filed an opinion concurring in the denial of the state’s motion for rehearing.
I join the denial of the state’s motion for rehearing. I write separately to note the precedential value of the Court’s opinion on original submission, as a guide to the bench and bar.
This case deals with the authority of a court of appeals, upon finding that the evidence is legally insufficient to sustain a defendant’s conviction but sufficient to sustain a conviction for a lesser-included offense, to reform the judgment to reflect conviction of that lesser-included offense when the jury was not instructed on the lesser-included offense. While no opinion in this case has garnered the votes of a majority of this Court, there are clear, albeit shifting, majorities, depending on the circumstances.
Two situations are presented here: (1) one of the parties requested, but was denied, an instruction on the lesser-included offense; (2) neither party requested such an instruction. Under the plurality’s approach, reformation is authorized in the first instance, but not in the second. Ante, at 782 (Mansfield, J., joined by Meyers, Price and Johnson, JJ.). Under Judge Keller’s approach, reformation is authorized in either instance. Ante, at 786-87, 790 (Keller, J., dissenting, joined by McCormick, Holland and Womack, JJ.). Under Judge Keasler’s approach, reformation is authorized in neither instance. Ante, at 784-85 (Keasler, J., concurring).
Therefore, in the situation in which one of the parties asked for, but was denied, an instruction on the lesser-included offense, eight members of the court (Judges McCormick, Meyers, Mansfield, Keller, Price, Holland, Womack, and Johnson) find that the court of appeals is authorized to reform the judgment to reflect conviction of the lesser-included offense. In the situation in which neither party asked for an instruction on the lesser-included offense, *791five members of the court (Judges Meyers, Mansfield, Price, Johnson and Keasler) find that the court of appeals is not authorized to reform the judgment to reflect conviction of the lesser-included offense.
With these observations, I join the denial of the state’s motion for rehearing.