CHAVEZ, JOSE JUAN v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0759-21
JOSE JUAN CHAVEZ, Appellant
v.
THE STATE OF TEXAS
ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
CHAMBERS COUNTY
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
Chavez — 2
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, 1 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. 2 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. 3 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
1
Wade v. State, ___S.W. 3d___, 2022 WL 1021056, at *4 (Tex. Crim. App. Apr. 6, 2022).
2
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).
3
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).
Chavez — 3
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.
However, in Saunders v. State, the Court seems to have failed to
appreciate this distinction. 4 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. 5 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
4
Saunders, 840 S.W.2d at 392.
5
Id.Chavez — 4
negating the greater offense. 6 It appears to be a mistake not a trend.
The Court certainly doesn’t rely upon it in this case.
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. 7 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. 8
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
6
Supra, note 2.
7
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).
8
Sandoval v. State, No. AP-77,081, ---S.W.3d---, 2022 WL 17484313, at *28 (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.’”).
Chavez — 5
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. 9 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. 10 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. 11 Getting away
9
See Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993).
10
See Do v. State, 634 S.W.3d 883, 904-05 (Tex. Crim. App. 2021) (Newell, J., concurring).
11
Id.Chavez — 6
from treating jury instructions differently from other issues would go a
long way to providing clarity to the bench and bar.
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. 12 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.” 13 Or at least it does when the request for a lesser
comes from the defendant.
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
12
Wade, 2022 WL 1021056, at *4; Grey, 298 S.W.3d at 648-49.
13
See, e.g., Wade, 2022 WL 1021056 at *11 (Keller, P.J., dissenting).
Chavez — 7
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.” 14 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. 15 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. 16
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
14
Tex. Code Crim. Proc., art. 36.14.
15
Fraser v. State, 583 S.W.3d 564, 572 (Tex. Crim. App. 2019).
16
See Patterson v. New York, 432 U.S. 197, 215 (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).
Chavez — 8
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. 17
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.
Filed: April 19, 2023
Publish
17
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)).