              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

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

                                         OPINION

       I join Judge Johnson’s dissent and wish to add the following points.

1. The majority opinion conflicts with our recent decision.

       I believe that the main problem with the majority’s opinion is its view of the lesser-included-

offense instructions as a defensive issue. Although the majority repeatedly cites Judge Cochran’s

concurring opinion in our recent decision in Grey v. State, 298 S.W.3d 644 (Tex. Crim. App. 2009),1



       1
       As I discuss in Section 4, infra, the majority’s reliance even on that concurrence is
misplaced because the reasoning in that opinion is not applicable to the present case.
                                                                                  TOLBERT PAGE - 2

it fails to realize that its view of the lesser-included-offense instructions as a defensive issue is

almost the opposite of the position taken by the majority in that same case. In fact, it is fair to say

that we virtually moved heavens and earth in Grey to convince the readers of the State’s right to

obtain the lesser-included-offense instructions from the trial court. So I am befuddled as to how we

can now turn around and say that those same instructions are a defensive issue.

       In Grey, appellant Steven Grey was charged with aggravated assault by causing bodily injury

with a deadly weapon, to wit, Grey’s hand used to strangle the victim. The jury charge, prepared by

the prosecutor’s office, contained instructions on both the indicted offense and the lesser-included

offense of simple assault by causing bodily injury. The defense counsel objected to the lesser-

included-offense instruction, but the objection was overruled. The jury found Grey guilty of the

lesser-included offense of simple assault. On appeal, Grey claimed that the submission of the lesser-

included offense was error. The court of appeals agreed and reversed the conviction. Grey v. State,

269 S.W.3d 785 (Tex. App.— Austin 2008). We granted the State’s petition for discretionary

review, and overruled an old precedent,2 Grey, 298 S.W.3d at 645, in order to make it easier for the

State to obtain the lesser-included-offense instructions from the trial court.3


       2
           Arevalo v. State, 943 S.W.2d 887 (Tex. Crim. App. 1997).
       3
          As we noted in Grey, the Royster-Rousseau (Royster v. State, 622 S.W.2d 442 (Tex.
Crim. App. 1981) (plurality op.); Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993))
line of cases had established a two-pronged test for determining when a trial judge was required
to submit to the jury a lesser-included offense requested by the defendant. 298 S.W.3d at 645.
Later, in Arevalo, we held that the second prong of that test – which required that some evidence
must exist in the record that would permit the jury to find that if the defendant is guilty, he is
guilty only of the lesser-included offense – was equally applicable to the submission of the
lesser-included offenses requested by the State. Id. Thus, by overruling Arevalo and holding that
the State is not bound by the second prong of the Royster-Rousseau test, id., in Grey we removed
the burden Arevalo had placed on the State in obtaining the lesser-included-offense instructions
                                                                                        (continued...)
                                                                                 TOLBERT PAGE - 3

       Initially, we justified our decision to overrule Arevalo by explaining that it was the right thing

to do for both the State and the defendant. As we stated:

               One obvious flaw in the rule laid down by Arevalo and its progeny, one that
       produces inconsistent and unjust results in every single case in which the rule is
       applied, is the remedy. When a lesser-included offense is submitted in violation of
       Arevalo, and the defendant is convicted of that offense, the remedy this Court has
       imposed is a remand for a new trial on the very same lesser-included offense that the
       defendant has just claimed should never have been submitted. Such a result is
       "illogical," but we fashioned this remedy because alternative remedies seemed
       unavailable or worse. Because a conviction on the lesser offense operates as an
       acquittal of the greater offense, retrial on the greater offense is not possible. But an
       outright acquittal of the criminal charge would be absurd where the evidence was in
       fact legally sufficient to support a conviction for the lesser-included offense.

Id. at 646-47 (citations omitted). But our concern moved quickly to the logic of making it easier for

the State to obtain a lesser-included-offense instruction from the trial court. As we explained:

               The Court in Arevalo . . . held that [the] rationale [for the second prong of the
       Royster-Rousseau test] "is as applicable to the State's request for a lesser-included
       offense as it is to a defendant's request." Why? Because a lesser-included-offense
       instruction "must not constitute an invitation to the jury to reach an irrational
       verdict."

               But the Court [in Arevalo] did not ask or answer the next obvious question:
       How does a lesser-included-offense instruction invite a jury to reach an irrational
       verdict? If the lesser offense is viewed in isolation, a jury's verdict would be rational
       so long as the lesser offense is included in the charging instrument and supported by
       legally sufficient evidence. The [second] prong of the Royster-Rousseau test
       requires, however, that we view the rationality of the lesser offense, not in isolation,
       but in comparison to the offense described in the charging instrument. But why
       should we make that comparison? The answer must be that the State is entitled to
       pursue the charged offense and, therefore, is entitled to receive a response from the
       jury on whether the defendant is guilty of the charged offense. Is the defendant
       similarly entitled to a response from the jury on the charged offense? The answer to
       that question is clearly no. It is the State, not the defendant, that chooses what
       offense is to be charged. In fact, the State can abandon an element of the charged
       offense without prior notice and proceed to prosecute a lesser-included offense. If


       3
        (...continued)
from the trial court.
                                                                                   TOLBERT PAGE - 4

        the State can abandon the charged offense in favor of a lesser-included offense, there
        is no logical reason why the State could not abandon its unqualified pursuit of the
        charged offense in favor of a qualified pursuit that includes the prosecution of a
        lesser-included offense in the alternative.

Id. at 649-50 (citations omitted). Thus, we emphasized that it was the State, more than the

defendant, who was entitled to the benefit of having the lesser-included-offense instructions, in light

of its burden to prove that the defendant, even if he was not guilty of the charged offense, was at

least guilty of the lesser offense.

        We went on to emphasize that the society’s interests would also be best served by making

it easier for the State to obtain those instructions from the trial court. As we explained,

        [A]t the time of trial, the State might . . . legitimately perceive[] the possibility . . .
        that an appellate court would decide that the evidence was legally insufficient to
        prove the [element necessary for the jury to convict on the greater offense].

        ....

                 The cautious approach for the prosecutor to take would be -- or at least should
        be -- to request the lesser-included offense. Allowing submission of lesser offenses
        when requested by the prosecutor would serve at least two important interests. First,
        society has an interest in convicting and punishing people who are guilty of crimes.
        When, in the prosecutor's judgment, submission of the lesser-included offense will
        enhance the prospects of securing an appropriate criminal conviction for a defendant
        who is in fact guilty, society's interests are best served by allowing the submission.
        Second, the prosecutor has "the primary duty . . . not to convict, but to see that justice
        is done." Even if the prosecutor believes in a given case that he will secure a
        conviction on the charged offense if the only alternative is acquittal, he might also
        believe that the jury should be given the option to decide whether a conviction on the
        lesser offense is more appropriate.

Id. at 650-51 (citations omitted).

        We emphasized our view favoring the State’s right to obtain the lesser-included-offense

instructions even in our conclusion, stating that we had to overrule Arevalo because the common-law

rule established in that case placed “undue burdens on the prosecutor.” Id. at 651.
                                                                                TOLBERT PAGE - 5

       In short, in Grey we recognized the State’s right to the lesser-included-offense instructions

as being superior to the defendant’s right to have such instructions insofar as we exempted the State

from the second prong of the Royster-Rousseau test, which remains applicable to the submission of

the lesser-included-offense instructions requested by the defendant. As such, I do not see how the

majority in the present case can now call those instructions a defensive issue. On the contrary, I

believe that appellant in the present case is entitled to relief for the same reasons we granted relief

to the State in Grey.

2. Applicability of Grey to the present case.

       The majority admits that it was the State who had requested the lesser-included-offense

instructions in the present case. This fact in itself conflicts with the majority’s characterization of

those instructions as a “defensive” issue because the State was obviously not trying to help the

defense in this case.

       In fact, the record shows that the prosecutor in the present case did much more than just ask

for the lesser-included-offense instructions. Although the trial in this case predates our recent

decision in Grey, even a cursory examination of the record shows that the prosecutor did exactly

what we suggested the prosecutor should do when there is a possibility that the available evidence

might not be sufficient to convince the jury to convict the defendant on the charged offense. The

record in the present case clearly shows such a possibility. In fact, there was no direct evidence to

prove that appellant had actually killed the victim during the course of robbing him. There were no

eyewitnesses to either crime, nor any video recording to show what actually happened. There were

not even any witness accounts of appellant’s telling them, for example, that she had killed the victim

because he had caught her stealing the items in question, or that she had wanted to get her hands on
                                                                                TOLBERT PAGE - 6

those items but he stood in her way, etc. The witnesses at trial stated only that she had told them that

he had said hurtful things, that the more she thought about what he had said the more it hurt, and that

it was in this state of hurting that she killed him, and that even as she was stabbing him she kept

telling him, “I love you, I love you, I love you.” This was the evidence that the State presented, and

the evidence that it emphasized in both its closing arguments. Thus, there is no way to determine

on this evidence whether the murder was committed before the robbery (in which case it was not

capital murder), or during the course of the robbery (in which case it was capital murder).

       On the state of such evidence, it is not surprising that the prosecutor adopted the “cautious

approach” that we later encouraged in Grey. 298 S.W.3d at 651. The record clearly shows – from

the indictment right up to the closing arguments – that the prosecutor was trying to ensure that the

jury would find appellant guilty at least of the lesser-included offense of murder.

  !    The Indictment: In the second paragraph of the indictment, the State alleges for enhancement

       that appellant had been formerly convicted of the felony offense of robbery. Enhancement

       would not be relevant if the State were anticipating a conviction for capital murder, for which

       the automatic punishment in this case would be a life sentence, because the State did not ask

       for the death penalty.4 It would be relevant only if the State were uncertain about the strength

       of its case and was therefore preparing for a possible conviction for the lesser-included

       offense of murder, in which case a former conviction would enhance the minimum

       punishment of only five years for a first-degree felony to 15 years for a repeat and habitual




       4
           See TEX . PEN . CODE §§ 19.03(b) & 12.31(a).
                                                                            TOLBERT PAGE - 7

    felony offender.5

!   The Lesser-Included-Offense Instructions: The majority in the present case notes that “the

    parties had discussed several lesser-included offense scenarios such as murder and robbery

    during voir dire.” Maj. op. at 2. Contrary to the majority’s suggestion, the record shows that

    the State spent a great deal of time discussing the lesser-included offense involved in the

    present case: murder. Indeed, the State spent far more time discussing this issue with the

    jurors than the defense did.

!   The Evidence at Trial: The majority states that the State presented evidence that could

    support either a finding that appellant had committed the murder during the course of

    robbing the victim (capital murder), or that she had decided to rob the victim only after

    killing him (murder). Id. at 1. But, while there was strong evidence to show that appellant

    committed the murder and the theft, the evidence in the record purporting to show the critical

    link necessary to elevate the offense from murder to capital murder – that the murder was in

    fact committed during the course of a robbery – was, at best, weak and only inferential.

!   Closing Arguments: The majority fails to mention that the State focused on the lesser-

    included offense in both its final arguments to the jury, even after the trial judge had already

    overruled its request for instructions on that offense and had not included those instructions

    in the jury charge. The State did so by emphasizing appellant’s own statements to the

    witnesses who later testified at trial, which proved appellant guilty only of murder, not

    capital murder. In fact, the State did not discuss any evidence, or even draw any inferences

    from the evidence presented, to try to show that the murder was committed during the course


    5
        See TEX . PEN . CODE §§ 19.02(c), 12.32(a), & 12.42(c)(1).
                                                                                 TOLBERT PAGE - 8

        of a robbery. Thus, the State’s arguments, in the absence of the lesser-included-offense

        instructions in the jury charge, relayed a remarkably distorted message to the jury: that if they

        were to find appellant guilty of the lesser-included offense of murder, they should convict

        her for the greater offense of capital murder, even though the State had done virtually nothing

        at trial to try to prove the critical element necessary to elevate the offense from murder to

        capital murder, i.e., that the murder had been committed during the course of a robbery.

        Thus, the record clearly shows the prosecutor’s intense focus on the lesser-included offense.

There was nothing wrong with that inasmuch as she was doing exactly what we, in Grey, recently

suggested that a prosecutor should do when the evidence supporting a conviction for the charged

offense is weak: take the “cautious approach” and try to prove the lesser offense, including asking

the trial court for the lesser-included-offense instructions, in order to ensure that a guilty defendant

would not go completely free simply because the evidence was insufficient to convict her on the

charged offense. Grey, 298 S.W.3d at 651. But the prosecutor created a problem when she

continued that strategy, discussing the lesser offense even after the trial judge denied her request for

the lesser-included-offense instruction and did not include that instruction in the jury charge. Her

persistence in the strategy confused the jurors, resulting in the note that they sent to the trial court,

asking about the lesser-included offense that the prosecutor, not the defense, had practically

ingrained in their brain from the very beginning of the trial.6 The trial court might have been able


        6
         The jury note stated: “Should we consider lesser included charges if we [text scratched
out] believe the robbery was an afterthought[?] Does it make a difference if the robbery was an
afterthought [text scratched out] to a crime of passion[?]” It is important to note here that the
trial court, interpreting this jury note as a request for a lesser-included-offense instruction, could
have charged the jury on the lesser offense at this point. See TEX . CODE. CRIM . PROC. art. 36.16
(“After the argument begins no further charge shall be given to the jury unless required by . . . the
                                                                                          (continued...)
                                                                                TOLBERT PAGE - 9

to, but failed to, provide the jury with the guidance that they asked for to help them convict a

defendant that they, judging by their note, seriously considered might have been guilty of murder,

but not capital murder.

       The trial court’s refusal to give the lesser-included-offense instructions requested by the State

unduly limited the jury’s choices: they could either convict appellant on capital murder, or acquit her.

The jury could not acquit appellant because there was enough evidence in the case (in the form of

appellant’s own statements to other witnesses) to show that she had committed the murder and the

theft. So, they went for the only choice they had left for conviction: capital murder. But, in Grey,

we talked at length about “unjust results” and how “an outright acquittal of the criminal charge

would be absurd where the evidence was in fact legally sufficient to support a conviction for the

lesser-included offense.” Id. at 646-47. Is an outright conviction any more just or less absurd where

the evidence is in fact legally insufficient to support a conviction for the greater offense?

3. Law applicable to the case.

       This is an important point that the majority neglects to address. I believe that the question

of what law is or is not “applicable to the case” should not be determined in hindsight, based on who

won and who lost at trial. The question of whether or not the trial court erred in refusing the State’s

request for lesser-included-offense instructions should be determined, not on the basis of who is

complaining and when, but why? I believe that the trial court erred in the present case because it

limited the jury to a choice of two extreme decisions (to convict for capital murder, or acquit), when

the evidence at trial warranted something in the middle: a conviction for a lesser-included offense.



        6
        (...continued)
request of the jury.”).
                                                                               TOLBERT PAGE - 10

By taking away this middle choice, the trial court turned the verdict into a gamble, which guaranteed

a windfall to one side to the complete detriment of the other, but no way to be sure who was going

to be the big winner and who would be the big loser. The jury in the present case opted to give the

benefit to the State, and it was the appellant who suffered the detriment when she was convicted for

capital murder in the absence of any real evidence to show that the murder was committed during

the course of a robbery. But the jury might just as easily have come out the opposite way. They

could have acquitted appellant, and it would have been the State to suffer the detriment of seeing a

defendant, who was at least guilty of the lesser-included offense, go scot-free. I believe that verdicts

should be reached, not by a gamble, but by clear-cut rules of law that are laid out in the jury charge

well before anyone can be sure which party will win. I also believe that our courts are courts of “law

and justice,” and that such law and justice is not just for the benefit of the State.

4. The majority misinterprets appellant’s claim.

        The majority has misunderstood appellant’s argument. It virtually adopts the State’s

argument (that appellant was “going for broke” and is now complaining only because her strategy

did not pay off and she was convicted of capital murder, see, e.g., Maj. op. at 5-6) throughout its

opinion. The majority then proceeds to rebuff appellant on the ground that we should “discourage

parties from sandbagging or lying behind the log.” See, e.g., id. at 5 n.6 (citation omitted). But, in

so doing, the majority completely misses appellant’s real argument before us. As appellant has

clearly stated in her own formulation of the “Issue Presented,”

        Under the facts of this case, does the State’s failure of proof of the elements alleged
        in the indictment to prove capital murder result in the lesser-included offense of
        murder becoming a defensive issue; or did the error occur when the court refused the
        jury’s request for an instruction on the lesser-included murder offense[?]
                                                                               TOLBERT PAGE - 11

See Appellant’s Brief at ii, 2 & 9. As appellant later stated even more clearly:

                Respondent argues that the failure of the State's evidence to initially convince
        the jury beyond a reasonable doubt that a capital murder was committed, as is
        evidenced by the jury's request for an instruction on a lesser offense, does not create
        a defensive issue but is instead the law of the case, and the court therefore erred in
        not originally charging the jury on murder, sua sponte, without regard to a request
        from the defendant; and that the court erred again in not providing this law to the jury
        members at their request.

Id. at 10.

        One had to draw an inference from the evidence presented to think that the murder might

have been committed during the course of a robbery, making it capital murder. The indictment, as

well as the State’s strategy from voir dire to the closing arguments, clearly indicate the State’s own

uncertainty whether it would be able to convince the jury to convict appellant for capital murder.

That was why it was the State, not the defendant, who asked the trial court for the lesser-included-

offense instruction, in the first place. The State was obviously not trying to help the defendant by

asking for a defensive instruction. But, even after the trial court refused to give those instructions,

the State summarized the evidence proving the lesser offense, without even trying to show any link

between the murder and the robbery that could have helped persuade the jury that the murder was

committed during the course of a robbery. As appellant has correctly argued, the fact that the jury

was not convinced that appellant had committed capital murder is shown by the note it sent to the

trial court. This note indicated the jury’s “belie[f]” that “the robbery was an afterthought,” which

reduced appellant’s offense to what even the jury realized was only a “lesser included charge[],” see

supra note 6, which in turn indicates that the State had failed to prove a critical element of the

charged offense: that the murder was committed during the course of the robbery. And that is

appellant’s real contention, which the majority fails to address in its opinion.
                                                                                TOLBERT PAGE - 12

5. Hall required the trial court to give the lesser-included-offense instructions.

        The majority declines to review the present case in light of our decision in Hall v. State, 225

S.W.3d 524 (Tex. Crim. App. 2007). See maj. op. at 2 n.1. I submit, however, that such a review

is indispensable especially to the facts of this case. The majority states that Hall sets out a “two-part

test for when a defendant is entitled to her requested lesser-included-offense instruction.” Id. But

there is nothing in Hall to support the majority’s suggestion that Hall is applicable only to cases in

which the lesser-included-offense instructions were requested by the defendant. As we stated at the

very beginning of that opinion, “We granted review to resolve ambiguities and conflicts in our

decisions about the method of determining whether the allegation of a greater offense includes a

lesser offense.” 225 S.W.3d at 525. We continued in this vein throughout that opinion, discussing

that method of when and how to determine whether a lesser-included offense was included in the

charged offense, without regard to whether such instructions had been requested by the State or the

defendant or, for that matter, no one at all.

        As we stated, “[t]he evidence adduced at trial should remain an important part of the court’s

decision whether to charge the jury on lesser-included offenses.” Id. at 536. We repeated this

central idea in the very next line, as we stated that “[t]he second step in the analysis should ask

whether there is evidence that supports giving the instruction to the jury.” Id. It is true that we then

went on to state that “[a] defendant is entitled to an instruction on a lesser-included offense where

the proof for the offense charged includes the proof necessary to establish the lesser-included offense

and there is some evidence in the record that would permit a jury rationally to find that if the

defendant is guilty, he is guilty only of the lesser-included offense.” Id. But that is not the same

as requiring the defendant to request the lesser-included-offense instructions before she is entitled
                                                                                  TOLBERT PAGE - 13

to receive them.7

        The present case is a perfect illustration of the difference between the situation in which a

defendant is entitled to a lesser-included-offense instruction and one in which she is required to

request such an instruction before she can become entitled to it. Hall requires only “some evidence

in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only

of the lesser-included offense.” Id. Specifically, “anything more than a scintilla of evidence may

be sufficient to entitle a defendant to a lesser charge.” Id. In the present case, it is questionable

whether a scintilla of evidence existed to prove a critical element of the charged offense: that the

murder was committed during the course of a robbery.                The prosecutor’s case – from the

enhancement paragraph in the indictment, to the discussion of the lesser-included offense in voir

dire, to the presentation of evidence from witnesses relating appellant’s own account that she had

committed the murder only in a heat of passion, to the closing arguments that failed to even mention

or otherwise show that the murder was committed during the course of the robbery – was singularly

focused on proving the lesser offense. The fact that the jury sent out a note, specifically asking the

court for guidance on the lesser offense, even though the jury charge itself did not even mention that

offense, showed their inclination to find appellant guilty of that offense rather than the one charged

in the indictment. Thus, there was more than “some evidence in the record” to persuade the jury to


        7
         It would have been a different matter if appellant in the present case had objected to the
submission of the lesser-included-offense instructions requested by the State, and the trial court
had overruled the State’s request because of that objection. In that case, I might agree with the
majority that appellant cannot have it both ways: object to the instructions at trial and, if she
loses the case, to then appeal on the grounds that the trial court should have granted the State’s
request, after all. But that is not the case before us. Appellant stated that she had no objection to
the jury charge, which did not have the lesser-included-offense instructions; but her not objecting
and, in effect, going along with the court’s ruling is not the same as actively objecting to the
inclusion of the lesser-included-offense instructions in the charge.
                                                                                  TOLBERT PAGE - 14

“rationally . . . find” that appellant was guilty only of the lesser-included offense. Id. It is, therefore,

clear that the trial court erred in not giving the lesser-included-offense instruction requested by the

State.

         The fact that appellant failed to object to the charge is relevant only to the extent that

Almanza8 applies, requiring a showing of egregious harm before appellant can be granted relief. But

it is clear that appellant in this case did suffer such egregious harm in light of the fact that she was

convicted of capital murder, even though the jury itself seemed inclined to believe that she was guilty

only of the lesser-included offense of murder.

6. The trial court’s error

         Finally, I believe that we are avoiding an issue which stands out like an elephant in a bathtub;

and that is whether appellant’s counsel was ineffective for not specifically asking and arguing for

a lesser-included-offense instruction. I realize that no point of error was advanced on this issue.

However, if we look closely at what occurred, we can see that an argument for ineffective assistance

of counsel makes some sense. The State had requested a lesser-included-offense instruction and,

based on the evidence presented at trial, appellant’s counsel should have joined the request and/or

objected to the charge without such an instruction. It would not have hurt counsel’s strategy of

asserting appellant’s complete innocence to have sided with the State on this issue. I believe,

therefore, that counsel was ineffective in failing to join the State’s request for the lesser-included-

offense instruction.

         On the other hand, Judge Johnson may be right in suggesting that the failure of appellant’s

counsel to request a lesser-included-offense instruction might have been reasonable if such a request


         8
             Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g).
                                                                                TOLBERT PAGE - 15

would have been futile in light of the trial court’s response to the State’s request on this same issue.

See Dis. op. at 8 (Johnson, J., dissenting). But, regardless of whether appellant’s counsel was

ineffective or justified in failing to ask for and/or join the State’s request for the lesser-included-

offense instruction, my point is that the trial court should still have included that instruction in the

charge because the need for such an instruction should have been obvious from what it had heard

from the parties during voir dire and seen as evidence presented at trial. As I suggested earlier, see

supra note 6, even if the trial court had originally failed to recognize the need to include the lesser-

included-offense instruction in the jury charge, it should (and, under Article 36.16 of the Code of

Criminal Procedure, could) have charged the jury on the lesser-included offense when it received the

note from the jury asking specifically about that offense.

                                            ********

        The question of the lesser-included-offense instructions in this case is not a “defensive” issue,

but rather one of “law applicable to the case.” The real issue before this Court is that the trial court

erred in not giving the lesser-included-offense instructions requested by the State because the State

failed to prove beyond a reasonable doubt a critical element of capital murder: that the murder was

committed during the course of the robbery. The record strongly suggests that the State itself was

uncertain as to a conviction on the charged offense and did its best to convince the jury to convict

appellant on the lesser offense. The State’s singular focus on the lesser offense in itself was

sufficient to make the question of the lesser-included-offense instructions “law applicable to the

case.” The fact that the jury happened to err on the side of convicting rather than acquitting appellant

should not detract us from these basic facts: the State failed to prove a critical element of the charged

offense, the trial court failed to provide the jury with the proper “law applicable to the case” covering
                                                                              TOLBERT PAGE - 16

all three verdicts (capital murder, murder, acquittal) possible in the present case, and appellant was

convicted of an offense much greater than the one the jury itself seemed inclined to believe she had

committed.

       For the foregoing reasons, I respectfully dissent.



FILED: MARCH 17, 2010.

PUBLISH.
