filed dissenting opinion to denial of State’s motion for rehearing in which KELLER, J., joined.
I respectfully dissent to the Court’s decision to deny rehearing. The Court should grant rehearing to reexamine its “holding” on original submission and to reexamine the lead plurality opinion’s rationale which misapplies and cannot be reconciled with this Court’s decision in Arevalo v. State, 943 S.W.2d 887 (Tex.Cr. App.1997).
A fragmented court decided this case with no single rationale explaining the result or supporting the judgment. A fair reading of the lead plurality opinion1 and the concurring opinion2 on original submission reveals two “majority holdings” on when an appellate court can reform a trial court’s judgment to reflect conviction of a lesser offense3 when the appellate court decides the evidence is insufficient to support conviction of the greater offense but sufficient to support conviction of the lesser offense. Cf. Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 1926-27, 128 L.Ed.2d 745 (1994) (when “a fragmented court decides a case and no single rationale explaining the result enjoys the assent” of at least five judges, “the holding of the Court may be viewed as that position taken by those members who concurred in the judgments on the narrowest grounds”).
The appellate court can reform the trial court’s judgment to reflect conviction of the lesser offense when the jury charge contains an instruction on the lesser offense. And, when, as in this case, the jury charge contains no lesser offense instruction and neither party has requested one, the appellate court cannot reform the judgment to reflect conviction of the lesser offense. See King v. Palmer, 950 F.2d 771, 779-85, 781 (D.C.Cir.1991), cert.denied, 505 U.S. 1229, 112 S.Ct. 3054, 120 L.Ed.2d 920 (1992) (“narrowest opinion must represent a common denominator of the Court’s reasoning; it must embody a position implicitly approved by at least five Justices who support the judgment”).
When the jury charge contains no lesser offense instruction but a party has requested one, there is no “majority holding” or controlling decision on original submission under the Nichols test so the Court’s opinions supporting the judgment on original submission have no precedential value in these circumstances. See King, 950 F.2d at 779-85, 783-84 (in applying Nichols to determine court’s “holding,” appellate courts not “free to combine a dissent with a concurrence to form” a majority holding). However, the bench and bar should note that all the Court’s opinions on original submission contain eight votes to support the result that the appellate court can reform the judgment to reflect conviction of the lesser offense in these circumstances.4
*792The lead plurality opinion requiring a requested or actual jury instruction on a lesser offense before an appellate court can reform is contrary to the overwhelming weight of authority from other jurisdictions. See, e.g., Rutledge v. United States, 517 U.S. 292, 116 S.Ct. 1241, 1250, 134 L.Ed.2d 419 (1996) (not making requested or actual jury instruction on lesser offense condition to appellate court’s ability to reform); United States v. Hunt, 129 F.3d 739, 744-46 (5 th Cir.1997) (jury instruction on lesser offense “appears to be a separate requirement only in the Ninth Circuit”) and authorities cited and discussed therein; Shields v. State, 722 So.2d 584, 585-87 (Miss.1998) and authorities cited and discussed therein. A requested or actual jury instruction on a lesser offense are red herrings and should have no bearing on or relevance to whether an appellate court can reform.
The holding and rationale of the lead plurality opinion on original submission purport to follow and to rely heavily on the minority position set out in the Wisconsin Supreme Court’s decision in State v. Myers, 158 Wis.2d 356, 461 N.W.2d 777 (1990). However, the holding in the lead plurality opinion and the express holding in Myers conflict in that the former permits reformation when a party requests a lesser offense instruction while the express holding in Myers, consistent with Judge Keasler’s concurring opinion on original submission, permits reformation only when the jury is actually instructed on the lesser offense. See Myers, 461 N.W.2d at 778. If the lead plurality opinion intended to follow the express holding in Myers, then Judge Keasler’s one-judge concurring opinion on original submission arguably should have contained the court’s holding.5
Myers and the lead plurality opinion also fail to give sufficient, if any, consideration to the criminal justice system’s basic purpose of convicting the guilty and freeing the innocent by treating a criminal trial as a sporting contest or a game and penalizing the prosecution for what they perceive to be prosecutorial “overreaching.” However, a criminal trial is not a sporting contest or a game. See Morris v. Sloppy, 461 U.S. 1, 103 S.Ct. 1610, 1618, 75 L.Ed.2d 610 (1983), quoting Roscoe Pound, The Causes of Popular Dissatisfaction With The Administration Of Justice, 29 ABA Ann. Rep. 395, 406 (1906), (condemning American courts for their tendency to ignore “substantive law and justice” by treating criminal trials as “sporting contests”).
Under this “sporting contest” approach, innocent citizens are usually the losers. For example, under this Court’s federal constitutional decision in Stephens v. State,6 whose reasoning closely parallels the reasoning of the Court’s decision in this case, one effect of the Court’s decision is that a fairly-tried and guilty criminal defendant walks totally free. Neither the federal constitution nor anything in our state law require this.7
*793Myers and Stephens demonstrate a fundamental misunderstanding of federal constitutional double jeopardy principles by erroneously believing they bar a subsequent prosecution for the lesser offense in cases like this. See Stephens, 806 S.W.2d at 819-20; Myers, 461 N.W.2d at 783 fn. 9. These cases fail to appreciate the legally significant distinction between when a jury acquits a defendant of the greater offense versus when a jury convicts the defendant of the greater offense but an appellate court decides the evidence is insufficient to support only an aggravating element of the greater offense. See Stephens, 806 S.W.2d at 821-22 (McCormick, P.J., dissenting) (acquittal by appellate court after jury’s finding of guilt significantly differs from a jury’s finding of not guilty).
Double jeopardy principles clearly do not bar a subsequent prosecution for the lesser offense in cases like this. See Morris v. Mathews, 475 U.S. 237, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986); Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970); Stephens, 806 S.W.2d at 820-34 (McCormick, P.J., dissenting) (fully explaining why Stephens was wrongly decided). And, this is the rule this Court followed in a host of cases before this Court overruled them in Stephens. See Stephens, 806 S.W.2d at 829, 831 (McCormick, P.J, dissenting).
The United States Supreme Court’s decision in Morris v. Mathews supports holding that double jeopardy principles do not prohibit a subsequent prosecution for the lesser offense or an appellate court from reforming the judgment to reflect conviction of the lesser offense. See Morris, 106 S.Ct. at 1037-39 (reducing jeopardy-barred conviction for aggravated murder to non-jeopardy-barred conviction for lesser offense of murder was adequate remedy for thé double jeopardy violation); Stephens, 806 S.W.2d at 821-22 fn. 6, 825-29 (McCormick, P.J., dissenting). Stephens’ reasoning is unsound and it should be overruled. Because of this, the Court should reexamine its decision on original submission since much of it duplicates Stephens’ unsound reasoning.
Myers distinguished Morris on the ground that the jury in Morris “was instructed on the lesser included offense.” See Myers, 461 N.W.2d at 784 fn. 12. This is irrelevant as the Court’s decision in Morris did not turn on there being a jury instruction on the lesser offense. See also Rutledge, 116 S.Ct. at 1241; Shields, 722 So.2d at 586 (noting that U.S. Supreme Court has never drawn distinction between jury instruction and no jury instruction on the lesser offense).
Myers also distinguished Morris on the ground that the conviction in Morris “was not reversed because of insufficient evidence on an element of the greater offense.” See Myers, 461 N.W.2d at 784 fn. 12. This is a distinction without any legal significance to the issue of whether an appellate court can reform.
In summary, the lead plurality opinion adopts a distinct minority position. The lead plurality opinion and the case upon which it primarily relies — Myers —are inconsistent. Myers is also internally inconsistent and demonstrates a fundamental misunderstanding of federal double jeopardy jurisprudence. It is a mistake to rely on such a flawed decision. The Court should grant rehearing and consistent with the overwhelming weight of authority from other jurisdictions hold that an appellate court can reform a judgment to reflect conviction of the lesser offense in cases where there has been no requested or actual jury instruction on the lesser offense.
*794For its rationale the lead plurality opinion also relies on Arevalo for the proposition that the prosecution can easily obtain a lesser offense instruction. Collier, 999 S.W.2d at 782-83. The lead plurality opinion asserts that if “the evidence will support a lesser included offense instruction,” then the prosecution probably should request one. Id.
But this is the very proposition the Court rejected in Arevalo because the evidence always supports a lesser offense instruction. Arevalo decided the prosecution is not entitled to a lesser offense instruction unless the prosecution also meets the “guilty only” prong. See Areva-lo, 943 S.W.2d at 889-90. So, contrary to what the lead plurality opinion says, Are-valo presents a significant impediment to the prosecution obtaining a lesser offense instruction. See Arevalo, 943 S.W.2d at 889-90.8
Arevalo creates other problems. For example, if the prosecution requests but does not get a lesser offense instruction to which it is not entitled under Arevalo, is this nevertheless sufficient to permit reformation? Can an appellate court reform the judgment to reflect conviction of a lesser offense if the prosecution is not entitled to a jury instruction on the lesser offense under Arevalo? Under the lead plurality opinion, it would seem so.
One might argue that if the appellate court eventually decides the evidence is insufficient to support an element of the greater offense then the prosecution’s evidence necessarily meets the “guilty only” test. This is not necessarily correct. A prosecution’s evidence on the greater offense can be “weak” but still not meet the “guilty only” test. Or an appellate court can, like this Court did in Stephens, decide the evidence is insufficient to support an element of the greater offense because of some technical defect unrelated to the defendant’s guilt or innocence. See Stephens, 806 S.W.2d at 820-21 (McCormick, P.J., dissenting). For example, in Stephens the prosecution would not have been entitled to a lesser offense instruction under Arevalo even though the appellate court eventually decided the evidence was insufficient to support the aggravating element of the greater offense. In addition, whether the evidence is insufficient to support a conviction for the greater offense is not always apparent. See Stephens, 806 S.W.2d at 831 (McCormick, P.J., dissenting) (discussing a case in which five members of this Court decided evidence insufficient to support conviction for greater offense even though 12 jurors and four members of this Court decided evidence was sufficient to support conviction for greater offense).
The point of this discussion is that Are-valo makes it more “onerous” for the prosecution to request a lesser offense instruction than the lead plurality opinion would seem to indicate. If the prosecution requests a lesser offense instruction, it risks injecting Arevalo error into the case. If the prosecution decides not to request the lesser offense instruction because of potential Arevalo error, it risks losing its “right” to reformation vis-a-vis the Court’s decision in this case.
It also should be noted that Myers apparently does not require the prosecution to meet the “guilty only” test vis-a-vis Arevalo before a trial court can instruct the jury on a lesser offense. Compare Myers, 461 N.W.2d at 781-83 (prosecution may get lesser offense instruction when its evidence on greater offense is “weak”), with Arevalo, 943 S.W.2d at 889-90 (prosecution not necessarily entitled to lesser offense instruction when its evidence on greater offense is “weak”). So, if the lead plurality opinion intended to follow Myers, *795then it also should have voted to overrule Arevalo.
Stephens which was decided before Are-valo also noted that “nothing” prevented the prosecution from requesting a lesser offense instruction. See Stephens, 806 S.W.2d at 818. However, Arevalo now prevents the prosecution from requesting a lesser offense instruction which is another reason why Stephens should be overruled.
The lead plurality opinion, Arevalo and Stephens balance the competing interests about as much as possible in favor of fairly-tried and guilty criminal defendants. If the Court’s decision on original submission stands, then the Court should at least overrule Arevalo and Stephens to restore some sense of balance to the law.
Finally, I agree with Judge Keasler’s concurring opinion on original submission that this case should be analyzed under Tex.R.App.Proc. 43.2(c) which permits an appellate court to “render the judgment that the trial court should have rendered.” Judge Keasler’s concurring opinion concludes that an appellate court “cannot reform a judgment to reflect a conviction for a lesser-included offense unless that lesser-included offense was submitted in the jury charge” because “if a jury is not instructed on a lesser-included offense, a trial court is not able to render judgment on that lesser-included offense.” Collier, 999 S.W.2d at 784 (op. on orig. sub’m) (Keasler, J., concurring in the judgment). Judge Keasler’s concurring opinion also discusses still valid prior law which permits appellate courts to reform a trial court’s judgment to reflect the “true finding of the fact finder.” Collier, 999 S.W.2d at 783 (op. on orig. sub’m) (Keasler, J., concurring in the judgment) (emphasis in original).
For the reasons already discussed, the position in Judge Keasler’s concurring opinion represents a minority view. The weight of authority supports a contrary view with these authorities having been decided under statutes or rules similar to our Rule 43.2(c). See, e.g., Hunt, 129 F.3d at 744 fn. 3 (construing a statute permitting appellate court to reverse a judgment and to direct entry of an “appropriate judgment”).
In addition, the analysis in Judge Keas-ler’s concurring opinion supports holding that appellate courts can reform in cases like this. When a jury is instructed on the greater offense, it is necessarily instructed on the lesser offense by the very nature of the definition of a lesser offense.
When a jury is separately instructed on a lesser offense, it is not because the instruction on the greater offense is lacking or does not adequately cover the lesser offense. A jury is separately instructed on a lesser offense in order to give the jury the option of convicting the defendant only of the lesser offense because there is some view of the evidence that if the defendant is guilty, he is guilty only of the lesser offense. In cases like this the lesser offense is submitted in the jury charge in the instructions on the greater offense. See Collier, 999 S.W.2d at 784 (op. on orig. sub’m) (Keasler, J., concurring in the judgment) (no reformation unless lesser offense submitted in jury charge).
In addition, when a jury convicts the defendant of the greater offense, it necessarily convicts him of the lesser offense again because of the very nature of the definition of a lesser offense. So, if the appellate court reforms the judgment to reflect conviction of a lesser offense, it is reforming the judgment to reflect a “true finding of the fact finder.” See Collier, 999 S.W.2d at 783 (op. on orig. sub’m) (Keasler, J., concurring in the judgment) (reformation permitted to reflect true finding of the fact finder).
I respectfully dissent to the denial of rehearing.
KELLER, J., joins this dissent.
. Collier v. State, 999 S.W.2d 779 (Tex.Cr. App.1999) (op. on orig. sub’m) (Mansfield, J., joined by Meyers, Price and Johnson, JJ.) (requiring a requested or actual jury instruction on lesser offense before appellate court can reform).
. Collier, 999 S.W.2d at 783 (op. on orig. sub’m) (Keasler, J., concurring in the judgment) (requiring actual jury instruction on lesser offense before appellate court can reform).
. For brevity’s sake this opinion refers to a "lesser included offense” as a "lesser offense.”
. Collier, 999 S.W.2d at 779 (op. on 'orig. sub'm) (Mansfield, J., joined by Meyers, Price and Johnson, JJ.), and 999 S.W.2d at 785 (op on orig. sub’m) (Keller, J., dissenting, joined by McCormick, P.J., Holland and Womack, JJ.) (requiring neither a requested nor actual jury instruction on lesser offense before appellate court can reform).
. There is other language in Myers which would support a holding that reformation also is permitted when the prosecution requests an instruction on the lesser offense. See Myers, 461 N.W.2d at 780-83 (declining to give state benefit of instructions it failed to request at trial). So Myers is internally inconsistent. If Myers intended to permit reformation in both situations, then it should have expressly said so'in its holding.
. In Stephens, this Court decided, as a matter of federal constitutional law, that when an appellate court decides the evidence is insufficient to support a conviction only for the greater offense, double jeopardy principles bar a subsequent prosecution for the lesser offense. See Stephens v. State, 806 S.W.2d 812, 814 fn. 4, 819 (Tex.Cr.App.1990). Stephens did not "purport to answer” whether this rule applied "if the jury charge had included an instruction on the lesser included offense or if the trial court had erroneously refused the Stale's request for a lesser included offense instruction.” Stephens, 806 S.W.2d at 814 fn. 4. In Ex parte Granger, the Court decided this rule does not apply when the jury is actually instructed on the lesser offense. See Ex parte Granger, 850 S.W.2d 513, 520 (Tex.Cr.App. 1993).
.The dissenting opinion in Stephens also answers the prosecutorial overreaching-requiring-the-prosecution-to-be-punished argument *793that some like to make in cases like this. See Stephens, 806 S.W.2d at 831, 833 (McCormick, P.J., dissenting).
. Arevalo also confused those situations when a trial court must instruct on a lesser offense with those situations when a trial court may instruct on a lesser offense. See Arevalo, 943 S.W.2d at 890-92 (McCormick, P.J., dissenting) and at 892-94 (Meyers, J., dissenting). Arevalo effectively removed a trial court's discretion to instruct on a lesser offense.