IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1923-06
LARRY GLENN HAYNES, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIRST COURT OF APPEALS
HARRIS COUNTY
C OCHRAN, J., filed a dissenting opinion.
OPINION
I join Presiding Judge Keller’s dissenting opinion. I write separately because this case
exemplifies why we should not analyze these “lesser-included” issues as if the parties were
engaged in a legalistic chess or “chicken” game. The Court assumes that the State uses
Machiavellian “overreaching” strategies and consciously decides to “go for broke” when it
fails to request jury instructions on lesser-included offenses. As punishment for a trial
strategy that goes awry, an appellate court that finds the evidence insufficient to prove the
aggravated offense for which the defendant was convicted may not modify the judgment to
Haynes Dissenting Opinion Page 2
show conviction for any lesser-included offense for which the evidence is clearly sufficient
unless the State requested a jury instruction on the lesser-included offense. The defendant
is simply acquitted. The citizens suffer because the State was not prescient enough to
anticipate a successful appellate legal-sufficiency challenge. And the defendant receives an
undeserved windfall of total acquittal instead of conviction on an offense for which the jury
necessarily found him guilty and for which the evidence is clearly sufficient. This result does
not comport with common sense or justice. And this case shows why.
Appellant was charged with the felony offense of assaulting a member of his
household, enhanced by a prior conviction for the same domestic violence offense. The
evidence at trial showed that Anissa, appellant’s on-again-off-again girlfriend of fourteen
years, had most recently lived with him from September 2004 until January 2005, when she
moved out of her own apartment and back into her mother’s home to get away from him. On
February 2, 2005, appellant came over to Anissa’s mother’s home. When Anissa opened the
door and stepped outside to talk to appellant, he struck her in the face, “busting” her lip and
causing her pain. She ducked back inside the house, slammed the door and locked it. When
she heard a loud noise outside, she looked out the window to see that appellant had thrown
a brick at her car window and shattered it. Appellant later sent Anissa a letter from jail,
explaining that he had “tripped out,” promising to get himself together “for real this time,”
and asking Anissa to “help [him] out this one time” and to tell “them white folks” that he
didn’t put his hands on her. He closed with, “I’m not mad. I did this to myself. Please get
Haynes Dissenting Opinion Page 3
out this [sic]. I hate I did this.”
The trial judge included the following definitions in her jury charge:
“Household” means a unit composed of persons living together in the same
dwelling, whether or not they are related to each other.
“Member of a household” includes a person who previously lived in a
household.
No one objected to these definitions which are verbatim recitals of two Family Code
statutes.1 During its closing argument, the State pointed to this law in the jury charge and
noted that, under Texas law, it did not matter that Anissa was not living in the same
household as appellant on the very day of the assault.2 Appellant did not disagree. His
defensive theory was that Anissa simply made up the story about being assaulted because she
was mad that appellant threw a brick through her car windshield. After all, she had prior
felony convictions and that proved she was “a con artist by trade. She can’t be believed.”
The jury found appellant guilty of the enhanced family-violence offense.3 Appellant
1
T EX . FAM . CODE § 71.005 (“‘Household’ means a unit composed of persons living
together in the same dwelling, without regard to whether they are related to each other.”); TEX .
FAM . CODE § 71.006 (“‘Member of a household’ includes a person who previously lived in a
household”).
2
The prosecutor argued:
And the question is whether or not he assaulted a member of his household. We
know they were members of the household. The law says it doesn’t matter if they
were living together on February 2, 2005, or if they had kids together or if they
were married. The law is very clear. And you know what the law is because it’s
in the Charge. And you are governed by the law in the Charge. And the law says
that if you previously lived together, you are a member of a household.
3
The jury was not informed that Anissa was the complainant in the prior domestic-
violence assault conviction as well as in the current case.
Haynes Dissenting Opinion Page 4
stipulated to two prior felony convictions, and the trial judge sentenced him to twenty-five
years’ imprisonment–the minimum punishment for an habitual offender.
On appeal, appellant argued that the evidence was legally insufficient to support his
conviction for felony assault because the State failed to prove that Anissa was a member of
appellant’s household at the time of the assault. The court of appeals agreed with appellant,
holding that Section 71.006 of the Family Code, which states that a member of the household
includes a person who had previously lived in a household, did not apply to domestic-
violence prosecutions because it was not explicitly referred to in the Penal Code assault
statute, while Section 71.005 was explicitly mentioned.4 The court of appeals reversed the
judgment of conviction and rendered a judgment of acquittal.5
There is nothing in the present record that would suggest that the State wanted to “go
for broke” by consciously not requesting a lesser-included offense instruction. From all
appearances, the trial judge, the defense counsel, and the prosecutor all believed that the trial
4
Haynes v. State, ___ S.W.3d ___, No. 01-05-00803-CR, 2007 Tex. App. LEXIS 1338,
at *10-11 (Tex. App.– Houston [1st Dist.] 2007) (“We hold that the 2003 version of Penal Code
section 22.01, which expressly refers to Family Code section 71.005, does not authorize the State
to use Family Code section 71.006 to define who constitutes a household member for the
purposes of committing felony assault. The State, therefore, must prove as an element of the
offense of felony assault on a household member that the defendant and the complainant were
living together in the same dwelling when the offense was committed. The hypothetically correct
jury charge in this case would not have included the definition from Family Code section 71.006,
and there is no evidence that appellant and complainant lived together in the same dwelling when
appellant struck her in the mouth.”).
The pertinent Penal Code provision has since been revised, but it still does not mention
section 71.006. See TEX . PENAL CODE § 22.01(b)(2) (Vernon Supp. 2007).
5
The State petitioned this Court to review the correctness of the court of appeals’s
statutory analysis, but we did not grant that ground for review.
Haynes Dissenting Opinion Page 5
judge’s jury instructions and definitions were legally correct. There was certainly no lack of
evidence that Anissa had been a member of appellant’s household as required by Section
71.006, and there was not a scintilla of evidence that Anissa was, on the day of the offense,
literally a member of appellant’s household. Thus, it strains all credulity to conclude that the
State was somehow “overreaching” in failing to request a lesser-included charge on simple
assault, or that this failure to include a lesser-included charge somehow affects the
sufficiency of the evidence to prove a simple assault.
The majority is correct in stating that a plurality of this Court held, in Collier v. State,6
that if the State fails to request an instruction on a lesser-included offense, the appellate
courts will not reform the judgment to reflect conviction for the lesser offense that the
evidence does clearly establish as this would “rescue [the State] from a trial strategy that
went awry.” 7 In Collier, the plurality quoted and relied upon a Wisconsin Supreme Court
decision, State v. Myers.8 But many state and federal jurisdictions 9 have adopted the logical
6
999 S.W.2d 779 (Tex. Crim. App. 1999).
7
Id. at 781-82.
8
461 N.W.2d 777 (Wis. 1990).
9
See Rutledge v. United States, 517 U.S. 292, 306 (1996) (“Federal appellate courts
appear to have uniformly concluded that they may direct the entry of judgment for a lesser
included offense when a conviction for a greater offense is reversed on grounds that affect only
the greater offense. This Court has noted the use of such a practice with approval.”); State v.
Dunn, 850 P.2d 1201, 1209-10 & n.4 (Utah 1993) (“Numerous state and federal courts have
concluded that when a defendant is convicted of an offense but an error occurred at trial, a court
has the power to enter judgment for a lesser included offense rather than ordering a retrial if (i)
the trier of fact necessarily found facts sufficient to constitute the lesser offense, and (ii) the error
did not affect these findings”; listing states and federal jurisdictions that follow this rule); State v.
Haynes Dissenting Opinion Page 6
and common sense “direct remand rule” which is “grounded on the fact that guilt of a true
lesser included offense is implicitly found in the jury’s verdict of guilt on the greater
Briggs, 787 A.2d 479, 486-487 (R.I. 2001) (approving sentencing remand where, although jury
was not instructed on lesser offense, defendant’s trial testimony constituted evidence meeting all
elements of lesser-included offense of larceny); State v. Farrad, 753 A.2d 648, 659 (N.J. 2000)
(reversing case for new trial but noting that “guilty verdict may be molded to convict on a lesser-
included offense even if the jury was not instructed on that offense if (1) defendant has been
given his day in court, (2) all the elements of the lesser included offense are contained in the
more serious offense and (3) defendant’s guilt of the lesser included offense is implicit in, and
part of, the jury verdict”) (internal quotation marks omitted); People v. Patterson, 532 P.2d 342
(Colo. 1975) (sentencing remand may be proper even though lesser-included offense was not
charged to jury; court reasoned defendant has been given his day in court and his guilt of lesser-
included offense is implicit and part of jury’s verdict on greater offense); Shields v. State, 722
So.2d 584, 585-87 (Miss. 1998) (rejecting the reasoning and rule in Myers, noting the large
number of states and federal jurisdictions that follow the test set out in Allison v. United States,
409 F.2d 445 (D.C. Cir. 1969) and “hold[ing] that the lesser included offense need not be before
the jury in order to apply the direct remand rule” of conviction of the lesser-included offense and
remand for resentencing when, on appeal, the evidence is found to be insufficient on the greater
offense).
After discussing the views of various jurisdictions, the Mississippi Supreme Court stated,
“Today, this Court declines to follow the approach taken by Wisconsin, Alabama, and the Ninth
Circuit.” Instead, it followed the reasoning of the United States Supreme Court and the rule in
those jurisdictions–including the Fifth Circuit in United States v. Hunt, 129 F.3d 739 (5th 1997)–
that permit appellate courts to modify the judgment to reflect conviction of the lesser-included
offense if it finds the evidence legally insufficient on the greater offense when “no undue
prejudice will result to the accused.” Hunt, 129 F.3d at 746; see also United States v. Alvarez,
451 F.3d 320, 328 (5th Cir. 2006) (following Hunt and holding that, while evidence was
insufficient to prove “playground” element of drug-distribution offense, appellate court could
modify conviction to show conviction of lesser-included drug offense). Compare State v. Brown,
602 S.W.2d 392, 398 (S.C. 2004) (collecting cases from states that do and do not permit “direct
remand” when jury was not instructed on lesser-included offense, joining those jurisdictions that
do not allow “direct remand” unless jury was so instructed). See generally, James A.
Shellenberger & James A. Strazella, The Lesser Included Offense Doctrine and the Constitution:
The Development of Due Process and Double Jeopardy Remedies, 79 MARQ . L.R. 1, 183-189
(Fall 1995) (noting that appellate courts can avoid potential double-jeopardy problem of retrial
on lesser-included offense by “modifying the judgment to an offense that was necessarily
included in the offense for which the defendant had first been convicted,” but noting that “there
may be situations in which the dynamics of a particular trial record suggest that the LIO should
be the subject of a retrial, not an automatic modification.”).
Haynes Dissenting Opinion Page 7
offense.” 10
The law concerning jury instructions and lesser-included offenses is not a game in
which conviction or acquittal of a criminal offense depends upon Machiavellian trial strategy.
It should depend upon the facts and the law. Here, it is not disputed that the evidence is
legally sufficient to support appellant’s conviction for simple assault, regardless of whether
Anissa was or was not a member of his household on the day of that assault. Nor has
appellant made any claim that his due process rights would be prejudiced by entry of a
conviction for the lesser-included offense of which the jury necessarily found him guilty.11
We do a disservice to common sense and Texas citizens by ordering his acquittal of all
charges when the evidence is legally sufficient to support a conviction for simple assault, and
the jury necessarily found him guilty of simple assault.
Filed: April 30, 2008
Publish
10
Shields, 722 So.2d at 585.
11
See Hunt, 129 F.3d at 746; see also Stevens v. State, 422 N.E.2d 1297, 1301 (Ind. Ct.
App. 1981) (reviewing record to determine if modification would prejudice defendant; “Where it
is evident that defendant has not been mislead and the issues joined under the charging
information have been determined, modification, rather than reversal is more appropriate”).