                IN THE COURT OF CRIMINAL APPEALS
                            OF TEXAS
                                         NO. PD-0265-09



                          VICKIE LASHUN TOLBERT, Appellant

                                                  v.

                                    THE STATE OF TEXAS

                ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                      FROM THE FIFTH COURT OF APPEALS
                                DALLAS COUNTY

       J OHNSON, J., filed a dissenting opinion in which H OLCOMB, J., joined.

                             DISSENTING OPINION

       The state indicted appellant for capital murder. At the close of the guilt phase, the state

requested that instructions on “a lesser included and parties”1 be included in the jury charge. The

trial court denied the state’s request. Appellant neither joined the state’s request nor objected to its

denial. When queried as to whether the jury charge was acceptable to her, appellant said, “No

objections.” On appeal, she asserted that the trial judge should have, sua sponte, included an



        1
            6 R.R. 64.
                                                                                                                   2

instruction on the lesser-included offense of murder. The court of appeals found that, because

murder was “law applicable to the case,” that instruction should have been given. It further found

that the error resulted in egregious harm, reversed the judgment of the trial court and remanded “for

further proceedings consistent with this opinion.”2

          In its petition to this Court, the state presented a single ground for review.

          Criminal jury charges contain “law applicable to the case,” and often “defensive
          issues.” To obtain review on appeal, complaints involving “law applicable to the
          case” need not be preserved at trial but “defensive issues” must be preserved. Did
          the Fifth Court of Appeals wrongly hold that where a defendant states “no objection”
          to the proposed charge and then complains on appeal about the omission of a lesser-
          included offense instruction, the Almanza standard applies?

                                                    Almanza3

          The state’s second reason for granting review of its petition states that the court of appeals

incorrectly interpreted this Court’s unanimous decision in Bluitt v. State, 137 S.W.3d 51 (Tex. Crim.

App. 2004), “which addressed the preservation of complaints for the law applicable to the case, to

the preservation of complaints for defensive instructions.” Nowhere in Bluitt do I find such a

discussion. In that case, the state raised three grounds: (1) the court of appeals erroneously required

prior convictions to be proved beyond a reasonable doubt; (2) the court of appeals misapplied the

Almanza standard; and (3) the court of appeals erroneously ruled that appellant could appeal jury-

charge error, even after he affirmatively stated to the trial court that he had no objection to the jury

charge.



          2
           Tolbert v. State, No. 05-07-00920-CR, 2008Tex. App. LEXIS 5245 (Tex. App.–Dallas, delivered July
16, 2008)(not designated for publication).

          3
           Although the language of the state’s ground for review complains of error in applying Almanza, its brief’s
argument is headed “(PRESERVATION OF DEFENSIVE JURY INSTRUCTION ISSUES).” State’s Petition for
Discretionary Review at 5. The argument thus does not match the plain language of the ground for review.
                                                                                                                     3

         As to the first ground, we held that the language of the statute is clear; only unadjudicated

offenses and bad acts have an articulated burden of proof. Final convictions have already been

proved beyond a reasonable doubt, and proof of the fact of conviction is sufficient for a final

conviction to be submitted to the jury. The trial court did not err in failing to give the requested

instruction. Because no error occurred, no harm analysis was needed, and we therefore did not reach

the state’s second ground.

         As to the third ground, the ground of interest here, we noted that Almanza applies to all jury-

charge error and that it establishes only two standards for harm analysis–egregious harm for no

objection or some harm for a timely objection. We held that, because “no objection” is not a “timely

objection,” a response of “no objection” must be equivalent to a failure to object and therefore

subject to the “egregious harm” analysis of Almanza. Under Bluitt, appellant is entitled to appeal

purported jury-charge error, with any harm considered under the “egregious” standard. The answer

to the state’s petition for discretionary review as submitted–“Did the Fifth Court of Appeals wrongly

hold that . . . the Almanza standard applies?”–is that the court of appeals did not err, and this Court

should therefore affirm the judgment of the court of appeals.

                                                   Preservation

         The two statements of law that begin the state’s ground for review4 indicate that within the

state’s articulated Almanza complaint is the assumption that any request for an instruction on a

lesser-included offense is a defensive issue, which leads to the conclusion that appellant failed to

preserve error. This is the issue that the majority addresses, although preservation of error is a


         4
          “Criminal jury charges contain ‘law applicable to the case,’ and often ‘defensive issues.’ To obtain review
on appeal, complaints involving ‘law applicable to the case’ need not be preserved at trial but ‘defensive issues’ must
be preserved.”
                                                                                                      4

different issue than what standard to apply to jury-charge error.

       Some jury instructions that may be requested, such as self-defense and necessity, are

certainly, and exclusively, defensive issues. The Penal Code clearly labels those issues and others

as “defenses.”5 If an instruction on lesser-included offenses were truly “defensive,” however, the

state would be barred from requesting such an instruction. But the state can, and does, request the

inclusion in the jury charge of instructions on applicable lesser-included offenses.

       Our case law also supports the position that lesser-included offenses are not “defensive

issues.” In Delgado v. State, 235 S.W.3d 244, 249-50 (Tex. Crim. App. 2007), the sole issue before

this Court was whether the trial court should have, sua sponte, included an instruction on reasonable

doubt, truly an issue for the defense. Delgado does not say that the submission to the jury of lesser-

included offenses is a “defensive” issue; it states only that the trial judge does not have a sua sponte

duty to include instructions on “all potential defensive issues, lesser-included issues, or evidentiary

issues.” By its very words, Delgado removes lesser-included offenses from the category of defensive

issues. Delgado also notes that whether to request an instruction is often a matter of trial strategy

and tactics, an observation that applies to both defendant and state.

       The issue in Posey v. State, 966 S.W.2d 57 (Tex. Crim. App. 1998), was the lack of a jury

instruction on mistake of fact,6 a statutory defense. The defendant had not requested the missing

instruction. This Court framed the issue as a question of whether testimony that the defendant

thought that he had permission to drive the stolen car “imposes a duty on trial courts to sua sponte

instruct the jury on unrequested defensive issues.” Id. at 62. The Court’s answer was no.


       5
           T EX . P EN AL C O D E , Chapter Eight.

       6
           T EX . P EN AL C O D E § 8.02.
                                                                                                                     5

         Druery v. State, 225 S.W.3d 491 (Tex. Crim. App. 2007), was a capital appeal that dealt with

a complaint that the trial court had not given an instruction on the lesser-included charge of murder.

The opinion did not use the term “defensive issue” and decided the case on estoppel; the appellant

had specifically requested that the instruction not be given. Only the concurring opinion raised the

idea that an instruction on a lesser-included offense is “a kind of defensive issue.” Id. at 513 (Keller,

P.J., concurring.).

         The issue in Bufkin v. State, 207 S.W.3d 779 (Tex. Crim. App. 2006), a domestic-assault

case, was whether instructions on self-defense and consent, both of which were requested by the

defendant, should have been submitted to the jury. Self-defense7 and consent8 are statutory defensive

issues and so are unhelpful in discussing lesser-included offenses.9

         In Campbell v. State, 614 S.W.2d 443 (Tex. Crim. App. 1981), the defendant had requested

an instruction on a lesser-included offense, but the trial judge refused to include it. The requested

instruction was a defensive issue because it had been raised by the defense. Campbell, like Delgado,

clearly recognized that lesser-included-offense instructions are not exclusively a defensive issue:

“This Court has held that when evidence from any source raises a defensive issue or raises an issue

that a lesser included offense may have been committed and a jury charge on the issue is properly

requested, the issue must be submitted to the jury.” Id. at 445. Our case law is clear: requests for

jury instructions on lesser-included offenses are not per se “defensive” issues.

         Professors Dix and Dawson’s treatise on Criminal Practice and Procedure refers to requests

         7
             T EX . P EN AL C O D E § 9.31.

         8
             T EX . P EN AL C O D E § 22.06.

         9
          Footnote 10 of Bufkin, cited by the majority, refers to two cases: Ferrel v. State, 55 S.W .3d 586 (Tex.
Crim. App. 2001)(instruction on self-defense); and Campbell v. State, infra (defendant requested instruction).
                                                                                                                             6

for instructions on lesser-included offenses as part of the “the implied strategic decisions of the

parties.”10 “The parties” in a criminal case are the state and the defendant. The professors also note

that

         [b]oth sides potentially may benefit from a lesser included offense instruction. The
         defense interest is in limiting punishment exposure by providing a lesser alternative
         to the charged offense while the prosecution can obtain a greater likelihood of some
         type of conviction by giving the jury the option of convicting for an offense with less
         difficult proof requirements, particularly if the prosecution fears that the evidence is
         weak on the point that distinguishes the greater offense from the lesser.11

Their treatise affirms that an instruction on a lesser-included offense is not exclusively a defensive

issue because it is not exclusively within the domain of the defense.

                            Defensive Instruction or Law Applicable to the Case?

         An instruction on a lesser-included offense may be a defense issue or a prosecution issue, but

it may also be law applicable to the case, depending not on who requested the instruction or even

whether a party requested an instruction, but on the evidence presented at trial.

         By the expressions, "the law applicable to the case," and "the law of the case," as
         employed in the Code, evidently is meant the law applicable to the case as made by
         the proofs–the law applicable to the pleadings and the evidence; and this has been the
         uniform construction given to them by the Supreme Court and by this court. Davis
         v. The State, decided at the present term of this court, post. The judge is said to have
         performed that duty when he shall have instructed the jury as to the law applicable
         to every legitimate deduction which the jury may draw from the facts in evidence.

Lister v. State, Court of Appeals of Texas, 3 Tex. Ct. App. 17; 1877 Tex. Crim. App. LEXIS 198

(1877). “However, defensive issues (even if statutorily-defined) do not constitute the ‘law applicable

to the case’ unless the defendant makes them so by presenting evidence to support their submission


         10
              43 G EOR GE E. D IX & R O BERT O. D AW SO N , C RIM IN AL P RACTICE AN D P RO CED U RE § 36.50 at 250 (Supp.
2009).

         11
              Id. at 249.
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in the charge and by requesting their inclusion in the charge.” Rodgers v. State, 180 S.W.3d 716, 721

(Tex App.–Waco 2005). Our task on a preservation claim, then, is to determine what instructions

would have been in the hypothetically correct jury charge.12 While the jury charge may be affected

by the choices the parties make as to requests for instructions, some instructions must be given

because the issue raised is “law applicable to the case.”

         If evidence from any source raises the issue of a lesser included offense, the charge
         must be given. Moore v. State, 574 S.W.2d 122 (Tx.Cr.App. 1978). . . . As noted
         in Thompson v. State, 521 S.W.2d 621 (Tx.Cr.App. 1974), “it is . . . well recognized
         that a defendant is entitled to an instruction on every issue raised by the evidence,
         whether produced by the State or the defendant, and whether it be strong, weak,
         unimpeached, or contradicted.” (Citations omitted.)

Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985).

         The indictment in this case alleged capital murder as murder in the course of robbery. It is

reasonable to deduce that the state believed that the evidence might raise lesser-included offenses

because, during voir dire, the state explained to the venire the lesser-included offense of murder,

setting out the difference between it and capital murder and also the range of punishment. 2 R.R. 41-

42. It also explained robbery, its range of punishment, and the process of deliberating first the

offense charged, then any lesser-included offenses raised by the evidence. 2 R.R. 42-43. The state

also requested instructions on “a lesser included and parties.” 6 R.R. 64. Without inquiring what

lesser offense was wanted, the trial judge denied the request.

         As the state explained in voir dire, unless the killing was in the course of the robbery, the

offense was murder, not capital murder.13 Monica Sheffield, the only state’s witness who asserted


         12
              Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997).

         13
            That discussion may have been recalled by the jurors; during deliberations, they sent out a note asking
about lesser-included offenses.
                                                                                                                          8

direct knowledge of any aspect of appellant’s guilt, testified to a confession by appellant to murder,

but she had no direct knowledge of appellant taking any of the complainant’s possessions at the time

of the murder. She could testify only that appellant came to her home carrying a jewel box14 and

that, after the murder, she and a friend drove appellant to the complainant’s home, where appellant

removed four long guns from the complainant’s pickup. As we stated in Bell, “it is . . . well

recognized that a defendant is entitled to an instruction on every issue raised by the evidence,

whether produced by the State or the defendant, and whether it be strong, weak, unimpeached, or

contradicted.” Sheffield’s testimony may have been weak and contradicted, but it raised the issue

of the lesser-included offense of murder. The state was entitled to an instruction on that lesser

offense, and the trial court erred in denying the state’s request. Given the court’s response, a request

from appellant for instructions on lesser-included offenses could reasonably be seen as futile. Given

the evidence, the trial court should have included an instruction on a lesser-included offense as law

applicable to the case.

         Sheffield denied any part in the offense, but other state’s witnesses implicated her in the

attempted sale of the stolen long guns and, by inference, in the murder. Even if weak and

contradicted, the evidence raised an issue of appellant as a party to the murder, and given that

evidence, the trial court should have included an instruction on parties as law applicable to the case.15




         14
              Testimony about the jewel box did not reveal its appearance, its provenance, or its contents.

         15
              The state argues in its brief that an instruction on the lesser-included offense of murder is an issue for the
defense, but its actions at trial belie that assertion: “The only thing, Your Honor, we were asking for is a lesser
included and parties.” 6 R.R. 64. The state’s request was immediately denied by the trial court, so the record does
not reveal what lesser-included-offense instruction (or instructions) it wanted. In spite of that lack of specificity, the
state faults appellant for failing to join in its request. State’s brief at 11 and footnote 4.
                                                                                                      9

                                             Conclusion

       The court of appeals correctly analyzed the evidence presented and found that an instruction

on the lesser-included offense of murder was not a defensive issue and should have been given as

law applicable to the case. It followed our ruling in Bluitt, held that appellant could complain of that

omission on appeal and, using the proper Almanza standard of egregious harm, found such harm.

Its judgment should be affirmed. I respectfully dissent.



Filed: March 17, 2010
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