          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                     NO. PD-1607-10



                            DEBORAH BOWEN, Appellant

                                             v.

                                THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE ELEVENTH COURT OF APPEALS
                            FISHER COUNTY

             M EYERS, J., delivered the opinion of the Court, in which K ELLER, P.J.,
and W OMACK, J OHNSON, C OCHRAN and A LCALA, JJ., joined. P RICE, J., filed a
dissenting opinion, in which K EASLER and H ERVEY, JJ., joined.

                                      OPINION

       In Collier v. State, 999 S.W.2d 779 (Tex. Crim. App. 1999), we held that the court

of appeals cannot reform a conviction of a greater offense to a lesser-included offense

unless the lesser-included offense was requested by the parties or included in the jury

charge. Since the case was decided, we have had to revisit the law regarding lesser-

included instructions in many cases, such as those pertaining to the reformation of
                                                                               Bowen — Page 2

convictions,1 which party can request the instructions,2 and the implications of a trial

court’s refusal to submit requested instructions.3 The purpose of Collier, which was to

prevent the State from overreaching and having an unfair advantage over the defendant,

has been lost through our subsequent decisions. This Court has forced itself to work

around the holding, and the decision has proved to be unworkable in practice and

inapplicable in many instances. We now overrule Collier, reverse the judgment of the

Eastland Court of Appeals, and remand to the trial court for further proceedings

consistent with this opinion.

                                       I. BACKGROUND

       Appellant’s father died in 2001. Her father’s will established a family trust, and

Appellant’s mother was named as the primary beneficiary. The trust was to terminate at

her mother’s death, and the trust assets were to be distributed equally, per stirpes, to

Appellant and her brother, Jackie. Jackie predeceased his mother, leaving three children.

Appellant was appointed co-trustee in 2004. The balance of the trust at the time of

appointment was $620,065. Appellant distributed the entire balance of the trust to herself

when her mother died, rather than distribute one-half of the assets to Jackie’s children, as


       1
         See, e.g., Miles v. State, 357 S.W.3d 629 (Tex. Crim. App. 2011); Haynes v. State, 273
S.W.3d 183 (Tex. Crim. App. 2008); Smith v. State, 158 S.W.3d 463 (Tex. Crim. App. 2005);
Bryant v. State, 187 S.W.3d 397 (Tex. Crim. App. 2005).
       2
           See, e.g., Grey v. State, 298 S.W.3d 644 (Tex. Crim. App. 2009).
       3
       See, e.g., Tolbert v. State, 306 S.W.3d 776 (Tex. Crim. App. 2010); Delgado v. State,
235 S.W.3d 244 (Tex. Crim. App. 2007).
                                                                            Bowen — Page 3

required by the trust provisions. Jackie’s daughter, Dana White, had power of attorney to

act on behalf of her two brothers. Appellant was charged with misapplication of fiduciary

property owned by or held for the benefit of White for the value of $200,000 or more.

T EX. P ENAL C ODE § 32.45(b) & (c)(7). She was convicted by a jury, sentenced to eight

years in prison, and ordered to pay a fine and restitution to White and her brothers. No

lesser-included offense instructions were submitted to the jury.

       The Eastland Court of Appeals concluded that the evidence was legally

insufficient to prove that the misapplied assets owned by or held for Dana White’s benefit

equaled $200,000 or more. Bowen v. State, 322 S.W.3d 435, 442-43 (Tex.

App.—Eastland 2010, pet. granted). The court held that the terms of the trust, not the

powers of attorney, controlled who owned, or for whose benefit, the trust assets were

held. Id. at 442. Thus, White was a beneficiary of only one-sixth of the trust amount,

totaling approximately $103,344. Id. The court of appeals, bound by Collier, did not

reform the judgment to reflect a conviction for a lesser-included offense because a lesser

charge was not submitted to the jury. Id. at 442-43. Instead, the court ordered an acquittal.

Id.

       The State filed a petition for discretionary review, asking us to overrule Collier,

reverse the judgment of the Eastland Court of Appeals, and remand the case to reflect a

conviction for the appropriate lesser-included offense.

                                      II. ANALYSIS
                                                                                   Bowen — Page 4

A. Caselaw

        In Collier, a plurality of this Court held that an appellate court does not have the

authority to reform a judgment to reflect a conviction of a lesser-included offense if it was

neither requested nor submitted in the jury charge. Collier, 999 S.W.2d at 785. Judge

Mansfield’s lead opinion, joined by three judges, was based on the rationale that allowing

the reformation of judgments would encourage the State to use a “go for broke” trial

strategy of not requesting a lesser-included offense instruction in order to make it more

likely to obtain a conviction for the charged offense. Haynes, 273 S.W.3d at 185 (citing

Collier, 999 S.W.2d at 781-82). The four-judge plurality decided that:

        A court of appeals may reform a judgment of conviction to reflect conviction of a
        lesser included offense only if (1) the court finds that the evidence is insufficient to
        support conviction of the charged offense but sufficient to support conviction of
        the lesser included offense and (2) either the jury was instructed on the lesser
        included offense (at the request of a party or by the trial court sua sponte) or one of
        the parties asked for but was denied such an instruction.

        Collier, 999 S.W.2d at 782.

        Judge Keasler’s concurring opinion focused on the power of an appellate court to

modify a trial court’s judgment under Rules of Appellate Procedure 43.2(b) and (c).4 The

opinion notes that “the ‘judgment that the trial court should have rendered’ can only be a


        4
         The court of appeals may:
...
(b) modify the trial court’s judgment and affirm it as modified;
(c) reverse the trial court’s judgment in whole or in part and render the judgment that the trial
court should have rendered . . . .

TEX . R. APP . P. 43.2.
                                                                            Bowen — Page 5

judgment that the trial court was capable of rendering . . . .” Collier, 999 S.W.2d at 784

(Keasler, J., concurring). Judge Keasler concluded that an appellate court cannot reform a

judgment to reflect a conviction for a lesser-included offense unless the lesser-included

offense was submitted to the jury. Id.

       Nearly a decade later in Haynes, we determined that Judge Keasler’s concurring

opinion in Collier set out the majority holding because his opinion contained the

narrowest ground upon which five judges agreed. 273 S.W.3d at 187. The narrowest

ground was that “an appellate court may reform a judgment to reflect a conviction for the

lesser-included offense when that lesser-included offense was submitted in the jury

charge.” Id.

B. “Overreaching” Strategy

       The rationale behind the plurality opinion in Collier was that, in some cases, the

State “overreaches” or “goes for broke” by not requesting an instruction on a lesser-

included offense in order to make it more likely to obtain a conviction for the greater

offense, even if the evidence only weakly supports the more severe conviction. Haynes,

273 S.W.3d at 185. The holding does not consider that the defense may also have a

strategic reason to not request a lesser-included offense instruction–the defense may hope

for outright acquittal, rather than diminished culpability. D IX & S CHMOLESKY, T EXAS

P RACTICE: C RIMINAL P RACTICE AND P ROCEDURE § 43:47 (3d ed. 2011).

       On several occasions since Collier was decided, this Court has considered the
                                                                                   Bowen — Page 6

implication of the State’s or the defendant’s strategic decision to not request a jury

instruction on a lesser-included offense. The prosecution and the defense may both

request the submission of a lesser-included offense instruction. The trial court may submit

the instruction, but is not required to do so unless the defendant requests the instruction

and sets out specific evidence that supports the lesser offense and negates the greater

offense. Flores v. State, 245 S.W.3d 432, 439 (Tex. Crim. App. 2008).

       In holding that the trial court was not required to sua sponte provide a lesser-

included instruction, we noted that regardless of which side goes for broke, the trial court

need not rescue the party from its strategic choice. Tolbert v. State, 306 S.W.3d at 782

(quoting Haynes v. State, 273 S.W.3d at 191 (Johnson, J., concurring)). Tolbert was

charged with capital murder (murder during the course of a robbery) and chose not to

request an instruction on the lesser-included charge of murder, despite evidence that she

did not decide to rob the victim until after she murdered him, which negated the capital

murder charge. Id. at 777.

       When she appealed her capital murder conviction, Tolbert argued that, because the

State unsuccessfully requested the lesser-included offense instruction, the murder

instruction was “applicable to the case,” and therefore the trial judge was required to

submit the charge. See id. at 781-82. This Court compared lesser-included instructions to

defensive issues, which frequently depend on trial strategy. Id. at 780-81.5 A defensive

       5
         The trial court is not required to sua sponte instruct the jury on potential lesser-included
offenses, defensive issues or evidentiary issues because these “frequently depend upon trial
                                                                                 Bowen — Page 7

issue must be preserved on the record in order to be applicable to the case. See id. at 780

(quoting Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998)). Because she did not

object to the trial court’s denial of the State’s request, we determined that she had waived

her right to complain on appeal. Id. at 781 n.10 (quoting Grey v. State, 298 S.W.3d at

654-55 (Cochran, J., concurring)).

       Although the sufficiency of the capital murder conviction was not at issue, we

pointed out that our holding in Haynes left open the question of whether an appellate

court could reform a judgment if a lesser-included offense was requested by either party,

but denied by the trial court. Id. at 782 n.12. This alludes to one of the impracticalities of

the overreaching rationale in Collier–the State is not “going for broke” if it requests a

lesser-included offense, but the trial court does not submit the instruction.

       To contrast, in Grey v. State, 298 S.W.3d at 646, we examined the applicability of

the Royster-Rousseau test6 to jury instructions that were prepared by the State and

objected to by the defendant. In Arevalo v. State, we held that the second prong of the

Royster-Rousseau test applies equally to requests by the State and the defendant. Id. at



strategy and tactics.” Delgado, 235 S.W.3d at 249.
       6
          The Royster-Rousseau test is used to determine if a trial judge should submit to the jury
a lesser-included offense to the jury. See Arevalo v. State, 943 S.W.2d 887, 889 (Tex. Crim. App.
1997). The test is two-pronged:
        1) The lesser-included offense must be included within the proof necessary to establish
        the offense charged.
        2) There must me some evidence in the record that if the defendant is guilty, he is guilty
        of only the lesser offense.
Id.
                                                                              Bowen — Page 8

645. The consequences of the rule in Arevalo were examined, particularly in light of our

holding in Collier.

       We noted the high risk of error that is present for prosecutors under Arevalo and

Collier. Id. at 650. In some cases, the prosecutor has to weigh the benefits of requesting a

lesser-included offense instruction and risk reversal under Arevalo if the submission of

the instruction was given in error. Id. Or, the State may face reversal under Collier if it

does not request a lesser-included offense instruction and the evidence is legally

insufficient to support the greater conviction. Id. Because of the illogical result of this

combination, we overruled Arevalo and determined that the State is not bound by the

second prong of the Royster-Rousseau test. Id. at 645. The case demonstrates yet another

instance in which this Court forced itself to work around the Collier holding.

       Subsequent decisions by this Court and lower appellate courts have followed

Collier and ordered acquittals in a number of cases in which there was neither a request

for a jury instruction on a lesser-included offense, nor was one given by the trial court,

but the evidence was legally insufficient to support a conviction of the more serious

offense. In many of these cases, there was no indication that either the State or the

defendant exercised gamesmanship by not requesting a lesser-included offense

instruction. Thus, it is questionable if the rationale behind Collier applies in practice.

       For example, in Lawrence v. State, 106 S.W.3d 141 (Tex. App.—Amarillo 2003,

no pet.), the State failed to prove that the victim was at least sixty-five years of age when
                                                                               Bowen — Page 9

the defendant was convicted of causing bodily injury to a person sixty-five years of age or

older. The elements of the offense include: “(a) Intentionally, knowingly, recklessly, or

with criminal negligence, (b) Caused, by action or failure to act, . . . bodily injury, (c) To .

. . person 65 years of age or older.” T EX. P ENAL C ODE § 22.04 (emphasis added). The

State failed to prove each element of the offense and did not request that a lesser-included

offense, such as assault, in contained in the jury charge. See T EX. P ENAL C ODE § 22.01.

Thus, the Amarillo Court of Appeals acquitted the appellant.

       Similarly, in Haynes, the appellant was convicted of family-violence assault, a

felony. 273 S.W.3d at 184. The State failed to prove as an element of the offense that the

appellant and the victim were living together in the same dwelling at the time the crime

was committed. Neither the State nor the appellant requested an instruction on assault, a

lesser-included offense. See id. at 186 n.4. In holding that Collier has precedential value,

we rejected the State’s contention that the First Court of Appeals should have reformed

the trial court’s judgment and entered a conviction for the misdemeanor offense of

assault. Id. at 185-87.

                                    III. APPLICATION

       In this case, the defendant was charged with misapplication of fiduciary property.

The State must prove beyond a reasonable doubt that the defendant intentionally,

knowingly, or recklessly misapplied property that she held as fiduciary in a manner that

involved a substantial risk of loss to the owner of the property or to the person for whose
                                                                              Bowen — Page 10

benefit the property was held. T EX. P ENAL C ODE § 32.45. The State met its burden of

proof and presented sufficient evidence to support a conviction for misapplication of

fiduciary property. However, the indictment listed only Dana White as the owner of the

trust property, rather than White and her brothers. Although White had power of attorney

on behalf of her brothers, she was not the owner of their share of the trust assets. At most,

she was entitled to $103,344. Accordingly, the court of appeals held that the record was

legally insufficient to support a conviction of misapplication of $200,000 or more in trust

assets owned by White or held for her benefit. Bowen, 322 S.W.3d at 442-43.

       The court of appeals, following Collier, reversed the trial court’s judgment and

acquitted Appellant. While compatible with our mandate in Collier, this result is unjust.

Acquittal is improper because, although the State failed to prove the value of the property

misapplied, which is an aggravating element of the offense, the State proved the essential

elements of the offense of misapplication of fiduciary property beyond a reasonable

doubt. The fact finder’s determination of guilt should not be usurped in the punishment

phase if the evidence is legally sufficient to support a conviction. There is no indication

that either party “overreached” here. The failure to request the second-degree felony was

not a result of gamesmanship by the State or Appellant, but rather a mistake as to the

applicable law.7



       7
         See Grey, 298 S.W.3d at 650-51 (discussing the implications of Arevalo’s application in
cases in which there is a legitimate dispute about the meaning of the language of the aggravating
element that distinguishes the greater and lesser offenses).
                                                                                   Bowen — Page 11

       The rationale of Collier is unworkable here, as it has been in many other instances

since the decision came down. Because of the impracticalities created by the case, we

now overrule Collier.

       Here, the State has met its burden by proving the essential elements of the offense

of misapplication of fiduciary property beyond a reasonable doubt, but the amount of

property shown to have been misapplied, an aggravating element of the offense, was

legally insufficient to support a first-degree felony conviction. The value of the property

misapplied was approximately $103,344, which supports a felony conviction in the

second degree.8 Accordingly, the judgment must be reformed to reflect a second-degree

felony conviction.

                                        III. CONCLUSION

       We overrule Collier and its progeny. The “overreaching” rationale behind the

plurality in Collier does not take into account the trial strategy of both parties, it is

unworkable in practice, and the decision applies only to jury trials, making it difficult to

apply fairly across all cases.9 Because Haynes, holding that Collier is binding precedent,

was based in part on the same “overreaching” rationale, it is also overruled.



       8
           TEX . PENAL CODE § 32.45(c)(6):
                  “An offense under this section is a felony in the second degree if the value of the
                  property misapplied is $100,000 or more but less than $200,000."
       9
         See DIX & SCHMOLESKY , TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE §
56:214 (“Where trial was to the court without a jury, there are apparently no similar
qualifications on the courts of appeals power to reform.”).
                                                                          Bowen — Page 12

       The conviction stands, and we reverse the judgment of the Eastland Court of

Appeals. We remand to the trial court to reform the conviction to reflect the felony of

misapplication of fiduciary property in the second degree and to conduct a new

punishment hearing.

                                                 Meyers, J.




Delivered: June 20, 2012
Publish
