             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. PD-1923-06


                             LARRY GLENN HAYNES, Appellant

                                                  v.

                                    THE STATE OF TEXAS

                ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                      FROM THE FIRST COURT OF APPEALS
                                HARRIS COUNTY

         HERVEY , J., delivered the opinion of the Court in which MEYERS, PRICE, JOHNSON ,
KEASLER and HOLCOMB , JJ., joined. JOHNSON , J., filed a concurring opinion. KELLER ,
P.J., filed a dissenting opinion in which COCHRAN , J. joined. COCHRAN , J. filed a dissenting
opinion. WOMACK , J., dissented.

                                          OPINION

       The issue in this case is whether an appellate court may reform a trial court’s judgment to

reflect a conviction for an unrequested lesser-included offense not submitted to the jury, when the

appellate court decides that the evidence is insufficient to support the jury’s guilty verdict for the

greater offense but is sufficient to support a conviction for the lesser-included offense. We decide

that, under these circumstances, an appellate court may not reform the trial court’s judgment to

reflect a conviction for the lesser-included offense.
                                                                                          Haynes–2

          A jury convicted appellant of the charged felony offense of assaulting a member of his

household by causing her bodily injury several years after appellant had been convicted of assaulting

a family member on another occasion.1 The jury charge does not contain any lesser-included

offenses, and the record does not reflect that either party requested the inclusion of any lesser-

included offenses in the jury charge. At the punishment phase, appellant pled “true” to two felony

enhancement paragraphs, and the trial court sentenced appellant to the minimum of 25 years in

prison.

          The court of appeals decided that the evidence is insufficient to support appellant’s

conviction for the charged offense, because the evidence does not support an elemental finding that

the more recent assault victim was a member of appellant’s household at the time of the assault. See

Haynes, slip op. at 9-10. The court of appeals reversed appellant’s conviction and entered a

judgment of acquittal. See id. We granted ground two of the State’s petition for discretionary

review, which presents the claim that, instead of ordering a judgment of acquittal, the court of

appeals should have reformed the trial court’s judgment to reflect appellant’s conviction for the



          1

        The evidence shows that appellant caused his former roommate bodily injury by striking her
mouth with his hand. She had moved out about a month before to “get away” from appellant. The
evidence also shows that appellant had been convicted of assaulting a family member several years
before he committed the assault in this case.
        Current and former Section 22.01(a)(1), TEX . PEN . CODE, provide that a person commits
assault if the person “intentionally, knowingly, or recklessly causes bodily injury to another,
including the person’s spouse.” The law applicable to appellant’s case provides that this offense is
a third-degree felony, instead of a Class A misdemeanor offense, if the offense is committed against
“a member of the defendant’s family or household, if it is shown on the trial of the offense that the
defendant has been previously convicted of an offense against a member of the defendant’s family
or household under this section.” See Former § 22.01(b)(2), TEX . PEN . CODE; Haynes v. State, No.
01-05-00803-CR slip op. at 2 n.1 (Tex.App.–Houston [1st Dist.], delivered February 20, 2007)
(setting out the history of this statute).
                                                                                              Haynes–3

lesser-included, Class A misdemeanor offense of assault.

       This Court addressed this reformation issue as one of first impression in Collier v. State, 999

S.W.2d 779, 780 (Tex.Cr.App. 1999). Judge Mansfield’s lead four-judge plurality opinion in Collier

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 (Mansfield, J., joined by Meyers, Price, and Johnson, JJ.) (italics in
original).

       Judge Mansfield’s lead opinion in Collier was based in large part on the rationale that in

cases like this the State “overreaches” or goes “for broke” by pursuing a trial strategy of not

requesting a lesser-included offense instruction to make it more likely it will obtain a conviction for

the greater offense that the evidence might only “weakly” support. See Collier, 999 S.W.2d at 781-

82.2 According to this opinion, if the jury then convicts the defendant of the greater offense, but an

appellate court later decides that the evidence is insufficient to support one of its elements,

permitting the appellate court to reform the judgment to reflect a conviction for a supported-by-the-

evidence lesser-included offense would “rescue [the State] from a trial strategy that went awry.” See

id. (permitting appellate court to reform judgment would permit State to “have all the benefits and

none of the risks of its trial strategy, while the accused would have all the risks and none of the



       2

       Judge Mansfield’s lead opinion in Collier adopted the reasoning of the Wisconsin Supreme
Court’s unanimous decision in State v. Myers, 461 N.W.2d 777 (Wis. 1990). See Collier, 999
S.W.2d at 782.
                                                                                             Haynes–4

protections” of its trial strategy).3

        Judge Keasler’s opinion concurring only in the judgment in Collier was the necessary fifth

vote to support the judgment in that case. See Collier, 999 S.W.2d at 783-85 (Keasler, J.,

concurring). Judge Keasler’s concurring opinion decided that a “court of appeals cannot reform a

judgment to reflect a conviction for a lesser-included offense unless that lesser-included offense was

submitted in the jury charge.” See Collier, 999 S.W.2d at 784 (Keasler, J., concurring) and at 785

(same).4

        We understand the State to claim that Collier has no precedential value, because there is no

majority holding contained within its lead and concurring opinions. See, e.g., Marks v. United

States, 430 U.S. 188, 193 (1977) (when “a fragmented Court decides a case and no single rationale

        3

        The rationale of Judge Mansfield’s lead plurality opinion in Collier, therefore, appears to be
based on not allowing the State “to have its cake and eat it too.” We note that the punishment range
for the charged third-degree felony offense in this case with two prior felony convictions is 25 to 99
years in prison. See § 12.42(d), TEX . PEN . CODE. The punishment range for a Class A misdemeanor
assault offense with two prior felony convictions is 90 days to one year in jail. See § 12.43(a)(2),
TEX . PEN . CODE. Appellant was, therefore, exposed to a much greater punishment range than he
would have been exposed to had the jury been instructed on and convicted appellant of the Class A
misdemeanor assault offense.
        4

        Judge Keasler’s holding was based on TEX . R. APP . 43.2(b), which authorizes a court of
appeals to “modify” a trial court’s judgment and affirm it as modified, and TEX . R. APP . 43.3, which
authorizes a court of appeals, when reversing a trial court’s judgment, to “render the judgment that
the trial court should have rendered.” See Collier, 784 S.W.2d at 784 (Keasler, J., concurring)
(“judgment that the trial court should have rendered” under Rule 43.3 can only be a judgment that
trial court was capable of rendering, given the jury instructions, and if jury is only instructed on one
offense, then trial court can render only judgment on that offense or a judgment of acquittal) and at
785 (rendering judgment on lesser-included offense is not simply “modifying” judgment under Rule
43.2(b) but is entry of another judgment entirely); see also Myers, 461 N.W.2d at 779-80 (Wisconsin
rule of appellate procedure authorizing appellate court to modify a judgment does not permit
appellate court to “repair a guilty verdict reversed for insufficient evidence by simply modifying the
conviction to reflect a lesser included offense when instructions on the lesser included offense were
not submitted to the jury”).
                                                                                            Haynes–5

explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as

that position taken by those Members who concurred in the judgments on the narrowest grounds”)

(internal quotes omitted). We further understand the State to argue that the issue presented in Collier

and in this case should, therefore, be reexamined anew as an issue of first impression unburdened

by any stare decisis considerations.

       We note, however, that the “overreaching” rationale in Judge Mansfield’s lead opinion in

Collier replicates much of the rationale of this Court’s majority opinion in Stephens v. State, 806

S.W.2d 812, 817-18 (Tex.Cr.App. 1990) (Campbell, J., joined by Davis, Clinton, Teague, Miller,

White, Berchelmann, and Sturns, JJ.).5 In addition, we do not agree with the State that Collier

contains no majority holding. Judge Keasler’s concurring opinion in Collier sets out a majority

holding, because this opinion does contain the narrowest ground upon which five of the judges

concurring in the judgment in Collier agreed. The narrowest ground upon which these five judges

agreed is that an appellate court may in cases like this reform a judgment to reflect a conviction for

the lesser-included offense when that lesser-included offense was submitted in the jury charge. See



       5

         The majority opinion in Stephens held that “when a defendant has obtained a reversal of a
conviction for a greater offense solely on the ground that there was insufficient evidence to prove
the aggravating element of that offense, the Double Jeopardy Clause bars a subsequent prosecution
for a lesser included offense,”apparently because “[n]othing prevented the State from requesting a
lesser included offense instruction” at the first trial. See Stephens, 806 S.W.2d at 818-19 (maj. op.)
and at 830-31 (McCormick, P.J., dissenting to denial of State’s motion for reh’g) (criticizing
“overreaching” rationale in the majority opinion); Collier, 999 S.W.2d at 792-93 (McCormick, P.J.,
dissenting to denial of State’s motion for reh’g) (majority opinion in Stephens “closely parallels” the
reasoning of Judge Mansfield’s lead opinion in Collier). In Ex parte Granger, a majority of this
Court reiterated the “overreaching” rationale from Stephens that “the State had, at the first trial,
failed to pursue the lesser included offense charge . . . .” See Ex parte Granger, 850 S.W.2d 513,
519-20 (Tex.Cr.App. 1993) (Campbell, J., joined by Miller, White, Baird, Overstreet and Meyers,
JJ.) (emphasis in original) and at 528 n.13 (Clinton, J., dissenting).
                                                                                               Haynes–6

Collier, 999 S.W.2d at 782 (lead plurality op.) (appellate court may reform judgment if “the jury was

instructed on the lesser included offense”) and at 784 (Keasler, J., concurring) (appellate court may

not reform judgment unless the “lesser-included offense was submitted in the jury charge”).6

        And, Judge Keasler’s concurring opinion in Collier is based on Rules 43.3 and 43.2(b),

which have not changed since Collier was decided. What has changed since Collier was decided

is the composition of this Court, which is not a valid reason for ignoring stare decisis principles.

See Wheatfall v. State, 882 S.W.2d 829, 843 (Tex.Cr.App. 1994) (change in court membership not

sufficient reason to ignore stare decisis principles). We decide that the court of appeals could not

reform the trial court’s judgment to reflect a conviction for the unrequested lesser-included, Class

A misdemeanor assault offense, since it was not submitted in the jury charge.

        Presiding Judge Keller’s dissenting opinion asserts that this Court’s 8-1 majority opinion in

Stephens cannot supply the “overreaching”7 rationale for Judge Mansfield’s lead plurality opinion

in Collier, primarily because Stephens is a double jeopardy case that does not apply in the




        6

         Since the record in this case does not reflect that “one of the parties asked for but was denied”
a lesser-included offense instruction, this case does not require this Court to decide whether an
appellate court may reform a judgment to reflect a conviction for the lesser-included offense in these
circumstances. See Collier, 999 S.W.2d at 782 (plurality holding that a court of appeals may reform
the judgment in these circumstances) and at 790-91 (Johnson, J., concurring to denial of State’s
motion for reh’g) (discussing possible “majority” holdings in Collier) and at 790-91 (McCormick,
P.J., dissenting to denial of State’s motion for reh’g) (same).
        7

        The term “overreaching” that has been used to describe the State’s conduct in cases like this
is taken from this Court’s opinion on original submission in Garrett v. State and from Judge
McCormick’s dissenting opinion on rehearing in Stephens. See Garrett v. State, 749 S.W.2d 784,
794 (Tex.Cr.App. 1986) (op. on orig. subm’n); Stephens, 806 S.W.2d at 831 (McCormick, J.,
dissenting on reh’g).
                                                                                             Haynes–7

reformation context. See Dissenting op. at 2-4 (Keller, P.J., dissenting).8 However, the State’s

“overreaching” conduct in both the double jeopardy and the reformation contexts is the same, thus

requiring similar treatment and analysis.9       A rejection by a majority of this Court of the

“overreaching” rationale in the reformation context would undermine this rationale in the double

jeopardy context, which could very well require a reexamination of this Court’s 8-1 majority opinion

in Stephens.10

       8

       Judge Mansfield’s lead plurality opinion in Collier decided that the judgment in that case
could not be reformed to reflect conviction for a lesser offense for much the same reasons that the
majority opinion in Stephens decided that double jeopardy principles prohibited a subsequent
prosecution for the lesser offense. See Collier, 999 S.W.2d at 782 (Mansfield, J.) and at 792
(McCormick, P.J., dissenting on reh’g) (reasoning of Judge Mansfield’s lead plurality opinion
“closely parallels” reasoning in Stephens).
       9

        We also note that this Court’s decision in Stephens extended its “overreaching” rationale to
the reformation context when it also stated in dicta that “this Court does not have the authority to
reform a conviction of a greater felony found to be based on insufficient evidence to lesser felony,
which the evidence will support.” See Stephens, 806 S.W.2d at 818 n.8. We further note that the
Wisconsin Supreme Court’s majority decision in Myers also relied on the “overreaching” rationale
in construing a Wisconsin rule of appellate procedure, similar to the ones discussed in Judge
Keasler’s concurring opinion in Collier, as not authorizing reformation in cases like this. See Myers,
461 N.W.2d at 779-80. Judge Mansfield’s lead plurality opinion in Collier is not the only judicial
decision to rely on an “overreaching” rationale in a reformation context.
       10

        Presiding Judge Keller’s dissenting opinion also asserts that, because a “jury’s verdict on a
greater offense necessarily constitutes a finding on every essential element of a lesser-included
offense,” Collier was wrong to conclude that “insufficiency of the evidence of an aggravating
element of an offense may result in an acquittal rather than in conviction of the unaggravated lesser-
included offense.” See Dissenting op. at 1-2. However, an overwhelming majority of this Court did
not accept this argument when it was presented in dissenting opinions in Stephens in 1990 and in
Collier in 1999. See Collier, 999 S.W.2d at 792-93 (McCormick, P.J., dissenting on reh’g, joined
by Keller, J.) (Stephens “fail[ed] to appreciate the legally significant distinction between when a jury
acquits a defendant of the greater offense versus when a jury convicts the defendant of the greater
offense but an appellate court decides the evidence is insufficient to support only an aggravating
element of the greater offense”) (emphasis in original) and at 795 (when jury convicts defendant of
greater offense, it necessarily convicts him of lesser offense, so reforming judgment to reflect
conviction of lesser offense would reflect a “true finding of the fact finder”) (internal quotes
                                                                                              Haynes–8

        Presiding Judge Keller’s dissenting opinion also asserts that Collier contains no majority

holding, because Judge Mansfield’s lead plurality “opinion and Judge Keasler’s concurring opinion

contain entirely disparate rationales.” See Dissenting op. at 6. But, the rule for determining a

majority holding in a case decided by a fragmented court applies when there are “disparate

rationales” for the result. See Marks, 430 U.S. at 193 (when “a fragmented Court decides a case and

no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court

may be viewed as the position taken by those Members who concurred in the judgments on the

narrowest grounds”) (emphasis supplied). In determining “the holding of the Court” in these cases,

this rule does not search for a majority rationale, it searches for the “position taken by those [Judges]

who concurred in the judgment[] on the narrowest grounds.” See id. The position taken by those

Judges “who concurred in the judgment[] on the narrowest grounds” in Collier is that when “the jury

charge contains no lesser included offense instruction and neither party has requested one,[11] the

appellate court cannot reform the judgment to reflect conviction of the lesser offense.” See also

Collier, 999 S.W.2d at 791 (McCormick, P.J., dissenting on reh’g) (also characterizing this as




omitted); Stephens, 806 S.W.2d at 821 (McCormick, J., dissenting) (“Had Haron Stephens been tried
for aggravated rape and a jury had found him not guilty, then I might agree that the State could not
retry him for the lesser included offense of rape. But that is not what happened to Stephens.
Stephens was tried and a jury found him guilty of aggravated rape. In finding him guilty of this
greater offense, the jury necessarily found Stephens guilty of the lesser included offense of rape.”)
(emphasis in original) and at 833-34 (double jeopardy principles should not prohibit a subsequent
prosecution of Stephens for rape “regardless of whether [this] predicate or lesser included offense
was separately submitted to the trier of fact as an alternative basis for conviction” in his earlier
prosecution for aggravated rape) (emphasis in original).
        11

        See Footnote 6 (noting that this case does not require this Court to decide whether an
appellate court may reform a judgment to reflect a conviction for a lesser offense when “one of the
parties asked for but was denied” an instruction on the lesser offense).
                                                                                            Haynes–9

majority holding in Collier).12

       Judge Cochran’s dissenting opinion seems to suggest that this Court is at liberty to decide

the issue presented in this case as one of first impression. See Dissenting op. at 1-7 (Cochran, J.,

dissenting). The Court’s opinion, however, applies majority decisions in two prior cases13 both of

which rejected the principal arguments presented in Judge Cochran’s dissenting opinion. Judge

Cochran’s dissenting opinion does not address the stare decisis concerns presented in this case or

state how the Court disserves common sense and Texas citizens by following this Court’s prior

decisions.14

       The judgment of the court of appeals is affirmed.



                                                               Hervey, J.



Delivered: April 30, 2008
Publish




       12

        The remaining arguments presented in Presiding Judge Keller’s dissenting opinion
(persuasive though they may be) were raised and apparently rejected by a majority of this Court in
Collier. See Collier, 999 S.W.2d at 785-91 (Keller, J., dissenting).
       13

       See Collier, 999 S.W.2d at 782 (Mansfield, J.) and at 783-85 (Keasler, J., concurring);
Stephens, 806 S.W.2d at 813-20.
       14

        It should be noted that the rule applied in this case should be changed through the legislative
or rule-making process rather than through judicial activism. Compare Collier, 999 S.W.2d at 783-
85 (Keasler, J., concurring) (reformation not permitted in cases like this, because rules of appellate
procedure do not authorize it). This could also have been accomplished at any time during the
almost 10 years since Collier was decided.
