As the Judges Saw It
January-February 2010

New rules on lesser-­included offense ­instructions from Grey v. State

David C. Newell

Assistant District Attorney in Harris County

To get a lesser-included offense instruction, the State no longer has to show there is evidence that negates the greater offense. That’s the holding of the recent case, Grey v. State.#1 The Court of Criminal Appeals could have put it out on Twitter it’s so simple. Indeed, you can stop reading this article right now, and you’ll still get the gist of the decision.

But if you’re like me and want to know why the court did what it did, read on for an explanation that won’t fit in 140 characters.

Hey look! A prosecutor who’s not overly zealous!

In Haynes v. State, the Court of Criminal Appeals held that an appellate court could not reform a judgment to an unrequested lesser in part to discourage prosecutors from “going for broke” by not requesting a lesser-included offense instruction raised by the evidence.#2 Sure, there was more to the opinion, but the interplay between the majority and the dissenting opinion focused upon speculation about prosecutorial motives for not requesting a lesser, suggesting the court’s concern for unchecked prosecutorial zeal.3# Well, looking at the facts of Grey, you can see how this latest opinion bookends Haynes quite nicely.

The State charged Steven Grey with aggravated assault by causing bodily injury and using a deadly weapon, namely his hand. Grey had gone over to the victim’s house to discuss her relationship with Grey’s girlfriend. The discussion turned into a confrontation, and Grey choked the victim up against the doorframe of the house while punching her in the eye. The prosecution prepared the jury charge and included a lesser-included instruction on simple assault. The prosecutor said on the record that she had no objection to the charge, but the defense did object. The jury convicted the defendant of misdemeanor assault. Or more simply, the prosecutor in Grey wasn’t “going for broke.” Shocking, I know.

Unfortunately, the court of appeals could not find any evidence that would have allowed a rational juror to convict only on the lesser-included offense of misdemeanor assault. As you know, a trial court must give a lesser included offense instruction where the lesser offense is included within the proof necessary to establish the greater offense and there is some evidence that provides a valid rational alternative to the offense originally charged. Under the Court of Criminal Appeals case Arevalo v. State,4 this latter requirement, or second prong, applies to both the defense and the State. Here, the evidence showed that the way Grey had used his hand was capable of causing serious bodily injury or death even though he claimed he intended only to make the victim pass out. Because a defendant does not have to intend to use something as a deadly weapon, the court of appeals held that the State could not point to evidence showing that if Grey were guilty, he was guilty only of the lesser. Consequently, the trial court should not have instructed the jury on the lesser-included offense of misdemeanor assault, according to the court of appeals.

Overruling Arevalo v. State

Lisa McMinn, an attorney in the State Prosecuting Attorney’s Office, petitioned the Court of Criminal Appeals for discretionary review to see if the court would reconsider whether this second prong should apply to the State.#5 Presiding Judge Keller, writing for the five-judge majority, first considered the reasons for overruling precedent and ultimately focused on whether Arevalo produces inconsistent and unjust results and whether the reasoning of the Arevalo rule was flawed from the outset.

The majority noted that the remedy for an erroneously granted lesser-included instruction produces inconsistent and unjust results in every case. When a lesser-included offense is submitted in violation of Arevalo (because there’s no evidence to negate the greater offense) and the defendant is convicted of that offense, the case is remanded for new trial on the same offense that the defendant claims should never have been submitted. Of course, the alternative would be a retrial on the greater offense, but the jury’s acquittal of the defendant for that offense would make such a retrial constitutionally impossible.

The majority also considered the origins of the “guilty only” rule in Arevalo. While the court acknowledged that there may be constitutional underpinnings for when a lesser-included instruction is required, those requirements may not come into play when such an instruction is merely permitted. These constitutional requirements came from capital murder cases and were designed to prevent the inclusion of lesser-included instructions even where there was no evidence raising the lesser offense. The rationale behind such cases was that automatic inclusion of lesser-included instructions might invite jurors to convict of a lesser when the evidence warranted a conviction on the greater offense. However, the Supreme Court developed this rationale in response to a capital murder scheme where the imposition of the death penalty was mandatory and the only vehicle for juror discretion was the submission of lesser-included offense instructions. Thus, the Supreme Court’s concern with the automatic inclusion of an instruction on a lesser offense was that such instructions do not give the jury enough guidance and flexibility in making decisions in the context of a death penalty case. In situations where the death penalty is not mandatory and the jury is allowed to consider the full range of mitigating evidence, there’s no constitutional concern, according to the court, because the jury has sufficient guidance in making its decisions.

The court also rejected the idea that the “guilty only” requirement in Arevalo comes from Article 37.08 or 37.09 of the Texas Code of Criminal Procedure. Neither of those statutory provisions suggest an application of the “guilty only” requirement. While a lesser-included offense instruction may become the “law applicable to the case” under Article 36.14 of the Texas Code of Criminal Procedure when it is raised by the evidence, the court felt this begged the question of what it means for a lesser-included to be “raised by the evidence.” Thus, the court held that this “guilty only” requirement came from common law. According to the rationale for the rule in Arevalo, the second prong is necessary to preserve the integrity of the jury as a factfinder by ensuring that it was instructed on a lesser-included offense only when that offense constitutes a valid rational alternative to the charged offense. Moreover, Arevalo explained that this second prong should apply to the State’s request for a lesser-included offense so that it does not constitute an invitation to the jury to reach an irrational verdict.


Well, that’s kind of how the majority felt about the rationale behind Arevalo. According to the majority, there’s nothing irrational about the jury reaching a decision based upon a charged lesser-included offense. The State is responsible for deciding which cases should be prosecuted and can abandon elements without prior notice to drop the case down to a lesser-included offense. If the State can abandon the greater offense without notice, there’s no logical reason that it can’t ask the jury to consider both the greater and the lesser in the alternative.

Indeed, the court goes on to explain how applying the “guilty only” requirement to the State may place a prosecutor in a position where any decision he makes carries a high risk of error. If the prosecution requests a lesser-included, the State risks reversal under Arevalo. If the prosecution does not request a lesser-included, the State runs the risk of an outright acquittal by a jury or an acquittal for legal insufficiency on appeal. There can also be a legitimate dispute about the meaning of the language of the aggravating element that distinguishes the greater offense from the lesser. There’s also the possibility that an aggravating element can render a charged offense unconstitutional, as was the case with the previous version of the stalking statute.#6

All of this suggests that prosecutors should take the cautious approach and request the lesser-included offense instruction. It furthers society’s interest in convicting and punishing criminals by enhancing the prospects of securing an appropriate criminal conviction. It also lets the jury decide whether a lesser offense is more appropriate, even if the prosecutor thinks he might secure a conviction on the greater offense, when the choice is all or nothing.

Judge Hervey wrote a short concurring opinion joined by Judges Meyers and Keasler to reiterate that the trial court has no discretion to deny a request for a lesser-included instruction when both prongs of the lesser-included test are met. However, nothing precludes the trial court from submitting an instruction even when this test is not met. The only concern is that the first prong of the test is met so that the defendant has adequate notice because the elements of the lesser are included within the elements of the greater.

Judge Cochran also wrote a concurring opinion ostensibly to provide guidance on when a trial court must provide a lesser-included instruction and when it may provide one. According to Judge Cochran, a defendant is entitled to a lesser-included instruction only when he can point to some evidence that negates the greater offense. The State is entitled to such an instruction in similar circumstances. However, the trial court may still give a lesser-included instruction with or without request (even over a party’s objection) in the interest of justice and to uphold the integrity of the jury system. A defense attorney may seek to take an “all or nothing” approach by not requesting a lesser-included offense instruction, but he is not entitled to that gamble, and a trial court is not required to play this game. A trial court should give an instruction whenever a particular view of the evidence would support conviction of the lesser-included offense as a valid, rational alternative to the charged offense, and his discretion should be upheld particularly if he notes on the record his reasons for doing so.

So what happens next?

Well, my tea leaves are weak from overuse, but this opinion does bring a few things to mind. The entire majority opinion is couched in terms of releasing the State from its previous obligation to satisfy the “guilty only” rule to get a lesser-included instruction. Will this distinction hold up against defense requests for lesser-included offense instructions that don’t satisfy the second prong of the test? In other words, if the defendant wants a lesser-included and the State objects that he cannot point to evidence that suggests the defendant is guilty only of the lesser offense, can the State still argue the defendant is not entitled to the instruction? Sure. But if the trial court decides to give the instruction over the State’s objection, would that be error? By the plain language of the opinion it should be, but we may never get an appellate answer to that question.

This opinion was a five-judge majority opinion with Judge Johnson concurring without an opinion and Judges Price, Womack, and Holcomb dissenting without an opinion. Judges Hervey, Keasler, and Meyers wrote to simply note the distinction between when the trial court must give an instruction and when it may. This is consistent with Judge Meyers’ separate dissent in Arevalo where he wrote that this benefit “would inure to the benefit of either party.” Judge Cochran’s concurring opinion is also written expansively in favor of judicial discretion. Thus, several members of the court do not appear hostile to giving a trial court discretion to instruct on a lesser-included over a State’s objection even though the “guilty only” prong is not met.

However, it seems procedurally difficult to ever have this distinction tested in an appellate court. Nothing in any of these opinions suggests that the court is uncomfortable with a trial court denying a defendant’s request for a lesser-included where he can’t point to evidence to negate the greater offense. For the State to complain about the trial court exercising its discretion to include a lesser-included instruction, the State would also have to raise the matter on a cross-point of appeal, which appellate courts rarely consider. More importantly, many prosecutors already opt for the more cautious approach of including lesser-included offense instructions in close cases, so this distinction may never be assailed.

It is also worth mentioning that this opinion abrogates Hampton v. State.#7 There, the Court of Criminal Appeals held that the appropriate remedy for the erroneous inclusion of a lesser-included instruction where the defendant is acquitted of the greater offense and the “guilty only” prong of the test has not been met is retrial on the lesser. Obviously, this case is no longer good law as it appears it is no longer error for the trial court to simply instruct on a lesser-included offense whose elements are contained in the elements of the greater regardless of whether the “guilty only” prong has been met. However, nothing in Grey undermines the discussion in Hampton that double jeopardy bars retrial of a defendant on the greater offense after a jury has acquitted him of the greater and convicted on the lesser.


So again, we come back to the holding, the State no longer has to show there is evidence to negate a greater offense to get a lesser-included offense instruction. While the court crafted an opinion that relieves only the State of this requirement, several judges on the court seem amenable to affording the defendant the same benefit. However, the court still requires that the elements of a lesser-included offense be contained in the elements of the greater offense so as to provide the defendant with adequate notice. And the trial court has no discretion to deny a lesser-included when both prongs have been met.

But instructing the jury on a true lesser-included offense, even over objection, isn’t likely to make courts of appeals all a-twitter anymore.


1 Grey v. State, ___ S.W.3d ___; 2009 WL 3837313 (Tex. Crim. App. November 18, 2009)
2 Haynes v. State, 273 S.W.3d 183 (Tex. Crim. App. 2008).
3 I do not mean to suggest that the prosecution in Haynes did anything other than seek justice. I just note, as Judge Cochran did in her concurring opinon, that the court in Haynes seemed to analyze the issue as if the prosecution approached the decision to request a lesser-included instruction as if it were a game of chicken. Haynes, 273 S.W.3d at 197 (Cochran, J. concurring).
4 943 S.W.2d. 887 (Tex.Crim.App. 1997).
5 In fact, the ground for review was even tweet-worthy in its simplicity:  “Arevalo v. State should be overruled.”
6 Long v. State, 931 S.W.2d 285, 294 (Tex. Crim. App. 1996).
7 165 S.W.3d 691 (Tex. Crim. App. 2005).