Ray, Michael v. State ( 2003 )

Opinion issued May 1, 2003

In The

Court of Appeals

For The  

First District of Texas

____________

NO. 01-02-00752-CR

____________

MICHAEL RAY, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 901330

---

CONCURRING OPINION

               I agree that the prevailing law requires a finding of automatic harm when a criminal defendant’s request for a lesser included offense is erroneously refused. See Saunders v. State, 913 S.W.2d 564, 571-72 (Tex. Crim. App. 1995) (recognizing an exception only where another lesser included offense was submitted). Nevertheless, I write to explain that a rule of automatic harm is not only antithetical with the basic principles established by Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) and Arline v. State, 721 S.W.2d 348 (Tex. Crim. App. 1986), but also produces an absurd result when applied to the facts of this case.

               The rationale for the automatic harm rule comes from Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382 (1980). See Saunders, 913 S.W.2d at 571. The danger to be avoided is placing a jury on the horns of a dilemma in which, though believing the defendant to have committed some crime, being given only the options of finding the defendant guilty of a greater offense or not guilty at all, the jury may have chosen to find him guilty of the greater offense, rather than acquit him altogether, even though having a reasonable doubt of the defendant’s guilt of the greater offense. Beck, 447 U.S. at 634, 100 S. Ct. at 2388.

               The Court of Criminal Appeals recognized in Saunders a critical distinction for those cases in which the Beck rationale did not apply because another lesser included offense was submitted, obviating the jury from making the all-or-nothing choice. Saunders, 913 S.W.2d at 572. The result was to analyze harm under Almanza. See id. at 574.

               This case presents the situation where, even though there is a scintilla of evidence raising the issue of guilt of the lesser offense, thereby requiring submission of the lesser included offense, the evidence is so overwhelming that the value of the vehicle was more than $20,000 that no rational jury would have found appellant guilty of only the lesser included offense. Under these circumstances, the rationale of Beck v. Alabama is also not applicable.

               Accordingly, I would urge the Court of Criminal Appeals to reconsider the applicability of the automatic harm rule to cases, such as this one, where the likelihood of a jury finding the defendant guilty of the lesser included offense is negligible, i.e., in terms of Almanza and Arline—amounting to only theoretical, but not actual harm.

                                                                          Sam Nuchia

                                                                        Justice

Panel consists of Chief Justice Radack and Justices Nuchia and Hanks.

Justice Nuchia concurring.

Publish. Tex. R. App. P. 47.2(b).