Opinion
NO. PD-0759-21
04-19-2023
Jose Juan CHAVEZ, Appellant v. The STATE of Texas
Emily Johnson-Liu, for State. Paul Morgan, Houston, for Appellant.
Emily Johnson-Liu, for State.
Paul Morgan, Houston, for Appellant.
OPINION
Hervey, J., delivered the opinion of the Court in which Richardson, Newell, Walker, and McClure, JJ., joined.
This is a lesser-included offense case. Appellant was tried for capital murder based on the law of parties but requested lesser-included offense (LIO) instructions on kidnapping and felony murder. The trial court did not submit the instructions, and Appellant was convicted. On appeal, Appellant argued that the trial court should have given the instructions and that he was harmed by the trial court's failure to give them. The court of appeals agreed and ordered a new trial. Because we conclude that Appellant was not entitled to the instructions, we will reverse the judgment of the court of appeals and affirm the judgment of the trial court.
FACTS & PROCEDURAL HISTORY
We will use people's first names.
Appellant was indicted in connection with the kidnapping and murders of Jarvis Morgan (Jarvis) and Alejandro Chavez (Alejandro). The bulk of the evidence regarding the crimes came from the testimony of one of Appellant's accomplices, Brandon Flores (Brandon).
Brandon lived with Appellant in Baytown and worked out of their home as a barber. The night of the kidnappings, Jarvis and Alejandro went to Brandon's house to get their hair cut. Brandon was inside with Richard Gonzalez (Richard). Valentin Lazo (Valentin) and Appellant were outside. While Brandon was cutting Alejandro's hair, Jarvis brandished a gun and pointed it at Brandon to "show it off." An altercation ensued. Brandon jumped on Jarvis and wrestled the gun away from him, and Richard jumped on Alejandro. According to Brandon, when Appellant came back inside, "I -- we decided that we had to take [the victims] out of there" to Appellant's grandmother's property in Anahuac. When asked to clarify, Brandon testified that it was Appellant's idea to kidnap Jarvis and Alejandro and take them out there. Brandon, Richard, and Appellant directed Jarvis and Alejandro to a Nissan Altima, forced them into the trunk, and Appellant drove to the Anahuac property. Brandon and Richard accompanied Appellant, while Valentin followed in his truck. Upon arrival, Valentin broke the lock on the gate with his truck, then the four gathered on the property to discuss what to do with Jarvis and Alejandro. Appellant told Brandon to take them to the back of the property and kill them, which Brandon did. Later that evening, the group went to a convenience store in Anahuac, where they were recorded by a security camera. They abandoned the Altima at an apartment complex near Appellant's home. Days later, Brandon, Appellant, and another person returned to the property to dispose of the victims’ bodies. They tied ropes attached to cinder blocks around the bodies and dumped them into a nearby bayou. The police found the bodies two weeks later while searching the area when the tide was out. Brandon fled to Mexico after the kidnappings and murders. He was extradited to the United States about four years later.
During the investigation, Brandon told a police officer that the kidnappings were committed in self-defense because the victims were members of a gang. At trial, Brandon explained that Jarvis and Alejandro had disrespected Appellant's home.
The property was between 8 and 10 acres. The back part of the property, where the victims were killed and their bodies left, was wooded.
Appellant told police during the investigation that it was Richard's idea to kill the victims. At trial, he said that the group agreed to kill Jarvis and Alejandro "because they were gangsters."
Flores testified that the person drove a black truck, and a police officer testified that Appellant's uncle had been implicated in the crimes and that he had access to a black truck during the time of the kidnappings and murders.
There was evidence that virtually identical rope was recovered from Appellant's grandmother's property.
During the investigation, Appellant told police that he was outside when the victims were getting their hair cut and that, when he went inside, Jarvis and Alejandro were gone. Appellant said that, afterwards, everyone left, and he went to sleep. When confronted with security footage of Appellant at a convenience store, he remembered that he went with Valentin to a convenience store down the street from his house. When confronted with the fact that the surveillance footage was from a Texaco in Anahuac, not down the street from his house, Appellant remembered that he and Valentin actually went to the Texaco to buy drinks. He said that he and Valentin drove around a lot and that Valentin liked to buy a particular fruit drink sold at that store. Appellant continued to deny that he was with anyone except Valentin even though he was told that the security footage showed him with other people.
At the interview, the investigators had printed screen shots from the security camera footage showing Valentin and Appellant together, but they had not printed screen shots showing that Appellant and Valentin were also with Richard and Flores.
At the charge conference, Appellant requested LIO instructions on kidnapping and felony murder. The trial court denied the request, and the jury convicted Appellant of capital murder as a party. Appellant was sentenced to life imprisonment without the possibility of parole. Appellant subsequently filed a notice of appeal.
COURT OF APPEALS
In a split decision, a majority of the court of appeals held that Appellant was entitled to the instructions. Chavez v. State , 651 S.W.3d 140, 146 (Tex. App.—Houston [14th Dist.] 2021). It reasoned that the jury could have rationally found Appellant guilty of only kidnapping or felony murder because some evidence showed that Brandon might have been the only one with the intent to kill the victims. Id. at 145. For example, Brandon said that "he alone drove complainants to the back of the property and killed them." Id. Further, the court of appeals believed that the jury could have rationally concluded that Appellant did not have the intent to kill if it believed Brandon's testimony that the killings were Richard's idea but disbelieved Brandon's testimony that the group agreed to kill Jarvis and Alejandro. Id.
Justice Wise would have affirmed the trial court's ruling. Id. at 147 (Wise, J., dissenting). He argued that, in analyzing what evidence a jury might or might not have believed, the majority failed to recognize that none of the evidence was germane to the LIOs because it did not rebut evidence of Appellant's intent to kill. Id. at 146. Justice Wise further argued that the jury could not have rationally inferred that Appellant did not have the intent to kill, as the majority did, based on evidence that Richard first conceived of the murders or that Brandon was the one who executed the victims. Id. at 147. He further noted that the only evidence rebutting or negating Appellant's intent to kill was the evidence that Appellant told police he was not involved in the kidnappings or murders. Id. But, as he noted, a defendant is not entitled to a LIO instruction based on claims of innocence. Id.
DISCUSSION
a. The Law
We review a trial court's refusal to submit a LIO instruction for an abuse of discretion. See Threadgill v. State , 146 S.W.3d 654, 666 (Tex. Crim. App. 2004). Whether a defendant is entitled to a LIO instruction turns on a two-part test. Rousseau v. State , 855 S.W.2d 666, 672 (Tex. Crim. App. 1993). First, we compare the statutory elements of the alleged lesser offense with the statutory elements of the greater offense and any descriptive averments in the indictment. Safian v. State , 543 S.W.3d 216, 220 (Tex. Crim. App. 2018). If proof of the lesser offense is included within proof of the greater offense, the first step has been satisfied. Id. ; TEX. CODE CRIM. PROC. art. 37.09(1). Second, there must be evidence from which a rational jury could find the defendant guilty of only the lesser offense. Guzman v. State , 188 S.W.3d 185, 188–89 (Tex. Crim. App. 2006). We have said that the guilty-only requirement is met if there is affirmative evidence of a factual dispute that raises the lesser offense and rebuts or negates other evidence establishing the greater offense. Roy v. State , 509 S.W.3d 315, 319 (Tex. Crim. App. 2017). It does not matter if the factual dispute is based on direct or circumstantial evidence so long as a rational jury could interpret the record in a way in which it could find the defendant guilty of only the lesser-included offense. See id. (submission of manslaughter LIO instruction was supported by direct evidence—the appellant's testimony that he acted only recklessly); Goad v. State , 354 S.W.3d 443, 447-49 (Tex. Crim. App. 2011) (rejecting that affirmative evidence must be based on direct evidence and holding that circumstantial evidence supported a reasonable inference that the appellant did not have the intent to steal when he entered the complainant's home). We consider all the evidence admitted at trial. Goad , 354 S.W.3d at 448. Even a scintilla of evidence is sufficient, no matter how controverted or incredible. Id. at 446-47. But the evidence must be directly germane to the LIO and present the LIO as a valid, rational alternative to the greater offense. Id. at 446. "[I]f the defendant presents evidence that he committed no offense at all ... or if he presents no evidence ..., and there is no evidence otherwise raising the issue, a charge on [a] lesser offense ... is not required." Aguilar v. State , 682 S.W.2d 556, 558 (Tex. Crim. App. 1985) (citations omitted) (footnote omitted) (citing McKinney v. State , 627 S.W.2d 731 (Tex. Crim. App. 1982) ; McCardell v. State , 557 S.W.2d 289 (Tex. Crim. App. 1977) ; Denison v. State , 651 S.W.2d 754 (Tex. Crim. App. 1983) ; Thomas v. State , 543 S.W.2d 645 (Tex. Crim. App. 1976) ); Bignall v. State , 887 S.W.2d 21, 24 (Tex. Crim. App. 1994).
Judge Keel argues in her concurring opinion that we should overrule over 45 years of our precedent dating back to at least 1974. Concurring Op. at 782–83 (Keel, J.). There are multiple reasons we decline the invitation. First, neither party asks us to overrule those cases. Second, we did not grant review of whether to overrule those cases. Third, we have no briefing on the matter. Goad v. State , 354 S.W.3d 443, 448 (Tex. Crim. App. 2011) (declining to resolve an issue because the Court did not grant review of it, resolving the issue was not essential to the outcome of the case, and the parties did not brief it); Stringer v. State , 241 S.W.3d 52, 59 (Tex. Crim. App. 2007) ("In our discretionary review capacity we review ‘decisions’ of the courts of appeals."). Fourth, overruling those cases is not essential to the disposition of this case. Our decision today is not radical and does not change LIO law in Texas. We merely conclude that the court of appeals misapplied the standard of review.
APPLICATION
We analyze only the second prong of the LIO test because there is no dispute that kidnapping and felony murder are LIOs under the first prong of the analysis, but we conclude that the second prong was not met here. We begin by addressing the State Prosecuting Attorney's (SPA) argument that the court of appeals decided the case based only on the fact that the jury could have rationally disbelieved evidence that the group agreed to kill the victims and that Appellant ordered Brandon to execute them. The SPA is correct that the mere disbelief of evidence establishing commission of the greater offense is insufficient by itself to justify submission of a LIO instruction. Bignall , 887 S.W.2d at 24. This is because the disbelief of evidence is not evidence. To the extent that the court of appeals relied only on the jury's ability to disbelieve evidence in concluding that Appellant was entitled to the LIO instructions, it erred.
Appellant argues that he was entitled to the LIO instructions based on the following evidence:
Appellant argues in his brief that Detective Guadalupe Gonzalez testified that Richard ordered Brandon to murder the victims, not Appellant. Appellant directs us to volume five of the reporter's record, but we can find no such testimony.
• Brandon's statement to police that he believed he was acting out of "self-defense" when kidnapping the victims because the victims were "gangsters;"
• Brandon's testimony that there was no plan to kill the victims when they kidnapped them;
• Brandon's statement to police that the plan to kill the victims was originally devised by Richard;
• Brandon's testimony that he took the victims by himself to the rear of the property and executed them;
• Brandon's testimony that Brandon participated in disposing of the bodies and fled to Mexico; and
• Appellant's not-guilty plea and out-of-court claims of innocence.
We disagree. None of the evidence cited by Appellant, much of which was also cited by the court of appeals, rebuts or negates the evidence that Appellant had the intent to kill when the victims were killed. Brandon's belief that he acted in self-defense in kidnapping the victims has nothing to do with Appellant's state of mind when the murders were committed. It bears only on Brandon's state of mind at the time of the kidnappings. Similarly, the evidence that there was no agreement at the time of the kidnappings and that Richard was first to come up with the idea to kill the victims is not directly germane to Appellant's state of mind. It merely stands for the proposition that there was no agreement at the time of the kidnappings to kill the victims and that Richard first conceived of the idea to kill them. We reach the same conclusion as to the evidence that Brandon took the victims to the rear of the property by himself and executed them, that Brandon participated in disposing of the bodies, and that Brandon fled to Mexico. Evidence that an accomplice or accomplices performed certain acts pertinent to the alleged crime does not show that Appellant did not have the intent to kill.
With respect to Appellant's reliance on his not-guilty plea and out-of-court assertions of innocence, those are not bases on which to submit a LIO instruction. A not-guilty plea is not evidence. It stands only for the proposition that Appellant formally denied committing the crime, but submission of a LIO instruction turns on evidence. Goad , 354 S.W.3d at 448. Also, a defendant is not entitled to a LIO instruction based on evidence that the defendant committed no crime because, even though the evidence rebuts or negates an element of the greater offense, that evidence cannot show that the defendant is guilty of only a LIO. It shows that the defendant is guilty of no crime at all.
See Tex. Code Crim. Proc. art. 1.15 (the State in a felony case when a defendant pleads guilty must "introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same").
Appellant further argues that the SPA wants trial judges to determine which evidence is credible and which is not when deciding whether a LIO instruction should be submitted. According to him, "[t]here were two versions of events presented by testimony and evidence. One version established capital murder while the other supported a lesser of murder or kidnapping." We do not read the SPA's brief to advocate for trial judges to weigh the credibility of the evidence. Rather, the SPA argues what could be rationally inferred from the evidence. According to it, two rational versions were not presented by the evidence.
A trial judge's job under the guilty-only prong is to consider the admitted evidence and determine whether it is sufficient to support submission of a LIO instruction. In assessing the sufficiency of the evidence for that purpose, a trial judge's duty is not much different than when it comes to other defensive issues. See Shaw v. State , 243 S.W.3d 647, 657–58 (Tex. Crim. App. 2007). A trial judge "must rely on [his] own judgment, formed in the light of [his] own common sense and experience" to determine whether the evidence and rational inferences that can be drawn therefrom justify submission of a LIO instruction. Id. at 658. In doing so, a trial judge does not usurp the fact finder's authority to weigh the evidence. He merely fulfills his duty to, upon request, determine if the lesser offense is "law applicable to the case." See TEX. CODE CRIM. PROC. art. 36.14 ; see Tolbert v. State , 306 S.W.3d 776, 781 (Tex. Crim. App. 2010) (stating that a "lesser-included offense was not ‘applicable to the case’ absent a request by the defense for its inclusion in the jury charge").
Appellant argues that even if the evidence does not show that he is guilty of only kidnapping or felony murder, it is enough that the evidence left some doubt about his intent to kill. He relies on Beck v. Alabama , 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), a death-penalty case. In Beck , the United States Supreme Court held part of Alabama's death-penalty statute unconstitutional. Id. at 643, 100 S.Ct. 2382. The statute automatically imposed the death penalty upon conviction, and the statute precluded the submission of LIO instructions. Id. at 628, 100 S.Ct. 2382. The United States Supreme Court held that the statute was unconstitutional because it "interject[ed] irrelevant considerations into the factfinding process ...." Id. at 642, 100 S.Ct. 2382. According to the Supreme Court, some jurors might vote to acquit a defendant even though they believe he is guilty of capital murder because the defendant deserved to be punished, but not executed. Id. at 642–43, 100 S.Ct. 2382. On the other hand, other jurors who doubt whether the defendant is guilty of capital murder, but believe that the defendant is guilty of a serious and violent offense, might vote to convict in the absence of a third option (i.e., to convict on a lesser offense). Id. at 642, 100 S.Ct. 2382. The Supreme Court said these considerations "introduce a level of uncertainty and unreliability into the factfinding process" and that "[s]uch a risk cannot be tolerated in a case in which the defendant's life is at stake." Id. at 637, 100 S.Ct. 2382.
Beck is inapposite for at least two reasons. First, this is not a death-penalty case, so the concerns about "death being different" and the unreliability of a verdict in a death-penalty case are not present here. Second, unlike the all-or-nothing approach of Alabama's death-penalty statute, Texas law allows for submission of LIO instructions in death-penalty cases. See Segundo v. State , 270 S.W.3d 79, 90–91 (Tex. Crim. App. 2008).
CONCLUSION
We decide, as did Justice Wise in his dissenting opinion at the court of appeals, that the court of appeals misapplied the standard of review, and in the process, reached the wrong conclusion. Appellant was not entitled to the LIO instructions, and the court of appeals erred to conclude otherwise. We reverse the court of appeals’ judgment and affirm the judgment of the trial court.
Newell, J., filed a concurring opinion.
Keel, J., filed a concurring opinion in which Keller, P.J., and Slaughter, J., joined.
Yeary, J., filed a dissenting opinion.
NEWELL, J., filed a concurring opinion.
I join the Court's opinion. It accurately sets out existing law regarding whether Appellant was entitled to instructions on the lesser-included offenses of kidnapping or felony murder. It correctly applies that law by holding that there was no affirmative evidence that negated (or provided a valid rational alternative to) the greater offense of capital murder. And it avoids the temptation to recalibrate the gravitational constant of the universe to justify its conclusion.
As for the need to tinker with the court-made, guilt-only/valid-rational-alternative test, I do not see the urgency for such half-measures. With one notable exception, I cannot find any decisions from this Court in which we have held that a juror's ability to disbelieve evidence establishing the greater offense requires an instruction on a lesser-included offense. Our conflicting-inferences case law starts from the proposition that there must be some affirmative evidence presented to the jury that negates the greater offense if the jury believes it. It is a tricky nuance to be sure, but as the SPA aptly describes it, "a dispute in the evidence can raise a lesser, but an inconsistent witness is not necessarily the same thing." Disbelieving a witness whose testimony establishes an element of a greater offense is not the same thing as believing some testimony that affirmatively negates an element of a greater offense. In this case, as the Court holds, there was no affirmative evidence capable of even an inference that would negate the greater offense, so the trial court did not err in refusing instructions on the requested lesser offenses.
Wade v. State , 663 S.W. 3d 175, 181–82 (Tex. Crim. App. Apr. 6, 2022).
Throughout the development of the two-prong test, various judges have expressed alternative ways to characterize the "guilty only" prong that do not require a showing of affirmative evidence negating an element of the greater offense. In Day v. State , 532 S.W.2d 302 (Tex. Crim. App. 1975), for example, this Court held that it was reversible error for the trial court to refuse to instruct the jury on the lesser-included offense of criminal trespass. The element distinguishing the lesser offense of criminal trespass from the charged offense of burglary was the intent to commit theft. In Judge Roberts's concurrence, he clarified that the reason he agreed with the majority's holding was that "[s]ince this [distinguishing] element was not conclusively established , the issue of criminal trespass was raised." Day , 532 S.W.2d at 308 (Roberts, J., concurring) (emphasis added). Judge Roberts, clearly, did not think that the distinguishing element had to be rebutted with "affirmative evidence" in order for the lesser-included offense to be raised. For Judge Roberts, it was enough that the distinguishing element was not conclusively established, meaning that the jury could rationally choose to disbelieve that element to a level of confidence beyond a reasonable doubt.
See, e.g., Jones v. State , 984 S.W.2d 254, 257 (Tex. Crim. App. 1998) (analyzing "whether there is any evidence in the record from any source to indicate if appellant was guilty, he was guilty only of the lesser included offense" and relying upon defendant's testimony negating theft element of robbery to support lesser-included); Bell v. State , 693 S.W.2d 434, 439-43 (Tex. Crim. App. 1985) (recognizing the second step of the lesser-included analysis is "whether there is some evidence that appellant, if guilty, is guilty only of the lesser included" and relying on defendant's testimony to negate intent or knowledge and raise the lesser); Lugo v. State , 667 S.W.2d 144, 149 (Tex. Crim. App. 1984) (the trial court erred to refuse lesser included raised by defendant's testimony); Thompson v. State , 521 S.W.2d 621, 624-25 (Tex. Crim. App. 1974) (defendant's testimony that he did not fire at the officer and did not intend to kill the officer raised the issue of lesser included offense of aggravated assault).
A prima facie case is "[a] party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor." Black's Law Dictionary 1441 (11th ed. 2019). In other words, it is the production of enough evidence to survive a motion for instructed verdict.
See Lugo , 667 S.W.2d at 149 ; Cf. Saunders v. State , 840 S.W.2d 390, 392 (Tex. Crim. App. 1992) (relying on different interpretations of evidence to support lesser-included offense instruction one of which refutes or negates an element of the greater offense and raises the lesser offense); but see McKinney v. State , 627 S.W.2d 731, 732 (Tex. Crim. App. 1982) (if, however, a defendant simply denies commission of the offense, there is no evidence presented to show guilt of only a lesser offense).
The Court recently reiterated that, by statute, Texas is a so-called "acquittal-first" (or, perhaps a "modified acquittal-first") jurisdiction. Sandoval v. State , 665 S.W.3d 496, 537–39, No. AP-77 (Tex. Crim. App. Dec. 7, 2022). Accordingly, it is appropriate to instruct a jury that, when a lesser-included-offense instruction is given, the jury must first make a determination whether the defendant must be acquitted of the greater offense, and only in the event that it does acquit of the greater offense may it proceed to make a determination whether he may nevertheless be guilty of the lesser-included offense. Id. at 535–36 ; see also Ex parte Covarrubias , 665 S.W.3d 605, 617–18, No. WR-82,509-03 (Tex. Crim. App. Jan. 25, 2023) (noting that, in Sandoval , "we recently held that a jury must be required to agree on an acquittal of the greater offense before it can return a conviction on a lesser-included offense.") (internal quotation marks omitted).
However, in Saunders v. State , the Court seems to have failed to appreciate this distinction. There, we held in a circumstantial evidence case involving the death of a baby from multiple head injuries, that the evidence of injury was open to different interpretations regarding the defendant's apprehension of risk. This is the only example I can find in which we have arguably held that a jury should have been instructed on a lesser-included offense based upon the possible disbelief of evidence establishing the greater offense. But Saunders appears to be an outlier when considering the number of "conflicting inference" cases that are nevertheless based upon the existence of affirmative evidence negating the greater offense. It appears to be a mistake not a trend. The Court certainly doesn't rely upon it in this case.
Saunders , 840 S.W.2d at 392.
A burden of production does not necessarily mean that the party bearing it actually has to produce evidence in support of his burden. Rather, it simply means that if no evidence is produced from any source to satisfy the burden, the party who bears the burden of production will lose. Krajcovic v. State , 393 S.W.3d 282, 288 (Tex. Crim. App. 2013) (Price, J., concurring).
Id.
The jury is not told that it must find the elevating element to be true in assessing the defendant's guilt or innocence for the charged offense , of course. But it is effectively disallowed from registering any reasonable doubt with respect to that element for purposes of determining whether it may consider the defendant's possible liability for the lesser-included offense.
Supra , note 2.
The indictment alleged three theories of capital murder: the murder of each victim in the course of kidnapping, and murder of more than one person during the same criminal transaction. Tex. Penal Code § 19.03(a)(2), (a)(7)(A). The jury charge authorized the jury to return one conviction based upon any one of these alternative theories. It also required the jury to find that Appellant caused the deaths "intentionally"—not knowingly—with respect to each of the three theories, even though Section 19.03(a)(7)(A) would authorize conviction based upon knowingly causing the death of more than one person in the same transaction. In addition, the jury charge authorized conviction under the theory of parties embraced by Section 7.02(a)(2) of the Penal Code, but not under the parties theory contained in Section 7.02(b). Tex. Penal Code § 7.02(a)(2), (b). Thus, the jury could find Appellant guilty as a party for soliciting, encouraging, aiding, etc., another actor in committing the killing, but not as a conspirator to commit the underlying kidnapping who "should have anticipated" the killings.
But even accepting the proposition that there is a significant conflict in approaches for determining when to give a defendant an instruction on a lesser-included offense, it is hard for me to see enough of a dilemma to justify narrowing the guilt-only test. We already accept that the State is entitled to a jury instruction on a lesser-included offense even when there is no affirmative evidence negating the greater offense. And this is despite our recent holding that trial courts are required (apparently by statute) to instruct juries that they cannot consider a lesser-included offense unless they have a reasonable doubt about the greater.
Grey v. State , 298 S.W.3d 644, 651 (Tex. Crim. App. 2009) (when requested by the State, the submission of a lesser-included offense does not require some evidence in the record that if the defendant is guilty, he is guilty only of the lesser offense).
See Tex. Code Crim. Proc. art. 38.14 ("A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.").
Sandoval v. State , No. AP-77, 665 S.W.3d 496, 537–39 (Tex. Crim. App. Dec. 7, 2022) ("We agree with an observation by the First Court of Appeals that the statutory wording of Article 37.08 necessarily means that a ‘unanimous finding of guilt on a lesser-included offense necessarily requires a unanimous acquittal on the higher offense.’ ").
The court of appeals concluded that the error in failing to submit the instructions was not harmless, Chavez , 651 S.W.3d at 146, and the State Prosecuting Attorney does not challenge that holding in its petition for discretionary review. The question of harm is therefore not before us.
So, when the State asks for a lesser, we allow juries to consider a lesser-included offense even when they simply disbelieve the evidence establishing the greater. We do not even require that the jury be rational in doing so. Defendants, however, must still point to some affirmative evidence negating the greater offense before they can even alert the jury to the existence of a possible lesser-included offense. This inconsistency in treatment is far more problematic than any potential fallout from Saunders . Making it harder for a defendant to get a lesser-included instruction when the State need only ask for one will not add any great clarity to our jurisprudence.
A meaningful way to clarify our jurisprudence regarding jury instructions would be to treat jury charge issues like we treat any other procedural issue. If no objection is made, reviewing courts should address whether the complaint is the type that can be raised for the first time on appeal. If it isn't, reviewing courts should consider whether it has procedurally defaulted. If it hasn't, consider the merits. If there was error, decide whether it was structural or resulted in either constitutional or non-constitutional harm. As it stands now, we handle it backwards by addressing the merits through the prism of harm depending upon whether there was an objection or not. Getting away from treating jury instructions differently from other issues would go a long way to providing clarity to the bench and bar.
See Marin v. State , 851 S.W.2d 275, 279 (Tex. Crim. App. 1993).
See Do v. State , 634 S.W.3d 883, 904-05 (Tex. Crim. App. 2021) (Newell, J., concurring).
Id.
At the very least, we could get rid of the guilty-only/valid-rational-alternative test altogether. We have already noted on more than one occasion that it is not required by statute. Given its asymmetrical application, it inherently causes inconsistent outcomes. Further, it provides a vehicle by which judges can substitute their view of the persuasiveness of evidence raising a lesser-included offense under the guise of "rationality." Or at least it does when the request for a lesser comes from the defendant.
Wade , 663 S.W.3d at 181–82 ; Grey , 298 S.W.3d at 648-49.
See, e.g., Wade , 663 S.W.3d at 190–91 (Keller, P.J., dissenting).
Indeed, adhering to this rule when the statutory text does not require it also undermines any claim regarding the importance of following statutory text. It certainly does nothing to advance the argument that the evidence in this case raised the lesser-included offense. Jettisoning the guilty-only/valid-rational-alternative test altogether would at least be intellectually honest.
But, but, but ... won't this result in unwieldy jury instructions that incorporate every lesser-included offense under the sun? Perhaps. So what? Reviewing courts do not have a vested interest in limiting or expanding the instances in which a jury can consider whether to convict on a lesser-included offense. The statute takes care of that. It requires trial courts to instruct on "the law applicable to the case." If that results in bloated jury charges, it is the legislature's job to fix it. Reviewing courts should not be in the business of substituting their policy preferences for those of the legislature simply because the courts think a particular result is better. And refusing to consider whether an inference from affirmative evidence could have created a reasonable doubt about the greater offense would risk shifting the burden of persuasion and production to the defendant.
Tex. Code Crim. Proc., art. 36.14.
Fraser v. State , 583 S.W.3d 564, 572 (Tex. Crim. App. 2019).
See Patterson v. New York , 432 U.S. 197, 215, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (noting that the State must prove every element of an offense beyond a reasonable doubt and that it may not shift the burden of proof to the defendant by presuming an element upon proof of other elements of the offense).
Of course, the same bloated-jury-charge argument could have been made when we abandoned the guilty-only/valid-rational-alternative test for the State requests for instructions on the lesser. Nevertheless, there seems to be the belief that the State would have a strategic reason not to junk up the jury charge with every lesser-included offense instruction possible. Perhaps a defendant has less of a strategic interest to limit his or her requests for a lesser-included instruction. But if there is no strategy involved in whether to request a lesser-included instruction, then we should stop treating such instructions like defensive issues altogether.
See, e.g., Delgado v. State , 235 S.W.3d 244, 250 (Tex. Crim. App. 2007) ("Because of the strategic nature of the decision, it is appropriate for the trial court to defer to the implied strategic decisions of the parties by refraining from submitting lesser offense instructions without a party's request.") (quoting 43 George E. Dix & Robert O. Dawson, Criminal Practice and Procedure § 36.50 at 202 (Supp. 2006)).
Not that we need to do any of that here. Following existing law resolves the case, which is what the Court does. That is why I join the Court's opinion.
CONCURRING OPINION
Keel, J., filed a concurring opinion, in which Keller, P.J., and Slaughter, J., joined.
Which of our two tests for "guilty only" is correct—possible disbelief or factual dispute?
The court of appeals’ majority relied on the possible-disbelief test to hold that the trial court erred in refusing to instruct the jury on defense-requested lesser-included offenses ("LIOs"). Chavez v. State , 651 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.] 2021) (citing Jones v. State , 984 S.W.2d 254 (Tex. Crim. App. 1998) ). The dissenting opinion relied on the factual-dispute test. Id. at 146–47 (citing Cavazos v. State , 382 S.W.3d 377 (Tex. Crim. App. 2012) ).
If the possible-disbelief approach is correct, then we must affirm the court of appeals’ judgment; otherwise, we must reverse. But our majority both embraces the possible-disbelief approach and reverses the court of appeals—logically incompatible actions. I would instead overrule the possible-disbelief line of cases and require a factual dispute about a distinguishing element of the greater offense. Doing so would reaffirm the evidentiary and exclusivity aspects of the guilty-only test and clarify its meaning. Since the majority does otherwise, I respectfully concur only in its judgment.
I. Factual Dispute vs. Possible Disbelief
We have taken two irreconcilable approaches to the guilty-only test. One is the factual-dispute approach, and the other is the possible-disbelief approach. They are irreconcilable because they are fulfilled in opposite ways. Jones , the foundation for the court of appeals holding, demonstrates the evidence-free fulfillment of the possible-disbelief version.
Jones was charged with robbery and sought instructions on theft and assault. Jones , 984 S.W.2d at 255–56. The State's evidence showed that Jones punched and bit store employees when they confronted him for shoplifting; but Jones testified that he had stolen nothing and assaulted no one. Id. Asked about an altercation in the store, he testified that he "did selfdefense [sic]" but emphasized that he had not assaulted anyone. Id. at 256. In short, there was evidence of the robbery and evidence of no crime at all; but there was no evidence suggesting that Jones stole without assaulting or that he assaulted without stealing, so there was no factual dispute about a distinguishing element of robbery.
Instead of a factual dispute about the robbery, our opinion relied on the jury's ability to "selectively believe all or part of the testimony proffered and introduced by either side" to require instructions on both LIOs. Id. at 257. We rationalized that Jones's denial of theft raised the LIO of assault, and his denial of assault raised the LIO of theft. Id. at 257–58. We concluded with a sufficiency analysis: An LIO "can be raised by any evidence from any source so long as a rational trier of fact could conclude from that evidence that a defendant is guilty only of that lesser included offense." Id. at 258.
Jones was not alone in using the possible-disbelief approach. E.g. , Bullock v. State , 509 S.W.3d 921, 928–29 (Tex. Crim. App. 2016) (relying on both the jury's ability to selectively believe evidence and sufficient evidence of the lesser); Saunders v. State , 840 S.W.2d 390, 392 (Tex. Crim. App. 1992) (citing jury's ability to interpret the evidence in different ways); Bell v. State , 693 S.W.2d 434, 443–44 (Tex. Crim. App. 1985) (citing jury's ability to disbelieve evidence of the greater); Lugo v. State , 667 S.W.2d 144, 149 (Tex. Crim. App. 1984) (same); Thompson v. State , 521 S.W.2d 621, 624 (Tex. Crim. App. 1974) (same). These opinions, like Jones , cited no factual dispute about a distinguishing element of the greater offense but hinged only on the possibility of disbelief about it. They may have paid lip service to the requirement of a factual dispute, but they did not enforce it, notwithstanding any claims to the contrary.
Contrary to the possible-disbelief version, the factual-dispute version of the guilty-only test depends on evidence excluding guilt of the greater offense and showing that the defendant is guilty exclusively of the lesser. See Cavazos , 382 S.W.3d at 385 ; Royster v. State , 622 S.W.2d 442, 446–47 (Tex. Crim. App. [Panel Op.] 1981) (op. on reh'g). The evidence must negate an element of the greater offense. Cavazos , 382 S.W.3d at 385. Under the factual-dispute version, the guilty-only test is not fulfilled merely by the jury's ability to disbelieve evidence of the greater offense. See Solomon v. State , 49 S.W.3d 356, 369 (Tex. Crim. App. 2001) ; Hampton v. State , 109 S.W.3d 437, 441 (Tex. Crim. App. 2003), abrogated on other grounds by Grey v. State , 298 S.W.3d 644 (Tex. Crim. App. 2009) ; Skinner v. State , 956 S.W.2d 532, 543 (Tex. Crim. App. 1997). Nor is it fulfilled by evidence showing that the defendant committed no crime at all. See Lofton v. State , 45 S.W.3d 649, 652 (Tex. Crim. App. 2001) (citing Bignall v. State , 887 S.W.2d 21, 24 (Tex. Crim. App. 1994).
In short, our two approaches to the guilty-only test are irreconcilable because one requires evidence of the lesser as an exclusive alternative to the greater, the other doesn't; one rejects possible disbelief of the greater, the other embraces it; one dismisses evidence showing the defendant is guilty of no crime, the other accepts it. Sometimes we require a factual dispute. E.g. , Roy v. State , 509 S.W.3d 315, 317–18 (Tex. Crim. App. 2017) ; Flores v. State , 245 S.W.3d 432, 441 (Tex. Crim. App. 2008). Sometimes we don't. E.g. , Jones , 984 S.W.2d at 257 ; Bullock , 509 S.W.3d at 928–29 ; Thompson , 521 S.W.2d at 624. But we have never reconciled these opposing approaches or explained when to apply one as opposed to the other, and we don't today, either.
II. Response to the Majority Opinion
The majority asserts that the court of appeals erred in relying on the jury's ability to disbelieve evidence, but it doesn't say why that was an error or why the court of appeals could not rely on Jones , 984 S.W.2d at 257. The majority claims the court of appeals "misapplied" the guilty-only test, but it doesn't say how. It does not fully embrace the possible-disbelief line of cases, but it fails to grapple with them, and it mischaracterizes Roy as one of them. Majority Op. at 776 (citing Roy for proposition that factual dispute about greater offense may be supported by jury's possible interpretation of evidence). With its errors and omission, the majority perpetuates unworkable lines of competing precedent, fails to address issues essential to the outcome, and reverses the court of appeals’ judgment without meaningful explanation. It thus defeats the goals of stare decisis even while purporting to defend precedent. See Paulson v. State , 28 S.W.3d 570, 571–72 (Tex. Crim. App. 2000). This is less than helpful.
III. Response to the Dissenting Opinion
The dissenting opinion claims that the "factual dispute" version of the guilty-only test is foreclosed by statute, approaches patent unconstitutionality, and is inconsistent with Grey , 298 S.W.3d 644. I disagree.
The dissent points to the Code of Criminal Procedure, but the statutes say nothing about when LIO instructions are required. Cf. Tex. Code Crim. Proc. art. 36.14 (explaining requirements for jury charges), 37.09 (defining lesser-included offenses).
Contrary to the dissenting opinion's claim, the factual-dispute requirement implicates no constitutional concerns, as demonstrated by its long tenure in federal court. E.g. , Hopper v. Evans , 456 U.S. 605, 612–613, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982) ; Keeble v. U.S. , 412 U.S. 205, 212–13, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973) ; Sansone v. U.S. , 380 U.S. 343, 350, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965).
And adhering to the factual-dispute version of "guilty only" is consonant with Grey ’s directive about the State's ability to pursue LIO instructions without need for a factual dispute. Grey , 298 S.W.3d at 650–51. If no LIO is submitted, then the jury must acquit unless it is convinced beyond a reasonable doubt that the defendant is guilty as charged. That time-tested scenario preserves the State's authority to choose what charge to pursue and does not violate a defendant's rights. See id. at 650.
IV. My Recommendations
I would put the kibosh on our competing versions of "guilty only" and adhere to the factual-dispute version of it. It preserves the exclusivity and evidentiary aspects of the guilty-only test and encourages consistent outcomes because it is an objective search of the record for a factual dispute, whereas the subjective, possible-disbelief version guts the "only" aspect of the guilty-only test, mistakes belief for evidence, and sometimes devolves into a sufficiency of the evidence test. I also would stick to the original Royster formulation requiring "conflicting evidence concerning an element of the greater offense which is not an element of a lesser offense[.]" See Royster , 622 S.W.2d at 444. It aligns with the limiting principle used in federal court when asking whether an LIO is a rational alternative to the greater offense. See Evans , 456 U.S. at 612, 613, 102 S.Ct. 2049 ; Keeble , 412 U.S. at 213, 93 S.Ct. 1993 ; Sansone , 380 U.S. at 350, 85 S.Ct. 1004. And adhering to it would give meaning to our heretofore undefined "valid, rational alternative" verbiage and clarify what the "affirmative" and "directly germane" evidence must show.
V. Conclusion
Appellant was as entitled to his LIO instructions as were the defendants in our possible-disbelief cases. Unless we overrule them, we must affirm the court of appeals’ judgment. Since the majority instead reverses the court of appeals without even acknowledging the dichotomy in our caselaw, I respectfully concur only in the result it reaches.
Yeary, J., filed a dissenting opinion.
In this case, the Court wrestles with the correct standard for determining when a trial court should give a jury an instruction on a lesser-included offense in response to a defendant's request. The Court chooses to hold fast to its long-employed, court-created formula requiring "evidence from which a rational jury could find the defendant guilty of only the lesser offense" with the understanding that "the guilty-only requirement is met [only when] there is affirmative evidence of a factual dispute that raises the lesser offense and rebuts or negates other evidence establishing the greater offense." Majority at 776. Judge Keel's concurrence, for its part, urges further restriction of the circumstances under which such an instruction is appropriate. But having been called upon to consider the question, I am drawn to a different alternative—one that would more closely adhere to the requirements of our statutory law on the issue.
Appellant was charged with capital murder. The State argued that he acted as a party to the conduct of another (Brandon Flores) in the killing of two teenage gang members. Appellant requested lesser-included-offense instructions for kidnapping and felony murder, and the court of appeals concluded that he should have received them. Chavez v. State , 651 S.W.3d 140, 146 (Tex. App.—Houston [14th] 2021). Today the Court reverses the judgment of the court of appeals, holding that the trial court did not err by refusing the lesser-included-offense instructions requested by Appellant. I disagree. I would affirm that judgment for the reasons set forth in this opinion. Because the Court does not, I respectfully dissent.
I. HISTORY OF THE LESSER-INCLUDED-OFFENSE-INSTRUCTION TEST
The Court correctly lays out the two-prong test it has historically used to determine when a trial court is required to instruct a jury on a lesser-included offense upon a defendant's request. Majority Opinion at 776. But simply stating this test in its current form reveals only part of the picture and risks imparting only a partial understanding of the test's meaning. The test has been through a long journey of development.
This Court announced the first iteration of the test in 1952. That year, in Daywood v. State , the appellant challenged the trial court's refusal to instruct the jury on aggravated assault, a lesser-included offense of the charged offense. Without citing any authority, this Court responded with the following:
At this juncture, it will be noted that, merely because a lesser offense is included within the proof of a greater offense, a charge on the lesser is not required unless there is testimony raising the issue that the appellant, if guilty at all, is guilty only of a lesser offense included in the greater offense charged.
Daywood v. State , 248 S.W.2d 479, 481, 157 Tex. Crim. 266, 269 (1952).
Following Daywood , this Court latched onto the "guilty only" test when faced with the issue of whether a requested lesser-included-offense instruction was required. See, e.g. , Hale v. State, 164 Tex. Crim. 482, 486, 300 S.W.2d 75, 77 (1957) (repeating the Daywood "guilty only" test for when a lesser-included-offense instruction is required); Torres v. State , 493 S.W.2d 874, 875 (Tex. Crim. App. 1973) (same); McBrayer v. State , 504 S.W.2d 445, 447 (Tex. Crim. App. 1974) (same); McCardell v. State , 557 S.W.2d 289, 290 (Tex. Crim. App. 1977) (same). It is easy to allow this stage in the test's development—the eager acceptance and fervent repetition of Daywood —to overshadow the questionable nature of the test's origin. Today's "guilty only" test is a creation of this Court. Its life support is not a statute or other law, but only the unsupported words of this Court, blindly followed and repeated frequently enough to blur its dubious birth. The Legislature has never codified the test as it was framed in Daywood or in the two-prong formulation familiar today.
Along with this eager judicial acceptance of the Court's pronouncement in Daywood , courts have over the years created slight variations and clarifications to the original language. For example, in Dovalina v. State , this Court quoted the Daywood "guilty only" test and then rephrased the test to focus on "evidence" rather than just "testimony"; "There is no evidence that he did not intend to kill the officer. There is nothing which would show that he would be guilty of only the lesser offense of aggravated assault." Dovalina v. State , 564 S.W.2d 378, 383 (Tex. Crim. App. 1978) (emphasis added).
By the end of the era of Daywood and its progeny, the test had matured to be explicitly organized as a two-prong test, the second step of which focused on the "evidence" presented at trial. The test is sometimes referred to as the " Royster - Aguilar test," based on the names of the cases which cemented the practice of separating the two steps of the test. It went like this:
[I]n determining whether a charge on a lesser included offense is required, a two step analysis is to be used. First, the lesser included offense must be included within the proof necessary to establish the offense charged. Secondly, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense.
Royster v. State , 622 S.W.2d 442, 446 (Tex. Crim. App. 1981) ; Aguilar v. State , 682 S.W.2d 556, 558 (Tex. Crim. App. 1985).
The test reached a hurdle in its journey with the question of how the Royster - Aguilar test related to the federal standard for when due process requires a requested instruction on a lesser-included offense. In Cordova v. Lynaugh , the Fifth Circuit Court of Appeals addressed the federal due process issue and provided the following test:
[A] lesser included offense instruction should be given ‘if the evidence would permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him of the greater.’
Cordova v. Lynaugh , 838 F.2d 764, 767 (5th Cir. 1988) (quoting Hopper v. Evans , 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982) ). In a footnote, the Fifth Circuit observed that "[t]he second prong [of Texas's Royster - Aguilar test] that ‘there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense,’ seems very similar to the federal standard." Id. at n.3. However, the Court made clear that it was not addressing the Texas standard and was only concerned with whether the Fifth Amendment Due Process Clause required the lesser-included-offense instruction. Id.
This Court answered the lingering questions about the relationship between the federal and Texas standards in Rousseau v. State. There, the appellant called into question the propriety of the Royster - Aguilar test in light of Cordova . Rousseau v. State , 855 S.W.2d 666, 672 (Tex. Crim. App. 1993). In its analysis, this Court pointed out that the major difference between the two standards is the federal standard's reference to the rational findings of the jury. Id. The Court then decided to refine the two-prong test to mirror the federal standard. Accordingly, the Court provided the following as the more appropriate language:
[F]irst, the lesser included offense must be included within the proof necessary to establish the offense charged, and, second, some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense.
Rousseau , 855 S.W.2d at 673.
In addition to refining the two-prong test to focus on the rational findings of the jury in light of Cordova , this Court has provided various supporting explanations that frequently follow any recitation of the two-prong test. For example, one of the common rules accompanying the test is that the second prong of the analysis requires a consideration of all of the evidence admitted at trial, regardless of which party admitted the evidence. See, e.g., Bullock v. State , 509 S.W.3d 921, 925 (Tex. Crim. App. 2016) ("[T]he second step requires examining all the evidence admitted at trial, not just the evidence presented by the defendant."); Goad v. State , 354 S.W.3d 443, 446 (Tex. Crim. App. 2011) ("We consider all of the evidence admitted at trial, not just the evidence presented by the defendant."); Bell v. State , 693 S.W.2d 434, 442 (Tex. Crim. App. 1985) ("If evidence from any source raises the issue of a lesser included offense, the charge must be given.") (emphasis added).
Additionally, this Court has repeatedly emphasized that what the second prong requires is that all the evidence admitted at trial would allow a rational jury to find the defendant guilty of the lesser-included offense rather than the charged offense. The Court has frequently explained that the second prong requires that "[t]he evidence must establish that the lesser-included offense is a valid, rational alternative to the charged offense." Bullock , 509 S.W.3d at 925 ; see also Rice v. State, 333 S.W.3d 140, 145 (Tex. Crim. App. 2011) (using the same language to help explain the second prong); Hall v. State , 225 S.W.3d 524, 536 (Tex. Crim. App. 2007) (same); Forest v. State , 989 S.W.2d 365, 367 (Tex. Crim. App. 1999) (same).
Another elaboration on the meaning of the second prong of the Royster - Aguilar test has been that, for a requested lesser-included-offense instruction to be required, "[t]here must be some evidence directly germane to the lesser-included offense for the finder of fact to consider[.]" Wortham v. State , 412 S.W.3d 552, 557 (Tex. Crim. App. 2013) (quoting Goad, 354 S.W.3d at 446 ). This evidence, the Court has said, "cannot be mere speculation—it must consist of affirmative evidence that both raises the lesser-included offense and rebuts or negates an element of the greater offense." Id. And notably, some relevant cases that call for "affirmative evidence" provide further elaboration. In Schweinle v. State , for example, the Court explained that there are two ways in which evidence may raise a lesser-included offense: The evidence "either affirmatively refutes or negates an element establishing the greater offense, or the evidence on the issue is subject to two different interpretations, and one of the interpretations negates or rebuts an element of the greater." Schweinle v. State , 915 S.W.2d 17, 19 (Tex. Crim. App. 1996).
II. THE COURT'S OPINION V. JUDGE KEEL'S OPINION
Judge Keel's concurring opinion today would have the Court elevate the first "affirmative evidence" alternative from Schweinle (and like cases) to the level of sacrosanct, while apparently relegating the "different interpretations" alternative (what it calls the "possible-disbelief version of the guilty-only test") to the jurisprudential scrapheap. See Judge Keel's Concurring Opinion at 783–84 (contrasting what it calls the "possible-disbelief version" of the "guilty-only" test with what it calls the "factual-dispute version"); id. at 784 (advocating that the Court "should ... adhere to the factual-dispute version" of the guilty-only test and "put the kibosh on" the possible-disbelief version). It would essentially hold that the record must always contain what the cases call "affirmative evidence" to refute the State's evidence of the element that elevates the lesser-included offense to the greater offense before a lesser-included instruction will be required upon a party's request. Id.
For its part, the majority today does not expressly reject the "different interpretations" aspect of the Schweinle formulation of Royster - Aguilar ’s second prong. But it does declare that "mere disbelief of evidence" establishing guilt for the greater offense is "insufficient" to satisfy that prong. Id. at 785.
I believe it would be a mistake, as Judge Keel's concurring opinion would have the Court do, to make "affirmative evidence" the exclusive standard for determining the second prong of the Royster - Aguilar test for determining the availability of a lesser-included-offense instruction.1 Indeed, as I explain in Part IV of this dissent, adopting that as our exclusive standard would impose an impermissible burden of production on the defendant to negate an element of the greater offense. Moreover, unlike the majority today, I would not so readily reject "disbelief" as a basis for determining whether a lesser-included instruction should be submitted. So long as the record presents a rational basis for a jury to "disbelieve" the State's evidence of the element that elevates the offense from the lesser to the greater, I believe it must be said that the lesser-included-offense instruction must be submitted as "the law of the case" under our statutory scheme.
III. WE SHOULD TAKE OUR LEAD FROM THE STATUTES
Over the course of years, as it too often seems to do, the Court has vastly overcomplicated the question of when a trial court must authorize a jury to convict the defendant, where appropriate, of a lesser-included offense. To me, the right answer is a simple matter of statutory construction. Article 36.14 of the Texas Code of Criminal Procedure requires the trial court to instruct the jury on "the law applicable to the case." TEX. CODE CRIM. PROC. art. 36.14. And Article 37.08 provides that "in a prosecution for an offense with lesser included offenses, the jury may find the defendant not guilty of the greater offense, but guilty of the lesser included offense." TEX. CODE CRIM. PROC. art. 37.08. So, when the instruction is requested, and the evidence is such that the jury would act rationally to reject the greater offense and find guilt instead for the lesser, an instruction on the lesser is required because it has, by the party's request and the state of the evidence, become "the law applicable to the case."
Of course, a jury should not convict of the lesser-included offense when it has been persuaded to a level of confidence beyond a reasonable doubt that the defendant committed the greater offense. So, to justify a lesser-included-offense instruction, the record must be such that a jury could rationally find that the defendant is not guilty of the greater offense, but that he is guilty of the lesser-included offense—hence the "guilty-only" requirement described in the cases.
But, in any case in which the jury could rationally conclude that the State's evidence has failed to prove the elevating element beyond a reasonable doubt, upon request, a trial court must equip the jury to resolve, pursuant to Article 37.08, whether the defendant is instead guilty of a lesser-included offense. To impose a burden on the defendant always to produce "affirmative evidence" before he may obtain such an instruction, even when the State's evidence with respect to the elevating element is not (as Judge Roberts put it, see note 1, ante ) "conclusive," is simply to fail to instruct the jury on "the law applicable to the case." Both the majority opinion and Judge Keel's concurring opinion today grievously err to conclude otherwise.
IV. "AFFIRMATIVE EVIDENCE": AN INAPPROPRIATE BURDEN OF PRODUCTION NOT STATUTORILY REQUIRED
Determining when a trial court is required to grant a requested lesser-included-offense instruction must begin with consideration of relevant statutes. Article 36.14 requires a trial court to "deliver to the jury ... a written charge distinctly setting forth the law applicable to the case[.]" TEX. CODE CRIM. PROC. art. 36.14. Article 37.08 of the Texas Code of Criminal Procedure also provides that "[i]n a prosecution for an offense with lesser included offenses, the jury may find the defendant not guilty of the greater offense, but guilty of any lesser included offense." TEX. CODE CRIM. PROC. art. 37.08. So, the question finally ripens to this: When does a lesser-included offense amount to "the law applicable to the case"?
Whether a trial court must submit an instruction on a lesser-included offense as reflective of "the law applicable to the case[,]" the Court has said, is a strategic matter that depends upon whether one of the parties requests it. Tolbert v. State , 306 S.W.3d 776, 780–81 (Tex. Crim. App. 2010). If the defendant asks for a lesser-included-offense instruction, according to the Court, he must persuade the trial court that it is "the law applicable to the case" by satisfying both prongs of the Royster - Aguilar test. This includes a showing under the second prong that the evidence is such that a rational jury could conclude that he is "guilty only" of the lesser offense. But, in Grey v. State , 298 S.W.3d 644 (Tex. Crim. App. 2009), the Court decided that, when it is the State that seeks the lesser-included-offense instruction, it need only satisfy the first prong of the Royster - Aguilar test before an instruction on the lesser-included offense becomes "the law applicable to the case." Id. at 645 (holding that the State is "not bound" by the second prong of the Royster - Aguilar test).
On a certain level, this seems to make good sense. Anytime the State produces evidence sufficient to establish a prima facie case for the element that elevates the lesser-included offense to the level of the greater offense,2 it obviously hopes to persuade the jury of the verity of that evidence beyond a reasonable doubt. But just because the State has satisfied its burden of production with respect to that distinguishing element does not necessarily mean that it can expect the jury inevitably to find that it has also satisfied its burden of persuasion regarding that element. See Grey , 298 S.W.3d at 650 ("[I]t is easy to see how a jury might not be willing to find that a person's hand is a deadly weapon, despite all the evidence in favor of that proposition."). A rational juror might yet harbor a legitimate reasonable doubt with respect to the elevating element, even in the face of evidence that would rationally support that element beyond a reasonable doubt. See TEX. CODE CRIM. PROC. art. 36.13 ("Unless otherwise provided in this Code, the jury is the exclusive judge of the facts, but it is bound to receive the law from the court and be governed thereby."); and art. 38.04 ("The jury, in all cases, is the exclusive judge of the facts proved, and of the weight to be given to the testimony, except where it is provided by law that proof of any particular fact is to be taken as either conclusive or presumptive proof of the existence of another fact, or where the law directs that a certain degree of weight is to be attached to a certain species of evidence.").
Accordingly, the prosecutor who has some lingering doubt about how a jury might assess the weight or credibility of his elevating evidence may not want to risk an acquittal. So, the Court has said, in the interest of avoiding even the possibility of an "outright acquittal," the State is entitled to obtain a lesser-included-offense instruction. That way, it gives the rational jury—the jury that may yet have a reasonable doubt about the State's evidence of the elevating element—the option of acquitting of the greater offense and convicting of the lesser-included.3 Grey , 298 S.W.3d at 650. What Judge Keel's concurring opinion would require today is, considering what the Court has said in Grey , a stark anomaly. What it would essentially hold is that, when it is the defendant who requests the lesser-included-offense instruction, it can only become "the law applicable to the case" if, once the State has satisfied its burden of production on the elevating element, the defendant then satisfies a counter burden of production of his own. The defendant must refute the State's evidence with some "affirmative evidence" of his own to show that he is "guilty only" of the lesser-included offense.4 I agree, of course, that whenever a defendant can produce such evidence, he is certainly entitled to the instruction under the Royster - Aguilar test, just as some of our cases have said. E.g. , Schweinle , 915 S.W.2d at 19. But I disagree with the concurring opinion that this should be the only way that a lesser-included offense becomes "the law applicable to the case" upon a defensive request. And, rightly, so does the Court today, at least consistent with what it has said in Grey .
By foisting such a counter burden of production on the defendant to produce "affirmative evidence" that he is guilty only of the lesser offense, Judge Keel's concurring opinion would essentially hold that, at least when it is the defense seeking the instruction, the State's evidence with respect to the elevating element is conclusive —that it will necessarily also satisfy the State's ultimate burden of persuasion —unless the defendant satisfies an independent burden of production to show otherwise. The underlying presumption must be that—contrary to the premise of Grey —a jury is not entitled simply to reject the State's evidence to establish the elevating element, even if it would be rational for that jury to harbor a reasonable doubt about it. Such a holding stops just short of constituting an instructed verdict in the State's favor, at least with respect to the elevating element.5 That, of course, would be patently unconstitutional. See Middleton v. McNeil , 541 U.S. 433, 437, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004) ("In a criminal trial, the State must prove every element of the offense, and a jury instruction violates due process if it fails to give effect to that requirement."). And in any event, it is utterly irreconcilable with the logic of Grey .
As for the majority's expressed view today that "mere disbelief" of the State's evidence of the elevating element is insufficient to support a lesser-included-offense instruction, Majority Opinion at 777–78, I must reject that too. The question should simply be whether, from all the evidence in the case—from any source—a rational jury could harbor a reasonable doubt with respect to the element that elevates the offense from the lesser-included offense to the greater-charged offense. This includes asking whether a rational jury could simply find itself unpersuaded—at least to a level of confidence beyond a reasonable doubt —by the State's evidence (if that is the only evidence there is ) of that elevating element. So long as the potential for doubt with respect to the elevating element is not an irrational one based upon all the evidence that bears on the question, the jury's potential response may well provide a basis for the trial court to conclude that the defendant could rationally be found "guilty only" of the lesser-included offense. If so, then, upon request for the instruction by either party, the lesser-included offense has become "the law applicable to the case" for purposes of instructing the jury under the dictates of Article 36.14.
V. APPLICATION OF LAW TO THE FACTS
I agree with the court of appeals that the jury in Appellant's case could rationally have rejected the State's evidence that he was a party to anything more than the kidnapping of the victims. In my view, the state of the evidence was such that a jury could rationally have rejected the State's evidence to show he was a party to capital murder,6 and still found him guilty of kidnapping or perhaps of felony murder with kidnapping as the predicate felony offense.
It is true that, circumstantially, it seems unlikely that the group would have kidnapped the victims in Baytown and transported them to the remote property in Anahuac belonging to Appellant's family—just to release them unharmed. But the primary evidence that the entire group shared the requisite intent to kill the victims came from the testimony of the admitted actual shooter, Brandon Flores.
Flores testified that the "plan" had not originally been to kill the victims, but when they reached the property, "[w]e decided we needed to kill them because they were gangsters." He explained that "we" entailed the whole group, including Appellant. He specifically denied, however, that Appellant had ever suggested before leaving Baytown that they "needed" to kill the victims.
Flores purported at trial to be "not sure" who originally proposed killing the victims once they arrived in Anahuac, but he admitted that he was the one who, by himself, transported the victims to a remote section of the property and shot them in the head. He then claimed that it was Appellant who had told him to do so. This testimony, inconsistent though it was in certain aspects, was legally sufficient to implicate Appellant as a party to Flores's capital murder of the victims. But the jury had plenty of reason to discount at least aspects, if not much more, of Flores's testimony if it chose to, including his claim that Appellant told him to kill the victims.
The jury was instructed that Flores was an accomplice witness whose testimony was sufficiently suspect that it had to be corroborated before it could support Appellant's conviction.7 Moreover, the jury learned that, after the killings, Flores fled to Mexico. He was not extradited until several years later, and only after assurances to the Government of Mexico that Texas would not seek the death penalty against him. Before Appellant's trial, Flores had worked out a deal with the State to testify against Appellant in exchange for the State's recommendation that he only serve two concurrent fifty-year sentences for murdering the two victims.
The jury also heard evidence that Flores gave a statement to police, after he was extradited, that was inconsistent with his trial testimony in certain respects. Among those inconsistencies was that he told police that it had been another member of the group—Richard Gonzalez—who came up with the idea to kill the victims. See Chavez , 651 S.W.3d at 145 ("Flores testified inconsistently about who formulated the plan to kill complainants."). For this reason, and for the other reasons I have previously described, the jury might have rationally discounted or disbelieved, at least in part if not more, the testimony provided by Flores—and, in particular, any inference to be derived therefrom that Appellant shared the requisite intent to kill. The evidence with respect to that elevating element was far from conclusive.
VI. CONCLUSION
On this state of the record, the jury might rationally have convicted Appellant of kidnapping or felony murder rather than the greater offense of capital murder. It might rationally have discounted Flores's claim that Appellant was involved in the decision to murder the victims. Accordingly, it could rationally have rejected the inference that he harbored an intent to kill the victims and convicted him of a lesser-included offense. On this basis, I agree with the court of appeals that Appellant was entitled to his requested lesser-included-offense instructions. I would affirm its judgment.8
I respectfully dissent.