DocketNumber: 03-99-00523-CR
Filed Date: 3/23/2000
Status: Precedential
Modified Date: 9/5/2015
The district court initially instructed the jury to consider whether Hutson committed offenses on two occasions. By count one, the court asked whether Hutson committed aggravated sexual assault in October 1996; because the jury acquitted him on this count, it is not part of this appeal. By the remaining counts, the court asked whether Hutson committed aggravated sexual assault (count two) or indecency with a child (count three) in March 1997. The court instructed the jury at the end of the application paragraph for count two that the jury should "[o]nly proceed to Count III if you have found the defendant 'not guilty' of Count II." (For convenience, we will refer to this as a "sequencing instruction.") Nevertheless, when the jury told the court that it was deadlocked on count two (ten not guilty votes, two guilty votes) and requested permission to consider count three without reaching a verdict on count two, the court assented. The jury found Hutson guilty of count three.
Hutson contends that this procedure violates his constitutional right to a jury trial and the statutory provision 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. Ann. art. 37.08 (West 1981) (emphasis added). He contends this requires a finding of not guilty on the greater offense. He argues that the absence of a not-guilty finding violates this statute as well as constitutional provisions ensuring trial by jury. We disagree.
We find no deprivation of the constitutional right to trial by jury or of statutes designed to safeguard that right; indeed, the jury acquitted him, convicted him, and requested the very procedure he challenges. We find no statutory or constitutional requirement that the jury must acquit a defendant of the greater offense before considering the lesser offense. Article 37.08 merely states that the jury may acquit the defendant on the greater offense but convict on lesser offenses. Id. The Supreme Court has held that a jury's choice to convict of second-degree murder rather than first-degree murder is an implicit acquittal on the first-degree charge. See Green v. United States, 355 U.S. 184, 190-91 (1957). The Waco court of appeals agreed. See State v. Restrepo, 878 S.W.2d 327, 328 (Tex. App.--Waco 1994, pet. dism'd). In neither case does the appellate court criticize the trial court for presenting the greater and lesser offenses as options rather than a sequence of choices descending from the greatest offense. Texas law contemplates the courts may give juries free choice among greater and lesser-included offenses; otherwise there would be no need for the statute establishing that conviction of a lesser-included offense implies acquittal of greater offenses. See Tex. Code Crim. Proc. Ann. art. 37.14 (West 1981). (1) Thus the only requirement possibly violated was the district court's own instruction.
We conclude that the district court's allowing the jury to bypass the sequencing instruction does not require reversal. We are aware of no constitutional or statutory provisions prohibiting the district court from permitting the jury to bypass the sequencing instruction. We find that Hutson was not harmed by the district court's decision. We presume the trial court was familiar with article 37.14 and knew that a conviction on the lesser-included indecency offense would act as an implicit acquittal on the greater aggravated sexual assault charge. See id. We do not see how a court decision that essentially functioned as an instructed verdict of acquittal on the greater charge contributed to the conviction on the lesser charge; the court did not comment on the weight of the evidence supporting the lesser charge and did not direct the outcome of the jury's deliberation on the lesser charge.
We overrule Hutson's point of error and affirm the conviction.
Mack Kidd, Justice
Before Chief Justice Aboussie, Justices Kidd and B. A. Smith
Affirmed
Filed: March 23, 2000
Do Not Publish
1. Article 37.14 provides:
If a defendant, prosecuted for an offense which includes within it lesser offenses, be convicted of an offense lower than that for which he is indicted, and a new trial be granted him, or the judgment be arrested for any cause other than the want of jurisdiction, the verdict upon the first trial shall be considered an acquittal of the higher offense; but he may, upon a second trial, be convicted of the same offense of which he was before convicted, or any other inferior thereto.
ed sexual assault in October 1996; because the jury acquitted him on this count, it is not part of this appeal. By the remaining counts, the court asked whether Hutson committed aggravated sexual assault (count two) or indecency with a child (count three) in March 1997. The court instructed the jury at the end of the application paragraph for count two that the jury should "[o]nly proceed to Count III if you have found the defendant 'not guilty' of Count II." (For convenience, we will refer to this as a "sequencing instruction.") Nevertheless, when the jury told the court that it was deadlocked on count two (ten not guilty votes, two guilty votes) and requested permission to consider count three without reaching a verdict on count two, the court assented. The jury found Hutson guilty of count three.
Hutson contends that this procedure violates his constitutional right to a jury trial and the statutory provision 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. Ann. art. 37.08 (West 1981) (emphasis added). He contends this requires a finding of not guilty on the greater offense. He argues that the absence of a not-guilty finding violates this statute as well as constitutional provisions ensuring trial by jury. We disagree.
We find no deprivation of the constitutional right to trial by jury or of statutes designed to safeguard that right; indeed, the jury acquitted him, convicted him, and requested the very procedure he challenges. We find no statutory or constitutional requirement that the jury must acquit a defendant of the greater offense before considering the lesser offense. Article 37.08 merely states that the jury may acquit the defendant on the greater offense but convict on lesser offenses. Id. The Supreme Court has held that a jury's choice to convict of second-degree murder rather than first-degree murder is an implicit acquittal on the first-degree charge. See Green v. United States, 355 U.S. 184, 190-91 (1957). The Waco court of appeals agreed. See State v. Restrepo, 878 S.W.2d 327, 328 (Tex. App.--Waco 1994, pet. dism'd). In neither case does the appellate court criticize the trial court for presenting the greater and lesser offenses as options rather than a sequence of choices descending from the greatest offense. Texas law contemplates the courts may give juries free choice among greater and lesser-included offenses; otherwise there would be no need for the statute establishing that conviction of a lesser-included offense implies acquittal of greater offenses. See Tex. Code Crim. Proc.