          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE                  FILED
                               APRIL SESSION, 1998                August 18, 1998

                                                                Cecil W. Crowson
                                                               Appellate Court Clerk
LARRY JUNIOR KEATON,                )      C.C.A. NO. 01C01-9704-CR-00146
                                    )
              Appe llant,           )
                                    )      DEKALB COUNTY
V.                                  )
                                    )
                                    )      HON. LEON BURNS, JR., JUDGE
STATE OF TENNESSEE                  )
                                    )
              Appellee.             )      (POST -CON VICTIO N)




                              CONCURRING OPINION


              Except for the conclusion that the failure to instruct a lesser included

offense is not a constitutional abridgement, I concur entirely with the majority

opinion. The trial judge has a duty to give the complete charge of the law applicable

to the facts of each case. State v. Harbison, 704 S.W.2d 314, 319 (Tenn.), cert.

denied, 476 U.S. 1153 (1986). It is settled law that when "there are any facts that

are susceptible of inferring guilt of any lesser included offense or offenses, then

there is a mandatory duty upon the trial judge to charge on such offense or

offenses. Failure to do so denies the defendant his constitutional right of trial by

jury." State v. Wright, 618 S.W.2d 310, 315 (Tenn. Crim. App. 1981) (citations

omitted); Tenn. Code Ann. § 40-18-110(a). When there is a trial on a single charge

of a felony, there is also a trial on all lesser included offenses, "as the facts may be."

Strader v. State, 362 S.W.2d 224, 227 (Tenn. 1962). See State v. Belser, 945

S.W.2d 776, 789 (Tenn. Crim. App. 1996).
             I concur in the results reached by the majority because the issue, as

indicated, has been waived due to the petitioner's failure to present the issue in the

motion for new trial or on direct appeal. Tenn. Code Ann. § 40-30-206(g), -210(f).



                                          _________________________________
                                          Gary R. Wade, Presiding Judge
