McKinney, Steve Charles ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. PD-0594-05, 0595-05, 0596-05

---

STEVE CHARLES MCKINNEY, Appellant

v.

THE STATE OF TEXAS

---

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS FORT BEND COUNTY

---

   Keller, P.J., filed a concurring opinion in which KEASLER, HERVEY, and COCHRAN, JJ., joined.

When a defendant requests the submission of a lesser offense and is convicted of that offense, whether he is estopped from challenging the trial court's power to impose a conviction for that offense (on the basis of legal or factual insufficiency, limitations, or lack of jurisdiction) depends on the answer to a simple question: Does the infirmity alleged with respect to the requested lesser offense apply also to the charged (greater) offense? If the answer to that question is "yes," then the defendant's claim is legitimate, and the appellate court should proceed to consider it. If the answer to that question is "no," then the defendant's claim is barred by estoppel. Not only is this distinction easy to apply, but there is a sensible reason for it, and it harmonizes all of our past cases and the outcome the Court reaches in the present case.

The reason estoppel occurs when the answer to the above question is "no" is that the defendant should not be allowed to benefit from an infirmity that he introduced. That is what the defendants in State v. Lee ⁽¹⁾ and State v. Yount ⁽²⁾ attempted to do. In Lee, the defendant was charged with murder and requested the submission of a lesser offense instruction on voluntary manslaughter. ⁽³⁾ After being convicted of voluntary manslaughter, he claimed on appeal that the evidence was insufficient to show the existence of "sudden passion," ⁽⁴⁾ a mitigating element that distinguished voluntary manslaughter from murder. ⁽⁵⁾ But "sudden passion" was not an issue in the case until the lesser offense was submitted, for the defendant's benefit. By attacking the existence of "sudden passion," the defendant was essentially asserting that a voluntary manslaughter instruction should never have been submitted in the first place. Since the defendant requested the instruction, he was estopped from making such a challenge.

In Yount, the defendant was charged with involuntary manslaughter, and he requested the lesser offense of driving while intoxicated (DWI). ⁽⁶⁾ After conviction, in a motion to set aside the judgment, the defendant claimed that conviction for DWI was barred by limitations. ⁽⁷⁾ But the involuntary manslaughter offense was not barred by limitations; so the limitations problem was introduced by the defendant himself in requesting the lesser offense of DWI. ⁽⁸⁾ In addressing this claim, we discussed three cases from other jurisdictions: the first two held that a defendant's request for the lesser offense instruction was essentially a waiver of the statute of limitations defense while the third upheld a trial court's refusal to instruct on a lesser offense because the defendant had refused to waive limitations. ⁽⁹⁾ Under either holding, Yount could not have complained: either he procured the submission of a lesser offense that should not have been submitted due to the limitations problem, in which case he was estopped from complaining about the flaw in submission, or the valid submission of the lesser offense necessarily waived limitations, so that it was no longer a defense.

Jurisdiction provides another good illustration. By statute, a district court is permitted to try a misdemeanor that is included within a felony offense, even though the misdemeanor would not otherwise be subject to that court's jurisdiction. ⁽¹⁰⁾ Even without the legislation, a defendant's request for an instruction on a lesser-included offense would surely be considered a waiver of any claim that the district court lacked jurisdiction to try the misdemeanor. Of course, even with the legislation, a defendant might request a lesser, misdemeanor offense that is not in fact included within the felony offense charged. Submission of the lesser offense would be error under those circumstances, but the defendant would be estopped from complaining about such an error, caused by his own conduct.

However, when the answer to our framework question is "yes," that is, the infirmity applies to both the greater and lesser offenses, then the situation is entirely different. For example, jurisdiction could not be conferred on the district court to try a Class B misdemeanor requested as a lesser offense by the defendant if the charged offense was only a Class A misdemeanor that was not itself within the district court's jurisdiction. In Yount, we dismissed as "wholly different," from the estoppel situation in those cases where limitations had run on the charged offense. ⁽¹¹⁾ If the charged offense is barred by limitations, that infirmity is not removed simply because the defendant happened to request a lesser offense that was also time-barred. In such a case, the defendant has not introduced the limitations problem by requesting a lesser offense; the limitations problem existed at the outset of the prosecution. Finally, there is a situation like the present case, where the defendant attacks the sufficiency of the evidence to prove an element common to both the greater and lesser offenses. In that situation, the defendant has not introduced the alleged deficiency by requesting a lesser offense; rather, the alleged deficiency was inherent in the greater offense and simply carried over to the lesser offense because it contained the same element.

So, the estoppel rule articulated in Lee and Yount is valid, but applies only when the lesser offense requested by the defendant introduces the alleged infirmity to the case. I agree that court of appeals was not barred from conducting a legal sufficiency review and I concur in the judgment of the Court.

Date filed: November 15, 2006

Publish

1. 818 S.W.2d 778.

2. 853 S.W.2d 6 (Tex. Crim. App. 1993)(op. on reh'g).

3. 818 S.W.2d at 778, 781.

4. Id. at 780.

5. See Tex. Pen. Code §§19.02, 19.04 (1974).

6. 853 S.W.2d at 7.

7. Id.

8. Id. at 8.

9. Id. at 9.

10. Tex. Code Crim. Proc., Arts. 4.05 (jurisdiction of district courts), 4.06 (when felony includes misdemeanor); see also Arts. 37.08, 37.09.

11. 853 S.W.2d at 8 (distinguishing Gallardo v. State, 768 S.W.2d 875, 879 (Tex.App.--San Antonio 1989, pet. ref'd) and Alston v. State, 738 S.W.2d 762 (Tex. App. -- Beaumont 1987, no pet.)).