                                    IN THE
                            TENTH COURT OF APPEALS

                                   No. 10-11-00337-CR

DONNIE LEROY KACHEL,
                                                              Appellant
v.

THE STATE OF TEXAS,
                                                              Appellee



                             From the 19th District Court
                              McLennan County, Texas
                             Trial Court No. 2011-198-C1


                               DISSENTING OPINION


         I respectfully dissent from the majority’s opinion because I believe that the trial

court erred in denying Appellant Donnie Leroy Kachel’s request for an instruction on

the lesser-included offense of indecent exposure and that Kachel was harmed by such

error.

         A defendant’s own testimony that he committed no offense, or testimony that

otherwise shows that no offense occurred at all, is not adequate to raise the issue of a

lesser-included offense. Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001);
Pollard v. State, 392 S.W.3d 785, 803 (Tex. App.—Waco 2012, pet. ref’d). On the other

hand, the defendant’s denial of the commission of the charged offense does not

automatically prohibit the inclusion of a requested jury instruction on a lesser-included

offense. See Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). The Court of

Criminal Appeals in Bignall expressly rejected such a rule:

        The court of appeals held that Appellant’s evidence indicated he was not
        guilty of any offense, and therefore, an instruction on theft was
        unnecessary. . . . Under such an interpretation, anytime a defendant
        denies the commission of an offense, a charge on a lesser included offense
        will not be warranted. This is clearly not the law of this state.

Id. (emphasis added). Instead, citing Aguilar v. State, 682 S.W.2d 556 (Tex. Crim. App.

1985), the Bignall court reiterated that the correct test is as follows: “If a defendant

either presents evidence that he committed no offense or presents no evidence, and there

is no evidence otherwise showing that he is guilty only of a lesser included offense, then a

charge on a lesser included offense is not required.” Bignall, 887 S.W.2d at 24.

        In this case, there is more than a mere denial of the commission of the offense.

Here, in the portion of Kachel’s videotaped interview that was admitted into evidence,

Kachel denied committing any offense when he denied that he ever exposed himself.

But in the interview, Kachel went further and also denied knowing that a child was

present at all. In the interview, Kachel specifically said that he saw a woman pull into a

driveway and get out of her car.        When Don Marshall, the investigator with the

McLennan County District Attorney’s office, then asked Kachel if he saw anyone else

with the woman, Kachel repeatedly denied seeing anyone else with her. The jury was

free to believe these statements that Kachel did not see a child present and disbelieve

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the rest of what he said. See Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998)

(“[A] jury is permitted to believe or disbelieve any part of a witness’[s] testimony,

including a defendant. . . . [A] lesser included offense can be raised by any evidence from

any source so long as a rational trier of fact could conclude from that evidence that a

defendant is guilty only of that lesser included offense.” (emphasis added)). And if the

jury believed Kachel’s statements that he did not see a child present and yet believed

Katerina Jones’s testimony that Kachel was walking around naked in the street while

touching his genitals, the jury could rationally find that Kachel is guilty only of indecent

exposure and not indecency with a child by exposure. See TEX. PENAL CODE ANN. §§

21.08(a), 21.11(a)(2)(A) (West 2011); Briceno v. State, 580 S.W.2d 842, 844 (Tex. Crim.

App. 1979). The trial court thus erred in denying Kachel’s request for an instruction on

the lesser-included offense of indecent exposure. See Hall v. State, 225 S.W.3d 524, 536

(Tex. Crim. App. 2007); Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005);

Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993).

        The trial court’s erroneous refusal to give a requested instruction on a lesser-

included offense is charge error subject to an Almanza harm analysis. Saunders v. State,

840 S.W.2d 390, 392 (Tex. Crim. App. 1992); see Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1985) (op. on reh’g). Under Almanza, when error in the jury charge is

properly preserved, as is the case here, reversal is required if the charge error resulted

in some harm to the defendant, “some” meaning “any.” Arline v. State, 721 S.W.2d 348,

351 (Tex. Crim. App. 1986); Almanza, 686 S.W.2d at 171. If the charge error involves the

absence of a lesser-included offense instruction that leaves the jury with the sole option

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to convict the appellant of the charged offense or to acquit him, “a finding of harm is

essentially automatic because the jury was denied the opportunity to convict the

defendant of the lesser offense.” O’Brien v. State, 89 S.W.3d 753, 756 (Tex. App.—

Houston [1st Dist.] 2002, pet. ref’d) (citing Saunders v. State, 913 S.W.2d 564, 571 (Tex.

Crim. App. 1995)).

        In cases such as this, there is a distinct possibility that the jury, believing
        the defendant to have committed some crime, but given only the option to
        convict him of the greater offense, may have chosen to find him guilty of
        that greater offense, rather than to acquit him altogether, even though it
        had a reasonable doubt that he really committed the greater offense.

Id. (citing Saunders, 913 S.W.2d at 571 (citing Beck v. Alabama, 447 U.S. 625, 634, 100 S.Ct.

2382, 2399, 65 L.Ed.2d 392 (1980))).

        The trial court in this case instructed the jury solely on the charged offense of

indecency with a child by exposure. The jury, therefore, had two options: find Kachel

guilty of indecency with a child by exposure or acquit him. The jury chose to convict

Kachel of indecency with a child by exposure and assessed his punishment, enhanced

by two previous felony convictions, at sixty years’ confinement. I believe that because

the trial court denied the jury the opportunity to convict Kachel solely of the lesser-

included offense of indecent exposure (a Class B misdemeanor), which it reasonably

could have done based on the evidence presented at trial, its erroneous failure to submit

the lesser-included instruction created “some” harm. See Robalin v. State, 224 S.W.3d

470, 477 (Tex. App.—Houston [1st Dist.] 2007, no pet.); O’Brien, 89 S.W.3d at 756-57.

        For these reasons, I respectfully dissent from the majority opinion, would reverse

the trial court’s judgment, and would remand this case to the trial court for a new trial.

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                                              REX D. DAVIS
                                              Justice

Dissenting opinion delivered and filed October 24, 2013
Do not publish




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