CCA Holds Reckless Agg Assault is LIO of Intentional or Knowing Agg Assault

In Hicks v. State, the Texas Court of Criminal Appeals unanimously reversed the 14th District Court of Appeals (Houston) and held that reckless aggravated assault is a lesser included offense of intentional or knowing aggravated assault.

Appellant was charged with intentional or knowing aggravated assault after he and Angelo Jackson got into a fight over borrowed shoes that ended with Angelo being shot in the leg. The trial judge instructed the jury on intentional or knowing aggravated assault, as charged in the indictment, and he also gave a separate instruction for reckless aggravated assault. The jury convicted appellant of reckless aggravated assault. The court of appeals held that the trial judge erred in giving any instruction on reckless aggravated assault because (1) the original indictment did not charge a reckless state of mind, and (2) reckless aggravated assault is not a lesser-included offense of intentional aggravated assault.

We granted review to resolve a conflict between the courts of appeals on whether "reckless aggravated assault" is a lesser-included offense of intentional or knowing aggravated assault. Applying the plain language of Article 37.09 and adhering to our opinion in Rocha v. State, we conclude that it is. Therefore, the trial judge did not err by instructing the jury on reckless aggravated assault as a lesser-included offense.

See the CCA's full opinion HERE.

Is That Your Final Answer? Double Jeopardy and Partial Verdicts

The United States Supreme Court released its decision in Blueford v. Arkansas last week.  The case dealt with the double jeopardy clause and whether it applies to partial or informal verdicts.

In Blueford, the defendant was being tried for capital murder.  The trial judge instructed the jury that if it did not find the defendant guilty of capital murder, it should consider the lesser included offense of first degree murder.  The court further instructed that if the jury did not find the defendant guilty of first degree murder, it should consider manslaughter…and so on and so forth.  After several hours of deliberations, the jury reported that it could not reach a unanimous verdict.  The judge inquired into how the voting was going and the jury reported that it had decided that the defendant was not guilty of capital murder or first degree murder, but that it could not agree on manslaughter.  The judge instructed the jury to go back and keep trying, but they were unable to break the impasse.  Accordingly, the trial judge declared a mistrial.

During the retrial for the same offense, the defendant objected on double jeopardy grounds to the charge of capital murder, arguing that the jury’s informal verdict that he was not guilty of capital or first degree murder precluded him being retried for that same charge at a later trial.  The trial court disagreed, as did the appellate courts.

In a 6-3 opinion (Majority: Roberts, Scalia, Kennedy, Thomas, Breyer, Alito), the Supreme Court held that :

The Double Jeopardy Clause does not bar retrying Blueford on charges of capital murder and first-degree murder.  The jury did not acquit Blueford of capital or first-degree murder.  Blueford contends that the foreperson’s report that the jury was unanimous against guilt on the murder offenses represented a resolution of some or all of the elements of those offenses in his favor.   But the report was not a final resolution of anything.  When the foreperson told the court how the jury had voted on each offense, the jury’s deliberations had not yet concluded.  The jurors in fact went back to the jury room to deliberate further, and nothing in the court’s instructions prohibited them from reconsidering their votes on capital and first-degree murder as deliberations continued.  The foreperson’s report prior to the end of deliberations therefore lacked the finality necessary to amount to an acquittal on those offenses.  That same lack of finality undermines Blueford’s reliance on Green v. United States, 355 U. S. 184, and Price v. Georgia, 398 U. S. 323.  In both of those cases, the verdict of the jury was a final decision; here, the report of the foreperson was not.

This holding appears to be consistent with Texas law, in that a jury foreperson must sign a verdict form and the court must accept the verdict, before it is given any legal significance.

Justices Sotomayer dissented (joined by Ginsberg and Kagan), and would hold that partial verdicts should be required before a mistrial is granted on the grounds of a deadlock.

An Instruction on Lesser-Included Instructions

Somehow I let this case slip down in my pile of blogworthy CCA cases.  It was released in November 2011. Sorry ‘bout that.

Goad v. State (Tex. Crim. App. 2011) presents some interesting facts.  Facts that almost sound like they are out of a law school hypothetical.  Here is the skinny version:

Goad and a friend knock on a neighbor’s door and ask if she has seen his dog.  They also ask if they can come into the house and look for the dog.  The State thinks that they were “casing” the house at this point.  After Goad leaves, the neighbor pulls her car around back so that Goad will think she is not home, hoping that he will not come back to bother her anymore.  Fifteen minutes later, the neighbor notices the curtains in her front room moving and then she sees Goad and his friend stick their heads through the window.  The neighbor screamed and then Goad and his friend retreated.  The neighbor called the police and Goad was later apprehended.

The State charged Goad with Burglary of a Habitation, on the theory that Goad entered his neighbor’s house with the intent to commit theft.  At trial, Goad requested an instruction on the lesser-included offense (LIO) of Criminal Trespass, arguing that he did not intend to steal anything, but only to look for his lost dog.  The trial court refused to give the LIO instruction and Goad was convicted of Burglary of a Habitation.

The 11th District Court of Appeals (Eastland) held that the trial judge erred in refusing to give the LIO instruction:

[T]he jury rationally could have found Goad guilty only of criminal trespass because the jury could have believed that Goad was looking only for his dog.

On State’s petition for discretionary review, the Texas Court of Criminal Appeals explained that for Criminal Trespass to be an LIO of Burglary...

[t]here must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted. …Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge.

The State’s basic argument against the LIO instruction was that there was no “affirmative evidence” to negate the defendant’s intent to commit theft.  However, Judge Keasler wrote, “[w]e must consider all of the evidence admitted at trial, not just the direct evidence of a defendant’s intent.” The fact that the defendant had knocked on the door looking for his dog 15 minutes earlier, and the fact that he did not carry any traditional burglary tools, while not direct evidence of his lack of intent, were enough for the CCA to hold that an LIO instruction should have been given.  The CCA affirmed the Court of Appeals.

Presiding Judge Keller concurred, noting that “juries are entitled to choose among multiple reasonable inferences, as long as each inference is supported by the evidence presented at trial.”

Judge Alcala concurred, but wrote separately in an effort to point out that, in her opinion, the majority failed to specify the standard of appellate review under which the case was being considered.  This issue was apparently very important to Judge Alcala, because her concurring opinion is 16 pages in length (longer than the majority opinion and Presiding Judge Keller’s opinion combined).

The Many Ways to Commit Assault with a Motor Vehicle in Texas

Faced with the question of whether Reckless Driving is a lesser-included offense of Aggravated Assault With a Deadly Weapon (A Vehicle), the Texas Court of Criminal Appeals explained that there are, indeed, many ways in which a vehicle can be used as a deadly weapon apart from the vehicle being driven, to wit:

• Locking the victim in a hot car,
• Slamming the victim’s head again the car frame,
• Rigging the car’s gas tank to explode,
• Placing the car in neutral and allowing it to run into the victim or a building,
• Suffocating the victim in the trunk, or
• Running the car in an enclosed area to cause carbon monoxide poisoning.

The CCA used this creative list to reverse the 5th Court of Appeals (Dallas), which had previously held that the trial court erred by not instructing the jury that it could find appellant guilty of the LIO of Reckless Driving if it believed the State did not prove Aggravated Assault w/a Deadly Weapon. The appellant argued at trial and on appeal that the LIO should apply, thereby giving the jury another option.

I apologize for the lack of analysis, but this case is really only interesting for nerds like me. I just found the CCA’s list of ways to use a vehicle for assault comical.

You can read the unanimous CCA opinion (Rice v. State) HERE.

One is “Ouch,” the Other is “Yuck.”

Last week, in McKithan & Welsh v. State, the Texas Court of Criminal Appeals held that, under the cognate pleadings approach to one-step lesser-included-offenses (see Hall v. State, 225 S.W.3d 525), offensive contact assault IS NOT an LIO of bodily-injury assault.  Writing for the majority (there were no dissenters, but some judges concurred), Judge Hervey penned a 19-page history on the evolution of Texas’ approach to LIOs.  I found the opinion long and not particularly interesting.

Apparently, I was not alone.  Attempting to wade through the mess of the majority opinion, Judge Cochran wrote a concurring opinion (joined by Judge Holcomb), wherein she simplified the issues and holding.  Here’s her view of the case:

I think that these cases might be more easily addressed if we rephrased the appellants’ grounds for review as follows: Does proof of a bodily-injury assault by kicking (or the use of “physical force and violence” in an aggravated sexual assault) necessarily require proof that the defendant intentionally caused physical contact with the victim that the defendant knew or reasonably should have known that the victim would regard as offensive or provocative? Of course not. Physical harm and physical force are entirely different concepts from mental or moral offensiveness.  One damages the body, the other damages the mind, emotions, or sense of well-being.  One is the intent to cause a physical injury, the other is the intent to cause a psychic injury.  One is “ouch,” the other is “yuck.”

Takeaway:  Assault by offensive contact is not a lesser-included offense of Assault by bodily injury.  The legislature intended to create completely separate theories of criminal conduct when it drafted sections 22.01(a)(3) and 22.01(a)(1).

Two Bites at the Apple for Indecency with a Child?

Ex Parter Amador - Tex. Crim. App. (Oct. 13, 2010)

Appellant pled guilty to and was convicted of indecent exposure after he was seen pleasuring himself in a public playground in El Paso.  Apparently not satisfied with the outcome of the first case, the State later attempted to prosecute him a second time for his actions, but this time under the offense of indecency with a child by exposure.  Appellant complained that the second indictment violated Double Jeopardy as he had already been convicted of an LIO for this same conduct.  Although the trial court and 8^th District Court of Appeals did not agree with him, the Texas Court of Criminal Appeals came to his rescue.

Writing for the 5-4 majority, Judge Holcomb explained:

[D]ouble jeopardy prohibits the State from obtaining a conviction for an offense when the defendant has previously been convicted of a lesser-included offense of that offense…The Supreme Court has clearly stated that “the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.”

The question then became whether the Indecent exposure under Section 21.08 is actually an LIO of Indecency with a child by exposure under Section 21.11(a)(2)(A).  The CCA has previously held, in Briceno v. State, 580 S.W.2d 842 (Tex. Crim. App. 1979), that it is.  The majority took this opportunity to reaffirm that holding, stating:

Indecency with a child by exposure is simply an aggravated version of indecent exposure inasmuch as, while the offense of indecent exposure requires the presence of a person who “will be offended or alarmed” by the defendant’s act, the offense of indecency with a child by exposure, by not having any such requirement, holds the defendant culpable even if the person (the child) towards whom the exposure is directed is not “offended or alarmed” by the defendant’s act.

Judge Cochran joined the majority, but also drafted a short (and particularly humorous) concurring opinion, wherein she emphasized:

A defendant cannot be convicted of indecent exposure for “wagging his weenie” at 9:00 a.m. in the local park and then later be prosecuted for that very same act of “wagging his weenie” by charging him with indecency with a child by exposure.  

She went on to use the phrase “wagging his weenie” two additional times in her opinion.  Perhaps the result of a dare or a lost bet?  Don’t ask me.

In a 21-page dissent, Presiding Judge Keller, joined by Judges Keasler and Hervey would hold that

an indecent –exposure charge can be based upon the same exposure that gave rise to indecency-with-a-child counts so long as the defendant was reckless with respect to the presence of at least one person other than the child victims.

Judge Womack also dissented, but did not join Presiding Judge Keller’s opinion.  The majority reminds the dissenters that even thought the State can charge the defendant with the greater and lesser-included offense, the defendant cannot be convicted of and sentenced for both.  Presiding Judge Keller and the band of dissenters want two bites at the apple, even though the U.S. Constitution and the Supreme Court say you only get one.

Takeaway:  The rule, as announced in 1979 in Briceno, remains – Indecent exposure is an LIO of Indecency with a child by exposure under the Texas Penal Code.  A defendant cannot be convicted of and sentenced for both if the underlying conduct is the same.

Trial Court has No Duty to Sua Sponte Instruct on Lesser-Included Offenses

Yesterday the Texas Court of Criminal Appeals released it opinion in Tolbert v. State (majority opinion HERE).  In Tolbert, the Court considered "whether the trial court was required to sua sponte instruct the jury on the lesser-included offense of murder in appellant's capital murder prosecution." It held that no such instruction is required.

At trial, the government proceeded under a felony-murder theory, alleging that Appellant committed the murder in the course of a robbery.  However, some evidence was presented that Appellant did not decide to rob the victim until after she killed him, which would make it murder and not capital murder.  Accordingly, the State requested a jury instruction on the LIO of murder, a request which the trial judge denied.  When asked, Appellant stated "no objection" to charging the jury on capital murder only - otherwise known as the "all-or-nothing" tactic.  The jury found Appellant guilty of capital murder and she was sentenced to life. (State did not seek the death penalty).

On appeal to the 5th District Court of Appeals, Appellant apparently changed her mind regarding whether the trial judge should have charged the jury on the LIO of murder.  Irrespective of the State's request for the LIO instruction, the 5th Court held that by not sua sponte instructing the jury on the LIO, Appellant was "egregiously harmed" under the Almanza (686 S.W.2d 157) factors and reversed (5th Ct. opinion HERE).  


REVERSING the 5th Court's decision, the CCA stated:

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. It is clear that the defense may not claim error successfully on appeal due to the omission of a lesser included offense if the defense refrained from requesting one.

We, therefore, decide that the trial court had no duty to sua sponte instruct the jury on the lesser-included offense of murder and that a jury instruction on this lesser-included offense was not 'applicable to the case' absent a request by the defense for its inclusion in the jury charge.

Judges Johnson and Holcomb dissented, believing that the instruction on the LIO was not an issue that must be requested by the defense, but was part of the "law applicable to the case" which would require a corresponding jury instruction.  Judge Price dissented without opinion.


My thoughts:  Our trial judges are supposed to instruct the jury on the "law applicable to the case." With this decision, the Court departs from years of precedent and would require the defense to specifically request instructions on a LIO.  So now, this is a "defensive issue."  There are definite tactical advantages that can be gained by using the "all-or-nothing" technique of not requesting an LIO instruction, namely the fact that you force a jury of average citizens to make a tough decision on whether to convict for the greater offense rather than letting them essentially "split the baby" with an LIO.  In this case, it simply didn't work and the CCA was not going to correct Appellant's "tactical error" after it proved unwise. (I say "tactical error" simply because it didn't work in this case, not because it should never be done).

Deadly Weapon Enhancement for Homicide Cases is a Joke!

Back in December, I wrote about the Texas Court of Criminal Appeals' decision in Crumpton v. State.  See my post HERE.  In Crumpton, the Court held that a "deadly weapon" finding is implied when a defendant is convicted of criminally negligent homicide.  No longer does the jury have to actually return an affirmative finding in order for the State to "enhance" the punishment range.

The infection in our criminal justice system regarding the deadly weapon finding has already begun, as we see the 4th District Court of Appeals (San Antonio) following the CCA's lead.  In McCallum v. State, the judge implied a deadly weapon finding from the jury's verdict convicting the defendant of the LIO of criminally negligent homicide (by striking a victim with his hand).  On appeal, McCallum argued that the jury is the proper body to make the deadly weapon finding, not the judge.  But, relying on Crumpton the Court held that the deadly weapon finding was implicit.

How did we get here?  This is legislating from the bench if I've ever seen it.  Why did the legislature create a punishment range for homicide offenses, if the State can summarily enhance them.  The definition of "deadly weapon" is "anything that in the manner if its use...is capable of causing death."  That means everything.  There have been cases where the ground was a deadly weapon.

So my questions is...If the victim in every homicide is dead (obviously), and a verdict of guilty for any homicide offense (including LIOs) implies the use of a deadly weapon, has enhancement simply become a matter of course in every homicide case?


Why do we even need a legislature when we have judges?

Can an Affirmative "Deadly Weapon" Finding be Implied?

According to the CCA, in Crumpton v. State, it can.

In a 5-4 opinion with 2 separate dissents, the CCA disregarded its prior holdings in Polk v. State, 693 S.W.2d 391 (Tex.Cr.App. 1985) and LaFleur v. State, 106 S.W.3d 91 (Tex.Cr.App. 2003), concluding that a jury verdict of guilty to criminally negligent homicide (as a lesser-included offense of manslaughter) implies an affirmative "deadly weapon" finding regardless of whether the jury has seen a deadly weapon clause associated with the LIO.

In reaching this decision, the Court relied on Blount v. State, 257 S.W.3d 712 (Tex.Cr.App. 2008) wherein it held that the indictment itself was adequate notice that there would be an issue of use of a deadly weapon. As the dissent points out, however, the thrust of Blount regarded whether the defendant was on "notice," an issue that was not raised in Crumpton.  The appellant in Crumpton argued that the jury was not charged and did not make an express deadly weapon finding when it returned its verdict - the court simply entered a deadly weapon finding as a logical (although not express) result of a guilty verdict to the LIO of criminally negligent homicide (because a homicide necessarily includes use of a deadly weapon or else no one would be dead).

In this case the CCA seems to have checked its reasoning and precedent at the door in order to uphold a conviction at all costs. By examining past CCA caselaw and distinguishing between the issues of "notice" and "express findings," Justice Meyers' dissent should have been the majority opinion.

Cognate-Pleadings Test Applies to all Prosecutions

Murray v. State (Tex.Crim.App.)

In this case, the Court of Criminal Appeals affirmed the holding of the 14th Court of Appeals (Harris County), that the Cognate-Pleadings test for lesser-included offenses applies to all prosecutions, be they before judge or jury.

What is the Cognate-Pleadings test you ask?
The Cognate-Pleadings approach to lesser-included offenses requires the court to look to the facts and elements as alleged in the charging instrument, and not just to the statutory elements of the offense, to determine whether there exists a lesser-included offense of the greater charged offense. See Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007).

Arevalo Overruled - Bring On the LIOs

Grey v. State (Tex.Crim.App 2009)

With a stroke of the pen, the Court of Criminal Appeals overruled the 12-year precedent of Arevalo v. State, 943 S.W.2d 887 (Tex.Crim.App. 1997), which required that before the jury could be instructed on a lesser-included offense requested by the State, "some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty of only the lesser offense."

No longer bound by the second prong of the Royster-Rousseau test, the prosecutor may request jury instructions on any lesser-included offense in an effort to allow the noble citizens of Texas to convict of whichever legal theory they feel is both appropriate and supported by the evidence.
The prior all-or-nothing decision which required the prosecutor to roll the dice in hopes of a conviction on the greater charge or proceed only on a lesser theory even though he knew the case was worth more, is over.