               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS
                                          NO. PD-0130-10



                                ANDREW WOODARD, Appellant

                                                   v.

                                     THE STATE OF TEXAS

                ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE FOURTEENTH COURT OF APPEALS
                               BRAZORIA COUNTY

         K ELLER, P.J., filed a concurring opinion.


         I have suggested before that the Court should adopt the doctrine of beneficial acquiescence,

by which a defendant who fails to object to an instruction on a lesser included offense would be

estopped from complaining about it on appeal.1 This case is a great illustration of why we should

do so.

         We are lucky in this case because the record contains some evidence of defense counsel’s

involvement in drafting the jury charge.         But the proceedings that show defense counsel’s



         1
             Hall v. State, 225 S.W.3d 524, 538 (Tex. Crim. App. 2007) (Keller, P.J., dissenting).
                                                               WOODARD CONCURRENCE – 2

involvement could just as easily have occurred off the record.2 The record might not even show that

an off-the-record conference occurred.

        Even on the record before us, we don’t know the extent of defense counsel’s involvement.

We can reasonably suppose that defense counsel drafted at least some of the language in the lesser-

offense instruction, but we can’t tell for sure whether defense counsel requested the lesser-offense

submission itself, or if it was the State’s idea.

        Our lack of knowledge on that score should not matter because defense counsel’s intent to

secure a benefit for his client—either through overt action or mere acquiescence—should be enough

to estop the defendant from complaining. As Professors Dix and Dawson have explained:

        Both 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.3

If submission of a lesser offense were not to the defendant’s benefit, one would expect him to

complain about it.4 The same rule would apply to the State. If the State failed to object to a lesser

included offense instruction, jeopardy would attach to the lesser offense, and the State could not later




        2
         See id. at 537-38 (because an off-the-record conference occurred, we did not know whether
the defense requested the lesser offense instruction).
        3
            George E. Dix & Robert O. Dawson, 43 TEXAS PRACTICE , § 36.50 at 249 (Supp. 2009).
        4
           See Hall, 225 S.W.3d at 538 (Keller, P.J., dissenting); see also Dix and Dawson, §36.50
at 250 (“It is clear that the defense may not claim error successfully on appeal due to the omission
of a lesser included offense if the defense refrained from requesting one. Likewise, any error in the
improper submission of a lesser included instruction is waived if the defense fails to object to the
instruction.”).
                                                               WOODARD CONCURRENCE – 3

prosecute the defendant for that particular crime.5 Finally, under our recent decision in Tolbert, each

party would have to lodge his own objection to avoid estoppel consequences.6

       Although parties sometimes fail to notice errors in the jury charge, a lesser-offense

instruction is not easily missed. Submitting a lesser offense means that an additional verdict option

will also be submitted—something the parties are not likely to overlook. And if a lesser-offense

instruction is included without anyone noticing, there are opportunities, such as a motion for new

trial, to make that fact known. But when there is no evidence that the submission was a genuine

oversight, we should assume that both parties knowingly acquiesced in the submission. Because we

should make that assumption here, I would hold that appellant is estopped from complaining about

the lesser-offense submission in this case.

       With these comments, I join the Court’s opinion.

Filed: October 6, 2010
Publish




       5
         But if an offense contemplates the possibility of more than one victim, double jeopardy
might not foreclose a further prosecution. See TEX . PENAL CODE § 21.08.
       6
            See Tolbert v. State, 306 S.W.3d 776, 782-83 (Tex. Crim. App. 2010). I express no
opinion on whether the rule I propose should apply to the submission of a lesser offense over which
the trial court lacks subject matter jurisdiction because it is a misdemeanor. See Murray v. State, 302
S.W.3d 874, 882, 882 n.42 (Tex. Crim. App. 2009).
