citing Bignall, 887 S.W.2d at 23, and quoting Forest v. State,
989 S.W.2d 365, 367 (Tex. Crim. App. 1999)).
                                                              Grey    Concurring Opinion Page 4

supports a rational basis for rejecting the greater offense but supporting the lesser offense,11

the trial judge errs if he refuses to instruct the jury on that lesser offense.12 Of course, the

converse is not true–the trial judge does not err in submitting an instruction on a lesser-

included offense even when the defendant does not point to specific evidence raising that

lesser offense and negating the greater one. A trial judge may submit an instruction on a

lesser-included instruction when requested by the defendant (or State) even though he is not

required to do so under the Royster-Rousseau test.13 Thus, the trial judge errs only when he

refuses to submit an instruction when the defendant requests one and points to the specific

evidence that negates the greater offense but supports the lesser offense.

       The State is equally entitled to an instruction on a lesser-included offense if the

prosecutor sets out on the record the specific evidence that he is relying on to support its



       11
           Hampton v. State, 109 S.W.3d 437, 440-41 (Tex. Crim. App. 2003) (“[I]t is not enough
that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there
must be some evidence directly germane to the lesser-included offense for the finder of fact to
consider before an instruction on a lesser-included offense is warranted.”).
       12
           Flores v. State, 245 S.W.3d 432, 439 (Tex. Crim. App. 2008) (a defendant is entitled to
a jury charge on a lesser-included offense if he meets two requirements: (1) he requests an
instruction on a lesser-included offense of the charged offense; and (2) there is some evidence
that if he is guilty, he is guilty only of the lesser-included offense).
       13
          Arevalo, 943 S.W.2d at 890-92 (McCormick, P.J., dissenting), and id. at 892-94
(Meyers, J., dissenting). In overruling our prior decision in Arevalo, we should also affirm the
reasoning as well as the result in the court of appeals’s opinion in Arevalo. See Arevalo v. State,
918 S.W.2d 46, 50 n.6 (Tex. App.—Houston [1st Dist.] 1996) (“We note that there is no
prohibition against a trial court submitting any lesser included offenses requested by the
defendant. Royster merely provides that a trial court may not refuse any defense request for a
jury instruction on a lesser included offense when the two-prong test is met.”), rev’d, 943 S.W.2d
887 (Tex. Crim. App. 1997).
                                                              Grey    Concurring Opinion Page 5

submission.14 And again, the trial judge may submit such an instruction at the State’s request

even though he is not required to do so under the Royster-Rousseau test.

       But sometimes neither the State nor the defense requests an instruction on a lesser-

included offense even though the law and the evidence would clearly support one. Each

party may invoke an “all or nothing” strategy that permits it to forego instructions on a lesser-

included offense, in effect forcing the jury to choose between conviction of the greater

offense or outright acquittal.15


       14
           See Keeble v. United States, 412 U.S. 205, 208 (1973) (“Although the lesser included
offense doctrine developed at common law to assist the prosecution in cases where the evidence
failed to establish some element of the offense originally charged, it is now beyond dispute that
the defendant is entitled to an instruction on a lesser included offense if the evidence would
permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.”)
(footnote omitted); Hampton v. State, 165 S.W.3d 691, 694 (Tex. Crim. App. 2005) (in deciding
whether a lesser-included jury instruction is required, the Royster-Rousseau two-prong test
“applies regardless of whether the instruction is requested by the State or by the defendant.”).
See, e.g., State v. Keffer, 860 P.2d 1118, 1133 (Wyo. 1993) (finding that a lesser-included
instruction is available in equal measure to the defense and the prosecutor).
       15
          See generally, Catherine L. Carpenter, The All or Nothing Doctrine in Criminal Cases:
Independent Trial Strategy or Gamesmanship Gone Awry?, 26 AMER . J. CRIM . L. 257, 258
(Spring 1999); State v. Whittle, 752 P.2d 489, 492-93 (Ariz. Ct. App. 1985) (finding that
defendant’s all-or-nothing strategy relieved the trial court of the requirement of instructing on
lesser-included offense); State v. Arnold, 542 P.2d 37, 38 (Ariz. Ct. App. 1975) (trial court
should not be required, sua sponte, to instruct on lesser-included offenses because defense
strategy may be to secure a complete acquittal). In the capital-murder setting, however, the trial
court must give a lesser-included instruction that allows the jury a non-capital option whenever it
is supported by the evidence. Beck v. Alabama, 447 U.S. 625 (1980). This “all or nothing” tactic
is prohibited by the federal constitution in capital cases, even though a state statute might
authorize or even require it. Id. at 638. But the Supreme Court expressly reserved the question
of whether “the Due Process Clause would require the giving of such [lesser-included-offense
instructions] in a noncapital case.” Id. at 638 n.14. Many lower-court cases have declined to
extend the Beck reasoning and result beyond the capital context. See, e.g., United States v.
Beckford, 966 F. Supp. 1415, 1433 (E.D. Va. 1997) (declining to extend Beck to the crime of
murder in furtherance of a continuing criminal enterprise); Geschwendt v. Ryan, 967 F.2d. 877,
883-84 (3d Cir. 1992) (declining to extend Beck to require instruction of “not guilty by reason of
                                                               Grey     Concurring Opinion Page 6

       Under this “gambling” or “party autonomy” rationale,16 the participants may gamble,

but they do so at their own peril. If the defense and prosecution do not request an instruction

on a lesser-included offense, they have waived their rights to complain on appeal that the

judge was required to give one.17 And, because this “all or nothing” model is a valid trial

strategy, defense counsel is not ineffective for declining to request a lesser-included-offense

instruction.18



insanity”).
       16
           See People v. Barton, 906 P.2d 531, 541 (Cal. 1995) (“[D]efendant was prepared to roll
the dice in a high stakes game of chance, betting that the jury, faced with the choice of convicting
him of murder or acquitting him entirely, would find him not guilty.”); State v. Eastman, 831
P.2d 555, 560 (Idaho 1992) (“a defendant might choose to forego an opportunity to be convicted
of a lesser included offense in order to roll the dice in the hope that the jury might acquit him/her
on the greater charge”); State v. Boeglin, 731 P.2d 943, 948 (N.M. 1987) (stating that the
“defendant is bound by his decision . . . to gamble on a verdict of acquittal, and the district court
did not commit reversible error by instructing the jury as defendant desired”); Hammond v.
People, 423 P.2d 331, 332 (Colo. 1967) (finding that the defendant “in effect gambled on all or
nothing and lost and cannot now be heard to complain”); People v. Gramc, 647 N.E.2d 1052,
1054 (Ill. App. Ct. 1995) (“The defense strategy was in legal jargon ‘to roll the dice’”).
       17
           Kinnamon v. State, 791 S.W.2d 84, 96 (Tex. Crim. App. 1990) (“Even where a lesser
included offense is supported by the evidence, the failure of defense counsel to request a charge
on the offense or properly object to its omission constitutes a waiver.”), overruled on other
grounds, Cook v. State, 884 S.W.2d 485, 488-92 (Tex. Crim. App. 1994); see Mohammed v.
State, 127 S.W.3d 163, 169 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd); Darnes v. State,
118 S.W.3d 916, 921 (Tex. App.—Amarillo 2003, pet. ref'd); Paz v. State, 44 S.W.3d 98, 100
(Tex. App.—Houston [14th Dist.] 2001, pet. dism’d); Hernandez v. State, 10 S.W.3d 812, 821
(Tex. App.—Beaumont 2000, pet. ref'd); see also State v. Pribil, 395 N.W.2d 543, 549 (Neb.
1986) (noting that either the State or the defendant may request a lesser-included-offense
instruction when it is supported by the pleadings and the evidence, but, absent such a request, it
is not error for the court to fail to give one even though it was warranted); Look v. Amaral, 725
F.2d 4, 9 (1st Cir. 1984) (state trial court was not constitutionally required to give a lesser-
included-offense instruction when defense counsel waived the instruction).
       18
          See, e.g., Chao v. State, 604 A.2d 1351, 1358 (Del. 1992) (explaining that the burden to
request lesser-included-offense instructions is properly placed on defense counsel, for it is they
                                                                Grey    Concurring Opinion Page 7

       On the other hand, the trial judge is not required to play this gambling game. In his

discretion he may, with or without request (and even over the parties’ objection), include an

instruction on a lesser-included offense in the interest of justice and to uphold the integrity

of the jury system.19 He may do so whenever a particular view of the evidence would support



who determine trial tactics and presumably act in accordance with a formulated strategy); In re
Trombly, 627 A.2d 855, 857 (Vt. 1993) (trial court need not include instruction on lesser-
included offense on its own volition if the defendant had not requested it or objected to its
omission); Henderson v. State, 664 S.W.2d 451, 453-54 (Ark. 1984) (“as a matter of trial
strategy, competent counsel may elect not to request an instruction on lesser included offenses . .
. . The success or failure of a particular trial strategy is not a measure of an attorney’s
competence”); Commonwealth v. Pagan, 625 N.E.2d 579, 581 (Mass. App. Ct. 1994) (counsel
was not ineffective in failing to ask for manslaughter instruction); People v. Romero, 694 P.2d
1256, 1269 (Colo. 1985) (trial court is not obligated to instruct on a lesser offense “unless either
the prosecution or the defense requests such instruction” and “[i]n the absence of a request by the
defendant, it may reasonably be assumed that he elected to take his chance on an outright
acquittal or conviction of the principal charge rather than to provide the jury with an opportunity
to convict on a lesser offense”); State v. Bartlett, 355 S.E.2d 913, 919 (W.Va. 1987) (where
defendant made a strategic choice not to request a lesser-included instruction, he cannot claim
that the maneuver denied him a fair trial).
       19
           See Humphries v. State, 615 S.W.2d 737, 738 (Tex. Crim. App. 1981) (panel op.) (trial
judge may submit lesser-included-offense instruction even over defendant’s objection when it is
supported by the evidence); McQueen v. State, 984 S.W.2d 712, 717 (Tex. App.—Texarkana
1998, no pet.) (“If there is sufficient evidence to support a conviction on a lesser included
offense, the trial court is authorized to charge the jury on that offense, even if the defendant does
not request the issue and even over the defendant’s objection.”); see also People v. Novak, 643
N.E.2d 762, 769 (Ill. 1994), abrogated on other grounds by People v. Kolton, 848 N.E.2d 950
(Ill. 2006). In Novak, the Illinois Supreme Court explained why an instruction on a lesser-
included offense serves the interests of the defense, prosecution, and society:
                  A lesser included offense is a valuable tool for a defendant, a prosecutor,
         and society generally. For a defendant, an instruction on a lesser included offense
         provides an important third option to the jury. If the jury believes that defendant
         was guilty of something, but uncertain whether the charged offense had been
         proved, it might convict defendant of the lesser offense, rather than convict or
         acquit him of the greater offense. . . .
                  For a prosecutor, a defendant may not automatically go free if the evidence
         fails to prove an essential element of the greater offense. For society, the
         punishment that it imposes on a criminal may conform more accurately to the
                                                                  Grey    Concurring Opinion Page 8

conviction of the lesser-included offense as a valid, rational alternative to the charged

offense.20 His discretion should be upheld, particularly if he notes, on the record, the specific

evidence and inferences that could support acquittal of the greater offense and conviction of

the lesser-included offense.

        This “trial integrity” view satisfies “the desire to avoid compromise verdicts which

are based on sympathy and prejudice balanced by the equally compelling desire to avoid

coerced and unwarranted verdicts.” 21 Thus, the trial court has considerable discretion to give

(or not give) instructions on a lesser-included offense regardless of the parties’ desires.22 He


        crime actually committed.
Id. See, e.g., State v. Watts, 963 P.2d 1219, 1221-22 (Idaho Ct. App. 1989) (in prosecution for
aggravated battery on peace officer, aggravated assault on peace officer, and attempted
aggravated assault on peace officer, instruction on lesser included offenses of aggravated battery
and aggravated assault was not error, even though neither prosecution nor defendant requested
such instruction); State v. Rodriguez, 429 A.2d 919, 931 (Conn. 1980) (trial court may submit
lesser-included offense to the jury even in the absence of a party’s request).
        20
           See Humphries, 615 S.W.2d at 738; see also Ford v. State, 38 S.W.3d 836, 840 (Tex.
App.—Houston [14th Dist.] 2001, no pet.) (“the trial court has the duty and responsibility to
instruct on the ‘law applicable to the case.’ In discharging this duty, the trial court is authorized
to sua sponte include a charge on a lesser offense; a trial court is not restricted to submitting
lesser included offenses only when the defendant has properly requested them. This is true even
if the defendant objects to submission of the charge to the jury.”) (citations omitted).
        21
            Carpenter, The All or Nothing Doctrine in Criminal Cases, supra note 15 at 272; see
also State v. Bartlett, 355 S.E.2d 913, 918-19 (W. Va. 1987) (quoting an earlier case for the
proposition that a trial court “may, without request, if it think[s] the interest of justice and a fair
trial call for it,” instruct the jury on a lesser included offense when supported by the law and
evidence, “but it is not bound to do so unless asked; but, if asked to give such proper specific
instructions, it must do so.”).
        22
           This discretion should be exercised liberally toward the inclusion of instructions on
lesser-included offenses to uphold the integrity of the system. As we have noted before,
        If no charge [on the lesser included offense] is given, then the jury has two options
        which are equally distasteful. The first option is to vote not guilty in a situation
                                                              Grey    Concurring Opinion Page 9

will not err in doing so unless no rational trier of fact could simultaneously reject the greater

offense and find the evidence sufficient to support conviction of the lesser offense.

       This case is a good example of when the trial judge has great discretion and properly

exercises it. Here, the evidence showed that appellant assaulted the victim during an

argument in the victim’s front yard.23 He put one hand on her throat and choked her while

he repeatedly punched her in the eye. She testified that she couldn’t breathe, she felt numb,

and–for a moment–everything “went black.” She did not immediately seek medical attention,

but she reported the assault to the police the next morning.

       An officer testified that the victim had a bruised and swollen eye and spoke with a

raspy voice. He saw a finger- or thumbprint on one side of her neck. The victim told the

officer that appellant had also “strangled” her with her necklace, and the officer saw the

imprint of a necklace on the victim’s neck as well. An EMT who came to the police station

also saw ligature marks on the victim’s neck, ostensibly caused by the necklace. He

characterized the victim’s injuries as “significant.”

       Appellant also testified and admitted that, after the victim began punching him in the

face and grabbing him around the neck, he



       where they believe the defendant committed [the lesser offense]. The other option
       is to vote guilty of [the greater offense], an offense they believe the defendant did
       not commit.
Eldred v. State, 578 S.W.2d 721, 723 (Tex. Crim. App. 1979), overruled in part by Hall v. State,
225 S.W.3d 524 (Tex. Crim. App. 2007).
       23
            Grey v. State, 269 S.W.3d 785, 786 (Tex. App.—Austin 2008).
                                                           Grey    Concurring Opinion Page 10

       reached up and grabbed her neck, applying pressure to her pulse points with
       my thumb and two foremost fingers. My intention was to make her dizzy so
       she would be knocked off balance. I began striking her with my right hand in
       the face in the exact manner she continued to assault me.24

       From this evidence, a rational trier of fact could infer that appellant used his hand

“which in the manner of its use or intended use was capable of causing serious bodily injury

or death, by strangling” the victim, exactly as alleged in the aggravated assault indictment.

But another rational trier of fact could infer that appellant did not use his hand as a deadly

weapon: he did not cause death or serious bodily injury; he did not intend to cause death or

serious bodily injury; and the manner in which he “choked” or “strangled” the victim with

one hand was not likely to cause death or serious bodily injury.

       Therefore, the trial judge, in his discretion, included an instruction on the lesser-

included offense of simple assault.       Appellant objected–he was gambling on “all or

nothing”–but he does not have any institutional or due-process “right” to that gamble. The

trial judge may, in his discretion, include such an instruction when one view of the evidence

would support a finding of the lesser offense while negating the greater one. Of course, had

appellant requested an instruction on simple assault, the trial judge was not required to

include it because there was no affirmative or specific evidence that appellant did not use his

hand as a deadly weapon.25 But the evidence would support a conviction for simple assault


       24
            Id. at 787.
       25
          For example, there was no testimony from appellant that “I did not use my hand as a
deadly weapon,” nor did he offer any expert testimony that choking the neck with a single hand is
not using that hand as a deadly weapon, nor did any of the State’s witnesses admit to that
                                                             Grey    Concurring Opinion Page 11

(without the use of a deadly weapon) rather than aggravated assault. Here, the totality of the

evidence leads to two plausible conclusions: appellant either did or did not use his hand as

a deadly weapon.       Either finding is rational.      Both views are within the realm of

reasonableness. Either finding is supported by sufficient evidence. The jury decided that

appellant did not use his hand as a deadly weapon, and, therefore, it convicted him of simple

assault. This is not a verdict based on mere sympathy or prejudice; it is based upon one

rational view of the totality of the evidence.26 The trial judge properly preserved the jury’s

role as the ultimate fact-finder by allowing it to consider the lesser-included offense.

       In sum, I agree with the majority in overruling Arevelo, and I look forward to the day



possibility on cross-examination.
         The court of appeals relied upon our decision in Hampton v. State, 109 S.W.3d 437, 440
(Tex. Crim. App. 2003), in rejecting the State’s argument “that the jury might have disbelieved
crucial evidence regarding appellant’s use of his hand as a deadly weapon” as insufficient to
support a rational finding that appellant did not use his hand as a deadly weapon. Grey, 269
S.W.3d at 788. But Hampton explicitly stated,
         We have held that a two-prong test must be met before a jury charge instruction
         on a lesser-included offense must be given: 1) the lesser-included offense must be
         included within the proof necessary to establish the offense charged; and 2) some
         evidence must exist in the record that if the defendant is guilty, he is guilty only of
         the lesser offense.
Hampton, 109 S.W.3d at 440 (emphasis added). And that is true. That is the test for when the
trial judge is required to include an instruction on a lesser-included offense. In Hampton, we
cited to Arevalo, which had, in effect, held that a trial judge may give a lesser-included offense
instruction only when he must do so. That is precisely where we went wrong in Arevalo, and that
is why we properly reject it now.
       26
          A trial judge errs by including instructions on a lesser-included offense when no
rational view of that evidence would support a verdict on the lesser-included, thus providing an
avenue for a “compromise” verdict that is based solely on sympathy and prejudice. See People v.
Boettcher, 505 N.E.2d 594, 597-98 (N.Y. 1987) (noting that “it is the duty of the jury not to reach
compromise verdicts based on sympathy for the defendant or to appease holdouts, but to render a
just verdict by applying the facts it finds to the law it is charged.”).
                                                       Grey    Concurring Opinion Page 12

in which our law on lesser-included-offense jury instructions is simpler and more

commonsensical, a day in which trial judges are not left in fear and trembling concerning

their decision to include such instructions even though they are not mandated.




Filed: November 18, 2009

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